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Full text of "Harrison's Analytical digest of all the reported cases determined in the House of lords, the several courts of common law, in banc and nisi prius, and the Court of bankruptcy: from Michaelmas term, 1856, to Easter term 1843; including also the crown cases reserved, and a full selection of equity decisions: with the manuscript cases cited in the best modern treaties not elsewhere reported: to which is added a Supplement continuing work to the year 1846"

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ADDENDA 

TO  TBS 

ANALYTICAL    DIGEST 

OF 

ALL.    THE    REPORTED    CASES 

DETERMINXD   IN 

THE  SEVERAL  COURTS  OF  COMMON  LAW, 

IN  BANC  AND  AT  NISI  PRIUS ; 

AND 
AND    ALSO 

THE  CROWN  CASES  RESERVED, 

FROM 

MICH.  TERM,  1834,  TO  EASTER  TERM,  1836. 

TOOZTHXR  WITH 

A  FULL  SELECTION  OF  EQUITY  CASES, 

AND 

THE  MANUSCRIPT  CASES  FROM  THE  BEST  MODERN  TREATISES  NOT 

ELSEWHERE  REPORTED. 

By  S.  B.  HARRISON,  Esq. 

OF  THX  XIDDLS  TXMPLX,  BARRISTXR  AT  LAW. 

First  Americaa  Edition. 

TO    WHICH   IS   ABBEI) 

THE  ANALYTICAL  DIGEST  OF  ALL  THE  REPORTS  OF  CASES  DECIDED  IN  THE 
COURTS  OF  COMMON  LAW  AND  EQUITY,  OF  APPEAL  AND  NISI  PRIUS,    . 
AND  IN  THE  ECCLESIASTICAL  COURT  FOR  THE  YEARS 

1837,  1838,  AND  1839. 


By  henry  JEREMY,  Esii. 

BARRISTXR  AT  LAW. 

CAREFULLY  ARRANGED  BY 
A  MEMBER  OF  THE  PHILADELPHIA  BAR. 


PHILADELPHIA : 

T.  &  J.   W.   JOHNSON,  LAW  BOOKSELLERS, 

SUCCESSORS  TO  NICKLIN  ^  JOHNSON, 

NO.  5,  MINOR  STREET. 

1842. 


LIBRARY  OF  THE 
LELAND  STANFORD  JR.  UNIVERSIVt, 


Wood  dt  Rvpp,  Printxrs,  Springpikld,  Mam. 


ADDENDA. 


The  figures  at  Ute  extremity  of  Ute  line,  refer  to  Uie  page  of  Uie  body  of  the  Work  where  the  Case* 

wovld  have  been  placed. 


ACCIDENT. 

To  trespass  for  unmooringr  plaintiff's  bar^, 
the  defendant,  haTing  pleaded  merely  the  general 
issae,  cannot  ^iye  in  evidence  that  he  removed 
it  from  a  situation  of  danger  by  the  plaintiff's  jiu- 
thoritj ;  or  that,  beiner  frozen  to  the  barge'of  a  third 
person,  which  the  defendant  was  authorized  to 
remove,  the  one  was  inevitably  linmoored  -with 
the  other,  and  that  they  w^re  'b1r6u^ht'to£rether 
to  a  place  of  safety.  Millman  r.  Dolwell,  2  Cajn 
378 — Ellenborough.  y^ 

In  trespass  for  ranninff  with  a  cart  against 
plaintiff's  chaise,  the  defendant  cannot  give  in 
evidence,  under  not  guilty,  that  the  cart  and  the 
chaise  were  travelling  on  thfe  high  road  in  op- 
posite directions,  and  that  the  collision  between 
them  happened  from  the  negligence  of  the  plain- 
tiff, or  from  inevitable  accident  Knapp  v.  Sals- 
baiy,  2X:amp.  500— Ellenborough.  1 

If  an  injury  be  occasioned  partly  by  the  neg- 
ligence of  the  plaintiff,  and  partly  by  that  of  the 
defendant,  the  plaintiff  cannot  maintain  any  ac- 
tion. Williams  V.  HoUand,  6  C.  &  P.  23;  3  M. 
db.  Scott,  540 ;  10  Bing.  1 12.  1 


ACCORD  AND  SATISFACTION. 

A  declaration  by  an  executrix  stated,  that,  after 
the  death  of  the  testator,  to  wit,  on  the  1st  of 
October,  1832,  the  defendant  was  indebted  to  the 
plaintiff,  as  executrix,  in  11/.,  for  goods  sold  and 
delivered  by  the  testator  in  his  life  time  to  the  de- 
fendant, and  in  consideration  thereof,  and  that 
plaintiff,  as  executrix,  had  agreed  with  the  de- 
fendant to  accept  a  suit  of  clothes,  to  be  made  by 
him  for  J.  R ,  the  plaintiffs  servant,  in  part  dis- 
charge of  the  debt,  (the  plaintiff  being  mdebted 
to  J.  R.  in  a  greater  amount  for  wages,  and  J.  ll. 
having  agreed  and  being  willing  to  receive  the 
clothes  in  part  payment),  and  had  also  agreed  to 
ferbear  and  give  the  defendant  a  reasonable  time 
for  the  payment  of  the  remainder  of  the  debt, 
the  defendant  undertook  and  promised  the  plain- 
tiff^ as  executrix,  to  make  and  provide  the  said 
rait  of  clothes  for  J.  R.  within  a  reasonable  time. 

Vol.  IV.  1 


and  to  pay  her  the  remainder  of  the  debt  after  a 
reasonable  time  for  such  forbearance.  The  de- 
claration then  averred,  that,  though  a  reasonable 
time  had  elapsed,  &c.,  the  defendant  had  not 
made  or  provided  the  clothes,  or  paid  the  residue 
of  ib^  debt.  ^lea,  that  the  debt  m  consideration 
of  wHich  the  said  promise  was  made,  did  not,  nor 
did  any  part  thereof,  agcrue  to  the  testator  within 
six  year's  next^  befose  the  conmencenent  o£  the 
suit,  and  Uiat  such  promise  was  by  words  only. 
Ot .  sDecial  demurrer : — Held,  that  the  agreement 
in  Ine'declaration  was  only  an  agreement 
for  an  accord,  and  did  not  extinguish  the  original 
debt,  which,  therefore,  was  barred  by  tlie  statute 
of  limitations.  Reeves  t\  Ueame,  1  Mees.  &> 
Wels.  323.  1 

The  lapse  of  twenty  years  from  the  time  of 
making  a  contract  to  be  performed  in  future,  is 
not  of  itself  evidence  of  a  new  contract  averred 
to  have  been  performed,  and  pleaded  as  an  accord 
and  satisfaction  of  the  original  contract  Sibooi 
V.  Kirkman,  1  Mees.  &  Wels.  418.  1 

In  an  action  of  assumpsit,  where  the  defendant 
pleaded  accord  and  satisfaction,  and  the  plaintiff 
replied,  that  the  defendant  did  not  pay  the  sum  in 
satisfaction,  nor  did  the  plaintiff  receive  the  said 
sum  in  satisfaction  : — Held,  upon  demurrer,  that 
the  replication  was  not  bad  for  multifariousness. 
Webb  V.  Weatherby,  1  Hodges,  39;  1  Scott, 
477.  3 

Where,  in  an  action  of  debt,  an  agreement  to 
acce]>t  5/.  in  full  discharge  of  the  debt  was  given 
in  evidence  upon  the  plea  of  never  indebted,  the 
plaintiff  being  allowed  to  take  a  verdict  for  nomi- 
nal damaiies,  a  new  trial  was  refused.  Wright  v. 
Skinner,  4  Dowl.  P.  C.  741.  2 

A  plea  to  an  action  on  a  bill  of  exchange  for 
431.  by  an  indorsee  against  the  acceptor,  that, 
afler  the  bill  became  due,  the  drawer  gtve  the 
plaintiff  his  promissory  note  for  442.  in  rail  satis- 
faction, and  that  the  plaintiff  accepted  it  in  satis- 
faction, is  a  good  answer  to  the  action  ;  and  a  re- 
plication that  the  note  was  not  paid  when  due,  is 
bad  on  demurrer.  Sard  v.  Rhoaes,  4  Dowl.  P.  C 
743  3  1  Mees.  &  Wels.  153.  2 


3276 


[ACTION] 


ACTION. 

By  and  against  wham.] — A  foreign  aovereign 
prinoe  may  sue  in  the  court  of  Chancery  here  m 
nis  political  capacity;    Spain  (King)  v.  HuUett, 

1  CUrk  &  Fin.  333 ;  1  Dow  &  Clark,  169.        4 

But  where  he  if  defendant^  he  ttands  on  the 
iame  footing  with  ordinary  suitors  as  to  the  ruleft 
and  practice  of  the  court ;  and  is  bound,  like 
them,  to  answer  personally  and  upon  oath.  Id. 

He  has  no  privilege  of  putting  in  an  answer 
by  his  a^rent,  or  personally  without  oath  or  sig- 
nature. Id. 

Even  to  a  cross  bill,  filed  apiinst  him  by  the 
defendant  to  his  original  bill.  Id. 

Notwithstanding  the  provisions  of  the  foreign 
enlistment  act,  59  Geo.  3,  c.  69,  a  British  sub-  ( 
ject,  who,  in  the  service  of  a  foreign  state  ot 
peace  with  Great  Britain,  captures  a  i^ritish  ves- 
sel which  is  lawfully  condemned  as  prize  for 
breaking  blockade,  is  not  liable  to  an  action  at 
the  suit  of  the  owner  of  the  vessel.  Dobree  v. 
Napier,  2  Bing.  N.  B.  781.  4 

On  Judgments.'] — A  certificate  for  exe<;Ution 
during  vacation,  under  1  Will.  4,  c.  7,  s.  2,  need 
not  TO  noticed  in  a  declaration  on  a  judgment 
signed  in  vacation.  £ngleheart  v.  Eyre,  2  Nev.  & 
Af.  849 ;  5  B.  &  Adol.%;  2  Oowl.  P.  C.  193.    6 

In  a  declaration  npoli  such  a  judgment,  the 
judgment  should  be  staled  to  be  of  the  day  on 
which  it  was  actually  obtained,  and  not  alleged 
to  be  of  the  preceding  term.  Id. 

Where  a  judgment  is  obtained  in  vacation,  the 
distringas  being  of  the  first  day  of  the  following 
term,  ue  recora  should  be  so  framed  as  to  show 
that  the  verdict  preceded  the  judgment.  Id. 

But  where  on  nul  tiel  record  pleaded  to  debt 
on  lecognizance  of  bail,  the  poetea  shown  to  the 
court  proved  to  be  erroneous  in  this  respect,  leave 
was  given  to  amend  it,  the  defendants  also  having 
leave  to  plead  de  novo.  Id. 

Semble,  that  the  court  would  have  allowed  the 
error  in  the  declaration  to  be  amended  without 
permitting  the  defendants  to  plead  again.  Id. 

It  is  no  answer  to  an  action  of  debt  on  a  judg- 
ment, that  the  defendant  had  been  taken  under  a 
writ  of  ca.  sa.  issued  on  the  judgement,  and  de- 
tained in  custody  twenty  days,  if  it  appears  that 
the  defendant  wss  by  a  judge's  order  let  out  of 
custody  on  certain  terms.  BirComish  or  M'Cor- 
mick  V.  Melton,  3  Dowl.  P.  C.  215 ;  1  C.  M.  & 
R.  525 ;  5  Tyr.  147.  6 

IVhat  dsstroys  a  Right  of  ./fctum.]— Whatever 
constitutes  an  answer  to  the  demand  for  which 
an  action  is  brought,  as  against  the  plaintiff  on 
the  record,  is  a  bar  to  the  action,  although 
brought  for  the  benefit  of  others  who  have  no 
mode  of  enforcing  their  claim  except  by  suing 
in  the  name  of  the  plaintiff.    Gibson  v.  Winter, 

2  Nev.  &  M.  737.  7 

Where  a  plaintiff  has  been  nonpro^d  in  re- 
plevin, and  ne  afterwards  brings  trespass  for  the 
same  cause,  the  court  will  set  aside  the  proceed- 


ings in  the  second  action  on  motion.    Liversidge 
v.  Goode,  2  Dowl.  P.  C.  141.  7 

A  written  agreement  to  secure  the  amount  of 
a  simple  contract  debt,  by  a  mortgage  on  certain 
lands,  which  was  to  be  paid  with  interest  by  cer- 
tain instalments,  is  no  extinguishment  or  sus- 
pension of  the  right  of  action  on  the  simple  con- 
tract. Allies  9.  Probyn,  2  C.  M.  &'K.  408;  4 
Dowl.  P.  C.  153;  1  Gale,  255.  7 

Assumpsit  for  goods  sold,  &c. — ^Plea,  as  to 
92.  lbs.  9^.,  that,  after  the  making  of  Uie  pro- 
mise, and  before  the  commencement  of  the  suit, 
the  defendant,  at  the  plaintiff's  request,  drew,  upon 
a  piece  of  paper  having  a  bill  stamp  upon  it  of 
Is.  6d.<,  an  instrument,  purporting  to  be  a  bill  of 
exchange,  without  a  drawer's  name  thereto, 
whereby  the  defendant  was  required  to  pay  to 
such  peiton,  or  his  order,  who  should  place  his 
name  thereto  as  drawer,  30^,  two  months  after 
date,  as  for  value  received ;  which  instrument  the 
plaintiff  requested  the  defendant,  to  accept  towards 
payment  and  satisfafition  of  the  said  sum  of 
91.  159.  9|<{.,  and  for  the  plaintiff's  accommoda- 
tion as  to  the  rest ;  and  which  the  defendant  ac- 
cepted accordingly,  and  delivered  to  the  plaintiff, 
9jx6  thereby  became  liable  to  the  plaintiff,  or  to 
such  person  who  should  place  his  name  thereto 
as  drawer,  or  his  order,  the  sum  of  292.,  viz. 
towards  payment  of  Ihe  sum  of  92.  15s.  9id.y 
and  for  the  plaintiS^s  accommodation  as  to  the 
rest ;  and  that  the  plaintiff  accepted  and  received 
tUe  bill  in  satisfaction  of  the  sum  of  9^.  15s.  9\d.f 
and  which  bill  was  not  due  at  the  commencement 
of  the  suit.  Non  assumpsit  to  the  residue. — Re- 
plication, that  the  bill  remained  nnnegotiated  in 
the  hands  of  the  plaintiff,  without  any  drawer's 
name  to  it,  and  unpaid : — Held,  on  demurrer, 
that  under  the  circumstances  alleged  in  the  plea, 
the  plaintiff's  right  to  sue  for  the  original  debt 
was  suspended  until  the  expiration  of  the  two 
months,  and  of  the  period  of  the  instrument's 
becoming  due  and  bemg  dishonored.  Simon  v. 
Lloyd,  Stf  C.  M.  &  R.  187.  7 

Former  Recovery. ]-^The  rule  of  Hil.  T.  4  Will. 
4,  which  requires  the  party  who  pleads  a  plea  of 
judgment  recovered,  to  set  out  its  date,  Ac.  in 
the  margin  of  the  plea,  does  not  apply  to  a  plea 
of  X judgment  recovered  against  an  executor. 
Power  V.  Izod,  1  Bing.  N.  R.  304 ;  1  Scott,  119.    9 

Another  Suit  dnending.] — If  a  defendant  non- 
prosses  a  plaintiff  in  a  particular  action,  he  can- 
not afterwards  pleaded  its  pendency  in  answer  to 
an  action  for  the  same  cause  in  another  court. 
Pepper  r.  Whalley,  3  Dowl.  P.  C.  579.  10 

Abtiee  of  Action.] — A  magistrate  is  not  enti- 
tled to  notice  of  action  under  24  Geo.  2,  c.  44, 
s.  1,  for  a  trespas  committed  by  him,  where, 
from  the  circumstances*  the  yay  think  he  was 
nol  acting  bona  fide  under  an  impression  that 
what  he  aid  was  within  the  scope  of  his  duty  as 
a  magistrate.  James  v,  Saunders,  4  M.  <&  «$ott, 
316;  10  Bing.  429.  10 

A  disturbance  look  place  in  C.  upon  the  libe- 
ration of  a  prisoner.    Defendant,  a  magistrate, 


[ACTION] 


2277 


seized  pUintiff  because  he  was  going  towards  the 
prison.  Plaintiff  w<is  not  concerned  in  the  dis- 
turbanoe,  which  was  goin^  on  out  of  sight  of 
the  place  where  he  was  seized  b^  defendant  :— 
Held,  that  defendudt  was  not  entitled  to  notice 
of  an  action  of  tiespass  brought  against  him  by 
plaintiff  f<nr  the  assault.    Id. 

N<ytiee  of  action  to  oflSeer  of  Southwark  Court 
of  Requests.  Cook  v.  Clark,  3  M.  dt  Scott,  371 ; 
10  Bing.  19 ;  2  Dowl.  P.  C.  T3U,  12 


act.  Notice  is  not  neeessaiy  in  an  action  for  work 
and  labor.  The  direction  only  applies  to  actions 
of  tort  Fletcher  v.  Greenwood,  4  Dowl.  P.  C. 
166;  1  Gale,  34.  12 

If  a  person  who  has  ill-treated  a  horse  be  ap- 
prehended by  one  who  is  neither  the  owner  of 
the  horse  nor  a  peace  officer,  the  person  so  appre- 
hending is  not  entitled  to  notice  of  action  under 
the  19th  sect,  of  the  stat.  5  &  6  Will.  4,  c.  59. 
Hopkins  v.  Cruwe,  7  C.  &.  P.  373 — Denman.    12 


I     In  a  notice  of  action  against  a  magistrate,  an 
indorsement  bv  an  attorney  of  the  place  of  bis 
a  tmnniTiiMr  um  town  ot  i...  eeriAin  commia.    Office  10  an  mdonwment  of  his  "  place  of  abode** 

within  the  meaning  of  the  stat.  Sti  Geo.  2,  c.  44. 


and  improTing  the  town  of  L.,  certain  commis 
aionen  were  appointed,  and,  by  s.  11,  were  au- 
thorized to  appomt,  by  writing,  a  treasurer  and 
clerk,  and  also  all  such  surveyors,  scavengers, 
imken,  &c.  ftc,  beadles,  constables,  watchmen, 
and  other  officers,  deputies,  or  assistants,  for  the 
execution   of  the  purposes  of  the  act,  as  they 
should  from  time  to  time  think  proper.    By  s. 
77,  the  commissioners  were  also  empowerea  to 
appoint  such  a  number  of  able-bodied  men  as 
they  should  think  proper,  to  be  employed  as 
watchmen  during  the  ni^ht  time ;  and  it  waa  en- 
acted, that  it  should  be  lawful  for  such  watch- 
men, and  the^  were  thereby  required  in  their  re- 
spective stations,  to  apprehend  aod  secure  all 
malefactors,  ike.  &c.,  and  all  suspected  persons 
who  should  be  found  wandering  or  misbehaving 
themselves  during  the  hours  of  keeping  watch. 
Bj  s.  78,  the  watchmen  were  to  be  sworn  in  as 
ccmstables,  and  were  to  be  invested  with  the  like 
powers  and  authorities,  dec.  dec,  as  any  constft* 
Ues  were  invested  with  or  enjoyed  by  law.    By 
9  163,  it  was  enacted,  that  no  action,  suit,  or  in- 
ibrmaUon  should  be  commenced  against  any  per- 
son or  persons  for  any  thing  done  or  to  be  done 
under  or  by  virtue  of  that  act,  until  one  calendar 
month's  notice  thereof  should  have  been  first 
given  in  writing  to  the  clerk  of  the  commissioners 
of  the  cause  of  action,  nor  at  any  time  whatsoever 
ailer  sufficient  satisfaction  or  tender  of  amends 
should  have  been  made  to  the  party  aggrieved. 
The  act  contained  the  usual  power  of  pleading 
the  general  issue,  and  giving  the  special  matter 
in  evidence,  and  the  act  was  to  be  deemed  a 
public  act : — Held,  first,  that  the  section  requir- 
ing notice  to  be  given  was  not  confined  to  acts 
d<me,  or  directed  to  be  done,  by  the  commis- , 
sioners,  but  applied  to  acts  done  by  constables 
and  watchmen ;  secondly,  that  evidence  of  the 
defendants  acting  as  constables  and  watchmen 
under  the  commissioners  in  the  town,  was  prima 
&cie  sufficient  to  entitle  them  to  the  protection 
of  the  above  section,  without  proof  of^  their  ap- 
pointment ',  and,  thirdly,  that  where  the  watcn- 
men  had  reasonable  ground  of  suspicion,  that 
felony  had  been  committed  by  the  plaintiff,  and 
wrat  to  the  plaintiff's  house  to  apprehend  him 
lor  tiich  felony,  but  beat  him,  and  used  much 
BMte  violence  than  was  necessary  for  effiscting 
his  apprehension,  they  were  protected  by  the 
section  requiring  notice.    Butler  v.  Ford,  1  C.  & 
11.662;  3  Tyr.  677.  12 

A  local  act  directed  that  the  guardians,  &c.  of 
a  parish  should  be  sued  in  the  name  of  their 
VMtry  clerk,  and  recjuired  notice  to  be  given  of 
any  action  for  any  thing  done  in  pursuance  of  the 


Roberts  V.  Williams,  4  Dowl.  P.  C.483;  5Tyr. 
583;  1  Gale,  315. 

Semble,  also,  that  the  place  of  actual  residence 
would  be  sufficient.    Id.  13 


Parties.'] — ^Where  it  appears  upon  an  instru- 
ment that  a  promise  by  two  contractors  is  in- 
tended to  be  joint,  it  may  be  treated  as  such  al- 
though the  promise  be  in  terms  several  only. 
Lee  V.  Nixon,  3  Nev.  Ol  M.  441 ;  1  Adol.  ^k  Ellis, 
201.  13 

Where  A.,  as  farmer  and  renter  of  certain 
tolls,  and  B.  as  his  surety,  severally  promise,  un- 
dertake  and  agree  to  and  with  the  lessors,  that 
A.,  his  executors,  d^.,  shall  pay  a  certain  yearly 
rent ;  A.  and  B.  cannot  be  sued  jointly  upon  de- 
fault by  A.  to  pay  the  rent    Id. 

In  an  action  for  work  and  labor  brought  against 
A.,  B.J  and  C.  jointly,  A.  suffered  judgment  to  go 
by  default,  and  B.  and  C.  pleaded  non  assumpse- 
runt : — Held,  that  on  this  plea  it  was  competent 
to  B.  and  C.  to  avail  themselves  of  the  defence 
that  too  many  defendants  had  been  joined  in  the 
action  and  that  if  they  succeeded  on  that  plea 
the  plaintiff  must  fail  as  to  all  the  defendants, 
notwithstanding  that  A.  had  admitted  the  joint 
contract  on  the  record.  Eliot  v.  Morgan,  7  C.  dt 
P.334~Coleridge.  14 

Form  of  JlcUon.'] — Assumpsit  fi>r  money  lent. 
Pleas,non  assumpsit  and  a  bottomry  feond  accepted 
in  satisfaction  or  the  debt.  Both  issues  having 
been  found  for  the  plaintiff,  the  court  refused  a 
new  trial  which  was  asked  for,  on  the  ground  that 
a  bond  having  been  given,  the  implied  promise  to 
pay  did  not  arise.  Weston  v.  Foster,  2  Bing.  N. 
R.  693.  ,11 

Election  of  trespass  or  case  for  an  injurv  occa- 
sioned by  carelessness.  Williams  v.  Holland,  3 
M.  &  Scott,  540;  6  C.  A;  P.  23;  10  Bing.  112. 

17 

Election  of  case  or  trespass  for  ezoeseive  dis- 
tress. Holland  v.  Bird,  3  M.  At  Soott,  363 ;  10 
Bing.  15.  18 

An  action  for  unreasonable  and  excessive  dis- 
tress for  poor-rates,  alleged  and  pretended  to  be 
due,  is  properly  laid  in  case.  Sturch  v.  Clarke, 
1  Nev.  ik.  M.  671.  18 

In  such  an  action  malice  need  not  be  proved. 
Id. 


2278 


[ACTION] 


Case  will  lid  against  a  landlord  who,  baring 
distrained  goods  sufficient  to  pay  his  rent,  aban- 
dons the  distress,  and  afterwards  makes  a  second 
distress  for  the  same  rent.  Smith  v.  Goodwin, 
2  Nev.  dt  M.  114  ;  4  B.  i&  Adol.413.  18 

Semble,  that  trespass  would  also  lie.    Id. 

A  declaration  (in  a  plea  of  trespass  on  the 
case)  stated,  that  the  ciefendant,  intending  to 
injure  the  plaintifi  in  his  good  name,  and  to 
cause  his  dwelling-house  to  be  searched  for  stolen 
goods,  and  to  procure  hhn  to  be  imprisoned, 
went  before  a  magistrate,  and  falsely,  malici- 
ously, and  without  probable  cause,  charged  that 
certain  specified  gooas  of  the  defendant  had  been 
feloniously  stolen,  and  that  he  suspected  that 
the  said  goods  were  concealed  in  the  plaintiff's 
dwelling-house ;  and  upon  such  charge,  the  de- 
fendant procured  the  magistrate  to  grant  a  war- 
rant auUiorizing  a  constable,  with  necessary  as- 
sistance, to  enter  the  plaintiff's  house  to  search 
for  the  said  goods ;  and  the  defendant,  with  other 
persons,  caused  and  procured  the  dwelling-house 
of  the  plaintiff  to  be  searched  and  rumsffed  for 
the  said  goods  by  such  persons,  and  tlic  door  of 
such  house  and  a  pantiy  there  to  be  broken  to 
pieces,  and  the  plaintiff  and  his  family  to  be  dis- 
turbed in  the  possession,  and  his  goods  to  be 
carried  away.  The  general  conclusion  was,  that, 
by  means  of  the  premises,  the  plaintiff  was  in- 
jured in  bis  good  name  and  trade,  put  to  expense, 
and  hinderea  in  his  business.  A  count  in  trover 
was  added:— Held,  on  general  demurrer,  by 
Taunton  and  Patteson,  Sj^  ^Littledale,  J.,  dis- 
■entiente),  that  the  acts  m  yiolence  alleged  to 
have  been  committed  in  the  house  appeared 
sufficiently  by  the  declaration  to  have  been  acts 
done  in  pursuance  of  the  warrant,  and  in  con- 
sequence of  the  charge  made  by  the  defendant, 
and  that  they  were  stated  as  mere  matter  of  ag- 
gravation; and,  consequently,  that  the  whole 
count  containing  this  statement  was  in  case. 
Hensworth  v.  Fowkes,  4  B.  &.  Adol.  449.  18 

Defendant  having  charged  the  plaintiff  with 
felony,  the  plaintifTwas  taken  up  for  it  under  a 
justice's  warrant.  At  the  hearing  before  the 
justice,  the  plaintiff  was  discharged  on  his  pro- 
mise to  appear  again  in  a  week,  upon  which  the 
defendant  said  he  had  another  charge  of  forgery 
against  him.  The  plaintiff  was  stopped  b^  an 
officer,  and  again  put  to  the  bar,  but  dismissed 
on  a  similar  promise  : — Meld,  that  the  plaintiff's 
remedy  against  the  defendant  was  in  case,  and 
not  in  trespass.  Barber  v,  Rollinson,  1  C.  &  M. 
330;  3Tyr.267.  18 

If  A.,  having  no  right  to  apprehend  B.,  direct 
a  police  officer  to  take  B.,  and  lie  do  so,  B.  may 
maintain  an  action  for  false  imprisonment  against 
A. ;  but  if  A.  merely  make  a  statement  to  the 
officer,  leaving  it  to  him  to  act  or  not  as  he  thinks 
proper,  and  the  officer  then  take  A.,  B.'s  remedy 
against  A.  is  (if  any)  by  action  on  tlie  case. 
Hopkins  v,  Crowe,  7  C.  &  P.  373— Denman.    18 

A.,  being  in  Uie  custody  of  the  marshal  of  the 
King's  Bench  prison,  was  brought  up  to  that 
court  upon  an  order  of  court,  and  charged  with  an 
attachment  for  contempt ;  upon  wlicih  attachment 
be  was  afterwards  ({etained   in  custody  : — Held, 


that  trespass  was  maintainable  against  the  party 
who  caused  the  order  to  be  served  on  the  marshal ; 
diss.  Lord  Abinger,  C.  B.  Bryant  &.  Glutton,  1 
Mees.  &  Welshes.  *  18 

If  the  light  of  the  plaintiff's  windows  is  ob- 
structed by  the  defendant  building  on  a  puty 
wall,  half  of  which  belongs  to  the  plaintin  and 
half  to  the  defendant,  the  plaintiff  may  maintain 
either  trespass  or  case.  Wells  v.  Ody,  7  C.  &>  P. 
410— Parke.  19 

A.,  before  he  entered  the  police  force,  sent 
a  certificate  of  his  good  character,  signed  by  the 
colonel  of  the  8tii  Hussars,  to  the  commissioners 
of  police.  On  his  dismissal  from  that  force,  the 
certificate  was  returned  to  the  plaintiff,  inclosed 
in  a  letter  signed  by  the  defendant,  the  certificate 
being  staibped  with  the  words  ^<  dismissed  the 
police  service  :" — Held,  that  for  stamping  these 
words  trespass  was  not  the  proper  form  of  action ; 
and  also  that  this  was  not  evidence  to  go  to  the 
jury  that  it  was  done  by  the  defendant  or  by  his 
order.    Taylor  r.  Rowan,  7  C.  &  P.  70 — Abmger 

19 

Abatement  by  Death.] — At  the  Nisi  Frius  sit^ 
tings  in  the  term,  the  practice  is  to  make  up  tlie 
postea  as  of  the  day  on  which  the  cause  is  tried. 
The  deatJi  of  Uie  defendant  after  the  first  Nisi 
Prius  day  in  the  term,  but  before  the  day  as  of 
which  the  postea  appears  upon  the  record  to  be 
made  up,  abates  the  suit.  Hallidav  v.  Saunder- 
son,  1  Alcock  &  Napier,  147,  (Irish).  19 

Quaere  whether  in  such  a  case,  where  the 
plaintiff  had  been  in  all  respects  ready  for  trial 
on  the  first  Nisi  Prius  day,  and  a  postponement 
is  occasioned  by  the  direction  of  tne  court,  the 
postea  might  not  be  made  up  as  of  that  first  day  ? 

Where  a  consent  is  entered  into  and  made  a 
rule  of  court  for  a  postponement  of  a  trial  upon 
payment  of  costs,  tlie  subsequent  death  of  the 
party  to  whom  the  costs  are  payable  does  not 
abate  the  proceedings,  so  as  to  deprive  his  per- 
sonal representative  of  the  usual  remedies  by  ac- 
tion or  attachment  for  enforcing  tlie  payment  of 
tiie  costs.  Brownrigg  v.  Hamilton,  1  Alcock  & 
Napier,  170,  (Irish.)  19 

There  must^first  be  an  order  for  the  payment 
of  the  costs,  and  a  regular  demand  made  on  be- 
half of  the  pesonal  representative,  before  an  at- 
tachment can  bo  issued.    Id. 

Where  a  defendant  died  in  the  course  of  the 
sittings  in  term,  the  court  refused  to  allow  the 
cause  to  be  tried  on  the  last  day  of  term  to  which 
the  sittings  hnd  been  adjourned  ;  nor  would  they 
interfere,  by  appointing  for  the  trial  another 
day  out  of  term,  and  entering  the  verdict  as  of 
the  sittings  in  the  term.  Johnson  v.  Budge,  1  C. 
M.  i&R.  647;  5  Tyr.  197;  3  Dowl.  P.  C.  207. 

19 

The  court  will  not  stay  the  postea  in  the  hands 
of  the  associate,  afler  verdict  for  the  plaintiff,  on 
showing  a  strong  probability  that  the  plaintiff 
was  dead  before  the  trial ;  such  fiicts  must  be 
shown  05  would  be  evidence  of  the  death  before 


[ACTION— AFFIDAVIT] 


2279 


a  jnry.    Johnson  v.  Hamiltoo,  1  Mees.  &  Wels. 
149;  4  Dowl.  P.  C.  7()2;  1  Tyr.  &  G.  45.        19 

Where  it  waa  to  be  inferred  from  circumstances 
that  a  ship  in  which  tne  plaintiiT  had  embarked 
was  lost  at  aea  before  the  assizes  at  which  a  ver- 
dict was  recovered  in  his  name,  though  it  did  not 
appear  positively  that  tlie  plaintiff  had  perished  : 
the  court  granted  a  rule  for  continuing  the  postea 
in  the  hands  of  the  associate,  with  stay  of  execu- 
tion.   Id. 

Abatement  by  Marriage.'] — If  the  plaintiff  in 
replevin  takes  husband  afler  nlaint,  and  before 
the  removal  of  it  by  re.  fa.  lo.,  tne  defendant  may 
plead  the  fact  in  abatement,  ttiough  he  himself 
sued  out  the  re.  fa.  lo.  tiollis  v.  Freer,  2  Bing. 
N.  R.  719. 


AFFIDAVIT. 

C«wr«ffy.]— By  the  5  &  6  Will.  4,  c.  62,  s.  13, 
justices  ana  other  persons  are  prohibited  from  re- 
ceiving any  affidavit  touching  any  matter  or  thing 
whereof  such  justice  orother  person  has  not  juris- 
diction or  cognizance  by  some  statute  :  provided 
that  it  is  not  to  extend  to  affidavits  whicn  may  be 
required  by  the  laws  of  any  foreign  country  to  give 
validity  to  instruments  in  writing  designed  to  be 
used  in  such  foreign  countries. 

Appearing  to  oppose  a  rule  does  not  waive  an 
objection  to  the  form  of  an  affidavit  upon  which 
the  rule  was  obtained,  such  as  the  omission  of 
the  Christian  name  of  one  of  the  parties  in  the 
title  of  the  canse.  Clothier  v.  Ess,  4  M.  &.  Scott, 
216 ;  2  Dowl.  P.  C  731  :  S.  P.  Barham  «.  Lee,  2 
Dowl.  P.  C.  779 ;  4  M.  &  Scott,  327.  2 

flov  imiituM.'l — In  intituling  an  affidavit,  the 
parties  should  be  described  as  ** plaintiff"  and 
"defendant."  Harris  v.  Griffiths,  4  Dowl.  P.  C. 
289;  IHar.  &  WoI1.5I5.  22 

The  Christian  names  of  the  parties  in  a  cause 
most  be  written  at  length.  Masters  v.  Carter,  4 
Dowl.  P.  C.  577.  22 

In  intituling  an  affidavit  of  service  of  a  rule 
to  compute,  tl^  Christian  name  of  the  plaintiff  as 
Well  as  of  the  defendant  must  be  introduced. 
Anderson  e.  Baker,  3  Dowl.  P.  C.  107.  22 

Affidavits  most  be  intituled  *'A.  v  B ,"  and 
not  •<  B.  at  suit  of  A."  Richards  v.  Isaac,  2  Dowl. 
P.C.710;  1  C.M.4&R.136;  4  Tyr.  ti63.       22 

An  affidavit  intituled  ''  G.  S.  v.  W.  C.  the  el- 
der," sued  as  «« W.  C,"  the  cause  being  "  G.  S. 
V.  W.  C,"  was  rejected,  as  being  badly  mtituled. 
Shrimpton  v.  Carter,  3  Dowl.  P.  C.  648.  22 

**"  Phillips,  a«ignee,  &c.,"  is  an  irregrular  mode 
of  describing  a  plaintiff.  Phillips  v.  Hutchinson, 
3  Dowl.  P.  C.  20 ;  S.  P.  Casley  v.  Smith,  4  Dowl. 
P.  C.  477.  22 

The  court  declined  to  act  upon  an  affidavit 
which  was  intitaled  '*  A.  v.  B.,  executor,  &c., 
without  specifying  the  party  to  whom  the  defen- 
dant was  executor.  Clarke  v.  Martin,  3  Dowl. 
P.  C.  222.  22 


The  addition  of  "  widow"  to  the  name  of  a 
party  in  the  title  of  a  cause  is  not  necessary. 
Miller,  dem.,  r.  Miller,  ten.,  Scott,  117.  22 

The  court  cannot  entertain  an  objection  patent 
on  a  proceeding  attached  to  the  affidavit  bringing 
that  objection  before  the  court,  if  from  wrong^ 
intituling  the  affidavit  cannot  be  read.  Harris  v. 
Mathews,  4  Dowl  P.  C.  608.  25? 

Where  a  rule  is  obtained  in  two  causes,  the 
affidavits  must  be  intituled  in  both  of  tliem, 
though  the  plaintiff  and  defendant  be  the  same  in 
botli.     Corry  r.  Wharton,  2  Scott,  436.  22 

Where  a  defendant,  being  in  custody  under 
civil  process  out  of  an  inferior  court,  is  brought 
up  by  habeas  corpus,  and  committed  to  the  cub- 
tody  of  the  marshal,  affidavits  filed  in  the  Court 
of  king's  Bench  to  ground  an  application  to  be 
discharged  out  of  custody,  may  be  intituled  in  the 
cause.  Ferrin  ».  West,  5  Nev.  &,  M.  2dl ;  1  Har. 
<&  WoU.  401 ;  3  Adol.  Ck,  Ellis,  405.  22 

If  thrrc  is  a  defect  in  intituling  affidavits  pro- 
duced on  showing  cause  against  a  rule,  the  court 
will  allow  the  rule  to  be  enlarged,  in  order  that 
the  title  may  be  amended.  Anderson  v,  £11,  3 
Dowl.  P.  C  73.  2sJ 

If  upon  an  objection  bein  v  taken  to  an  affida- 
vit, that  it  is  not  intituled  m  any  cause,  and  the 
party  does  intitule  it,  that  is  not  such  an  altera- 
tion as  would  make  a  new  stamp  necessary. 
Prince  v.  Nicholson,  1  Marsh.  70;  5  Taunt.  333. 


Certainty!] — An  affidavit  with  the  word  "  said" 
instead  of  **  saith"  is  insufficient.  Howorth  v* 
Hubbersty,  3  Dowl.  P.  C.  455 ;  5 Tyr.  301 ;  S.  P. 
Harwood  v. ,  1  Gale,  47.  23- 

An  affidavit  in  which  the  word  ^'oath"  waa 
omitted  was  held  insufficient  Oliver  v.  Price,  3 
Dowl.  P.  C.  2dl.  23 

An  affidavit  of  service  must  swear  to  the  ser- 
vice of  the  •*  rule  annexed,"  and  not  merely  of 
the  "  rule  in  this  cause."     Fidlett  v.  Bolton,  4 
Dowl.  P.  C.  2cJ2.  23 


DeponenCs  Kame  and  Addkum.'] — An  affidavit 
made  by  a  defendant  in  a  cause  cannot  be  read» 
unless  his  addition  is  inserted.  LAWson  v.  Case, 
2  Dowl.  P.  C.  40 :  3  Tyr.  480 ;  1  C.  &  M.  481 . 

23 

Afterwards  held,  that  where  a  defendant  makes 
an  affidavit  in  a  cause,  his  addition  need  not  be 
given.  Jackson  v.  Chard,  2  Dowl.  P.  C.  469.    23 

A   deponent  complies  sufficiently  with  Reg. 
Gen.  H.  T.  2  Will.  4,  s.  5,  by  describing  himself 
as  **  late  clerk  to,"  i&c.    Simpson  v,  Drommond, 
2  Dowl.  P.  C.  4r3.  8a 

The  residence  of  an  attorney's  clerk  need  not 
be  given  in  an  affidavit  made  by  him  jointly  with 
his  master,  in  which  the  residence  of  the  latter  ia 
stated.  Bottomlcy  v.  Bellchambcr,  4  Dowl.  P.  C. 
26 ;  1  Har.  &  WoU.  362.  23 

«' Of  Kennington,  in  the  county  of  Surrey,"  ia 


2280 


[AFFIDAVIT] 


not  an  insufficient  description.    Wilton  v.  Cham- 
bers, 1  Har.  &  Woll.  116.  23 

In  an  affidavit  used  in  showing  cause  Against 
a  rule,  the  deponent  was  describe  as  of  ^^  Law- 
rence  Poutney,  in  the  city  of  London,"  without 
stating  whetlier  of  parish,  place,  or  lane : — Held 
sufficient.  Miller,  dem.,  v.  Miller,  ten.,  2  Scott, 
li7.  23 


Dowl.  P.   0.324;  2  Scott,  407;  2  Bing.  N.  R. 
246;  1  Hodges,  298.  23 

it  is  a  sufficient  compliance  with  the  rule  to 
describe  himself  as  having  been  arrested,  and  to 
be  a  prisoner  in  the  sheriff's  custody.  Jervis  v. 
Jones,  4  Dowl.  P.  C.  610.  23 

The  description  of  a  person  in  an  affidavit  as 
an  "  assessor,  is  insufficient.  Nathan  v.  Cohen, 
3  Dowl.  P,  C.  370 ;  1  Har.  &  Woll.  107.  23 

If  an  affidavit  be  joint,  an  objection  to  the  des- 
cription of  one  of  the  deponents  does  not  render 
the  statements  of  the  others  inadmissible.  Id.    23 

Where,  in  an  affidavit  to  found  a  motion,  the 
addition  of  a  deponent  is  omitted,  the  court  will 
not  inquire  whether  the  facts  sworn  to  by  a  co- 
deponent  are  sufficient  to  support  the  application. 
Bex  V.  Carnarvon  (Justices),  5  Nev.  &,  M%  364. 

23 

Affidavit  of  Merits.] — An  affidavit  of  merits, 
that  the  defendant  has  a  good  and  sufficient  de- 
fence on  the  merits,  without  words  applying  it  to 
the  particular  action,  is  insufficient.  Tate  v.  Bod- 
fiel<^  3  Dowl.  P.  C.  218.  23 

An  affidavit,  in  support  of  a  rule  for  setting 
aside  a  judcrment  signed  by  tlie  plaintiff  for  want 
of  a  plea,  afieged  that  the  defendants  had  merits, 
and  a  good  cause  of  defiance  to  the  action  : — Held 
insufficient.    Lane  v,  Isaacs,  3  Dowl.  P.  C.  63i2. 

23 

The  affidavit  must  express  that  the  defendant 
hatha  good  defence  to  the  action  on  the  merits 
thereoiT    id. 

An  affidavit  of  merits  is  not  sufficient,  which 
states  that  both  the  defendant  and  his  attorney 
^'are  advised  and  believe'*  that  there  is  a  good 

defence  on  the  merits.    Worthington  v. ,  2 

C.  M.  &,  R.  315.  23 

Semble,  that  an  affidavit  of  merits  made  by  the 
defendant's  attorney  as  to  his  belief  from  instruc- 
tions received,  is  insufficient  when  the  defendant 
himself  might  make  the  affidavit.  Brown  v. 
Austin,  4  Dowl.  P.  C.  161.  23 

An  affidavit  to  set  aside  a  regular  judgment, 
made  by  the  London  agent  to  the  country  attor- 
ney, and  stating  that  the  deponent  believed,  firom 
the  instructions  received  from  the  country  attor- 
ney, that  the  defendant  had  a  good  defence  to  the 
action  on  the  merits : — Held  sufficient.  Schofield 
V.  Huggins,  3  Dowl.  P.  C.  427.  23 

Where  a  motion  is  made  by  a  defendant  to  set 
aside  prtir^edingv  on  an  a^dav«t  of  merits,  and 


payment  of  costs,  the  plaintiff  is  not  entitled  to 

§o  into  a  long  statement  in  his  affidavit  to  show 
lat  the  defendant  has  no  merits,  and,  if  he  does, 
the  court  will  order  the  master  not  to  allow  costs. 
Heane  v.  Battersby,  3  Dowl.  P.  C.  213.  23 

Where  a  defendant  moves  to  set  aside  pro- 
ceedings on  tlie  ground  onrregularity, — as  for  not* 
giving  notice  of  the  execution  of  a  writ  of  in- 
quiry,— it  is  not  necessary  to  swear  to  merits. 
Williamd  v.  WiUiams,  2  C.  A^  M.  473.  23 

Libdlous  iWirffsr.]— Where  libellous  and  im- 
pertinent matter  was  introduced  into  an  affidavit 
in  support  of  a  rule,  the  court  deprived  the  party 
of  the  costs  of  the  rule,  to  which  otherwise  he 
would  have  been  entitled.  Thompson  v,  Dicas, 
2  Dowl.  P.  C.  93.  -24 

Before  whom  and  where  Sworn."] — The  chief 
justice's  clerk's  list  of  commissioners  is  conclu- 
sive evidence  as  to  whether  a  narticular  person 
is  a  commissioner  of  the  English  Court  of  Com- 
mon Pleas,  pursuant  to  the  3  A  4  Will.  4,  c.  42, 
s.  42,  for  taking  affidavits.  Sharp  r.  Johnson,  2 
Bing.  N.  R.  246 ;  2  Scott,  407 ;  4  Dowl.  P.  C. 
324 ;  1  Hodges,  2dB.  24 

If  an  affidavit  in  a  cause  in  an  English  court 
be  sworn  in  Ireland  before  one  who  is  not  a  com- 
missioner of  the  English  courts,  the  signature  of 
such  person  njust  be  verified.    Id. 

Qumre,  whether,  since  ZA4  Will.  4, c  42,  s. 
42,  affidavits  made  in  Ireland  are  not  required  to 
be  sworn  before  a  commissioner  who  is  appointed 
by  the  English  judges  under  that  statute  ?  Id. 

Affidavits  on  showing  cause  are  in  time  if 
sworn  at  any  time  before  cause  is  shown.  Braine 
V.  Hunt,  2  Dowl.  P.  C.  391.  24 

Affidavits  mav  be  used  in  showing  cause, 
though  sworn  after  the  time  named  for  showing 
cause  in  the  rule.    Hicks  v,  Marreco,  3  Tyr.  216. 

24 

it  is  no  objection  to  an  affidavit,  that  it  is 
sworn  before  the  attorney  in  the  cause,  unless  it 
expressly  appears  that  he  was  the  attorney  at  the 
time  the  affadavit  was  sworn.  Beaumont  v.  Dean, 
4  Dowl.  P.  C.  354.  24 

Upon  a  reference  to  an  arbitrator,  '*  the  costs 
were  to  abide  the  event,  and  he  was  to  say  by 
whom  and  when  to  be  naid  :"  he  awarded  a  sum 
to  the  plaintiff,  and  diviaed  the  costs  between  him 
and  the  defendant.  The  plaintiff,,  treating  tlie 
award  as  void,  threatening  to  issue  execution  for 
the  debt  and  costs,  upon  wnich  the  defendant  pre- 
pared affidavits  of  the  facts,  (before  judgment  was 
signed),  and  afler  it  was  signed,  another  affidavit 
of  that  fact,  and  moved  upon  all  the  affidavits  to 
set  aside  the  judgment: — Held,  that  the  first 
affidavits  were  good,  though  sworn  before  judg- 
ment was  signed.  Read  v.  Massie,  4  Dowl.  r.  C. 
681.  24 

Jurat.} — ^Where  the  names  of  the  deponents 
are  omitted  in  the  jurat  through  the  inadvertence 
of  the  judge's  clerx,  it  will  he  amended  by  the 
direction  of  the  judge.  Ex  parte  Smith,  2  i)owl. 
P.  C.  607.  25 


[AFFIDAVIT— AGENT  AND  PRINCIPAL] 


22SI 


If  the  words  "  before  me,"  in  the  jurat  of  an 
affidavit,  arc  struck  out,  and  the  words  '*  by  the 
court"  introduced,  it  is  not  an  objection.  Austin 
V,  Grange,  4  Dowl.  P.  C.  576.  25 

The  court  set  aside  a  judjcre's  order  for  better 
particulars  of  set  off,  on  the  ground  that  the 
plaintiff *s  attorney's  clerk  had,  without  authority, 
altered  the  date  of  the  jurat  of  the  affidavit  on 
which  the  ordor  had  been  obtained.  Finnorty  v. 
Smith,  1  Bing.  N.  R  649;  1  Scott,  743 ;  1  Hod- 
ges, 158.  25 

The  alteration  of  a  figure  in  the  Hate  in  the 
jurat  of  an  affidavit,  by  writing  one  figure  over 
anotlter,  dees  not  constitute  an  erasure  or  inter- 
lineation within  the  meaning  of  the  rule.  Jacob 
».  Hunyate,  3  Dowl.  P.  C.  4.>6.  25 

A  line  drawn  through  two  lines  in  the  jurat  of 
an  affidavit,  leaving  them,  however,  perfectly 
lej^ible,  is  an  erasure  within  the  rule  of  court, 
Mich,  term,  37  Geo.  3,  and  vitiates  the  affidavit, 
thoufrh  the  omission  or  retention  of  the  words 
would  not  vary  the  sense.  Williams  v.  Clouffh, 
1  Adol.  &  Ellis,  376.  25 

An  affidavit  signed  by  the  deponent  in  some 
foreign  character,  which  was  illegihle,  may  be 
read  in  court.  Nathan  r.  Cohen,  3  Dowl.  P.  C. 
378;  1  Har.  &  WoU.  J  07.  25 

If  an  illiterate  person  is  sworn  in  court,  or  be- 
fore a  commissioner,  the  fact  of  the  affidavit  be- 
ing read  over  to  him,  and  his  anderstanding  it, 
must  be  stited  in  the  jurat.  Hayncs  v.  Powell,  3 
Dowl.  P.  C.  599.  :i5 

An  affidavit  of  a  marksman,  which  expresses  in 
the  jurat  that  A.  B.  had  bten  first  sworn  to  the 
lact  that  lie  had  read  over  and  explained  the  affi- 
davit to  the  marksman,  and  that  he  understood  it, 
isinsafficicnt ;  the  officer  himself  ought  to  explain 
it    Rex  V  Anthoay,  4  Dowl.  P.  C.  765.  25 


HowJUetL'] — All  affidavits  usrd  in  court  must 
be  filed.     Ex  parte  Elderton,  2  Dowl.  P.  C.  560. 

25 

Affidavits  used  to  ground  a  molion  ought  al- 
ww  to  be  filed,  whether  the  motion  is  grant'-d  or 
refused.     Kx  parte  Dicas,  2  Dowl.  P.  C.  92.      it5 

Affidavits  to  show  cause  against  an  enlarged 
rule  must  be  filed  a  week  before  the  term  to 
which  it  is  enlarged.  GiImou  r.  Carr,  4  Dowl.  P. 
C.  618.  25 

Where  a  rule  was  enlarged  to  a  subsequent 
term,  on  the  usual  terms  of  filing  the  affidavits  a 
week  before  the  term,  the  court  refused  to  hear 
affidavits  filed  aflerwards.  Turner  v,  Unwin,  ] 
Har.  &  VVoIl.  186.  25 

Affidavits  will  not  be  taken  off  the  file.  Plant 
r.  Batterworth,  5  Tyr.  183.  25 

Haw  nscd.'] — Affidavits  sworn  in  opposition  to 
one  rule,  on  which  the  allegations  in  them  may 
be  imniatertal,  cannot  be  used  without  re-swear- 
ing, in  opposition  to  another  rule,  on  which  they 
may  become  material,  although  the  same  ques- 
tion might  be  intended  to  be  rai/ied  on  the  first 
role,  which   was  a«;tually  raised  on  the  second. 


Quelly  r.  Boucher,  3  Dowl.  P.  C.  107;  1  Scott, 
283.  26 

An  affidavit  is  not  considered  stale  till  it  is  a 
year  old.  Ramsden  v.  Maugham,  4  Dowl.  P.  C. 
403;  2C.  M.  &  R.  634;  1  Tyr.  &  G.  40.         26 

Where  a  rule  has  been  obtained  on  an  affidavit 
which  is  defective,  in  not  having  a  proper  jurat, 
tho  party  moving  cannot,  when  cause  is  shown, 
and  the  objection  taken^  remove  the  effect  of 
•t,  by  producinfT  a  fresh  affidavit  similar  to  the 
first,  with  a  proper  jurat ;  the  proper  way  is  to 
reswear  the  original  affidavit,  and  the  court  will 
enlarge  the  rule  for  that  purpose,  or  allow  the 
new  affidavit  to  be  filed.  Goodricke  v.  Turlcy, 
4  Dowl.  P.  C.  302;  2  C.  M.  &  R.  636;  1  Tvr.& 
G.  146.  •     26 


AGENT  AND  PRINCIPAL. 

A  stock  broker  is  a  broker  within  6  Anne,  c.  16, 
and  must  be  admitted  by  the  lord  mayor  and  al- 
dermen.    Clark  r.  Powell,  1  Nev.  &  M.  4;2:  4 

B.  i&  Adol  846.  27 

The  plaintiff,  tlie  elder  brother  and  creditor  of 
an  intestate,  being  in  possession  of  the  goods  of 
the  intestate  under  a  bill  of  sale,  said  that  he 
should  not  insist  on  his  bill  of  sale,  but  that  he 
should  divide  the  goods  with  the  other  creditors, 
and  he  employed  the  defendant  as  auctioneer  to 
sell  the  goods.  Af\er  the  sale  by  the  defendant, 
the  widow  of  the  deceased  gave  the  defendant 
notice,  through  her  attorney,  not  to  pay  the 
plaintiff,  but  to  retain  the  money  until  all  the 
creditors  came  in,  that  it  might  be  divided  rate- 
ably  amongst  them.  No  letters  of  administra- 
tion were  taken  out : — Held,  that  the  defendant 
was  prima  facie  bound  to  account  to  the  plaintiff 
from  whom  ne  had  received  the  goods ;  and  even 
if  he  would  have  been  at  liberty  to  set  up  the 
jus  tertii,  and  show  as  a  defence  against  the 
plaintiff  that  he  was  bound  to  account  to  a  third 
person,  still  that  he  was  liable,  no  title  being 
shown  by  him  in  any  third  person.  Crosskev  v. 
Mills,  1  C.  M.  &  R.  298.  "^28 

The  defendant,  an  auctioneer,  was  employed 
by  the  plaintiff  to  sell  some  furniture,  and  was 
desired  to  sell  it  for  readv  money  only.  The 
defendant,  however,  sold  the  furniture  to  one  M. 
on  his  giving  a  bill  of  exchange  for  the  amount, 
drawn  by  himself,  upon,  and  accepted  by  one  D. 
The  plaintiff  aflerwards  applied  for  payment  of 
the  amount  of  the  sale,  and  the  bill,  though  at 
first  refused  to  be  taken  by  the  plaintiff,  was  ul- 
timately taken  by  an  agent  of  the  plaintiff,  in 
order  to  get  it  discounted.  The  bill  never  was 
presented,  nor  was  any  notice  of  dishonor  given 
either  to  M.  or  the  defendant,  until  ten  days 
afler  the  bill  had  become  due.  In  an  action 
brought  against  the  defendant  for  neglioence,  in 
selling  the  furniture  otherwise  than  for  ready 
money,  the  jury  having  found  that  the  plaintiff 
had  not  accepted  the  bill  in  satisfaction  for  the 
furniture  :— Held,  that  the  negligence  of  the 
plaiutiff  in  not  presenting  the  oill,  and  not 
giving  notice  of  dishonor,  by  which  M.  was  dis- 
charged  from  any  liability  on  the  bill,  was  no  an- 
swer to  the  action.    Ferrars  (Earl)  r.  Robiiii,  2 

C.  M  &  R.  152 ;  I  Gale,  70.  28 


2282 


[AGENT  AND  PRINCIPAL] 


Semble,  that  if,  b^  the  negli^ncc  of  the  plain- 
tiff, any  of  the  parties  to  tlie  bill  were  discharged, 
the  defendant  might  maintain  a  cross  action 
against  the  plaintiff  to  recover  such  damaores  as 
he  could  prove  he  had  sustained  thereby.    Id. 

A  land  agent  or  steward  is  not  incapacitated  to 

Eurchase  from  his  employer ;  and  the  sale,  though 
sneficial  to  the  purchaser,  will  not  be  set  aside 
in  equity,  if  there  was  no  imposition  on  the  part 
of  the  agent,  and  no  concealment  of  information 
as  to  the  value.  Andrews  v.  Mowbray,  1  Wils. 
Exch.  71.  29 

The  right  of  a  factor,  under  6  Geo.  4,  c.  94, 
8.  5,  to  pledge  the  goods  of  his  principal,  depends 
upon  the  question  whether,  upon  the  face  of  the 
whole  account  between  them,  the  principal  is  in- 
•debted  to  the  factor.  Robertson  v.  Kensington,  5 
M.  &  R.  381.  30 

I  A  factor,  by  desire  of  his  principal,  kept  sepa- 
rate accounts  of  sales,  in  some  of  which  the  prin- 
-cipal  was  solely,  and  in  others  l)ut  partly  inter- 
ested ;  but  he  regularly  posted  all  the  items  of 
both  those  accounts  into  one  general  account. 
The  factor  pledged  goods  consigned  to  him  on 
the  joint  account,  for  the  purpose  of  meeting  a 
draft  drawn  on  him  by  his  principal  to  meet  that 
nccount.  At  the  time  of  the  pledge,  the  factor, 
upon  the  general  account,  was  indebted  to  his 
principal  in  a  larger  sum  than  tlie  amount  of  the 
•draft :  but  upon  the  separate  account,  against 
which  the  draft  was  drawn,  and  to  which  the 
goods  pledged  belonged,  the  principal  was  indebt- 
<ed  to  the  factor : — Held,  that  the  factor  had  no 
right  to  pledge,  and  that  the  pledgee  could  not 
retain  the  go^s  against  tlie  prmcij^l.    Id. 

Where,  in  such  a  case,  the  principal  for  some 
time  after  notice  of  the  pledge  forbore  to  make 
any  demand  upon  the  pledgee  : — Held,  that  such 
forbearance  was  not  an  acquiescence  in  the 
pledge,  and  that  in  the  absence  of  any  evidence 
to  show  that  the  effect  of  such  forbearance  had 
been  to  alter  the  situation  of  the  pledgee  for  the 
Tvorse,  or  that  of  the  principal  for  the  hetter,  the 
right  of  the  principal  against  the  pledgee  remained 
entire.    Id. 

Quiere,  whether  a  factor  who  sells  goods  on 
•credit  without  disclosing  his  principal,  has  au- 
thority to  receive  payment  from  the  vendee  be- 
fore the  period  or  credit  has  e]api*ed,  so  as  to 
make  such  a  payment  without  tlie  knowledge  of 
the  principal  binding  on  him.  Hcisch  v.  Carring- 
ton,  1  Har.  <&  WoU.  306. 

Semble,  that  there  is  a  custom  to  that  effect  in 
the  London  com  market.    Id.  32 

A  bill  broker,  who  receives  a  bill  from  a  cus- 
tomer merely  for  the  purpose  of  procuring  it  to 
be  discounted,  has  no  right  to  mix  it  with  bills  of 
t>ther  customers,  and  to  pledge  the  whole  mass 
tw  a  security  for  an  advance  of  monies  to  himself; 
still  loss  has  he  a  right  to  deposite  bills  which  are 
received  merely  for  the  purpose  of  discount  as  a 
security  or  part  security  for  money  previously 
■due  from  him.  Hayncs  v.  Foster,  2  C.  &  M.  237 ; 
4  Tyr.  65.  34 

If  the  pledgee  of  bills  under  such  circum- 
stances receive  them  from  the  bill  broker,  with 


knowledge  or  reasonable  ground  of  suspicion,  he 
cannot  hold  tlicm  as  against  the  customer.       Id. 

W.  and  P ,  brokers  in  London,  had  in  their 
possession  bills  of  different  customers  to  the 
amount  of  nearl)r  3000/.,  which  had  been  left 
with  them  to  raise  money  upon  them.  They 
mixed  these  bills  with  others  of  their  own  to 
about  the  same  amount,  and  deposited  the  wholo 
with  F.,  who  was  a  merchant  and  capitalist,  for 
an  advance  of  3000/.,  tlien  made,  and  for  a  pre- 
ceding advance  made  a  few  days  before  on  a 
promise  to  bring  bills.  Evidence  was  given  that 
it  was  usual  and  customary  for  bill  orokers  in 
London  to  raise  money  by  a  deposit  of  Uieir  cus- 
tomer's bills  in  a  mass,  and  that  the  bill  broker 
alone  was  looked  to  b^'  the  customer  who  gave 
the  bill  broker  dominion  over  his  bill.  In  an 
action  brought  by  F.  on  one  of  the  bills  against 
one  of  the  customers  who  was  a  party  to  the  bill, 
the  judge  left  it  to  the  jury  to  say  whether  F., 
the  plaintiff,  took  the  bills  from  W.  and  P.,  the 
bill  brokers  witli  due  care  and  caution,  and  in 
the  ordinary  course  of  business ;  and  the  jury 
being  of  opinion  that  he  had  so  taken  the  bills, 
found  a  verdict  for  the  plaintiff: — Held,  that  tlic 
defendant,  the  customer,  could  not  complain  of 
such  summing  up,  and  that  the  court  would  not 
disturb  the  verdict.  Foster  v.  Pearson,  1  C.  M. 
&R,  849;  5  Tyr.  255.  34 

In  another  action  arising  out  of  the  same 
transaction,  and  which  was  an  action  of  trover 
brougiit  by  one  of  the  customers  (who  was  him- 
self also  a  bill  broker)  against  F.  to  recover  the 
value  of  some  of  tlie  bills,  tlie  judge  directed  the 
jury  that  the  principle  laid  down  in  Haynes 
V.  Foster,  (supra),  that  a  bill  broker  who  re- 
ceives a  bill  from  a  customer  to  procure  it  to 
be  discounted,  had  no  right  to  mix  it  with  bills 
of  other  customers,  and  to  pledge  the  whole  mass 
as  a  security  for  an  advance  of  money  to  himself, 
and  that  still  less  had  he  a  right  to  deposit  such 
bills  as  a  security  or  part  security  for  money 
previously  due  from  him,  was  to  be  taken  by 
them  as  the  general  law  ;  but  that  notwithstandf- 
ing  such  general  rule  of  law,  the  parties  might 
contract  as  they  thought  proper ;  and  he  Icfl  it  to 
the  jury  to  say  whether  the  usage  set  up  by  the 
defendant  as  to  the ,  course  of  dealing  in  such 
cases,  was  established  to  their  satisfaction,  and  tf 
so,  whether  they  thought  that  the  plaintiff,  who 
was  a  bill  broker  himself,  had  contracted  with 
reference  to  that  usage  ;  and  the  jury  having 
found  for  the  d<^fendant,  the  court  refused  to 
disturb  their  verdict.    Id. 

A  bill  broker  is  not  a  person  known  to  the 
law  with  certain  duties,  but  his  employment  ia 
one  which  depends  entirely  upon  ttie  course  of 
dealing ;  his  duties  may  vary  in  different  parts  of 
the  country,  and  their  extent  is  a  question  of 
fact  to  be  determined  by  the  usage  and  course  of 
dealing  in  the  particular  place.     Id. 

A  person  having  a  bill  to  take  up,  applied  to 
a  friend  for  assistance,  who,  not  having  cash, 
drew  and  indorsed  a  bill,  and  gave  it  him  to 
get  discounted,  tliat  he  might  be  able  to  lend 
him  the  money.  The  person  so  intrusted  also 
indorsed  tlie  bill,  and  left  it  with  a  bill   broker 


[AGENT  AND  PRINCIPAL— AMENDMENT] 


2SBa 


for  diflcoant.  The  bill  broker,  being  indebted  to 
a  widow  who  carried  on  businesB  as  coal  mer- 
ch^t,  took  the  bill  to  her  counting  house,  and 
indorsed  it,  and  there  gave  it  to  her  son,  who 
managed  the  business  for  her,  and  who  entered 
it  in  the  cash  book  !ui  so  much  received  on  ac- 
count. There  w^as  contradictory  evidence  as  to 
the  son's  knowledge,  at  the  time  he  received  the 
bill,  of  the  circumstances  under  which  it  had 
been  obtained ;  but  he,  on  being  informed  of 
them  afterwards,  refused  to  give  the  bill  to  the 
drawer,  who  brought  an  action  of  trover  against 
him  for  jL  The  jury  found  that  the  bill  was  not 
taken  bona  fide  and  without  notice  of  the  cir- 
cumstances ;  and  it  was  held,  that  the  action  was 
maintainable  asrainst  tlie  son,  and  need  not  be 
brought  against  the  mother.  Cranch  v.  White, 
6  C.  &  P.  767—Tindal.  34 

A  power  of  attorney  is  revocable,  and,  in  or- 
dinary cases,  would  not  found  the  jurisdiction  for 
delivering  up  instruments  ;  but,  when  executed 
for  valuable  consideration,  the  court  would  not 
permit  it  to  be  revoked.  Bromley  v.  Holland,  7 
Ves.  Jan.  28.  35 

A  power  of  attorney  to  a  creditor  to  receive  a 
debt,  not  accompany mg  any  assignment  of  it, 
nor  making  part  of  any  security  given,  but  with 
declarations  that  it  was  to  enable  the  creditor  to 
apply  the  money  to  his  debt,  is  not  an  appropri- 
ation, and  therefore  fails  by  the  death  of  the 
debtor.    Lepard  v.  Vernon,  2  Ves.  <SiL  B.  51.     35 

Victualling  bills  are  not  assignable;  but,  by 
usage,  a  power  of  attorney  given  to  the  attorney, 
his  substitutes  and  assigns,  to  receive  the  money, 
authorizes  the  attorney  to  assign.  Such  a  power 
is  called  a  general  power,  in  contradistinction  to 
a  special  power,  which  authorizes  the  attorney 
only  to  receive.    Tomk'm  v.  Fuller,  3  Dougl.  300. 

35 

Semble,  that  a  power  of  attorney  to  transact 
any  business  in  the  c«>urtB  of  law,  authorizes  the 
attorney  to  apply  for  a  supersedeas.  £z  parte 
Crowther,  4  Deac.  &  Chit  31.  35 

A  power  of  attorney  giving  the  a^nt  full 
powers  as  to  the  management  of  certam  speci- 
fied real  property,  with  general  words  extending 
those  powers  to  all  the  property  of  the  principal 
of  everr  description,  and,  in  conclusion,  autW 
rising  the  agent  to  do  all  lawful  acts  concerning 
all  the  principars  business  and  afiiairs  of  what 
nature  or  kind  soever,  d#es  not  authorize  the 
a^ent  to  indorse  bills  of  exchange  in  the  name 
or  his  principal.  Esdaile  v.  La  Nauze,  1  Y.  &. 
Col.  394.  35 

A.,  B.,  and  others,  were  owners  of  a  ship  in 
the  service  of  the  £a8t  India  Company.  B.  was 
managing  owner,  and  employed  0.  as  his  agent 
lor  general  purposes,  and,  amongst  others,  to  re- 
ceive and  pay  monies  on  account  of  the  ship  ; 
and  C.  kept  a  separate  account  in  his  books  with 
B,,  as  such  managing  owner.  To  obtain  pay- 
ment of  a  Aum  of  money  due  Ifrom  tlie  East  In- 
dia Company  on  account  uf  the  sJiip,  it  was  ne- 
cessary that  a  receipt  should  be  signed  by  one 
or  more  of  tlie  owners,  besides  the  managing 
owner;  and  upon  a  receipt  signed  by  B.  and  one 

Vol.  IV.  2 


I  of  the  other  owners,  C.  received  on  account  of 
the  ship  2000Z.  from  the  East  India  Company, 
and  placed  it  to  B.'s  credit  in  his  books,  as  ma- 
naging owner.  The  part-owners  having  brought 
an  action  for  money  had  and  received,  to  recover 
the  balance  of  that  account : — Held,  that  C.  had 
received  the  money  as  the  agent  of  B.,  and  was 
accountable  to  him  for  it;  that  there  was  no  pri« 
vity  between  tlie  other  part-owners  and  C,  and 
consequently  that  the  action  was  not  maintain- 
able. Sims  V.  Brittain.  2  Nev.  &  Man.  594 ;  4 
B.  &  Adol.  375.  44 


ALE. 

The  statute  11  Geo.  4  &  1  Will.  4,  c.  64,  for 
permitting  the  general  sale  of  beer  by  retail  in 
England,  does  not  supersede  the  custom  of  a 
borough,  that  no  person  shall  carry  on  the  trade 
of  an  alehouse-keeper  therein  who  is  not  a  bur- 

fess.    Leicester  (Mayor)  v.   Burgess,  2  Nev.  &> 
fan.  131 ;  5  B.  <&  Adof.  246.  45 

The  carrying  on  by  A.  of  the  business  of  re- 
tailing beer  in  a  public-house  in  the  name  and 
by  the  agency  of  B.,  tlie  person  licensed  by  the 
magistrates,  is  not  a  fraud  on  the  licensing  sys- 
tem. Brooker  v.  Wood,  3  Nov.  &  M.  96;  5  B. 
«&Adol.  1052.  45 

A  sale  to  A.,  therefore,  for  the  purposes  of  such 
trade,  is  valid.     Id. 


AMENDMENT. 

Writs  and  Returns.^ — Amendment  of  copy  of 
writ.  By  field  v.  Street,  3  M.  &  Scott,  407;  10 
Bing.  227.  47 

The  court  will  not  amend  a  defective  writ  of 
capias.  Hodgkinson  v.  Uodgkinson,  3  Nev.  Sl  M  . 
564.  47 

A  writ  and  other  proceedings  against  the  inha- 
bitants of  the  "  hundred  o^S.  were  amended  by 
inserting  *^  borough'*  instead,  where  the  time 
for  commencing  a  fresh  action  against  them  for 
felonious  injury  to  property  by  rioters  under  7  & 
8  €reo.  4,  c.  3,  nad  expired.  Horton  v.  Stamford, 
2  Dowl.  P.  C.  96 ;  3  Ty r.  869.  47 

In  future,  no  amendment  of  a  writ  of  sum- 
mons will  be  allowed  except  to  avoid  the  opera- 
tion of  the  statute  of  limitations.  Lakin  v. 
Watson  or  Massic,  2  Dowl.  P.  C.  633 ;  2  C.  &. 
M.  685 ;  4  Tyr.  b39.  47 

In  an  action  of  debt  on  bond  and  for  money 
paid,  tlic  court  refused  to  amend  the  writ  of  sum- 
mons, which  had  been  sued  out  on  promises 
instead  of  in  debt,  in  order  to  save  the  statute  of 
limitations ;  inasmuch  as  the  remedy  on  the 
bond  would  remain,  notwithstanding  the  expirar 
tion  of  tlie  six  years.  Partridge  v.  Wallbank,  1 
Mecs.  Sl  Wcls.  316.  47 

The  court  will  not  amend  a  writ  of  capias  in 
the  direction.  Culblon  r.  Borons,  3  Dowl.  P.  C. 
2o3.  47 

Nor  by  the  substitution  of  one  form  of  action 
for  another.     Mills  r.  Gos:ctt,  I  Scolt,  313.      47 


3»64 


[AMENDMENT] 


A  phuntiff  cannot  alter  his  writ  after  senrice ;  ( 
and  a  notice  not  to  appear  to  the  copy  of  the  writ 
first  served  will  not  care  the  defect.     Glenns  v. 
WiUu,  4  Dowl.  P.  C.  322.  47 

Where  the  snm  mentioned  in  a  ca.  sa.  varies 
from  that  in  the  judgment,  but  the  party  has 
sustained  no  damage  from  the  error,  the  court 
will  anipod  the  writ.  M*Cormack  v.  Melton,  6 
Nev.  ^b  M.  881 ;  1  Adol.  &  Ellis,  331  :  S.  P. 
Amell  v.  Weatherby,  3  Dowl.  P.  C.  464 ;  1 C.  M. 
A  R.  831.  48 

The  court  tefused  to  allow  an  amendment  of  a 
writ  of  ca.  sa.  to  the  prejudice  of  the  bail ;  but 
granted  it  on  payment  of  all  costs,  and  giving 
the  bail  time  to  render  the  defendant.  Bradley 
V.  BaiUie,  I  Scott,  78.  48 

The  plaintiff's  attorneys  having  ceased  to  act 
lor  him,  and  become  attorneys  for  the  defendant, 
fraudulently  procured  the  sheriff  to  return  on  a 
fi.  fa.  a  sum  larger  than  that  actually  levied  and 
accounted  for  to  the  plaintiff.  The  court  (at  the 
expense  of  the  attorneys)  ordered  the  return  to 
be  amended  according  to  the  fact.  Green  r. 
Glassbroke,  2  Scott,  &1 ;  2  Bing.  N.  R.  143;  1 
Hodges,  193.  48 

A  writ  of  sci.  ik.  may  be  amended  in  points  of 
form,  assigned  as  special  causes  of  cfemurrer 
thereto,  where  the  application  to  amend  is  made 
before  ar^ment  of  the  demurrer ;  but  the  amend- 
ment  wiU  only  be  granted  on  the  terms  of  pay- 
ment of  costs  of  the  demurrer  and  the  motion  to 
amend.  Mackey  v.  Given,  I  Alcock  &  Napier, 
31C,  {Iritk).  49 


Dedaratiant  and  PUadings  ] — After  a  lapse  of 
seven  terms,  the  court  refused  to  permit  an 
aroemlment  by  altering  a  count  in  trover  for  title 
deeds  into  a  count  in  detinue,  adding  a  count  in 
debt.  Green  v.  Mitton,  1  Nev.  &,  M.  673 ;  4  B. 
A;  Adol.  369.  50 

Where  plaintiff  had  been  misled  by  defendant 
as  to  the  nature  of  a  charter-party,  the  court  per- 
mitted plaintiff  to  amend  by  striking  oat  a  count 
in  covenant  on  the  chartep>party,  and  declaring 
for  freight,  not  upon  the  charter-party ;  and  this 
afier  many  years  had  elapsed  since  the  com- 
mencement of  the  action,  the  defendant  having 
been  the  cause  of  the  delay.  Aylwin  v.  Todd,  1 
Bing.  N.  R.  170.  50 

In  an  action  against  the  sheriff  for  taking  in- 
sufficient pledges  in  a  replevin  bond,  the  court  al- 
lowed the  declaration,  which  was  in  the  common 
form,  to  be  amended,  (upon  payment  of  costs),  by 
alleging,  instead  of  a  recovery  in  tlie  original 
action,  a  reference  by  the  consent  of  the  sureties 
and  tlie  defendant,  and  tlie  result  of  Uiat  refer- 
ence ;  and  also  by  adding  a  new  count.  Dale  v. 
Gordon,  3  M  &  Scott,  539.   .  51 


Where  a  plaintiff  amends  his  declaration,  with 
liberty  to  the  defendant  to  plead  do  novo ;  if 
the  defendant  do  not  plead  de  novo,  tlic  former 
plea  will  stand,  if  it  be  applicabl«'  to  the  amended 
declaration.  Faw  r.  Borslev,  1  (',  «fc  M.  770  ;  i* 
Dowl   PC  107 ;  3  Ty  r.  9(»5:  50  1 6  C.  &  P  60«-  Parke 


The  court  refused  to  allow  the  Christain  name 
of  a  plaintiff  to  be  amended  after  issue  joined. 
Moody  V.  Aslatt,  3  Dowl  P.  C.  486.  50 

In  debt  on  a  recognizance  of  bail,  the  declara- 
tion stated  the  recognizance  to  have  been  entered 
into  an  action  of  debt  against  J.  8.  On  the  pro- 
duction of  the  record,  {on  a  plea  of  nul  tie!  re- 
cord), it  appeared  that  tne  original  action  was  on 
promises.  The  court  allowed  the  declaration  to 
be  amended  on  payment  of  costs,  but  required  a 
special  application  for  that  purpose,  and  would 
not  permit  it  to  be  made  to  prevent  the  defen- 
dant from  obtaining  judgment.  Munkenbeck  r. 
Bushnell,  4  Dowl.  P.  C.  139.  50 

Quere,  whether  an  inferior  court  of  record 
can,  after  verdict,  amend  tlie  pleadings.  Salter 
V.  Slade,  3  Nev.  &  M.  717.  51 

Whether  any  court  can  do  so^  qnane  ?    Id. 

The  court  will  not  allow  a  plaintiff  in  a  penal 
action  to  amend  his  declaration  after  demurrer, 
where  the  amendment  would  not  tend  to  the 
furtherance  of  justice.  Matthews  v.  Smith,  I 
Hodges,  175.  5i 

A  defendant  against  whom  judgment  on  de- 
murrer was  given,  having  obtain^  further  evi- 
dence, obtained  leave  from  a  judge  at  chambers 
to  make  a  material  amendment  in  one  of  the 
pleas  : — Held,  tliat  the  proceeding  was  irregular, 
but  under  the  circumstances  the  coart  refused  to 
set  aside  the  order.  Atkinson  v.  Baynton,  1  Scott, 
424  ;  1  Bing.  N  R.  740 ;  1  Hodges,  144.  51 

Under  particular  circumstances,  the  court  will, 
even  after  argument  on  a  rule  for  entering  a 
nonsuit,  and  afler  judgment  pronounced,  grant 
leave  to  amend  the  declaration  on  payment  of 
costs.    Lay  thorp  r.  Bryant,  1  Scott,  338.  51 

A  plaintiff  cannot  object  to  an  amendment  of 
the  aeiendant*s  pleas,  on  the  ground  of  a  wit^ 
ness,  who  has  gone  abroad,  having  been  exa- 
mined with  respect  to  the  issue  then  joined,  if 
the  plaintiff  has  had  notice  of  the  proposed 
amendment  before  the  examination  took  place. 
Hollingsworth  r.  Briggs,  4  Dowl.  P.  C.  643.     51 


At  J^fisi  Prius.'] — In  general,  the  iudge  at  Nisi 
Prius  will  amend  any  variance  which  does  not  go 
at  all  to  affect  tlie  matter  really  in  dispute  be- 
tween the  parties,  and  which  was  not  likely  to 
mislead  the  opposite  party.  Therefore,  where  & 
general  warranty  of  the  soundness  of  a  horse  was 
declared  on,  and  a  warranty  *■*•  except  in  one  foot*' 
was  proved,  the  judge  allowed  the  declaration  to 
be  amended,  the  reiu  dispute  between  the  parties 
being  whether  the  horse  was  a  roarer.  Hemming 
V.  Parry,  6  C.  &  P.  580— Alderson.  & 

If  a  corporation  aggregate  sue  for  use  and 
occupation  of  ^*  standings,  market-places,  and 
sheds,*'  and  it  appear  that  tliey  allowed  the  de- 
fendant to  take  tolls  from  others  who  occupied 
sheds  and  'standings,  the  jud^  at  tlie  trial  will 
allow  the  word  "  tolls"  to  be   mserted  in  the  de- 


claration, tlic  defendant  paying  the  costs  of  the 
amendment.    Carmartlicn  (Mayor,  &c.)  c.  Lewis, 

53 


[AMENDMENT] 


2285 


In  trespass,  fctr  hreaking  the  plalntifT's  close,  | 
called  Clover  Hill,  the  defendants  pleaded  not 
Eoilty,  and  that  the  close  was  not  the  plaintiff's. 
The  real  name  of  the  close  appeared  to  be  Clover 
Moor.  The  judge  ordered  the  record  to  be 
amended  by  inserting  the  word  Moor  instead  of 
HilL  Howell  V.  Thomas,  7  C.  &  F.  342— Cole- 
ridge.  53 

In  trespass,  for  taking  *'  mirrors  and  hand- 
kerchiefs,'' tlie  defendant  justified  the  taking  of 
the  mirrors ;  but,  by  mistake,  omitted  to  justify 
the  taking  of  the  handkerchiefs : — Held,  tliat  this 
omtssioB  could  not  be  amended  on  tlie  trial. 
John  V.  Currie,  b  C.  «&  P.  618— Parke.  53 

Where  no  matter  in  print  or  writing  is  pro- 
duced in  evidence,  a  judge  at  Nisi  Prius  has  no 
power  under  9  €reo.  4,c.  15,  (see  now  3  &  4  Will. 
4,  c.  422,  B.  23),  to  amend  the  record  from  the 
oral  testimony  of  witnesses  called  to  speak  to  the 
contents  of  a  written  document  which  had  been 
destroyed,  and  which  contents  appeared  to  be 
materially  difierrnt  from  the  statement  of  the 
document  on  the  record.  Brooks  v.  Rlanshu'd, 
1  C.&M.  779;  3Tyr.  844.  53 

Quaere  if  a  copy  had  been  produced- in  such 
case,  as  second^iir  evidence,  whether  the  judge 
could  have  amended  from  such  copy  .'Id. 

If,  on  the  trial  of  an  ejectment,  it  appear  that 
the  parish  is  mis-stated  m  the  declaration,  the 
jnd^  will  allow  it  to  be  amended,  under  the  stat. 

3  A  4  Will.  4,  c.  42,  although  the  ejectment  be 
for  a  forfeiture.  Doe  d.  Marriott  v.  Edwards, 
6  C.  d&  P.20ti;  1  M.  &  Rob.  319— J.  Parke.     53 

Amendments,  under  the  stat  3^4  Will.  4, 
c.  42,  s.  23,  will  not  be  refused  on  the  ground  of 
the  harshness  of  the  action.    Id. 

Where,  in  debt  on  bond,  there  was  a  variance 
between  the  penalty  of  the  bond  produced  in  evi- 
dence, and  the  penalty  in  the  bond  stated  in  the 
dedaration,  the  latter  being  260/.,  and  the  former 
bein^  20(U. :— Held,  that  it  was  witliin  the  3  «& 

4  WiU.  4,  c.  42,  s.  23,  and  might  be  amended. 
HUl  V.  Salt,  2  C.  &  M.  420 ;  4  Tyr.  271.  53 

SemUe,  that  the  3  &.  4  WiU.  4,  c.  42,  s.  23, 
applies  to  cases  tried  before  the  sheriff.    Id. 


Amendment  of  allegation  of  bill.  Parkes  r. 
£dge,  1  G.  dk  M.  429;  3  Tyr.  364.  53 

Amendment  of  allegation  of  contract.  Lamey  v. 
Biabop,  4B.A,  Adol.  479 ;  1  Nev.  &  M.  332.  53 

Where  a  contract,  by  which  A.  guaranteed  to 
B.  the  amount  of  a  debt,  to  be  contracted  with 
B.  by  C,  was  described  in  pleading  as  a  promise 
to  pay  the  debt  to  be  so  contracted,  the  court 
sanctioned  an  amendment  ordered  at  Nisi  Pnus, 
by  substituting  **  guarantie"  for  **  pay."'  Hanbury 
V.  EOa,  3  Nev.  &  M.  438 ;  1  Adol.  &  Ellis,  60.  ^ 

Where  the  declaration  in  ejectment  was  in  a 
supposed  joint  demise  by  A.  and  B.,  and  it  ap- 
peared in  evidence  that  A.  and  B.  had  not  such 
an  interest  that  they  could  join  in  a  demise  to 
tbe  nominal  plaintiff: — Taunton,  J.,  at  Nisi  Prius, 
refused  to  amend  the  declaration  under  the  3  & 
4  WilL  4,  c.  42,  s.  25,  by  severing  the  demises. 
Doe  d.  Poole  v.  Errington,  3  Nev.  f&  M.  G4G ;  1 
Adol.  dk  Ellis,  750 ;  l  M.  dSt  Rob.  343.  53 


The  court  in  banc  cannot  control  the  discre- 
tion of  a  judge  at  Nisi  Prius  as  to  directing 
amendments  of  the  record.    Id. 

In  an  action  on  the  case,  against  the  defen- 
dants as  carriers,  for  negligence,  it  appeared  from 
the  evidence  that  the  Jelendants,  if  liable  at  all, 
were  liable  as  wharfingers,  on  a  contract  to  for- 
ward. Just  before  the  plaintiff's  counsel  com- 
menced his  reply,  he  applied  to  the  judge  to 
amend  tlie  declaration,  which,  however,  tne  foam- 
ed judge  refused  to  do,  but  lefl  it  to  the  jury  to 
say,  whether  there  was  a  contract  to  forward,  or 
a  contract  to  carir,  and  thev  found  that  there 
was  a  contract  to  forward.  He  then  directed  the 
verdict  to  be  entered  for  the  defendant,  but  the 
special  finding  to  be  indorsed  on  the  posiea,  that 
tne  court  might  proceed  thereon  according  to 
the  3  &  4  Will.  4.  c.  42,  s.  24.  The  court  slew- 
ed the  amendment  on  payment  of  costs,  and 
granted  a  new  trial,  on  payment  of  costs,  observ- 
mg  that  the  learned  judge  might  have  allowed 
the  amendment,  and  postponed  th^  trial  to  a 
future  day,  pursuant  to  s.  23  of  that  stat.  Panr 
f.  Fairhurst,  2  C.  M.  dk  R.  190.  53 

VerdieU  and  Judgments.] — Where  a  verdict  has 
been  obtained  in  ejectment  against  A.  and  B., 
who  defended  for  dif^rent  parts  of  the  premises 
in  the  declaration,  the  court,  after  setting  aside 
the  verdict  as  to  A.,  refused  to  amend  the  postea, 
by  confirming  the  verdict  as  against  B.  to  those 
premises  for  which  B.  specificalhr  defended.  Roe 
d.  Blair  v.  Street,  1  Nev.  dk  M.  42;  2  Adol.  dk 
Ellis,  329.  64 

Where  there  has  been  a  mistake  of  the  clerk 
in  entering  up  the  judgment  on  sci.  fa.  to  obtain 
execution  on  a  judgment  in  debt,  by  entering  it 
in  the  form  in  assumpsit  -.  Quaere,  whether  the 
court  can  amend  it  in  a  subsequent  term.  Kloss 
V.  Dodd,  1  Hot.  4c  Woll.  342.  55 

The  court  will  allow  the  amendment  of  clerical 
mistakes  in  a  judgment,  on  payment  of  costs,  al- 
though one  term  nas  elapsed  since  the  Judgment 
was  entered  up,  and  although  a  writ  of  error  has 
been  sued  out,  and  error  assigned,  amongst  other 
causes,  on  those  clerical  mistakes.  Paddon  v. 
Bartlett,  5  Nev.  dk  M.  384 ;  1-Har.  &  Woll.  286. 

55 

In  an  action  commenced  by  writ  since  the  Uni- 
formity of  Process  Act,  against  two  defendants,  a 
verdict  was  found  for  the  defendants.  Judgment 
was  entered  up  for  the  defendant  in  the  sinjnilar 
number,  and  tliat  the  plaintiff  should  take  noQiing 
by  his  bill,  and  the  word  "  counts"  was  used  in- 
stead of  ^*  issues."  The  court  allowed  an  amend- 
ment of  these  mistakes.    Id. 

Othtr  Things.'] — Where  the  christian  and  sur- 
name are  transposed  by  mistake  in  an  order  of 
reference,  the  court  will  allow  that  mistake  to  be 
amended.  Price  v.  James,  2  Dowl.  P.  C.  435.  56 

A  judge,  sitting  at  Nisi  Prius,  has  no  power  to 
order  an  amendment  of  the  award  of  the  venire 
facias  on  the  Nisi  Prius  record.  Adams  v.  Power, 
7  C.  &  P.  76— Bolland.  56 


2386 


^AMENDMENT— ANNUITY] 


If,  in  an  action  on  a  bill  of  exchange,  where 
there  IB  a  plea  that  there  waa  no  consideration,  it 
appear  at  the  trial  that  the  plaintiff  has  not  put 
any  replication  on  the  record,  the  judge  will  not 
allow  a  replication  to  be  added  at  the  aasizes 
without  the  consent  of  the  defendant,  but  will 
order  the  case  to  be  struck  out  of  the  list  Row- 
linson  «.  Roantree,  6  C.  &  P.  551— Aldcrson.   56 

The  return  day  of  the  summons  in  a  writ  of 
riffht,  may  be  amended  before  it  is  executed. 
MiUer,  dera.,t?.  Miller,  ten.,  4  Dowl.  I*.  C  144. 

•  58 

The  court  refused  to  auiend  a  fine  in  a  case  of 
misdescription,  cured  by  3  &  4  Will.  4,  c.  74,  s. 
7.  Lockington,  dem;  Shipley,  conusor ;  1  Bing. 
N.R.  355;  1  Scott,  263.  60 

The  court  allowed  a  recovery  to  be  amended 
by  inserting  '*  Holy  Trinity"  before  Kingston- 
upon-HuU,  on  an  affidavit  that  the  property  in- 
tended to  pass  was  situate  in  the  parish  of  the 
Holy  Trinity,  at  Kingston-upon-HulI.  Dansey, 
dem.;  Lee,  ten.;  Crowther,  vouchee;  3  M.  & 
Scott,  371.  62 


Tinu  and  Mods  of  ^pplicaUon.]—'The  decision 
of  a  judge  at  chambers  as  to  amendments  of 
pleadings,  within  tiie  limits  of  his  discretionary 
power  over  such  amendments,  will  not  be  inter- 
fered with  by  the  court,  semble.  Rex  v.  York 
fArchbi8hop),3Nev.  &M.  453;  1  Adol.  &.  Ellis, 

In  quare  impedit  by  the  crown,  upon  an  al- 
leged forfeiture  by  simony  between  the  patron  in 
fee,  the  grantee  of  the  turn,  and  the  incumbent, 
a  judge  at  chambers  has  authority  to  allow  an 
amendment,  by  adding  counts  varying  the  terms 
and  the  parties  to  the  simoniacal  cofl tract.    Id. 

And  it  is  in  the  descretion  of  such  judge  to  al- 
low the  amendment  without  making  the  prose- 
cutor pay  the  costs  previously  incurred,     id. 

An  order  to  amend,  although  general  in  its 
terms,  will  onlv  authorize  the  amendment  with 
reference  to  which  it  is  obtained.  £ngleheart  v. 
Eyre,  2  Dowl.  P.  C.  193;  2  Nev.  AM.  849;  5 
B.  &  Adol.  68.  69 

The  plaintiff,  after  obtaining  an  order  to  amend 
his  declaration,  with  leave  to  defendant  to  plead 
de  novo,  may  abandon  that  order  and  proceed  to 
trial  without  procuring  it  to  be  rescinded.  Black 
V.  Sangster,  1  C.  M.  &  R.  521 ;  3  Dowl.  P.  C. 
206;  5Tyr.  m.  69 

A  plaintiff  a  few  days  previously  to  the  assizes 
obtained  a  judge's  order,  giving  him  liberty  to 
amend,  and  the  defendant  was  to  have  two  days' 
time  to  plead  anew.  The  plaintiff  afterwards  de- 
livered Uie  issue  and  took  no  farther  notice  of 
the  order,  either  by  amending  or  rescinding  it; 
and  though  the  defendant  returned  the  issue  as 
irregular,  the  plaintiff  proceeded  to  trial,  and  got 
a  verdict.  The  court  refused  to  set  aside  the  ver- 
xlict  as  irregular.    Id. 


ANIMALS. 

By  5  4&  6  Will.  4,  c.  59,  the  laiog  relating  to 
the  crud  and  improper  treatment  of  animals,  and 


the  mischief  arising  from  the  driving  of  caitU,  are 
consolidated  and  amended,        • 

Qusre,  under  5  &  6  Will.  4,  c.  59,  s.  9,  whether 
a  peace  officer  required  by  another  person  to 
take  a  third  person  into  custody,  should  either 
inquire  into  all  the  particulars,  or  should  see  the 
anmial  so  as  to  form  a  judgment  as  to  what  has 
occurred  ?  Hopkins  v.  Crowe,  7  C  &  P.  373 — 
Den  man. 


ANNUITY. 

A   grant  of  an  annuity  for  life,  charpred  upon 
land,  m  which  the  grantor  has  only  a  chattel  in- 
terest, will  enure  as  a  grant  during  the  term,  if 
tiie  cestui  que  vie  shall  so  long  live.    Saffery  v. 
Elgood,  3  Nev.  &  M.  346;  1  Adol,  &  Ellis,  191. 

The  defendant  and  an  infant  ci»venanted  that 
they,  or  one  of  tliem,  would  pay  a  certain  an- 
nuity : — Held,  that  although  Uie  Annuity  Act 
avoided  the  contract  made  by  the  infant,  the 
covenant  might  be  enforced  against  the  defen- 
dant. Gillow  t/.  LiUie,  1  Scott,  597 ;  1  Bing.  N. 
R.  695 ;  1  Hodges,  160.  70 


In  an  action  of  debt,  on  an  annuity  deed,  it 
appeared  that  the  covenant  was  with  the  plaintiff 
and  another,  to  pay  to  them  one  annuity  of 
30Z,  in  moieties;  by  another  deed  it  appear- 
ed, that  the  annuity  was  to  be  secured  by  a 
joint  judgment,  &c.  The  plaintiff  having  ob- 
tained a  verdict  for  arrears  of  Uie  annuity  due  to 
himself,  the  court  arrested  the  judgment,  on  the 
ground  that  the  other  covenantee  ought  to  have 
joined  in  the  action.  Lane  v.  Drinkwatcr,  3  Dowl. 
P.  C.  223.  71 

QuflBre  how  far  in  a  case  of  fraud  the  provisions 
of  the  annuity  Act  may  be  dispensed  with,  not 
as  against  the  grantor,  but  against  his  creditors  ? 
Ex  parte  Wright,  1  Rose,  308.  72 

The  condition  of  a  bond  (after  reciting  that 
M.  M.,  the  obligee,  had  contracted  with  S.  B., 
the  obligor,  for  the  sale  to  him,  S,  B.,  of  a  mes- 
suage, £c.,  in  consideration, amongst  other  things, 
of  an  annuity  of  15W.,  to  be  paid  to  her,  M.  M., 
during  her  bfe,  by  S.  B.  by  four  quarterly  pay- 
mcntij  in  the  year ;  and  further  reciting  that,  on 
the  contract  of  the  purchase  of  the  messuage,  it 
was  agreed,  that,  for  better  securing  the  payment 
of  the  said  annuity,  the  said  S.  B.  should  execute 
that  bond)  was,  for  the  payment  of  the  said  an- 
nuity at  the  times,  &c.  This  bond  was  stamped 
with  a  U.  KiS.  deed  stamp :— Held,  that  the  bond 
was  properly  stamped,  and  that  it  did  not  require 
any  mrolhnent  under  the  Annuity  Act ;  and  if 
such  inroUment  had  been  necessary,  the  want  of 
it  could  not  have  be<»n  taken  advantage  ol^under 
the  plea  of  non  est  factum.  Mestayer  v.  Biggs, 
1  C.  M.  &  R.  110;  4  Dowl.  P.  C.  695;  4  Tyr. 
466.  72 

In  ejectment,  an  annuity  deed  was  relied  on ; 
it  was  not  inrolled,  but  it  contained  a  declaration 
or  covenant  by  the  grantor,  that  premises  on 
which  the  annuity  was  secured,  were  of  more 
than  sufficient  annual  value  to  answer  and 
pay  the   annuity   over  and  above  all  charges :— 


[ANNUITY— APPRENTICE] 


2287 


Held,  lliat  it  waa  open  to  the  grantor,  notwith- 
standing, to  give  evidence  that  Uie  premises  were 
not  of  sufficient  value  to  answer  and  pay  the  an- 
nuity, in  order  to  avoid  the  deed.  Doe  d.  Chand- 
ler V.  Ford,  5  Nev.  &  M.  209;  1  Harr.  &  Woll. 
378.  72 

Semble,  that  it  is  incumbent  upon  the  nantee, 
who  relies  upon  an  annuit]^  deed,  which  lias  not 
been  inroUed,  to  show  that  it  is  within  the  exemp- 
tion of  the  statute.    Id. 

An  annuity  was  granted  by  deed  for  the  lives 
of  the  several  persons  named  in  the  deed,  and  the 
lives  of  the  survivors  and  snrvivor  of  th^m ;  one 
of  the  persons  on  whose  life  the  annuity  was 
granted  was  named  W.  F.  W. ;  but,  in  the  annu- 
ity deed,  and  in  the  memorial  of  tlie  annuity,  hf 
was  named  W.  W.  only: — Held,  that  he  was 
sufficiently  named  withm  the  meaning  of  the 
Annuity  Act,  53  Gieo.  3,  c.  141 ;  and  that  the 
memorial  was  sufficient.  Hulton  v.  Sandys,  1 
Younge,  602.  76 

An  annuity  deed,  the  memorial  of  which  does 
not  set  forth  with  precision,  the  form  in  which  the 
consideration  was  paid,  is  void.  Lewis  v.  Hooper, 
4  Nev.  &  M.  318 ;  S.  C.  nom.  Ex  parte  Lewis,  2 
Adol.  &,  Ellis,  135.  76 

The  inaccuracy  of  a  statement  of  the  memorial 
may  be  brought  before  tlie  court  by  affidavit,  as 
a  ground  for  setting  aside  the  securities.    Id. 

The  inrollment  of  an  annuity  deed  omitted  the 
word  *•  life"  in  the  heading  of  one  of  the  columns 
given  by  the  form  of  the  statute  : — Held,  tJiat  this 
omission  did  not  invalidate  the  deed.  Flight  v. 
Lake  (Lord),  2  Scott,  126;  2  Btngh.  N.  R.  72;  J 
Hodges,  190.  76 

An  annuity  cannot  be  set  aside  upon  mere  in- 
adequacy of  price,  which  can  be  applied  only  as 
evidence  of  uraud.  Law  v.  fiarchard,  8  Yes.  jun. 
133.  82 

The  statute  of  limitations  is  no  bar  to  an  action 
brought  to  recover  back  the  consideration  paid  for 
an  annuity,  notwithstanding  more  than  six  years 
have  elapsed  since  the  date  of  the  grant,  where 
the  grantor  (having  for  some  years  paid  the  annu- 
ity without  objection)  has,  within  six  years  from 
the  commencement  of  the  action,  elected  to  avoid 
the  annuity  by  reason  of  a  defective  memorial. 
Cowpcr  V.  Godmond,  3  M.  &  Scott,  219 ;  9  Bing. 
748.  85 

Money  had  and  received  is  the  proper  form  of 
action  in  such  a  case.    Id. 

Payments  made  by  the  grantor  on  account  of 
the  annnity  mav  be  set  off  against  the  considcra- 
ti<Ni  money  paid  on  the  purchase,  upon  a  record 
prc^perly  framed.     Id. 

Qusre  whether  the  grantee  is  entitled  to  inter- 
est upon  the  consideration  money  ?    Semble  not. 

Lands  were,  devised  in  fee,  charged  with  an  an- 
nuity ;  and  power  was  given  to  tne  annuitant  to 
distrain,  if  tne  annuity  were  in  arrear  for  twenty 
days  after  the  day  of  payment,  being  lawfully  de- 
manded ;  power  was  also  given,  if  it  should  be  in 
arrear  for  forty  days,  to  enter  and  enjoy  the  lands, 
and  to  take  tlie  profits,  until  the  annuitant  should 


be  thereby  paid  and  satisfied  all  the  arrears,  with 
all  costs,  or  until  the  person  entitled  to  imme- 
diate* possession  should  pay  all  the  arrears  and 
costs : — Held,  that  upon  the  annuity  being  forty 
days  in  arrear,  the  annuitant  might  bring  eject- 
moot  without  making  any  demand.  Doe  3.  filasn 
V.  Horsley,  1  Adol.  <&  Ellis,  766.  86 


APPRAISER. 

A  valuation  made  for  the  information  of  parties,, 
and  nt.t  binding  on  them,  is  not  made  liable  to  an 
appraisement  stamp  by  5)5  Geo.  T,  c.  184,  Sched. 
p.  ],  tit.  **  Appraisement,*'  though  an  agreement 
is  afterwards  founded  on  its  data.  Jackson  v. 
Stopherd,  2  C.  &  M.  361 ;  4  Tyr.  330.  87 


APPRENTICE. 

Generally.'] — An  indenture  liaving  been  pre- 
pared for  binding  a  boy  apprentice,  the  appren- 
tice and  his  father,  being  unable  to  write,  desired 
a  third  person  to  write  tlieir  names  opposite  two 
of  the  seals,  and  he  did  so.  The  indenture  waa 
not  read  to  them.  The  apprentice  immediately 
afterwards  took  the  indenture  to  the  master  and 
left  it  with  him ;  and  allerwards  stated  that  when 
he  did  s<j  he  considered  himself  bound ;  and  he 
went  into  the  service  under  the  indenture : — 
Held,  that  the  indenture  was  sufficiently  execut- 
ed and  delivered,  liex  v.  Longnor,  1  Nev.  & 
Man.  576 ;  4  B.  &  Adol.  647.  87 

Where  an  apprentice  is  bound  to  two  partners, 
on  the  death  of  one  he  becomes  in  law  the  ap- 
prentice of  the  survivor,  ilex  v.  St.  Martin's,. 
Exeter,  1  Harr.  &  Woll.  69.  87 


Consideration  given.] — The  trustees  of  a  charity 
bound  out  an  apprentice  to  R. :  the  consideration 
money  expressed  in  the  indenture  was  10/.,  paid 
by  the  trustees.  Previously  to  the  execution  of 
tiie  indenture,  the  apprentice's  grandfather,  who 
was  no  party  to  tlje  indenture,  had  agreed  with 
the  mistress  that  the  premium  should  be  25Z. ; 
and  subsequently  to  the  execution  the  grand- 
father paid  to  the  mistress  15/.:  of  the  contract, 
or  of  the  payment  of  any  sum  beyond  the  lOZ.,. 
the  trustees  were  entirely  ignorant : — Held,  that 
the  agreement  hj  tlie  grandfather  to  pay  the  ad- 
ditional sum  otl^l.  was  a  binding  agreement, 
and  that  therefore  the  indenture  was  void  by  8> 
Anne,  c.  9,  s.  3^),  for  not  stating  the  full  consider- 
ation.   Rex  V.  Amersham,  6  Nev.  &  M.  12.      87 


Slamp.] — An  indenture  of  apprenticeship,  with- 
out premium,  was  executed  April  27th,  18^, 
but  not  stamped  till  July,  1832,  when  a  1/.  stamp 
was  put  on  it,  and  a  5/.  penalty  paid.  Aflerwards 
a  double  duty  (22.)  was  paid.  The  indenture 
was  offered  in  evidence  to  prove  the  settlement 
of  a  pauper  by  service  under  it : — Held,  thai  as 
it  was  not  within  stat.  8  Anne,  c.  9,  which  limits 
the  time  for  stamping  indentures,  the  court  was 
not  called  u()on  to  notice  the  cireumstances  un- 
der which  stamps  were  affixed.  Rex  v.  Preston, 
3  Nev.  &  M.  31 ;  5  B.  &  Adol.  1029.  88 


2288 


[APPRENTICE] 


The  55  Geo.  3,  c.  1K4,  doos  not  repeal  the  pro- 
vision of  ^  Anne,  c. !),  aa  to  the  time  for  stainpinjr 
indcntnrefl  of  apprenticeship ;  and  thereibre,  an 
indenture  of  apprenticeship  (a  premium  having 
been  paid  with  the  apprentice)  must  be  stamped 
with  tJie  advalorem  duty,  witliln  the  time  pre- 
scribed by  the  stat.  8  Anne,  c.  !),  ss.  3H,  37,  38, 
and  if  not  stamped,  is  wholly  void.  Ilex  v.  Church 
Hulme,  5  B.  4&  Adol.  1(^21).  88 

The  proviso  in  37  Greo.  3,  c.  Ill,  exempting 
from  the  stamp  duties  thereby  imposed,  every  in- 
denture of  apprenticeship  ^^  where  a  sura  or  value 
not  exceeding  10/.  shall  he  given  or  contracted  for, 
with,  or  in  relation  to  the  apprentice,"  does  not 
extend  to  an  indenture  where  no  consideration 
passes  Rex  r.  Mabe,  5  Nov.  &  M.  241 ;  1  Har. 
&  WoU.  460.  88 

A  boy  was  apprenticed  by  the  trustees  of  a 
charitable  fund,  and  a  premium  of  l5Z.  paid  out 
of  the  fund;  before  the  expiration  of  the  term, 
the  master,  at  the  request  of  the  apprentice,  ver- 
bally, and  without  the  knowledge  of  the  trustees, 
consented  to  his  serving  the  remainder  of  his 
term  with  another  person ;  and  agreed  to  give 
that  person  '^  61.,  as  part  of  the  15/.  paid  as  a  pre- 
mium on  the  binding :" — Held,  that  tlje  61.  was 
a  valuable  consideration  paid  to  ihe  second  mas- 
ter, "other  than  what  was  given  by  any  public 
charity,"  and,  therefore,  that  the  transfer  was  void 
for  want  of  a  stamped  assignment.  Rex  v. 
Fakenham,  4  Nev.  &.M.  553;  2  Adol.  <&  Ellis, 
528 ;  1  Harr.  &  Woll.  222.  88 

Where  a  boy  was  bound  apprentice  in  1827  by 
indenture,  upon  a  premium  of  30/.,  which  was 
agreed  to  be  paid,  and  for  which  a  bill  was  given  ; 
and  the  indenture  had  a  1/.  stamp  only  impressed 
upon  it;  and  the  apprentice  having  served  his 
master  for  five  months,  and  a  difference  having 
arisen  between  the  master  and  the  father,  and  it 
having  been  discovered  tliat  the  stamp  was  insuf- 
ficient, the  apprentice  loft  his  master's  service : — 
Held,  that  the  apprentice  might  have  compelled 
him  to  continue  tliat  instruction  and  maintenance, 
by  causing  the  indenture  to  be  properly  stamped, 
pursuant  to  the  stat.  2f)  Gk*o.  2,  c.  45,  s.  5.  Mann 
3>,  Lent,  10  B.  &  C.  877 ;  M.  &.  M.  240.  89 


Length  of  Term.] — Where  a  statute,  incorpo- 
rating firuardians  of  the  poor  of  a  certain  district, 
enacted  that  it  should  be  lawful  for  the  corpora- 
tion to  bind  out  apprentices  for  any  number  of 
years,  "provided  such  child  be  not  bound  for 
a  longer  term  than  until '  he  or  she  shall  have  at- 
tained the  age  of  twenty-two,  if  a  boy,  and  twenty, 
if  a  girl,"  it  was  held,  that  an  indenture,  by 
which  a  boy  fifteen  and  a  half  was  bound  for  seven 
years,  was  voidable  only,  and  not  void  ;  and,  that 
therefore,  a  settlement  might  be  gained  under  it. 
Rex  TO.  St.  Gregory,  Canterbury,  4  ^ev.  &  M. 
137;  2  Adol.  &  Ellis,  i>9.  8i^ 


Rights  of  Pflrtte*.]— Defendant  agreed  with 
plaintiff's  father  to  receive  plaintiff  (who  was  a 
minor)  into  his  service  on  trial,  and  to  take  him 
an  apprentice  if  he  approved  it.    Plaintiff  went 


end  worked  for  defendant  nearly  two  years. 
Several  applications  were  inn  Je  during  that  time 
by  the  father,  to  take  him  on  paying  10/. :  this 
WAS  agreed  to  ;  but  defendant  shortly  after  quar- 
relled with  plaintiff,  and  tuld  him  to  go  home 
about  his  business.  Plaintiff  went  home,  and  on 
the  father  applying  to  the  defendant  for  an  ex- 
planation, the  latter  told  him  to  go  and  do  his 
worst  The  fiither  then  caused  a  letter  to  be 
written  to  defendant  by  his  attorney,  requiring 
him  either  to  take  plaintiff  as  his  apprentice,  or 
recompense  him  for  his  work,  but  no  satisfactory 
answer  was  given,  and  plaintiff,  by  his  next 
friend,  brought  an  action  to  recover  compensa- 
tion f(»r  his  service.  The  judge  put  it  to  the  jury 
on  these  facts,  whether  or  nut  the  defendants 
conduct  was  such  as  warranted  the  father  in  con- 
sidering the  contract  for  an  apprenticeship  as  re- 
scinded; and  he  further  stated,  tliat  if  they 
thought  it  was,  they  were  to  give  plaintiff  such 
compensation  for  his  work  as  they  thought  pro- 
I)er.  The  jury  found  a  verdict  for  the  plaintiff, 
with  damages,  by  way  of  compensation  lor  his 
services  : — ^Held,  that  the  direction  was  ricrht,  and 
the  verdict  was  not  to  be  disturbed.  Phillips  v. 
Jones,  1  Adol.  <&  Ellis,  333.  \)l 

Parish  ^pyrentiecs.] — ^The  premium  for  an  ap- 
prenticeship was  paid  by  the  trustees  of  a  charita- 
ble fund.  On  tlie  dajr  of  tlie  binding,  the  appren- 
tice was  provided  with  a  suit  of  clotlies  by  tlie 
parish  officers  in  contemplation  of  the  binding, 
but  without  any  express  stipulation  to  that  effect ; 
— Held,  that  this  was  not  an  expense  within  56 
Geo.  3,  c.  139,  s.  11,  making  requisite  the  assent 
of  two  justices  to  the  indenture.  Rex  v.  Quain- 
ton,  3  Nev.  &;  M.  289 ;  1  Adiii.  &  Ellis,  133. 

9& 

A  special  authority  delegated  by  a  local  act  to 
the  directors  and  guardians  of  paupers  of  a  dis- 
trict, incorporated  for  the  government  of  the  poor, 
to  bind  out  apprentices,  must  be  executed  by  an 
indenture,  to  which  the  seals  of  the  apprenticing 
directors  and  guardians  are  atlixed.  The  corpo- 
rate seal  is  insufficient.  Rex  r.  llaughley,  1  Nev. 
&  M.  525 ;  4  B.  &  Adol.  651 .  95 

An  indenture,  by  which  a  person  of  twenty-one 
years  of  age  binds  himself  an  apprentice,  does 
not  require  the  approval  or  allowance  of  justices, 
where  the  premium  is  paid  out  of  the  public 
parochial  funds,  under  56  Geo.  3,  c.  1!)9,  s.  11. 
Rex  V.  St.  John,  Berwardine,  2  Nev.  &  M.  86 ; 
5  B.  &  Adol.  169.  95 

A  child  of  parents  settled  in  and  chargeable  to 
a  parish,  might  have  been  bound  by  tlie  parish 
officers  under  43  Eliz.  c.  2,  witli  the  assent  of  two 
justices,  though  the  child  was  resident  in  anotlier 
parish  at  the  time  of  the  execution  of  the  inden- 
ture. Rex  V.  St.  George,  Exeter,  5  Nev.  &  M.  61 ; 
3  Adol.  &  Ellis,  373 ;  1  Uarr.  &  WoU.  372.     95 

Under  that  statute  a  parish  apprentice  might 
be  bound  to  a  master  who  was  not  a  parishioner. 
Id. 

The  consent  of  the  apprentice  is  not  requisite 
in  the  case  of  a  parish  apprenticeship.     Id. 


[APPRENTICE— ARBITRATION] 


2289 


No  settlement  is  acquired  by  service  under  an 
indenture  of  apprenticeship  ordered,  made,  and 
allowed  under  56  Geo.  3,  c.  139,  unless  the  notice 
required  by  section  2  was  duly  given,  and  was 
proved  to  the  justices  before  allowance.  Rex  v. 
WhisioD,  6  Nev.  &  M.  65.  95 

Bat  where  an  indenture,  whereby  the  overseer 
<^  A.  bound  a  pauper  apprentice  to  a  master  in 
B.,  under  that  statute,  appears  on  the  face  of  it 
to  hare  been  allowed  by  them,  it  will  be  pre- 
sumed, until  the  contrary  be  ^own,  that  such 
notice  had  been  duly  given,  and  was  proved  to  the 
magistrates  before  allowance.  Id. 

Quffire  whether  a  parish  apprentice  under  age 
is  capable  of  assenting  to  the  cancellation  of  His 
indenture  of  apprenticeship  ?  Rex  v.  Gwinear,  3 
Nev.  &  M.  2^7 ;  1  Adol.  &  Ellis,  152.  96 


ARBITRATION. 

Sttbmission.] — Where  it  was  one  of  the  terms 
of  an  agreement  to  refer  disputes  to  arbitration, 
that  the  submission  might  be  made  a  rule  of  a 
court  of  law,  on  tlie  application  of  either  party, 
but  thit  had  not  been  done : — Held,  on  demurrer, 
that  the  Court  of  Chancery  had  jurisdiction  to 
relieve  against  the  award.  5iichols  v.  Roe,  5  Sim. 
156.  08 

And  that  court,  having  once  exercised  its  juris- 
diction of  the  award,  will  retain  it,  although, 
on  the  coming  in  of  tlie  nnswer,  it  appears  that 
the  submission  hid  then  been  made  a  rule  ef  a 
court  of  law  by  the  defendant.  Id. 

A  judge's  order  for  referring  a  cause  may  be 
made  a  rule  of  court,  though  the  defendant  gave 
no  authority  to  his  attorney  to  consont  to  its  being 
made  a  rule  of  court.  Panll  v  Paull,  2  Dowl. 
P.  C.  340;  2  C.  &  M.  235;  4  Tyr.  72.  98 

Where,  from  some  misconduct  of  the  arbitra- 
tor, the  original  order  of  reference  cannot  be 
obtained,  a  duplicate  may  be  made  a  rule  of 
eoufL  Thomas  v.  Philby,  2  Dowl.  P.  C.  145.  98 

A  submission  to  arbitration  referred  the  amount 
of  lo^  by  fire  on  "  wool  in  the  process  of  wool- 
ling,  carding,  scribbling,  and  spinning,"  but  in 
otl^r  parts  of  the  submission  "raw  wool"  was 
spoken  of.  The  arbitrator,  conceiving  that  he 
was  not  justified  in  taking  into  his  consideration 
wool  which  had  undergone  a  part  of  the  process 
of  manufacture,  but  was  not,  at  the  time  of  the 
fire,  in  any  of  the  engines,  refused  to  receive  evi- 
dence applicable  to  that  wool : — Held,  tliat  tlic 
arbitrator  was  justified  in  so  doing ;  and  the  court 
refused  to  disturb  an  award  made  on  that  prin- 
ciple. In  re  Hurst,  1  Har.  &  Woll.  275.  98 

th  an  action  of  trespass  A.  was  plaintiff,  and 
B.,  C.*8  land  agent,  was  the  nominal  defendant, 
C.  being  the  party  really  interested..  H.,  who 
acted  as  tlie  defendant's  attorney  upon  the  em 
ployment  of  C,  and  who  also  acti'd  as  C.'s  at- 
torney in  certain  actions  and  suits  dependintr 
between  C  and  A-,  c<msentid  to  an  order  of  Nisi 
Prios,  on  the  terms  that  A .  should  give  up  to  C. 
Uic  |)082c:J8ion  of  the  farm  on  which  Ihc  trepptuia 


had  been  committed,  and  that  all  proceedings 
should  be  stayed  in  tlie  actions  and  suits  between 
A.  and  B.  and  C,  and  that  C.  should  pay  the 
taxed  costs  in  the  present  action,  and  the  further 
sum  of  10/.  to  A.  On  motion  to  set  aside  the 
order  of  Nisi  Prius,  and  a  rule  of  court  made 
thereon,  upon  the  ground  that  H.  had  no  autho- 
rity to  bind  C.  by  any  such  arrangement,  the 
court  refused  to  mteriere  in  a  summary  way. 
Thomas  v.  Hewes,  2  C.  &  M.  519 ;  4  Tyr.  335.  98 

Where  a  cause  was  agreed  to  be  referred,  but 
the  agreement  was  not  made  a  rule  of  court,  the 
court  refused  to  compel  the  payment  of  a  sum 
awarded  against  the  party  who  proposed  the  re- 
ference.   Clarke  v.  Baker,  1  H.  &  Woll.  215.  98 

Afler  a  submission  bv  deed,  an  arbitrator  may, 
with  the  assent  of  both  parties,  be  substituted  m 
the  place  of  one  of  the  original  arbitrators.  In  re 
Tunno,  2  Nev.  &  M.  328 ;  5  B.  &  Adol.  488.  99 

Semble,  that  such  substitution  would  constit- 
tute  a  new  submission  by  parol,  and  that  an  award 
under  such  new  submission  could  not  be  enforced 
by  attachment     Id. 

By  order  of  Nisi  Prius,  a  cause  was  referred 
to  arbitration,  with  liberty  for  the  arbitrator  to 
examine  the  parties,  but  the  death  of  either  was 
not  to  operate  as  a  revocation  of  the  reference. 
The  plaintiff  died  before  he  was  examined,  and 
before  thejarbitrator  had  made  his  award ;  where- 
upon the  defendant  having  revoked  his  submis- 
sion, on  the  ground,  iis  he  alleged,  of  his  havings 
lost  the  opportunity  of  examining  the  plaintiff, 
the  court  ordered  him  to  pay  the  costs  of  a  trial 
oocasioned  by  the  termination  of  the  reference. 
Smith  V.  Fielder,  10  Bing.  306;  3  M.  &  Scott, 
853 ;  2  Dowl.  P.  C.  764.  101 

Where  there  is  a  clause,  that  if  either  party  by 
affected  delay  or  otherwise  shall  prevent  the  arbi- 
trator from  niakmg  his  award,  he  shall  be  liable 
to  costs,  a  plaintitf  will  be  liable  to  costs  where 
the  arbitrator  is  prevented  from  making  his  award 
in  consequence  of  the  plaintiff  not  being  prepared 
with  proper  evidence,  though  he  is  ready  to  be 
examineJ  in  support  of  his  own  case.  Morgan  r. 
Williams,  2  Dowl.  P.  C.  123.  101 

The  autiiority  of  an  arbitrator  cannot  be  re- 
voked afler  he  has  made  his  award.  Phipps  r. 
Ingram,  3  Dowl.   P.  C.  669.  103 

A  judge  at  chambers  having,  under  3  &  4  Will. 
4,  c.  42,  s  3H,  revoked  a  submission  to  arbitra- 
tion on  an  ex  parte  statement,  the  court  rescind- 
ed the  order  of  revocation.  Clark  v.  Stocken,  2 
Bing.  N.  R.  651.  103 

The  3  &  4  Will.  4,  c  42,  s.  30,  does  not  apply 
to  arbitrators  appointed  in  pursuance  of  a  clause 
in  a  deed,  that  all  disputed  shall  be  referred  to 
(he  arbitration  of  two  persons,  who  are  directed 
to  choose  an  umpire  before  they  proceed,  but 
which  umpire  has  not  been  appointed.  Bright  v. 
Durncll,  4  Dowl.  P.  C.  7u6.  103 


Jlrbitrator.] — If  a  cause  is  referred  to  a  bar- 
risler,  and  lie  improperly  admits  evidence,  tlie 
court  will  not  disturl)  his  award.     Perryman  v. 


Stegg;il, '2  Dowl   P.  C 


7'»6. 


105 


S290 


[ARBITRATION] 


An  arbitrator's  deciBion  on  the  admissibilitj  of 
evidence  before  him  is  final.  Symes  v,  Goodfel- 
low,  4  Dowl.  P.  C.  642.  105 

If  a  submission  to  arbitration  be  **  so  that  the 
witnesses  be  examined  on  oath,"  affidavits  cannot 
be  read ;  if  they  are,  the  award  may  be  set  aside. 
Banks  v.  Banks,  I  Gale,  46.  105 

Where  a  defendant  submitted  all  matters  in 
difference  to  arbitration,  and  the  arbitrators  re- 
quired him,  in  pursuance  of  a  power  ffiven  them 
&r  that  purpose,  to  produce  certain  l>ooks  and 
papers,  and  an  attachment  was  moved  for  against 
him  for  not  producing  them  : — Held,  tliat  he 
could  not  by  affidavit  bring  before  the  court  the 
question,  whether  those  b<x>ks  related  to  matters 
in  difference  between  them,  or  not,  though  it  was 
expressly  sworn  that  the  books  merely  related  to 
ola  accounts,  which  had  been  long  since  settled, 
and  which  it  ban  beei^  agreed  between  them 
should  form  no  pa^t  of  the  reference,  because,  by 
the  general  terms  of  the  submission  of  all  mat- 
ters in  ditierence,  it  was  led  in  the  discretion  of 
the  arbitrator  to  say  what  were  matters  in  differ- 
ence, and  what  were  not.  Arbuckle  v.  Price,  4 
Dowl.  P.  C.  174.  105 

The  refusal  of  an  arbitrator  to  examine  wit- 
nesses is  sufficient  misconduct  on  his  part  to  in- 
duce the  court  to  set  aside  his  award,  though  he 
may  think  that  he  has  sufficient  evidence  without 
them.  Phipps  v.  Ingram,  3  Dowl.  P.C.  660.    105 

Where  all  matters  in  difference  in  the  cause 
between  the  parties,  in  an  action  against  two  de- 
fendants, were  referred  to  arbitration,  and  the 
arbitrator  refused  to  hear  evidence,  or  adjudicate 
upon  the  subject  of  four  checks  drawn  by  one  of 
the  defendants  alone,  on  the  ground  that  it  was 
not  a  matter  in  difference  between  the  parties  to 
the  reference: — Held,  that  the  award  was  not 
final  and  conclusive,  and  that  it  must  be  set 
aside.  Samuel  v  Cooper,  2  Adol.  ^  Ellis,  752; 
I  Har.  &  W'oU.  86  :  S.  C.  nom.  Samul  v.  LeYey, 
4  Nev.  &  M.  520.  105 

An  award  will  not  be  set  aside,  although  the 
affidavits  in  support  of  the  application  disclose 
strong  imputations  upon  the  testimony  of  a  ma- 
terial witness  who  was  examined  i>efore  the  arbi- 
trator ;  nor  is  the  arbitrator  bound  to  examine  a 
party  in  the  cause  wh6  could  have  contradicted 
the  witness.  Scales  v,  Eaut  London  Water  Works 
Company,  1  Hodges,  91.  105 

Statement  in  award.  Crump  v.  Adney,  3  Tyr. 
270 ;  1  C.  <&  M.  355.  106 

On  a  cause  beingr  referred,  tlie  plaintiff  at- 
tended before  the  arbitrator  by  counsel,  witliout 
giving  the  defendant  notice  of  his  intention  so  to 
do.  The  defendant  requested  an  adjournment, 
to  give  him  time  to  instruct  counsel ;  but  tlie 
plaintiff  refused  to  consent,  unless  the  defendant 
paid  the  cost  of  the  day.  The  arbitrator  pro- 
ceeded ex  parte,  and  certified  in  favor  of  tlie 
plaintiff.  I'he  court,  on  motion,  stayed  the  certi- 
ficate, and  referred  the  cause  bank  to  tlic  arbitra- 
tor, and  dissallowed  the  plainliffhis  costs  of  the 
day.  WhaUey  v.  Morland,  2  C.  &  M.  347 ;  2 
Dowl.  P.  C.  249 ;  4  Tyr.  255.  106 

A  reference  was  made  to  two  arbitrators,  and 


an  umpire  to  be  chosen  by  them,  who  was  to  be 
present  and  decide  each  reference  as  it  niiffht 
arise,  and  either  might  make  an  award.  The 
umpire,  in  the  presence  of  the  arbitrators,  disal- 
lowed the  plaintiff  part  of  his  claim,  which  made 
the  balance  in  favor  of  the  defendant,  and  after- 
wards without  notice  to  the  arbitrator  or  de- 
fendant, made  his  award  in  favor  of  the  plain- 
tiff. The  court  set  aside  the  award.  Potter  v. 
Newman,  4  Dowl.  P.  C.  504  ;  2  C.  M.  &,  R.  742  \ 
1  Tyr.  i&  G.  29.  106 

An  arbitrator  decided  in  favor  of  plaintiff,  and 
tlien  stated  facts  on  his^ward,  ordering  that  if 
the  court  should  difierfrom  him  in  opmion,  on 
considering  those  facts,  a  nonsuit  should  be  enter- 
ed. T!ie  court  refused  to  set  aside  the  award,  on 
the  ground  that  he  had  come  to  a  wrong  conclu- 
sion on  the  evidence,  for  though  they  did  not  con- 
cur in  it,  it  did  not  appear  that  there  was  no  evi- 
dence in  support  of  it.  Barrett  r.  Wilson,  1  C.  M. 
&  R.  586 ;  3  Dowl.  P.  C.  220 ;  5  Tyr.  218.    106 

Order  on  arbitrator  to  proceed.  Crawshay  v. 
Collins,  1  Wils.  C.  C.  31 ;  1  Swans.  40.  108 

A  cause  (in  which  monev  had  been  paid  into 
court)  was  referred,  with  all  matters  in  difference, 
the  costs  to  abide  the  event  The  arbitrators 
found  that  the  plaintiff  had  no  cause  of  action, 
but  that  there  was  a  sum  of  IQL  due  from  the 
defendant  for  money  lent  to  his  wife,  which  was 

f»aid  into  the  court : — Held  that  the  plaintiff  was 
iable  to  pay  the  costs.    Dawson  v.   Garrett,  2 
Dowl.  P.  C.  624.  109 

If  an  arbitrator  to  whom  a  cause  is  referred  by 
order  of  Nisi  Prius,  takes  no  notice  in  his  award 
of  a  power  given  him  by  the  order  to  give  the 
defendant  his  posts,  on  the  ground  of  an  exces- 
sive arrest,  but  docs  not  dispose  of  the  general 
costs  of  the  cause,  the  court  will  not  interfere  to 
give  the  defendant  his  costs.  Greenwood  v.  John- 
son, 3  Dowl.  P.  C.  606^  109 

Where  a  cause  is  referred,  (the  costs  of  the 
suit,  and  of  the  reference  and  award,  to  abide  the 
event,)  the  arbitrator  need  not  notice  the  costs  in 
his  award.  Jupp  v.  Grayson,  I  C.  M.  &  K.  523  ; 
3  Dowl.  P.  C.  199 ;  5  Tyr.  150.  109 

Matters  in  difference  were  referred  to  two  arbi- 
trators, one  appointed  by  each  party,  and  an  um- 
pire chosen  before  proceeding  with  the  reference. 
The  award  was  to  be  made  by  the  three,  or  any 
two  of  them.  They  disagreed,  and  one  of  the  arbi- 
trators declined  having  anything  more  to  do  with 
the  matter ;  but  the  other  two  afterwards  sent  to 
him,  for  his  opinion,  a  drafl  of  an  award.  He 
objected  to  this,  and  stated  his  objections  to  both 
the  others  : — Held,  that  an  award  made  by  the 
two,  which  diftercd  from  the  one  prepared,  without 
considering  the  objections,  and  without  consulta- 
tion or  dittcussion  with  the  arbitrator  who  had 
objected,  was  bad.  In  re  Allen,  5  Nev.  &  M.  374 ; 
nom.  In  re  Perrin?  6t  Kcymcr,  3  Adol.  &  Ellis, 
245  :  S.  C.  nom.  Perring  v.  Kymer,  1  Har.  &. 
Woli.2S5.  110 

Semble,  that  if  the  award  had  been  made  by 
the  two  iiiimediately  upon  the  tliird  declining  to 
act,  and  before  they  had  again  consulted  him,  it 
might  have  been  good.     Id. 


[ARBITRATION] 


2291 


A  oause  beinff  referred,  the  arbitrator  in  1825 
received  from  £e  plaintiff's  attorney  671.  for  his 
fees  and  expenses.  In  1827,  the  parties  went 
before  the  prothonotary,  when  he  allowed  only 
35/.  The  defendant  now,  afler  a  lapse  of  eight 
years  from  the  time  the  payment  was  made,  (the 
attorney  who  paid  the  money  having  died  in  the 
interim),  applied  to  the  court  to  order  the  arbitra- 
trator  to  refund  the  difference : — Held,  that  the 
application  was  to  late.  Brazier  v.  Bryant,  3 
M.  &  Scott,  844  ;  2  Dowl.  P.  C.  757.  110 


Vmpire.l — An  nmpire  may  be  appointed  by 
lot  with  the  assent  of  the  parties.  In  re  Tuno, 
2  Nev.  &  M.  328 ;  5  B.  &  Adol.  488.  110 

Sach  assent  sufficiently  appears  by  each  party 
presenting  three  names,  from  which  that  of  the 
umpire  is  to  be  drawn.     Id. 

Or,  bv  the  parties  signing  the  memorandum 
by  whicn  the  person  whose  name  is  drawn  is  ap- 
pointed  umpire.     Id. 

An  umpire,  being  furnished  by  tlie  arbitrators 
with  the  evidence  taken  before  them,  and  having 
himself  viewed  the  premises,  the  condition  of 
which  was  in  question,  made  his  award  without 
calling  for  further  evidence,  or  giving  any  notice 
on  thai  subject  to  the  parties  : — Held,  that  the 
award  could  not  be  objected  to  on  that  ground  by 
a  party  who  knew  that  the  case  had  gone  before 
the  umpire  and  made  no  application  to  him  to 
hear  farther  evidence.     Id. 

Rule  nisi  to  set  aside  an  award  on  the  around 
of  partialitv  refused,  though  it  appeared  that  the 
umpire  made  the  award  wiui  the  assistance  chiefly 
of  one  of  the  arbitrators,  who  omitted  to  take 
down  part  of  the  evidence  in  favor  of  one  party, 
the  other  arbitrator  interfering  very  little.  Wal- 
tonahaw  v.  MarshaU,  1  Har.  &  WoU.  219.       110 


JhcardJ] — All  matters  in  difference  in  a  cause 
were  referred  by  a  judge's  order  to  an  vbitrator, 
•o  as  he  made  his  award  on  or  before  a  particular 
day,  or  on  or  before  such  further  or  ulterior  day 
■fl  be  should  from  time  to  time  appoint  by  writ- 
ing under  his  hand,  to  be  indorsed  on  the  order, 
and  as  the  court  or  a  baron  might  order.  The 
aibitrator  made  an  enlargement  of  the  time,  but 
this  was  not  confirmed  by  any  order.  Afler- 
wards  two  orders  for  enlarging  the  time  were 
made  by  a  baron,  with  the  consent  of  the  parties : 
— Held,  that  an  award  made  before  the  time  ap- 
pointed by  the  last-mentioned  order  was  valid, 
and  that  the  orders  by  consent  amounted  to  a 
fresh  agreement.  Benwell  v.  Hinxman,  1  C.  M. 
&  R.  935;  5Tyr.  509 ;  3  Dowl.  P.  C.  500.    112 

The  arbitrator  found  that  a  sum  of  money  was 
due  from  the  defendant  to  the  plaintiff,  which  he 
directed  to  be  paid  on  or  before  a  particular  day, 
and  that  upon  payment  of  that  sum  all  proceed- 
ings should  cease : — Held,  that  the  award  was 
final  and  not  conditional ;  but  that  the  arbitrator 
had  exceeded  his  authority  in  giving  a  particular 
day  of  payment.     Id. 

The  power  given  to  the  court  or  a  iud^  by  3 
&  4  Will.  4,  e.  42,  s.  39,  to  enlarge  the  time  for 

Vol.  IV.  3 


an  arbitrator  to  make  his  award,  is  general,  and 
is  not  confined  to  cases  where  there  has  been  a 
revocation  of  the  submission .  Burley  v.  Stephens, 
1  Mees.  &  Wels.  156 ;  4  Dowl.  P.  CJ.  255,  770. 

112 

The  time  for  making  an  award  beinff  limited 
to  the  18th  of  April,  with  power  to  enlarge  the 
time,  but  not  stating  how,  the  arbitrator,  at  a 
meeting  on  the  16th,  in  the  presence,  and  with  the 
consent  of  all  parties,  appointed  the  29th  of  June 
for  a  further  meeting : — Held  to  be  a  sufficient 
enlargement  of  the  time.    Id. 

Semble,  that  under  the  3  &  4  Will.  4,  c.  42.  s. 
39,  the  court  or  a  judge  has  the  power  to  en- 
large the  time  for  an  arbitrator  to  make  his  award, 
although  the  order  of  reference  does  not  contain 
any  power  to  enlarge  the  time,  and  there  has 
been  no  revocation  of  the  arbitrator's  authorit. 
Potter  V.  Newman,  2  C.  M.  &  R.  742 ;  4  Dowl. 
P.  C.  504  ;  1  Tyr.  &  G.  29-  112 

The  court  will  not  infer  that  the  decision  of  an 
arbitrator  has  proceeded  solely  upon  certain  facts 
set  out  in  the  award,  unless  the  award  state 
that  the  decision  is  founded  upon  these  facts. 
Lancaster  v.  Hemmington,  5  Nev.  &  M.  538. 

113 

(construction  of  award.  Wood  v.  Griffiths,  1 
Wils.  C.  C.  34 ;  1  Swans.  52.  113 

A.  and  B.  having  a  dispute  as  to  the  liability  of 
B.  to  pay  money  to  A.,  agreed  to  submit  the  case 
to  a  barrister,  and  to  be  Dound  by  his  opinion. 
Semble,  that  in  an  action  brought  to  enforce  such 
payment,  the  opinion  of  a  barrister  upon  a  case 
so  submitted  is  admissible  in  evidence  without 
an  award  stamp.  Boyd  v.  Emerson,  4  Nev.  & 
M.  99 ;  2  Adol.  A  KUis,  184.  113 

Semble  also,  that  supposing  an  award  stamp  to 
be  necessary,  a  staQip  proportioned  to  the  num- 
ber  of  words  on  the  opinion  alone  without  the  uue 
is  sufficient,  althougn  the  opinion  be  annexed  to 
the  case,  and  refer  to  the  cause  thus : — **  Upon 
the  facts  stated,  I  am  of  opinion,*'  &.c.    Id. 

An  action  for  a  nuisance  (to  which  a  plea  of 
the  general  issue  only  was  pleaded,  before  the 
new  rules  of  pleading)  was  referred  to  an  arbitra- 
tor, who  found  that  Uie  plaintiff  had  not  proved 
that  the  defendant  was  not  the  cause  of  the  mjury, 
and  he  ordered  a  nonsuit  to  be  entered,  but  he 
also  ordered  that  the  defendant  should  remove 
the  nuisance  within  a  month  : — Held,  that  this 
was  a  finding  substantially  in  fiivor  of  the  defen- 
dant, and  that  he  was  entitled  to  the  expense  of 
all  witnesses  who  could  be  material  under  the 
general  issue.  Radcliffe  v.  Hall,  3  Dowl.  F.  C. 
802.  113 

An  award,  declared  that  a  yard  and  pump  were 
the  sole  and  exclusive  property  of  ^the  plaintiff, 
except  that  the  defendant  had  a  right  to  take  wa^ 
ter  from  the  pump,  and  to  have  ingress  and 
egress  to  and  from  the  vard  in  which  it  stood  for 
that  purpose ;  and  further,  that  the  pump  should 
thereafter  be  considered  as  belonging  jointly  to 
the  plaintiff  and  defendant,  and  oe  repair- 
ed at  their  joint  expense : — Held,  that  tnere 
was  no  objection  to  the  award,  on  the  ground  that 
the  direction  as  to  the  future  enjoyment  was  in 


2292 


[ARBITRATION] 


eoiuistent  with  the  former  part  of  the  award ;  and 
that  there  was  no  excess  of  authority.  Boodle  v. 
Davia,  4  Nev.  &  M.  788;  3  Adol.  A  Ellis,  200 ; 

1  Har.  &  WoU  420.  113 

Where  by  an  agreement  of  reference  afteraction 
brought,  but  before  declaration,  **  all  the  costs  are 
to  abide  the  event  of  the  award,"  the  arbitrator  has 
no  power  over  the  costs.  Id. 

Upon  a  reference  of  partnership  disputes,  a 
direction  in  the  award  that  some  of  the  parties  to 
the  reference  do  pay  a  sum  of  money  (which  is 
one  of  the  matters  mcluded  in  the  submission)  to 
the  arbitrator,  and  that  he  apply  the  same  to  the 
payment  of  certain  specified  demands,  ^also  part 
of  the  matters  submitted),  is  bad,  and  vitiates  the 
award,  although  the  payments  appear,  by  the 
tenor  of  the  award,  to  be  for  the  Mnefit  of  the 
parties  submitting,  and  not  of  the  arbitrator.  In 
le  Mackay,  2  Adol.  &  £llis,  356.  113 

If  it  clearly  appear,  from  reading  an  award, 
that  the  arbitrator  intended  to  leave  a  particular 
question  of  law  open,  the  court  will  consider  it, 
although  in  terms  the  arbitrator  may  in  one  part 
of  his  award  have  determined  it.  Sherry  v.  Oke, 
3  Dowl.  P.  C.  349 ;  I  Har.  &  Woll.  119.  113 

]^o  precise  form  of  words  is  necessary  to 
constitute  an  award :  it  is  sufTcient  if  the  ar- 
bitrator express  by  it  a  decision  upon  the  mat- 
ter submitted  to  him.  But  where  an  arbitrator 
to  whom  a  dispute  between  an  architect  and  his 
clerk,  respecting  a  claim  by  the  latter  to  wages 
was  referred,  stated  in  a  letter  that  he  had  exa- 
mined drawings  made  by  the  clerk,  with  an  ac- 
count of  his  time,  which  did  not  show  experience 
or  ability  to  the  extent  to  justify  a  demand  for 
remuneration  under  the  circumstances :  but  in 
consideration  of  the  clerk's  services  out  of  the 
office  on  some  occasions,  and  to  meet  the  case  in 
a  liberal  manner,  he  proposed  that  the  architect 
should  pay  the  clerk  101. : — Held,  that  the  latter 
part  of  the  letter  was  a  mere  sogjyrestion  of  the 
arbitrator,  and  not  a  decided  opinion  that  the 
cl«*rk  was  or  was  not  entitled  to  recover  10£.,  and 
therefore  not  a  good  award.    Lock  v.  Vulliamy, 

2  Nev.  &  M.  336 ;  5  B.  &  Adol.  600.  113 

A  bond  conditioned  for  the  due  discharge  by 
A-  M.  of  the  duties  of  clerk,  provided  that  such 
discharge  should  be  ascertained  by  the  inspec- 
tion of  A.  M.,'8  accounts  by  J.  S. ;  and  that  the 
amount  so  ascertained  should  be  liquidated  da- 
mages. A  paper  by  which  J  S.  has  ascertained 
such  amount  requires  to  be  duly  stamped  as  an 
award.  Jebb  v.  M'Kurnan,  BiT  &  M.  340 — 
Farke.  113 

In  an  action  between  A.,  tenant  of  Whiteacre, 
and  B.  his  landlord,  all  matters  in  dispute  are  re- 
ferred to  C,  who  is  to  determine  what  shall  be 
done  with  respect  to  the  land.  C.  awards,  with 
respect  to  the  land,  that  from  the  date  of  his 
award  the  tenancy  shall  cease,  and  that  A.  shall, 
within  a  month,  deliver  up  possession  to  B. 
Possession  is  token  accordingly.  D.,  a  creditor  of 
A.,  afterwards  issues  execution  against  A.,  and 
takes  tiie  crops  growing  on  Whiteacre  : — Held, 
that  this  awmrd  did  not  determine  the  tenancy  : — 


Held,  also,  that  the  award  was  admissible  in  evi- 
dence upon  the  trial  of  an  issne  between  B.  and 
D.,  upon  the  question,  whether,  at  the  time  of  the 
execution,  the  crops  Were  the  property  of  A.  or 
B.    Thorp  V.  Eyre,  3  Nev.  &  M.  214.  113 

Where  an  action  was  brought  by  an  attorney 
on  a  bill  not  taxable,  and  a  verdict  taken  subject 
to  a  reference  as  to  the  amount  of  the  charge, 
and  the  arbitrator  awarded  a  certain  sum  :-^ 
Held,  that  it  was  competent  for  the  court  to 
examine  whether  the  arbitrator  had  adopted  a 
right  rule.  Broadhurst  r.  Darlington,  2  Dowl. 
P.  C.  38.  114. 

By  the  terms  of  a  submission,  a  Chancery  suit 
and  all  matters  in  difference  between  the  parties 
were  referred,  and  it  was  made  an  express  matter 
of  reference,  whether  an  agreement  between  the 
parties  should  be  rescinded  or  not.  The  arbi- 
trator merely  decided  as  to  the  Chancery  suit^ 
that  each  party  should  pay  his  own  costs ;  ancl 
gave  no  directions  upon  the  subject  of  rescindingr 
the  agreement,  but  awarded  specifically  on  every 
other  subject  matter  of  the  agreement: — Held, 
that  the  award  was  not  sufficient.  Upperton  v. 
Tribe,  1  Har.  &  Woll.  280 :  8.  C.  nom.  In  re 
Upperton  an  Tribe,  3  Adol.  &  Ellis,  296.        114 

Quiere,  whether  the  award  was  not  sufficiently 
final  as  regarded  the  adjudication  upon  the  Chan- 
cery suit.    Id. 


Orders  of  difierent  judges  to  the  number  of 
eleven,  enlarging  the  time  for  making  an  award, ' 
were  made  a  rule  of  court  by  a  single  rule.    Id. 


An  action  having  been  brought  for  the  recovery 
of  a  sum  of  money,  but  which  had  only  pro* 
ceeded  as  far  as  the  writ  and  appearance,  and  the 
defendant  claiming  a  larger  sum  to  be  due  to 
him,  it  was  agreed  that  the  action,  and  the  dis- 
putes arising  out  of  the  accounts  and  other  mat* 
ters  in  difference  should  be  referred,  the  costs  of 
the  action,  of  the  reference,  and  of  the  award,  to 
abide  the  event  of  the  award.  The  arbitrators 
awarded  that  the  action  should  cease,  and  be  no 
further  prosecuted,  and  that  on  the  balance  of  all 
accounts,  there  was  a  sum  of  661L  due  to  the 
defendant  from  the  plaintiff,  which  they  ordered 
him  to  pay  on  a  particular  day : — Held,  that  the 
anrard  was  sufficiently  final,  and  decided  the 
event  of  the  action,  to  prevent  the  plaintifi 
setting  it  aside,  though  perhaps  the  court  would 
refuse  an  attachment.  Eardley  v.  Steer,  4  Dowl. 
P.  C.  42:) ;  1  C.  M.  &  R.  327.  114 

An  action  for  trespass  for  taking  goods  was 
preferred  princioally  with  the  view  of  determin- 
ing the  right  or  property  in  the  goods,  the  de- 
fendants contending  that  the  plaintiff  had  no 
property  in  them,  but  that  they  belonged  to  a 
th\ra  person  ;  another  complaint  in  the  declara- 
tion was,  that  the  defendants  had  committed  an 
assault  upon  the  plaintiff 's  wife  per  ^od  con- 
sortium amisit,  and  all  other  matters  in  di&r- 
ence  were  also  referred.  No  evidence  was  given 
before  the  arbitrator  to  prove  the  per  quoo,  but 
there  was  only  one  assault  proved  to  luive  been 
committed  on  the  wife,  and  the  plaintiff  aban- 
doned his  claim  to  part  of  the  goods.    The  arbi- 


[ARBITRATION] 


2298 


tnlor  made  hia  award,  merely  orderingr  the  ver- 
dict which  had  been  entered  for  the  plaintiff  to 
•tand,  and  the  damages  to  be  reduced  to  352.,  but 
made  no  award  respecting  the  right  of  property 
in  the  goods : — Held,  that  the  award  was  sum- 
ciently  nnal.    Bird  v.  Cooper,  4  Dowl.  P.  C.  148. 

114 

An  arbitrator,  who  had  authority  to  decide  on 
what  terms  a  partnership  agreement  should  be 
cancelled,  directed,  among  oUier  things,  that  the 
agreement  should  be  cancelled ;  that  one  of  the 
partners  should  have  all  the  debts  due  to  the 
firm,  and  should,  if  necessary,  sue  for  them  in 
the  name  of  his  late  partner : — Held,  that  in 
authorizing  one  of  the  parties  to  sue  in  the  name 
of  the  other,  the  arbitrator  had  not  exceeded  his 
aathority.  Burton  or  Burt  r.  Wigley  or  Wig- 
more»  1  Scott,  610 ;  1  Bing.  N.  R.  6& ;  1  Hodges, 
81.  114 

An  action  of  trespass  to  which  the  defendant 
had  pleaded  both  a  private  and  a  public  right  of 
way,  was  referred  at  Nisi  Prius  to  an  arbitrator, 
together  with  all  matters  in  difference  in  the 
caose  between  the  parties.  It  was  agreed,  also, 
that  the  plea  of  a  public  right  of  way  was  to  be 
withdravTn,  but  that  the  arbitrator  was  to  decide 
as  to  the  costs,  as  if  it  remained.  Tiie  arbitrator 
was  also  to  award  as  to  the  future  use  of  the 
road.  The  arbitrator  found  the  private  right  of 
way  for  the  defendant,  and  set  out  the  way  he 
should  in  future  use,  and  he  gave  him  the  costs 
of  the  cause,  including  the  costs  on  the  issue  of 
the  public  right  of  way : — Held,  that  the  arbi- 
trator had  not  in  fiict  found  a  public  and  private 
right  of  way  over  the  same  spot.  2.  That  the 
award  could  not  be  set  aside  on  the  ground  that 
there  was  evidence  to  support  a  public  but  not  a 
private  rif ht  of  way.  lliat  the  arbitrator  did 
not  exceed  his  authority  in  giving  the  defendant 
the  costs  of  the  issue  on  the  public  ri^ht  of  way, 
having  given  him  the  verdict  on  the  issue  of  the 

K'vate  right  of  way.    Allenby  v.  Proudlock,  4 
Fwl.  P.  C.  64 ;  1  Har.  A  Woll.  357.  114 

By  ao  order  of  reference,  an  action  and  all 
matters  in  diflference  were  referred  to  arbitration, 
the  costs  of  the  suit  and  of  the  reference  to  abide 
tfw  event  of  the  award.  The  arbitrator  directed 
the  defendant  to  deliver  certain  goods  to  the 
l^ntiff,  and  the  plaintiff  to  pay  a  sum  of  money 
to  the  defendant;  that  all  proceedings  in  the 
action  should  cease,  and  a  seneral  release  be 
given : — Held,  that  the  award  was  not  uncertain 
■s  to  costs,  as  the  e^ct  of  it  was  that  each  party 
should  pay  his  own.  Tates  v.  Knight,  2  Scott, 
470;  2  Bing.  N.  R.  277 ;  1  Hodges,  368.         114 

An  award  recited,  that,  W  an  agreement  in 
writing  between  the  plaintiff  and  deTendant,  re- 
cifing  that  they  had  for  some  years  carried  on 
hosineai  as  builders  and  excavators  in  copart- 
nenhip,  and  that  they  had,  in  pursuance  or  the 
oopartnenhip,  become  possessed  of  certain*  mes- 
suages, buildtngB,  and  premises,  sum  and  sums 
ef  money,  and  other  chattels  and  effects,  and  that 
£ven  disputes  had  arisen  between  them  touch- 
ing their  accounts,  reckonings,  and  dealings,  and 
as  to  a  diyiaion  of  the  said  copartnership  mes- 
saagea,  Ac.*  and  other  their  estate  and  efiects, 


and  that  they  had  agreed  to  refer  the  matter  to 
the  decision,  &c.  of  J.  C.  and  W.  B.,  and  that 
the  said  arbitrators  should  have  power  to  direct 
a  division  of  messuages,  buildings,  and  premises, 
and  other  the  partnership  effects  between  them, 
and  that  each  party  thereby  agreed  to  execute  to 
the  other  a  conveyance  of  the  messuages,  &c.  ac- 
cording to  such  division  between  them,  as  the 
arbitrators  should  award.  The  award  further  re- 
cited, that  the  partnership  between  the  defendant 
and  the  plaintiff  had  been  dissolved  by  mutual 
consent.  The  arbitrators  then  awarded  that  the 
defendant  should  pay  to  the  plaintiff  the  sum  of 
223/.  4*.  6d.  in  full  of  all  demands,  in  respect  of 
his  one  equal  moiety,  half  part,  or  share  of  the 
said  copartnership  property,  estate,  and  effects ; 
and  that  upon  payment  thereof,  and  upon  having 
such  conveyances  as  thereinafter  mentioned  ten- 
dered to  him  for  execution,  the  plaintiff  should, 
at  the  defendant's  request,  execute  a  proper  con- 
veyance unto  and  to  the  use  of  the  defendant,  of, 
in,  and  to  certain  messuages,  d^c.  therein  men- 
tioned, subject  to  certain  mortgage  debts  charged 
thereon.  They  also  awarded,  that  all  the  debts 
then  due  and  owing  to  and  from  the  copartner- 
ship concern,  should  be  received  and  paid  by  the 
defendant  and  the  plaintiff  in  equal  proportions ; 
and  that,  if  either  party  should  advance  or  pay 
any  sum  or  sums  of  money  over  and  above  his 
half  share  or  proportion  of  the  copartnership 
debts,  then  the  amount  so  overpaid  should,  on 
demand,  be  made  good,  and  repaid  to  the  party 
paying  the  same  by  the  party  making  default. 
To  an  action  upon  this  award,  to  recover  the 
sum  of  2232.  is.  6d.  from  the  defendant,  he 
pleaded,  (after  setting  out  the  award  as  above^, 
that  the  several  messuages,  drc.  in  the  said 
award  mentioned,  and  directed  to  be  conveyed  to 
the  defendant,  were  the  whole  of  the  said  copart- 
nership messuages,  &c.,  and  that  there  was  not 
in  the  said  award  any  other  provision  than  those 
thereinbefore  specified  concerning  the  said  co- 
partnership property,  estate,  and  effects,  or  the 
division  thereof,  or  any  part  thereof: — Held,  on 
demurrer  to  this  plea,  that  the  award  was  final : 
that  it  was  sufficiently  certain :  and  that  it  was 
not  inconsistent.  Wood  v.  Wilson,  2  C.  M.  & 
R.  241.  114 

Quere,  whether,  upon  the  supposition  that 
there  had  been  no  arrangement  between  the 
partners,  by  which  the  premises  were  ultimately 
to  become  the  property  of  one  partner,  subject 
to  the  mortgages,  the  arbitrators  did  not  exceed 
their  authority  in  awarding  the  messuages,  &o. 
to  one  of  the  parties,  and  not  dividing  them 
between  boUi.  Id. 

Covenantor  and  covenantee  submitted  the 
amount  of  damages  accruing  from  a  breach  of 
covenantor  to  an  abitrator: — Held,  that  in  an 
action  on  the  covenant,  the  arbitrator's  award  was 
conclusive  as  to  the  amount  of  damages,  unless 
the  award  itself  could  be  impeached.  White- 
head V.  TattersaU,  1  Adol.  &  Ellis,  491.  114 

A  cause  and  all  matters  in  difference  were  re- 
ferred by  a  rule  of  court  to  an  arbitrator,  who 
awarded  that  a  particular  balance  was  due  from  the 
plaintiff  to  the  defendant,  but  did  not  order  the 


92M 


[ARBITRATION] 


money  to  be  paid  by  the  plaintiff.  He  also 
awarded  that  tne  plaintiff  should  pay  costs  with- 
out directing  to  whom . — Held,  tnat  if  an  action 
would  lie  on  this  award,  no  attachment  could  be 
granted  on  it  as  for  disobedience  of  the  rule  of 
court.  Scott  V.  Williams,  3  Dowl.  P.  C.  508 ; 
6  Tyr.  506 :  S.  C.  nom.  Hopkins  v.  Davis,  I  C. 
M.  &R.  846.  .  ]]4 

An  action  for  certain  commission  on  the  pur- 
chase of  land,  and  all  matters  in  difference'  be- 
tween the  parties,  were  referred  to  arbitration ; 
the  costs  of  the  suit  and  of  the  reference  and 
award,  and  all  other  costs,  to  abide  the  event ; 
final  judgment  to  be  entered  up  for  tlie  plaintiff 
or  defendant,  according  to  the  award,  for  any 
damages  or  costs  awarded  to  either  of  them,  and 
execution  to  issue.  The  arbitrator  awarded,  that 
the  plaintiff  had  no  cause  of  action  against  the 
the  defendant,  and  that  the  plaintiff  should  pay  to 
the  defendant  the  sum  of  dbl.  I3s.  4d.,  which  he 
found  to  be  due  and  owing  from  the  plaintiff  to 
the  defendant.  The  arbitrator  then  declared 
that  his  award  was  not  intended  to  exclude  the 
plaintiff  from  the  receipt  of  his  commission  on 
certain  land  purchased,  to  which  he  would  be 
entitled  under  a  certain  agreement : — Held,  that 
the  arbitrator  had  no  power  given  him  to  order  a 
verdict  to  be  entered,  but  merely  to  decide  whe- 
ther the  plaintiff  had  any  cause  of  action  against 
the  defendant ;  and  that  tlie  award  was  suffi- 
ciently final.  Harding  v.  Forshaw,  1  Mees.  &> 
Wels.  415  J  4  Dowl.  p!  C.  761.  114 

After  declaration,  and  before  plea,  a  cause  and 
all  matters  in  difference  between  the  parties 
were,  by  a  judge's  order,  made  by  consent,  re- 
ferred to  arbitration,  the  costs  to  abide  the  event 
of  the  suit.  The  arbitrator  awarded  that  a  ver- 
dict should  be  entered  for  the  plaintiff,  with  55Z. 
damages,  and  that  in  all  the  other  matters  in  differ- 
ence between  the  parties,  there  was  not  any  sum 
of  money  due  to  either  of  the  parties : — Held, 
that  this  was  not  equivalent  to  an  award  that  the 
plaintiff  should  pay  the  defendant  55/.;  and  the 
court  therefore  refused  an  attachment  to  enforce 
the  payment,  either  of  the  55!.  or  of  the  costs. 
Donlan  v.  Brett,  4  Nev.  d[,  M.  854  ;  2  Adol.  & 
Ellis,  344.  114 

By  an  order  of  Nisi  Prius,  three  actions,  and 
all  antecedent  causes  of  action  between  the  par- 
ties wpre  refered  to  the  decision  of  an  arbitra- 
tor. The  first  was  an  action  on  the  case  brought 
by  D.  against  A.  for  disturbance  of  common  ;  the 
second  was  an  action  of  trespass  quare  clausum 
fregit  by  A.  against  D.  and  P. :  and  the  third  was 
another  action  of  trespass  by  A.  against  P.,  D., 
and  L.,  which  had  not  proceeded  further  than  the 
pleas.  By  the  terms  of  the  submission,  any 
other  persons  claiming  rights  of  common  over 
the  locus  in  quo,  and  particularly  one  H.,  under 
whom  the  defendants  justified  m  some  of  the 
pleas  in  the  actions  of*^  trespass,  were  to  be  at 
liberty  to  become  parties  to  the  reference ;  and 
the  object  of  the  reference  was  declared  to  be  for 
the  purpose  of  ascertaining,  securing,  and  regu- 
lating the  rights  of  the  commoners,  and  the  ex- 
tent of  certain  woods  and  coppices  as  far  as 
concerned  the  parties  to  the  eference.     In  the 


action  on  the  case,  not  guilty  was  pleaded.  In 
the  first  action  of  trespass,  the  defendants  pleaded 
not  guilty,  and  several  special  pleas,  upon  which 
issues  we/e  loined.  In  the  other  action  of  tres- 
pass, not  guilty  and  pleas  justifying  the  trespasses 
were  pleaded,  but  upon  which  noissue  had  been 
joined  at  the  time  when  the  matter  was  referred. 
In  the  action  on  the  case  for  disturbance  of  com- 
mon, the  arbitrator  awarded,  that  a  verdict  should 
be  entered  for  the  plaintiff  on  certain  counts  in 
the  declaration.  In  the  action  of  trespass  which 
was  at  issue,  he  found  that  the  defendants  were 
not  guilty  of  the  trespasses ;  and,  in  the  other, 
that  the  plaintiff  had  no  cause  of  action  a^inst 
the  defendants.  The  arbitrator  took  no  notice  of 
the  other  issues  ;  but,  in  pursuance  of  the  terms 
of  the  submission,  declared  by  his  award  what 
the  rights  of  the  parties  were  as  to  the  enjoyment 
of  the  common,  and  the  inclosing  of  the  woods 
in  future.  He  then  awarded  that  A.,  who  was 
the  defendant  in  the  first  mentioned  action,  and 
the  plaintiff  in  the  other  two,  should  pay  all  the 
costs  of  the  reference  and  award : — Held,  first, 
that  the  award  was  final,  and  that  all  the  matters 
material  to  the  determination  of  the  causes  were 
sufficiently  disposed  of;  secondly,  that  the  arbi- 
trator not  having  been  requested  to  decide  on  the 
other  issues  witn  reference  to  the  costs,  he  was 
not  bound  to  do  so ; — Held,  also,  that  as  H.  did 
not  become  a  party  to  the  reference  the  arbitrator 
was  not  bouna  to  find  any  thing  as  to  the  rights 
of  H.  Dibben  v.  Anglesea  (Marquis), 2  C.  ib,  M. 
722;  4  Tyr.  926;  S.  C.  10  Bing.  568.  114 

A  banker  conveys  his  real  estate  to  two  trus- 
tees upon  certain  trusts  for  the  payment  of  his 
debts,  and  subsequently  enters  into  an  agreement 
with  them  as  to  the  sale  of  the  property ;  af^r 
which  he  takes  forcible  possession  of  part  of  it 
and  the  trustees  bring  an  action  of  ejectment 
against  him,  which,  with  another  action,  is  re- 
ferred to  the  decision  of  an  arbitrator.  The 
award  finds,  that  the  creditors  were  entitled  to 
recover  in  the  action  of  ejectment,  and  directs 
that  a  sum  of  money  which  was  due  to  the  trus- 
tees, for  expenses  incurred  by  them  in  the  execu- 
tion of  the  trusts,  shall  be  paid  by  installments, 
and  in  default  of  payment,  that  the  property  shall 
be  sold,  and  the  proceeds  applied  in  discharge  of 
the  debt  due  to  the  trustees: — Held,  that  the 
award  was  no  charge  upon  the  land,  but  that  it 
did  not  destroy  the  lien  thereon,  which  the  deed 
had  expressly  given  to  the  trustees  for  the  ex- 
penses incurred  by  them  in  the  execution  of  the 
trusts.    £x  parte  Coppard,  4  Deac.  &  Chit.  102. 

lid 

In  a  suit  instituted  to  enforce  a  pecuniary  de- 
mand against  the  real  and  personal  estate  of  the 
testator,  an  order  was  made  by  consent,  referring 
all  matters  in  difference  between  the  parties  in 
the  cause  to  arbitration,  and  the  arbitrators  made 
an  award,  ordering  the  executor  to  pay  a  certain 
sum  to  the  complainants  in  full  satisfaction  of 
all  tlieir  demands  on  him  and  his  testator,  but 
directing  that  certain  other  defendants  who,  under 
the  testator  s  will,  took  interests  m  his  real  estate, 
should  be  at  liberty  to  proseccte  their  claims 
against  the  testator's  estate,  in  like  manner  as  if 


[ARBITRATION] 


2295 


no  order  of  reference  had  been  made  : — ^the  award 
was  held  not  to  be  final,  and  waa  theFefore  set 
aside.    Turner  v.  Turner,  3  Russ.  494.  115 

A  replevin  anit,  and  all  matters  in  difference 
touching  the  distress,  were  referred  to  arbitration, 
the  costs  of  the  suit  to  abide  the  event.  The 
arbitrator  awarded  that  the  rent  was  14^,  and 
that  &.  were  due  for  rent  at  the  time  of  the  dis- 
tress, that  the  plaintiff  in  replevin  should  pay 
the  defendant  6^.,  and  that  the  action  should  be 
no  further  prosecuted .  It  did  not  appear  for 
what  rent  the  deiendant  had  avowed  : — Held,  that 
the  award  did  not  show  who  ought  to  pay  the 
costs,  which  were  to  abide  the  event  of  the  suit ; 
and,  consequently,  that  it  was  not  final,  in  re 
Leeming,  5  B.  ds  Adol.  403 ;  S.  C.  nom.  Leeming 
V.  Feamley,  U  Nev.  &  M.  'Ziii.  115 

An  arbitrator,  to  whom  a  cause  in  dispute  as  to 
the  amount  of  rent  due,  and  an  action  of  replevin, 
the  merits  of  which  are  involved  in  tbat  dispute, 
are  referred,  has  no  authority  to  award  a  stet 
processus.     Id. 

A  cause,  (the  declaration  in  which  contained 
eight  counts),  and  all  matters  in  difference  be- 
tween the  plaintiff  and  defendant,  were  referred  ', 
the  costs  of  the  cause,  and  of  the  reference  and 
award  relatmg  thereto,  to  abide  the  event  The 
arbitrators  found  that  the  plaintiff  had  good  cause 
of  action  in  respect  of  the  matters  charged  in  five 
of  the  counts,  and  awarded  61.  damages,  and  di- 
rected that  no  further  proceedings  should  be  had 
in  the  causey  but  made  no  specific  award  as  to 
the  three  remaining  counts  : — Held,  that  the 
award  was  not  final,  there  being  no  determina- 
tion as  to  the  three  last-mentioned  counts,  and 
consequently  no  legal  event  as  to  them  to  autho- 
rise tne  taxation  of  costs  thereon.  Norris  v. 
Daniel,  4  M.  &  Scott,  383;  10  Bing.  507;  2 
Dowl.  P.  C.  798.  115 

Where  a  cause  is  referred  to  an  arbitrator,  it  is 
not  necessary  that  he  should  find  for  the  plaintiff 
or  defendant  in  the  very  words  of  the  issue.  It 
is  snfficient  if  he  decide  substantially  the  ques- 
tion in  dispute.  Wykes  v.  Shipton,  3  Nev.  di  M. 
240.  115 

An  award  made  upon  a  reference  of  a  cause, 
and  all  matters  in  diference  between  the  parties, 
is  bad  if  it  omit  to  assess  damages  upon  a  judg- 
ment of  nil  dicit  upon  a  new  assignment  of  ez- 


Where  all  matters  in  difference  are  referred 
to  an  arbitrator,  an  award  directing  the  execu- 
tion of  general  releases  closes  all  accounts  be- 
tween the  parties  up  to  the  time  of  the  sub- 
mission. Trimingham  v.  Trimingham,  4  Nev.  ik, 
M.786.  115 

To  a  declaration   on  an  award,  the  defendants 

pleaded  that,  by  an  agreement  to  which  they,  who 

were  the  chorcnwardins  and  overseers  of  a  parish, 

were  parties  of  one  part,  and  the  plaintiff  and 

one  £.  T.,  femiers  in  the  parish,  of  the  other  part, 

xcciting  that,  in  a  rate  for  the  relief  of  the  poor 

the  phuntiff  and   £.  T.,  conceiving  themselves  to 

ite  over-rated  for  certain  property  in  proportion  to 


other  parishioners,  had  given  notice  to  the  defen- 
dants of  their  intention  to  appeal;  that  the  defen- 
dants intended  to  defend   the  same,  but  that,  as 
both   parties  had  agreed  to  refer  all  matters  in 
difference,  no    appeal  had    been    entered ;  and 
that,  to  determine  on  the  propriety  of  the  rate,  so 
far  as  regarded  the  plaintiff  and  £.  T.,  they  had 
agreed  to  refer  4he  various  matters  in  difference 
to  three  arbitrators :  it  was  witnessed,  that  the 
defendants  so  far  as  they  lawfully  might  or  could, 
as  churchwardens  and  overseers,  and  also  the 
plaintiff  and  E.  T.   respectively,  agreed  to  abide 
by  the  award   of  the  arbitrators,  who  were  to 
award  upon   those  matters  in  difference,  as  to  the 
expenses  of  that  agreement,  and  also  as  to  the 
costs  of  the  award ;  the  plea  then  set  out  the 
award  verbatim,  which  directed  the  defendants  to 
pay  to  T.  E.  T.,  the  attorney  of  the  plaintiff  and 
E.  T.,  16/.   125.,  his  bill   already  delivered,  and 
also  his  further  costs  of  attending  the  arbitration, 
^c. ;  that  they  should  pay  to  Messrs.  A.  &  L. 
20/.  4s.  for  their  costs  of  attending  the  arbitration, 
&c. ;  that  they  should  pay  to  Slessrs.  A.  &  L. 
.57/.  VJs.  for  tlie  expenses  of  the  arbitrators ;  and 
that  the  defendants  should  deduct  from  all  future 
rates  charged  upon  the  plaintiff  10^.,  and  return 
him  10s.  for  every  rate  he  had   paid   while  the 
scheme  was  in  operation;  and  as  to  the  quantity 
of  a  lake  occupied  by  the  plaintiff,  which  was  in 
dispute  between  them,  they  ordered  the  rate  to  be 
altered  by  the  parish  according  to  the  schedule  an- 
nexed to  the  award  ;  and,  as  to  £.  T.,  they  ordered 
the  defendant  to  repay  him  for  every  past,  and  to 
deduct  from  every  future  rate  5*. ;  and  the  plea 
concluded  thus : — "and  the  defendants  in  fact 
say,  that  the  award  is  void  and  bad  in  law,  and 
this  they  are  ready  to  verify,"  &c.     On  special 
demurrer  to  this  plea,  on  the   ground  that  the 
plea  referred  to  the  jury  what  ought  to  be  decided 
by  the  court : — Held,  by  Lord  Abinger,  and  Bol- 
land,  B.,  that  the  plea  was  good  in  lorm,  but  bad 
in  substance,  because  the  submission  and  award 
was  void,  as  the  principal  matter  referred  could 
not  legally  be  referred  by  the  defendants,  as  pa- 
rish onicers ;  that  the  parish  were  not  bound  by 
the  decision  of  the  arbitrators,  nor  the  defendants, 
as  parish  officers,  nor  any  other  of  the  parish- 
ioners ;  that  the  award  being  void  with  respect 
to  the  principal  matter  referred,  it  was  also  void 
as  to  the  costs ;  and  tbat  the  award  lefl  one  of 
the  principal  matters  in  so  much   doubt  that  the 
parties  could  not  have  the  benefit  of  it,  Parke, 
B.,  held  that  the   plea  was  good  in  form  and 
substance,  and  that   the  award  was  divisable; 
that  though  the  defendants  could  not  be  com- 
pelled to  perform  the  first  part  of  the  award  re- 
specting the  rate,  yet  that  the  award  was  ffood,  so 
far  as  it  directed  tne  defendants  to  pay  me  costs 
occasioned  by  the  appeal,  &c.  and  of  the  award ; 
that  the  fact  of  the  quantity  of  the  lake  occupied 
by  the  plaintiff  not  being  settled  by  the  arbitra- 
tors, but  directed  by  them  to  be  measured  by  the 
parish,  was  not  material ;  and  the  amount  of  the 
attorney's  costs,  which  the  plaintiff  alone  was  lia- 
ble to  pay,  might  be  fixed  by  evidence.    Thorp  ». 
Cole,  4  Dowl.  P.  C.  457;  2  C.  M,  &  R.  367.  115 

Setting  aside.'] — It  is  no  ground  for  impeach- 
ing an  award  tbat  the  arbitrator  has  been  mis 


52296 


[ARBITRATION] 


taken  in  point  of  law,  as  to  the  admissibility  of 
certain  evidence.  Armstrong  v.  Marshall,  4.  Dowl. 
P.  C.  593.  116 

There  is  no  distinction  with  regard  to  legal 
and  other  arbitrators ;  and  the  court  will  not  ex- 
amine an  award,  because  it  has  been  made  by 
one  who  is  not  in  the  profession  of  the  law. 
Jupp  V.  Grayson,  1  C.  M.  ^  R.  5:i53 ;  3  Dowl. 
P.  C.  199  J  5  Tyr.  150.  1 16 

The  court  will  not  inquire  into  the  validity  o^ 
the  decision  of  an  arbitrator  in  point  of  law,  not 
even  where  the  arbitrator  had  merely  power  to 
certify.  Wilson  v.  King,  2  C.  i&  M.  689;  4  Tyr. 
997.  '  116 

Qoere,  if  an  arbitrator,  having  only  a  limited 
power,  may  deliver  in  with  his  certificate  a  writ- 
ten paper  stating  facts  proved  before  him,  so  as  to 
raise  a  question  of  law  for  the  opinion  of  the 
court.    Id. 

Where  a  cause  and  all  matters  in  dispute  are 
referred,  a  recital  in  the  award  that  the  action 
was  referred,  without  mentioning  other  matters 
in  di£Eerence,  does  not  constitute  an  objection  to 
the  award  on  the  face  of  it.  Paull  v.  PauU,  2 
Dowl.  P.  C.  340 ;  2C.  &  M.  235 ;  4  Tyr.  72. 116 

Such  an  objection  should  be  made  the  ground 
of  a  separate  application  to  set  aside  the  award, 
supported  by  affidavits  showing  what  were  the 
other  matters  in  difference.    Id. 

Where  matters  in  difference  are  referred  to  a 
legal  arbitrator  absolutely,  the  court  will  not  en- 
tertain a  motion  for  reviewing  his  decision  either 
upon  the  law  or  the  facts.  Ashton  v.  Pointer,  2 
Dowl.  P.  C.  651 ;  3  D«>wl.  P.  C.  201.  116 

If  the  reference  is  to  a  non-legal  arbitrator,  the 
court  will  review  his  decision  as  to  a  point  of  law, 
but  not  upon  the  facts,  unless  his  award  appears 
BO  glaringly  wrong  as  to  induce  a  suspicion  of 
misconduct.    Id. 

Where  a  cause  was  referred  to  an  attorney  and 
another  peraon,  the  court  granted  a  rule  for  set- 
ting asioe  the  award  upon  a  point  of  law.    Id. 

An  award  made  by  a  barrister  cannot  be  im- 
peached on  the  ground  of  his  having  decided  con- 
trary to  law.    Wade  v.  Malpas,  2  Dowl.  P.  C.  638. 

116 

Arbitnton  having  power  to  appoint  an  um- 
pire, nominated  one  accordingly,  who  made  his 
award,  reciting  his  nomination  by  them,  but 
misdeschbing  Die  christian  name  of  one  of  them  : 
—Held,  that,  as  in  an  action  on  the  award  the 
recital  of  the  appointment  of  the  umpire  would 
be  unnecessary,  the  award  remainea  in  force, 
and  an  attachment  lay  to  enforce  it.  Trew  v. 
Burtoo,  1  C.  dt  M.  533 ;  3  Tyr.  559.  116 

The  affidavit  of  publication  of  an  award  should 
flhow  in  the  body  that  the^day  on  which  it  was 
00  puolished  was  within  the  time  limited  for 
making  the  award,  but  it  is  sufficient  if  the  jurat 
show  that  it  was  sworn  before  that  time  had  run 
out.    id. 

If  a  stran^jer  alter  an  inmiaterial  part  of  an 
award  after  it  is  published,  by  striking  out  a 
wrong  and  inserting  a  right  name,  the  award 
is  not  vitiated,  and  stands  as  before  the  alteration 
was  made.    Id. 


The  court  will  not  set  aside  an  award  on  the 
ground  that  the  arbitrator  has  made  a  mistake, 
where  all  the  facts  were  placed  before  him,  and 
he  was  competent  from  his  occupation  to  judge 
of  them,  unless  the  court  see  clearly  it  was  a 
mistake.  Hardy  v.  Ringrose,  1  Har.  di  WoU.  185. 

116 

Where  a  submission  to  arbitration  was  made 
in  a  cause  by  agreement,  and  not  by  a  judge's 
order,  and  af\er  the  award  was  published,  the 
submission  was  made  a  rule  of  court ;  the  court 
considered  itself  bound  by  analogy  to  the  stat.  8 
<&  9  Will.  3 ;  and  refused  to  set  aside  the  award 
after  the  period  of  limitation  had  expired.  Rush- 
worth  V.  Barrron,  3  Dowl.  P.  C.  317;  1  Har.  & 
Woll.  122.  1 18 

A  clause  in  a  deed  of  submission  to  arbitar- 
tion,  ^*  that  no  action  or  suit  at  law  or  in  equitj 
shall  be  commenced  or  prosecuted  against  the  ar- 
bitrators concerning  their  award  when  made,  nor 
to  impeach  the  said  award,  unless  some  collusion 
or  other  fraud  be  discovered  or  appear  therein,'* 
does  not  prevent  a  party  to  the  deed  from  moving 
to  set  aside,  (for  illegality  upon  the  face  of  it), 
though  no  fraud  or  collusion  appear.  In  re 
Mackay,  2  Adol.  &  Ellis,  356.  11 8 

Applications  to  set  aside  awards  made  under  a 
judge  s  order  of  reference  are  now  put  on  the 
same  footing  as  to  time,  as  if  the  awards  were 
made  under  the  8  &  9  Will.  3 ;  but  if  the  party 
affected  has  not  notice  of  the  award  sufficientlv 
early  to  enable  him  to  move  within  the  time  al- 
lowed by  the  act,  he  may  move  to  set  it  aside  in 
the  term  next  aflerthe  notice.  Potter  v.  Newman, 
4  Dowl.  P.  C.  504;  2  C.  M.&  R.  742;  1  Tyr.  A 
G.  29.  118 

A  motion  to  set  aside  an  award  made  in  the 
Common  Pleas  at  Lancaster  under  an  order  of 
Nisi  Prius  cannot  be  made  in  banco,  under  4  &  5 
Will.  4,  c.  62,  s.  26,  though  a  verdict  was  taken 
subject  to  the  award,  but  must  be  made  before  a 
single  judge.    Byrne  o.  Fitzhugh,  5  Tyr.  221 . 

A  rule  nisi  to  set  aside  an  award  ought  to 
state  specifically  the  particular  grounds  of  objec- 
tion. Boodle  V.  Davies,  4  Nev.  £  M.  788;  1  Har. 
&,  Woll.  420:  8.  P.  Whately  v.  Morland,  2  C  ^ 
M.  347;  2  Dowl.  P.  C.  249;  4  Tyr.  255.  119 

It  is  not  sufficient  to  state  generally  that  the 
arbitrator  has  exceeded  his  authority,  or — ^that 
the  award  is  uncertain  and  not  final.    Id. 

Where  the  time  for  making  an  award  is  en- 
larffed  by  a^rreement,  there  being  no  authority  for 
such  an  enlargement  in  the  original  submission, 
the  new  agreement  must  be  made  a  rule  of  court 
before  an  attachment  can  issue  for  non-perform- 
ance of  an  award  made  during  the  enlarged 
period.  M 'Arthur  v.  Campbell,  2  Nev.  &  M, 
444  ;  5  B.  <&  Adol.  518.  119 

An  award  is  published  when  the  arbitrator 
gives  the  parties  notice  that  it  may  be  had  on  pay- 
ment of  his  charges,  whether  they  be  reasoiudue 
or  not.    Id. 

The  rule  of  £.  T.  2  Geo.  4,  requiring  the 
grounds  of  objecting  to  nh  award  to  be  stated 
upon  a  rule  nisi  to  set  it  aside,  applies  to  the 
certificate  of  an  arbitrator  empowered  to  asoer- 


[ARBITRATION] 


3207 


tein  the  unoant  doe  from  the  defendant  to  the 
pUm^  and  to  certify  the  same  to  the  associate, 
by  whom  a  verdict  is  to  be  entered  accordingly. 
Carmichael  v.  Houchen,  3  Nev.  &  M.  203.     119. 

A  rule  to  set  aside  an  award  made  after  action 
commenced,  on  account  of  objections  to  the  de- 
claration, need  not  refer  to  the  declaration,  as  it 
is  sufficiently  before  the  court.  Sherry  v.  Oke,  3 
Dowl.  P.  C.  349 ;  1  Uar.  &  WoU.  119.  ]  19 

A  rule  for  setting  aside  an  award  must  appear 
on  the  lace  of  it  to  be  drawn  up  on  reading  the 
award  itself,  or  a  copy  of  it ;  and  the  court  will 
not  allow  it  to  be  amended.    Id. 

An  award  made  in  pursuance  of  an  order  of 
Nisi  Prins,  referring  a  cause  and  other  matters  in 
di^ience,  may  be  objected  to  at  any  time  before 
the  end  of  the  term  next  after  the  publication 
Allenby  v.  Proudlock,  4  Dowl.  P.  C.  54 ;  1  Har.  Hl 
Woll.357.  119 

In  stating  the  grounds  on  which  it  is  sought  to 
Kt  aside  an  award,  it  is  not  sufficient  to  state  a 
general  head  of  objection  as  ^*  misapprehension 
of  the  terms  of  the  reference.'*    Id. 

A  motion  to  set  aside  an  award  made  under  a 
judge's  order  must  be  made  promptly  af\er  the 
party  knows  of  the  award  being  made.  Worrall 
V.  Deane,  2  Dowl  P.  C.  261.  119 

Where  such  a  motion  was  made  after  two  terms 
had  elapsed,  the  court  discharged  it  with  costs, 
thouffh  it  was  alleged  by  the  party  moving  that 
be  did  not  believe  that  the  other  party  intended 
to  proceed  upon  the  award,  as  there  Had  been  a 
previous  revocation.    Id. 

A  motion  to  set  aside  an  award  made  under 
an  order  of  Nisi  Prius,  must  be  made  within  the 
first  four  days  of  the  next  term,  though  it  is  for 
objections  apparent  on  the  face  of  the  award. 
Sell  V.  Carter,  2  Dowl.  P.  C.  245.  119 

A  motion  to  set  aside  an  award  under  a  judge's 
order  must  be  made  within  the  term  ensuing  the 
making  of  the  award,  although  the  arbitrator  de- 
mands an  excessive  fee,  and  a  copy  is  not  in  con- 
sequenee  obtained  by  either  party  until  a  few 
days  before  the  time  when  the  application  is 
made.  M* Arthur  v.  Campbell,  2  Nev.  d>  M.  444 
5  B.  dk  Adol.  518.  '  119 

Where,  from  the  misconduct  of  one  of  the  par- 
ties to  an  award,  the  submission  cannot  be  made 
a  rale  of  court,  so  as  to  enable  the  opposite  party 
to  make  it  a  rule  of  court  before  the  last  day  but 
one  of  the  6r8t  term  after  the  award,  the  time  for 
.  a  motion  to  set  it  aside  will  be  enlarged  until  the 
following  term.    In  re  Perring,  3  Dowl.  P.  C.  98. 

119 

A  role  nisi  to  set  aside  an  award  under  an 
seder  of  Nisi  Prius  having  been  discharged  on  a 
mere  technical  objection: — Held,  not  too  late  to 
move  for  a  second  rule  after  the  first  four  days  of 
the  term  next  after  the  award  was  made  .  Sherry 
«.  Oke,  3  Dowl.  P.  C.  349;  1  Har.  &  Woll.  119. 

119 

The  coort  allowed  a  fresh  affidavit  to  be  filed 
in  sopport  of  rule  nisi  to  set  aside  an  award  the 
day  aner  the  rule  was  made.  Perrin  v.  Kymer, 
1  Har.  dfc  Woll.  20.  119 

Where  there    is  a   doubt  about  the  validity  of 


an  award,  the  court  will  neither  set  it  aside,  nor 
grant  an  attachment,  but  leave  the  party  to  bring 
an  action :  secus  when  a  verdict  has  been  taken. 
Burley  v.  Stevens,  4  Dowl  P.  C.  770 ',  1  Mees.  & 
Wels.  156.  119 

Enfordnff.'] — ^The  defendant  being  taken  under 
an  attachment  for  non- performance  of  an  awards 
went  to  prison,  and,  though  he  was  able  to  pay, 
he  refused  so  to  do,  perversely  decla^'ing  that  he 
would  rather  go  to  jail  than  pay.  The  plaintifiT 
then  commenced  an  action  upon  the  award ;  and 
on  motion  that  the  plaintiff  might  be  compelled 
t*)  discontinue,  or  the  defendant  might  be  dis- 
charged out  of  custody,  the  court  ordered  him  to 
be  discharged,  on  giving  a  bond  to  the  plaintifiT, 
with  sureties  to  ih.e  master's  satisfaction,  con- 
ditioned to  the  same  ePect  as  in  the  case  of  a  re- 
cognizance of  bail.  Lonsdale  (Earl)  v.  Whinnay  ;, 
I  C.  M.  &  R.591;  3  Dowl.  P.  C.  263;  5Tyr. 
203.  120 

Where,  in  an  action  of  trespass,  the  time  for 
making  an  award,  pursuant  to  an  order  of  Nisi- 
Prius,  expires  before  the  award  is  made,  and  the 
arbitrator  has  not  enlarged  the  time,  as  em- 
powered by  the  order,  the  court  will,  under  cer- 
tain circumstances,  direct  judgment  to  be  signed 
and  execution  issued,  for  the  sum  for  which  the 
jury  find,  subject  to  the  reference,  unlesr  th<-.  en- 
largement is  consented  to.  Wilkson  v.  Time. 
4  Dowl.  P.  C.  37;  1  Har.  &  Woll.  351.        120 

A  cause  was  refered  at  the  assizes,  and  by 
consent  a  verdict  was  entered  for  the  plaintiff, 
damages  50/.,  costs  40^.,  subject  to  the  award  of 
an  arbitrator.  The  time  for  making  the  award 
expired  without  an  award  being  ma& ;  the  time 
was  further  enlarged  by  consent,  and  the  enlarg- 
ed time  having  also  expired  without  an  award 
being  made,  the  plaintifiT  gave  notice  of  trial,  and 
proceeded  to  the  trial  of  the  cause,  and  obtained 
a  verdict.  A  judge's  order  having  been  previ- 
ously obtained  for  altering  the  record  in  the  dis- 
tringas, the  clerk  of  assize  at  the  trial  erased  the 
indorsement  of  the  previous  verdict,  and  entered 
the  new  verdict  in  the  usual  way.  The  court  set 
aside  the  latter  verdict  for  irregularity.  £vans  v. 
Uavies,  3  Dowl.  P.  C.  786 ;  1  Gale,  15D.       120 

Where,  by  order  ofNis^  Prius,  a  verdict  was 
taken  for  the  plaintiff,  subject  to  an  arbitration* 
which  was  not  entered  upon,  through  the  default 
of  a  third  party,  the  plaintiff  may  apply  for  leave 
to  enter  and  try  the  cause  de  novo.  Bacon  v. 
Cresswell,  1  Hodges,  189.  120 

Where  it  was  on  the  terms  of  an  agreement  to 
refer  disputes  to  arbitration,  that  the  sabmision 
might  be  made  a  rule  of  a  court  of  law  at  the  op- 
tion of  either  party,  and  a  bill  having  been  filed 
to  set  aside  the  award,  it  appeared  by  the  answer 
of  the  defendant  that  the  submission  had  been 
made  a  rule  of  the  Court  of  Kind's  Bench  by  the 
defendant,  subsequently  to  the  filing  of  the  bilL 
the  common  injunction  which  had  be^n  obtained 
by  the  plaintiff  was  upon  appeal  dissolved,  the 
Lord  Chancellor  holding  that  the  Court  of  Chan- 
cery had  no. jurisdiction  to  relieve  against  the 
award.    Niclfols  v.  Roe,  3  Mylne  St  feen,  431. 

120 

Where  a  verdict  hasbeen  found  subject  to  a 


2298 


[ARMY  AND  NAVY— ARREST] 


I 


reference,  and  the  award  has  not  been  until  some 
terms  afterward,  judgment  cannot  be  entered  up 
as  of  the  term  next  ailer  the  verdict,  without  a 
special  application  to  the  court  Brooke  v.  Fearns, 
2  Dowl.  P.  C.  144.  121 


ARMY  AND  NAVY. 

A  writ  of  prohibition  cannot  issue  to  a  court- 
martial  afler  sentence  pronounced  by  the  court 
and  ratified  by  his  Majestj,  and  execution  by 
dismissal  from  the  army,  m  pursuance  of  such 
aentence.  In  re  Foe,  2  Nev.  &.  M.  636;  5  fi.  <& 
Adol.  681.  124 

It  is  not  necessary,  in  order  to  make  a  man  in- 
rolled  as  a  volunteer,  an  efiective  member  of  his 
corps,  that  he  should  have  taken  the  oath  of  al- 
lei^iance  required  by  the  volunteer  act,  44  Greo.  3, 
c  54,  s.  20.  Rex  v.  Witnesham.  4  Nev.  <^  M. 
447 ;  2  Adol.  &  Ellis,  648 ;    I  Har.  Sl  Woll.  43. 

124 


ARREST. 

For  wkat  cause  of  Action.'] — Arrears  of  annui- 
ty. Anerson  v.  Bell,  2  C.  &  J.  630 ;  2  Tyr.  732. 

127 

Where  an  action  is  pending  at  the  suit  of  a 
bankrupt,  and  the  assignees  arrest  the  defandant 
for  the  same  cause  of  action,  it  is  not  vexatious. 
Barnes  v.  Maton,  3  Dougl.  186;  1  Tidd's  Prac. 
170;  15  East,  613,  n.  127 

Second  Arrest.'] — Where  a  defendant,  being  in 
custody  on  mesne  process,  was  discharged  on  the 
tenns  of  his  givin?  bills,  which  he  neglected  to 
do,  and  the  plaintiff  arrested  him  again  without  a 
fresh  affidavit  or  a  judge's  order,  the  second  arrest 
was  held  to  be  regular.  Cantellow  v.  Freeman  or 
Trueman,2  Dowl.  P.^C.  2;  1  C.  &>  M.  536;  3 
Tyr.  579.  128 

Where  a  defendant  was  arrested  in  Ireland  for 
the  amount  of  a  bill  of  exchange,  and  gave  bail 
there,  which  were  discharged  lor  a  defect  in  the 
affidavit  to  hold  to  bail ;  and  the  plaintiff,  having 
afterwards  got  jud^ent  in  Ireland,  arrested  the 
defendant  a  second  time :  in  an  action  in  this 
country  on  the  judgment — Held,  that  the  defen- 
dant was  entittled  to  his  discharge.  Gunn  v. 
M'Clintock,  2  Dowl.  P.  C.  660 ;  2  C.  <&  M  668 ; 
4  Tyr.  988.  128 

A  party  may  arrest  a  defendant  without  dis- 
continuing a  previous  action  commenced  by  ser- 
viceable process  for  the  same  cause,  though 
within  two  days  of  the  day  for  which  the  cause 
was  set  down  for  trial.  Brickline  v.  Small  wood, 
3  Dowl.  P.  C.  569 :  S.  0.  nom.  Burdakin  v.  Small- 
wood,  1  Har  &  Woll.  187.  128 

If  a  first  writ  is  discontinued,  and  the  costs  are 
taxed  and  paid,  it  is  not  necessary  that  the  plain- 
tiff should  give  the  sheriff  notice  of  such  discon- 
tinuance, or  serve  the  rule  on  him  before  arrest- 
ing the  defendant  on  a  fresh  writ ;  and  the  court 
refused  to  discharge  a  defendant  from  such  second 
arrest,  on  the  ground  that  the  discontinuance  of 
Ihe  firat  action  was  incomplete  on  account  of  that 


omission.  But  they  would  have  relieved  against 
any  actual  damage  sustained  by  the  defendant 
Price  ».  Day,  3  Dowl.  P.  C.   463;    5  Tyr.  456. 

128 

A  plaintiff  may  arrest  a  defendant  afler  suing 
out  three  serviceable  writs,  the  action  com- 
menced by  which  he  has  not  discontinued.  Chap- 
man tj.Vandevelde,  3  Dowl.  P.  C.  313.  128 

A  defendant  was  arrested  for  the  sum  of  701.^ 
but  it  appearing  that  to  part  of  that  amount  the 
defendant  had  a  defence  under  the  statute  of 
limitations,  it  was  agreed  that  he  should  be  dis- 
charged out  of  custody  on  giving  a  bill  of  ex- 
change for  201.  drawn  by  a  third  person,  and 
accepted  by  himself  The  defendant  having  been 
again  arrested  on  the  bill : — Held,  that  the  de- 
fendant was  not  entitled  to  be  discharged  out  of 
custody,  as  having  been  a  second  time  arrested 
for  the  same  debt.  Hamber  v.  Cooper,  2  C.  JM.^ 
R.  148;  3  Dowl.  P.  C.  671;  1  Gale,  103.  128 

A  plaintiff  cannot  lodge  a  detainer  against  a 
defendant,  and  then,  having  on  the  ground  of 
a  defect  in  the  writ,  treated  it  as  a  nullity,  lodge  a 
second  detainer  against  him.  Gadderer  v.  Shep- 
pard,  4  Dowl.  P.  C.  577.  l& 

A  bailable  writ  having  been  issued  against  a 
defendant  upon  an  affidavit  of  debt  lor  the 
amount  of  several  bills  of  exchange,  the  defen- 
dant's attorney  gave  an  undertaking  for  the  defen- 
dant, who  was  not  arrested;  an  agreement  was 
then  made,  by  which  the  plaintiff  forbade  any  one 
to  proceeded  m  his  name  without  his  authority 
and  he  agreed  to  give  three  months'  notice  before 
he  proceeded  on  the  bill  transactions  between 
them,  and  that  ag^reement  was  to  set  aside  any 
writ  or  writs  then  issued  against  the  defendant. 
The  plaintiff's  attorney  afterwards  gave  three 
months,  notice  that  he  should  proceed,  and  a 
new  writ  was  sudsequentlv  issued  upon  a  fresh 
affidavit,  upon  which  the  defendant  was  arrested. 
Upon  a  motion  to  stay  proceedings,  and  that  the 
defendant  might  be  discharged:— Held,  that  the 
second  writ  was  regularly  issued  without  discon- 
tinuing the  first  action,  as  nothing  had  been  done 
upon  the  first  writ,  and  sixteen  months  had 
elapsed  since  it  was  issued;  but  that  the  agree- 
ment meant  that  the  defendant  should  have^iive 
months*  notice  from  the  plaintiff  himself,  and 
that  a  notice  given  by  the  attorney  was  insuf^ 
ficient ;  and,  on  the  latter  ground,  the  defendant 
was  discharged  out  of  custody.  Ryves  v.  Bunninff 
3  Dowl.  P.  C.  817.  iS 


Affidavit  of  Debt.'] — A  party  may  be  arrested 
a  second  time  on  me  same  affidavit,  where  the 
first  action  has  been  discontinued,  and  the  second 
proceeding  is  with  the  same  filacer.  Richards  v. 
Stuart,  10  Bing.  323 ;  3  M.&  Scott,  778;  2  Dowl. 
P.  C.  754.  131 

A  capias  into  Sussex  was  issued  upon  an  afii- 
davit  filed  with  the  filacer  for  Sussex,  and  re- 
turned non  est  inventus: — Held,  that  an  alias 
capias  might  be  issued  by  continuance  intd  an- 
other county  on  the  same  affidavit.  Coppin  «. 
Potter,  10  Bmg.  441 ;  2  M.  &  Scott,  272 ;  2  Dowl. 
P.  C.  785.  131 


[ARREST] 


22M 


In  tn  affidavit  to  hold  to  bail,  the  deponent 
waa  deacribed  aa  ^  J.  S.,  of  Bath,  in  the  county 
of  Someraet,  Eaq.:'* — Held  sufficient.    Id. 

Where  concurrent  writs  of  capias  are  issued, 
there  should  be  an  affidavit  of  debt  filed  with  the 
filacer  of  each  county.  Dunne  v.  Harding,  4  M. 
&,  Scott,  450.  131 

An  affidarit  of  debt,  sworn  before  the  deputy 
signer  of  bills  of  Middlesex,  before  2  Will.  4, 
c.  39,  waa  in  force,  was  held  sufficient  to  autho- 
riie  the  issuing  of  a  writ  of  capias  since  that  act 
came  into  operation  Young  v.  Beck,  I  C  M. 
AR.448;'i  Dowl.  P.  C.  ^  ;  5  Tyr.  24,  over- 
ruling Beck  V.  Young,  2  Dowl.  P.  C.  462.      133 

An  affidavit  of  debt,  sworn  before  a  commis- 
iioner,  need  not  be  entitled  in  any  court  Ur- 
qohart  v.  Dick,  2  Dowl.  F.  C.  17.  131 

An  affidavit  of  debt  was  filed  April  9,  with  the 
filacer  for  SurreVi  and  a  capias  issued  into  Surrey 
on  the  7th*  of  May  ;  and  in  November,  an  alias 
capias  thereon  issued  into  Middlesex,  no  fresh 
affidavit  being  filed,  the  filacer  for  Surrey  and 
Middlesex  being  the  same  person  : — Held  regu- 
lar Rantsden  v.  Maugham,  2  C.  M.  &-  R.  634  ; 
4  Dowl.  P.  C.  403  ;  1  Tyr.  6l  G.  40.  132 

A  stale  affidavit  means  one  sworn  above  a  year 
ago.  Id. 

Where  an  affidavit  of  debt  was  sworn  in  Ire- 
land, before  a  commissioner  of  Common  Pleas 
and  Exchequer : — Held,  that  the  title  of  the  court 
need  not  be  prefixed  to  the  affidavit  when  sworn  ; 
bat  that  the  affidavit  might  be  taken  before  such 
commissioner,  to  be  afterwards  intituled  and  used 
m  either  court  Perse  v.  Browning,  1  Mees.  A 
Wels.  362.  132 

Where  a  writ  of  capias  was  issued  on  a  good 
affidavit  of  debt,  and  afterwards  another  into  an- 
other county,  upon  a  defective  affidavit,  on  which 
the  defendant  was  arrested: — Held,  that  th'' 
arrest  was  regular,  as  the  first  affidavit,  being^ 
sworn  before  the  same  officer  who  issued  both 
writs,  would  warrant  the  issuing  of  the  second 
writ  without  a  fresh  affidavit.  Rock  v.  Johnson, 
4  DowL  P.  O.  405.  1?2 

In  an  affidavit  to  hold  to  bail,  made  by  a  third 
person,  it  is  not  necessary  to  show  any  connexion 
Detween  the  deponent  and  the  plaintiff.  Short  v. 
CunpbeU,  3  Dowl.  P.  C.  487  ;  1  Gale,  60.      132 

An  affidavit  made  by  a  person,  who  described 
himself  as  agent  and  collector  to  the  plaintiff,  an 
hjlel-keeper  : — Held  sufficient.    Id. 

An  affidavit  to  hold  to  bail,  for  a  debt  stated 
therein  to  be  due  to  A.  and  B.,  is  good,  though 
the  plain tifiSi  are  partners,  and  are  not  stated 
to  be  BO  in  the  affidavit.  Bodfield  v,  Padmore,  5 
B.  &  Adol.  1096.  134 

An  affidavit,  made  by  the  assignee  of  a  bank- 
mpt,  for  a  sum  of  money  "  for  interest  agreed  to 
be  paid  by  the  defendant,  as  appears  to  this  de- 
ponent bv  the  books  of  account  of  the  bankrupt, 
and  as  this  deponent  verily  believes  to  -be  true," 
is  sufficient,  Harrison  v.  Turner,  4  Dowl.  P.  C. 
73;  1  Bar  d^  WoU  346.  134 

Semble,  that  the  allegation  that  the  defendant 
indebted  to  plaintiff  in  a  sum  stated  will  not 

Vol.  IV.  4 


aid  an  affidavit  to  hold  to  bail,  wliich  is  otherwise 
insufficient.  Brooke  v.  Coleman,  1 C  &  M.  621 ; 
8  Dowl.  P.  C.  7 ;  3  Tyr.  593.  134 

An  affidavit  to  hold  to  bail  for  debts  due  on 
several  accounts,  on  which  the  defendant  is  ar- 
rested for  the  aggregate  of  all  the  sums  due,  is 
bad  in  toto,  if  bad  as  in  any  of  the  debts  stated, 
and  the  defendant  will  be  (fischarged.  Baker  v* 
WiUs,  2  C.  &  M.  415 ;  3  Tyr.  182.  134 

Ad  affidavit  that  the  defendant  is  indebted 
upon  and  by  virtue  of  a  mortgage  deed  in  the 
sum  of  500/.,  by  which  the  defendant  covenanted 
to  pay  that  sum  at  a  certain  day  now  past,  is  suffi- 
cient, without  averring  that  Uie  money  was  not 
paid  at  the  appointed  day.  Masters  v.  Billing, '  3 
Dowl.  P.  C.  751.  136 

An  affidavit  grounded  on  a  covenant  by  deed 
to  pay  a  certain  sum  at  a  day  named,  is  good,  if 
it  state  the  defendant  to  be  indebted  to  the  plain- 
tiff, upon  and  by  virtue  of  the  indenture  in  the 
said  sum  of  &c  ,  *'  at  a  day  now  passed,"  without 
alleging  it  to  be  due  and  unpaid.  Lambert  v. 
Wray,  1  C.  M.  &  R.  576;  3  Dowl.  P.  C  169; 
5  Tyr.  195.  136 

An  affidavit  of  debt  for  a  sum  due  on  a  bill  or 
note,  must  expressly  state  for  what  sum  the  bill 
or  note  was  drawn.  Raeket  v.  Gye  or  Guy,  3 
Dowl.  P.  C.  554;  1  Har.  &  WoU.  198:  S.  P. 
Brooke  v.  Coleman,  1  C.  &  M.  621  ;  2  Dowl.  P. 
C.  7 ;  3  Tyr.  593  :  Westmacott  v.  Cook,  2  Dowl. 
P.  C.  519.  137 

If  it  does  not  state  the  amount,  the  bail  bond 
will  be  set  aside  with  costs.   Molineux  v.  Dorman, 

3  Dowl.  P.  C.  662.  137 

A  defendant,  against  whom  a  capias  issued, 
and  afterwards  an  exigi  facias,  rendered  himself 
to  the  custody  of  the  sheriff,  who,  for  default  of 
bail,  put  him  in  prison.  The  affidavit  of  debt 
was  for  20/.  and  upwards,  on  a  promissory  note, 
but  it  did  not  state  the  amount  for  which  the  pro- 
missory note  was  drawn.  The  defendant  brought 
trespass  for  false  imprisonment  against  the  plam- 
tiff  m  this  action  : — ^Held,  that  such  action  would 
not  lie  while  the  writ  was  in  existence,  though, if 
the  defendant  had  applied  to  the  court,  he  would 
have  been  discharged  out  of  custody.  Reddell  v. 
Pakeman,  3  Dowl.  P.  C.  714.  137 

An  affidavit,  stating  that  a  sum  is  due  for  prin- 
cipal and  interest  on  a  promissory  note  for  a  cer- 
tam  amount,  bearing  ^interest,  is  sufficient,  with- 
out distinguishing  how  much  is  due  for  principal, 
and  how  much  for  interest.    Drake  v.  Haidrng, 

4  Dowl.  P.  C.  34 ;  1  Har.  &.  WoU.  364.  1^ 

But  it  must  be  made  to  appear  tliat  the  amount 
due  for  principal  is  large  enough  to  warrant  an 
arrest.  LatreiUe  v.  Hoepfner,  3  M.  &  Scott,  800 ; 
10  Bing.  334 ;  2  Dowl.  P.  C.  758.  137 

Semble,  that  an  affidavit  by  the  indorsee  of  a 
bill  need  not  state  by  whom  the  bill  was  indorsed 
to  the  plaintiff.  Mammatt  v.  Mathew,  A  M.  A 
Scott,  356  ;  2  Dowl.  P.  C.  797.  137 

An  affidavit  on  a  note  payable  by  instalments 
should  show  tiiem  to  be  due,  and  it  will  not  be 
sufficient  to  state  that  the  said  som  has  not  been 
paid.    Hart  v.  Myerris,  3  Tyr.  238.  137 


tsoo 


[ARREST] 


An  affidavit  to  hold  the  drawer  of  a  biU,  or  in- 
doTBer  of  a  note,  to  bail,  should  state  that  the  ac- 
ceptor or  maker  had  not  paid  the  amount.  Smith 
V.  Escudier,  3  Tyr.  219:  S.  P.  Crosby  v.  Clarke, 
1  Mees  Sl  Weis.  2C6:  S.  P.  contra  Irving  v. 
Heaton,  4  Dowl.  F.  C.  63d.  137 

An  affidavit  on  a  bill  (by  indorsee  against  ac- 
ceptor) need  not  aver  a  presentment  for  payment. 
Usbome  r.  Pennell,  4  M.  &  Scott,  431.  137 

In  an  affidavit  of  debt  against  the  drawer  .or 
indorsor  of  a  bill  of  exchange,  it  is  sufficient  to 
allege  a  default  by  the  acceptor,  without  averring 
a  presentment  or  notice.  Witham  v.  Gompertz, 
4  Dowl.  P.  C.382;  2  C.  M.  &  R.  736;  1  Gale, 
301  ;  1  Tyr.  &  G.  6.  137 

The  date  of  bills  or  notes  need  not  be  stated 
in  an  affidavit,  if  it  appear  in  the  affidavit  that 
the  day  of  payment  of  the  bils  is  passed  Shirley 
V  Jacobs,  3  Dowl.  P.  C.  101  ;  I  Scott,  67 :  S.  P. 
Irving  V.  Heaton,  4  Dowl.  P.  C.  6:i8 ;  Weedon  r. 
Medley,  2  Dowl.  P.  C.  689.  J 37 

[n  an  action  by  the  indorsee  against  the  drawer 
of  a  bill  of  exchange,  the  affidavit  of  debt  alleged 
that  the  defendant  was  indebted  to  the  plaintiff 
on  the  bill  which  was  over  due,  and  that  the 
money  was  still  due  and  owing,  but  it  omitted  to 
aver  either  presentment  or  notice  : — Held  bad. 
Simpson  v.  Dick,  3  Dowl.  P.  C.  731.  137 

An  affidavit  of  debt  on  a  bill,  which  states  that 
the  defendant  is  indebted  on  the  bill,  which  was 
payable  at  a  day  past,  is  sufficient,  without  stat- 
ins that  the  bill  was  not  paid  when  due,  or  that 
it  IS  still  unpaid.  Phillips  r.  Turner,  3  Dowl. 
P.  C.  163 ;  1  C.  M.  A  R.  597;  5  Tyr.  196.     137 

In  an  affidavit  on  two  acceptances  of  the  de- 
fendant, the  consideration  was  stated  to  be  for 
goods  sold  by  the  plaintiff: — Held,  that  the  state- 
ment of  the  consideration  was  surplusage,  and 
might  be  rejected,  and  did  not  entitle  the  defen- 
dant to  be  discharged  out  of  cutsody  on  filing 
common  bail.  Ibbotson  v.  Andrew,  1  Alcock  & 
Napier,  1»9,  {Irish).  137 

An  affidavit  of  debt,  stating  it  to  be  for  goods 
delivered  by  plaintiff  and  his  late  partner,  is  msuf- 
ficient.    Edgar  9.  Watt,  1  Har.  «&  Woll.  108.  139 

An  affidavit  of  debt,  for  the  price  of  goods  gua- 
ranteed by  the  defendant,  without  showing  on 
what  terms,  or  that  the  time  for  payment  had  ex- 
pired : — Held  bad.  Angus  r.  RobQliard,  2  Dowl. 
P.  C.  91.  139 

An  affidavit  of  debt,  for  goods  sold  and  de- 
livered to,  and  for  money  paid  and  laid  out  for 
S.,  the  wife  of  the  defendant,  before  his  intermar- 
riage with  her  : — Held  insufficient.  Gray  r. 
Shepherd,  3  Dowl.  P.  C  442.  139 

In  an  action  by  husband  and  wife  against  hus- 
band and  wife,  the  affidavit  to  hold  to  bail  stated 
the  defendants  to  be  indebted***  for  goods  deliver- 
ed and  sold  by  the  plaintiff's  wife  to  the  defen- 
dant's wife,"  not  stating  the  transaction  to  have 
taken  place  before  their  respective  marriages. 
The  defendant  bavin  •  failed  in  an  attempt  to 
justify  bail,  moved  to  set  aside  the  bail-bond,  on 
the  ground  of  the  above  irregularity.  The  court 
dis(marged  the  rmla  on  tsms.  Morgan  v.  Davies, 
1  Scott,  Sn.  130 


In  an  action  by  hoaband  and  wife,  administra- 
trix, on  a  bond  given  to  the  intestate,  it  is  no  ob- 
jection to  the  affidavit  to  hold  to  bail  that  the  de- 
fendant is  alleged  to  be  indebted  to  the  husband 
and  wife,  administratrix ;  or  that  the  affidavit 
omits  to  state  that  the  deceased  died  intestnte,  or 
to  whom  the  sum  mentioned  in  the  condition  is 
made  payable ;  the  same  degree  of  precision  not 
being  required  in  an  affidavit  as  in  a  declaration. 
Coppin  V.  Potter,  4  M.  &  Scott,  272;  10  Bin^. 
441 ;  2  Dowl.  F.  C  785.  J& 

An  affidavit  of  debt  for  ^  money  lent  and  ad- 
vanced  and  interest  thereon,"  is  bad.  Callum  r. 
Leeson,  2  C.  db;  M.  406 ;  2  Dowl.  P.  C.  381 ;  4 
Tyr.  266.  139 

An  affidavit  to  hold  to  bail  for  money  lent  was 
held  bad,  for  not  stating  by  whom  the  money  was 
lent.    Smith  r.  Stevens,  3  Tyr.  219.  139 

A  defendant  may  be  held  to  bail  for  interest,  if 
due  by  contrast,  rickman  v.  CoUis  or  Collins,  3 
Dowl.  P.  C.  429 ;  1  Gale,  47.  139 

An  affidavit  of  debt  for  5002.,  for  money  lent, 
and  interest  thereon,  and  on  an  account  stated^ 
without  noticing  a  contract  for  interest : — Held 
sufficient.     Id. 

An  affidavit  of  debt,  part  of  which  was  for  in- 
terest, not  stating  expressly  the  contract  on  which 
the  interest  was  payable  . — ^Held  good  White  v. 
Sowerby,  3  Dowl.  P.  C.  584  ;  1  Har.  &  Woll.  'il3. 

139 

Semble,  that  if,  in  an  affidavit  of  debt  for  prin- 
cipal and  interest,  a  sum  and  date  are  mentioned, 
from  which  interest  can  be  computed,  it  is  not 
essential  that  the  ^imonnt  of  interest  claimed 
should  be  specifically  mentioned.  Rogers  v.  God- 
bold,  3  Dowl.  P.  C.  106.  139 

An  affidavit  of  debt  for  money  paid,  laid  out, 
and  expended,  **  to  and  for  the  use  and  on  account 
of  the  oefendant : " — Held  sufficient.  Harrison  v. 
Turner,  4  Dowl.  P.  C.  72 ;  1  Har.  &  WoU.  346. 

139 

In  an  affidavit  to  hold  to  bail,  it  was  stated 
that  a  sum  was  due  for  money  lent  and  advanced, 
&c.,  and  for  money  due  and  payable  for  interest 
upon,  and  for  the  forbearance  of  divers  sums  of 
money  due  and  payable,  and  by  plaintiff  forborne 
at  the  request  of  the  defendant  ■ — Held  that  the 
special  contract  to  pay  interest  was  not  suffi- 
ciently stated.  Drake  v,  Harding,  4  Dowl.  P. 
C.  34 ;  1  Har.  &,  WoU.  364.  139 

An  affidavit  to  hold  to  bail,  stated  the  defen- 
dant to  be  indebted  to  the  plaintiff  in  SOOT,  for 
money  paid,  Ac,  to  and  for  his  use,  and  at  his 
request,  and  for  interest  due  and  owing  from  and 
a^eed  to  be  paid  by  the  defendant  to  the  plain- 
tiff for  and  in  respect  thereof: — Held  sufficient. 
Hutchinson  v,  Hargrave,  1  Scott,  269;  1  fiing. 
N.  R.  369.  1& 

Ai>  affidavit  of  debt  which  is  bad  in  part  is  bad 
altogether.  Rackett  r.  Gye  or  Guy,  3^ Dowl.  P. 
C.  5u4  ;  1  Har.  &  Woll.  198 :  S.  P.  Drale  v.  Har- 
ding,  4  Dowl.       C.  34 ;  1  Har.  6l  Woll.  364. 

140 


[ARREST] 


2d01 


A  defendant  waives  an  objection  to  an  affidavit 
of  debt  by  inducing  the  plaintiff  to  accept  of  cer- 
tain penons  as  bail,  by  affecting  to  acquiesce  in 
the  decision  of  a  singrle  judge  as  to  the  suffi- 
ciency of  the  affidavit.  Mam  matt  v.  Mathew,  2 
Dowl.  P.  C.  797  ;  4  M.  &  Scott,  356;  10  Bin?. 
506.  140 

Where  the  arrest  was  on  the  22nd  of  May  : — 
Held,  that  it  was  too  late,  on  June  4,  to  obtain 
the  defendant's  discharge  on  the  ground  of  a  de- 
feet  in  the  affidavit,  the  sheriff  having  in  the 
meantime  been  ruled  to  return  the  writ,  and 
m^ide  his  return.  Firiey  v.  Raliett,  2  Dowl.  F.  C. 
708.  140 

After  a  rule  nisi  had  been  obtained  for  cancel- 
ling a  bail  bond  for  a  defect  in  the  affidavit  to 
hold  to  bail,  the  plaintiff  offered  to  consent  to  a 
judge's  order  to  the  same  effect,  the  coats  to  be 
costs  in  the  cause,  and  no  action  to  be  brought : 
— Held,  that  noti^itlistanding  this  offer,  the  de- 
fendant was  entitled  to  have  his  rule  made  abso- 
late,  with  costs.  Clarke  v.  Crockford,  3  Dowl. 
P.  C.  693.  140 

Semble,  that  where  costs  have  been  incurred 
by  the  delay  of  the  defendant  in  objecting  to  a 
defect  in  the  affidavit  of  debt,  the  court  will  not 
order  the  bail-bond  to  be  delivered  up  to  be  can- 
celled, although  the  defect  be  in  some  degree  one 
in  substance  and  not  in  form.  Morgan  v.  Bay- 
lis8,3Dowl.  P.  C.  117.  140 

Semble,  where  a  summons  is  taken  out  at 
chambers,  on  the  eighth  day  after  the  arrest,  to 
discharge  the  defendant  out  of  custody,  on  ac-^ 
count  of  a  defect  in  the  affidavit  to  hold  to  bail, 
iriiich  summons  is  returnable  the  following  day, 
the  application  is  not  too  late,  unless  it  appears 
on  what  part  of  the  day  the  defendant  was  ar- 
rested.  Johnson  v.  Kennedy,  4  Dowl.  P.  C.  345 ; 
2  Scott,  410.  140 

Where  a  defendant  is  held  to  bail,  or  detained 
by  virtue  of  a  judge's  order,  he  is  not  bound  to 
apply  either  to  the  same  or  to  another  judge  at 
chambers  to  rescind  the  order,  or  to  discharge 
him  from  custody,  on  the  ground  of  defects  m 
the  affidavit  of  debt :  the  application  is  properly 
delayed  till  the  court  is  sitting.     Id. 

Two  months*  delay  in  taking  the  objection  to 
the  affidavit  of  debt,  that  it  is  not  sworn  before  a 
proper  commissioner,  is  not  a  waiver  of  it.  Sharpe 
V.  Johnson,  4  Dowl.  P.  C.  324 ;  2  Scott,  407 ;  1 
Hodges,  206 ;  2  Bing.  N.  R.  246.  140 

Pritiitrejrom  Arrest.] — A  king*s  chaplain  is 
privilegea  from  arrest ;  and  if  he  has  been  arrest- 
ed and  has  riven  a  bail  bond,  the  court  will,  on 
motion,  onfer  the  bail  bond  to  be  cancelled. 
Bym  V.  Dibdin,  1  C.  M.  A  R.  821 ;  3  Dowl.  P. 
d.  448;  1  Gale,  58 ;  5  Tyr.  357.  141 

A  lord  of  the  bedchamber  is  privileged  from 
anest    Aldridge  v  Barry,  3  Dowl.  P.  C.  450,  n. 

141 

The  coort  refosed  to  interfere,  on  motion,  for 
the  purpose  of  relieving  a  defendant  who  had 
been  held  to  bail,  on  me  ^rround  of  his  being 
the  Somerset  herald,  and  liable  to  be  called  on 
ts  attend  the   king,  whenever  and  wherever  he 


chose,  it  not  appearing  clearly  by  the  affidavits 
what  were  the  duties  of  his  omce,  and  no  in- 
stance shown  of  the  claim  being  allowed.  Leslie 
V.  Disney,  3  Dowl.  P.  C.  437;  I  C.  M.  &  R.  578 ; 
5Tyr.  ItJl.  141 

Where  there  is  any  doubt,  the  rule  is  to  leave 
such  persons  to  their  writ  of  protection.     Id. 

The  privilege  of  freedom  from  arrest  of  an 
ambassador's  servant,  is  the  privilege  of  the 
ambassador,  and  not  of  the  servant.  Fisher  v. 
Begrez,  2  C.  tfe  M.  240;  3  Tyr.  184  ;  2  Dowl.  P. 
C.279;  4  Tyr.  35.  142 

Where  a  person  alleged  to  be  a  domestic  ser- 
vant of  an  ambassador  is  arrested,  and  neither 
the  ambassador  nor  any  one  on  his  behalf  inter- 
feres, the  court  will  not  discharge  the  defendant 
out  of  custody,  unless  he  shows  a  clear  case  of 
bona  fide  service  as  a  domestic  servant  to  the 
ambassador.     Id. 

Quoere  what  goods  of  a  person  actually  privi- 
leged would  be  protected  from  execution  ?  Id. 

A  party  taken  under  an  irregular  writ  is  priyi- 
le^red  from  arrest  in  returning  from  the  chambers 
otthe  judj^  who  has  discharged  him.  Rex  v. 
Blake,  2  Nev.  ^k  M.  312;  4  B.  <Sk  Adol.  355.  143 

So,  although  his  attendance  before  the  judge 
be  voluntary :  as  where  he  is  brought  up  under  a 
habeas  corpus  obtained  by  himself.    Id. 

A  party  who  has  been  detained  upon  a  criminal 
charge,  and  tried,  acquitted,  and  discharged,  is 
not  privileged  from  arrest  during  his  return 
home  from  the  jail  in  which  he  has  been  con- 
fined. Goodwyn  v.  Lordon,  3  Nev.  &  M.  879; 
3  Dowl.  P.  C.  504  ;  1  Adol.  &  Ellis,  378.        143 

A  slight  deviation  will  not  deprive  a  party  re- 
turning from  attendance  in  a  court  of  justice  of 
his  privilege  from  arrest.  Pitt  v.  Coombs,  3  Nev. 
A  M.  212 ;  5  B.  &  Adol.  1078.  143 

A  person  who  is  subpoenaed  in  a  criminal  pro- 
secution tried  in  the  K.  B.  sittings,  but  who  is 
committed  for  a  contempt  of  that  court,  in  strik- 
ing the  defendant,  has  the  same  privilege  from 
arresi  in  returning  home  from  the  prison  after 
his  imprisonment  has  expired,  that  he  would  have 
had  in  returning  home  from  the  court  if  he  had 
not  been  committed.  Rex  v.  Wigley,  7  C.  &  P. 
4~Coleridge.  143 

A  defendant  who  has  been  wrongfullv  arrest- 
ed upon  a  Sunday,  upon  a  charge  of*^  forgery, 
without  any  warrant,  may  be  lawfully  arrestea 
upon  civil  process  as  he  is  leaving  the  police- 
office  afler  he  has  been  ordered  by  the  magistrate 
to  be  discharged.  Jacobs  v  Jacobs,  3  Dowl.  P.  C. 
675.  143 

A  witness  attending,  at  the  request  of  a  party, 
sn  arbitrator  under  a  submission  to  be  made  a 
rule  of  court,  is  privileged  from  arrest.  Rishton 
V.  Nisbett,  1  M.  &  Rob.  347— Alderson.  143 

The  defendant,  an  attorney,  was  arrested  at  the 
Auction  Mart  Coffee-house,  between  two  and 
three  o*clock  p.  m.  The  statement  in  his  affidavit, 
in  support  of  a  motion  for  his  discharge,  on  the 
ground  that  he  was  privileged  eundo,  was,  that 
having  professional  business  in  several  cases  to 
transact  in  the  £xch.,  he  was  prospeding  through 


2302 


[ARREST— ASSUMPSIT] 


the  city  of  Londoo,  <m  hit  waj  to  Westmhurter 
Hall  for  that  poxpoie,  and  oo  arriTiiiff  at  the 
Bank  of  England  leeollected  that  he  bad  bnai- 
neea  with  a  client,  whom  it  was  probable  he 
shoold  find  at  the  Auction  Mart ;  that  he  there- 
fore called  there  in  bis  wa^  to  Westminster  Hall, 
and  saw  his  client,  and  just  as  he  was  aboat  to 
leave  him  for  the  purpose  of  proceeding  to  West- 
minster, he  was  arrested  in  this  cause : — Held, 
that  on  this  statement  he  was  not  entitled  to  the 
priyilege.  Strong  v.  Dickenson,  1'  Mees.  A  Wels. 
488.  143 

A.  having  been  arrested  whilst  he  was  privi- 
leged, as  attending  on  a  summons  at  a  judge's 
chamber,  the  judge  made  an  order  for  his  dis- 
charge out  of  ciutodj,  on  condition  that  if  B.^ 
the  officer  who  made  tbe  arrest,  paid  A.  his  costs, 
to  be  taxed  by  the  master,  A.  should  not  brine  anjr 
action  for  the  arrest.  The  costs  were  taxed,  and 
the  amount  was  accordtnglj  paid.  A  ,  however, 
subieqnentljr  obtained  an  order  for  the  master  to 
review  his  taxation,  which  tlie  master  according- 
ly did,  and  allowed  A.  a  further  sum  for  costs. 
This  B.  refused  to  pay,  upon  which  A.  brought 
an  action  of  assumpsit  acainst  B.,  as  upon  an 
agreement  by  him  to  pay  the  costs,  in  considera- 
tion «that  A.  would  relinquish  all  right  of  action 
against  B.  on  occasion  of  the  arrest : — Held,  that 
under  these  circumstances  the  action  was  not 
maintainable.  King  v.  Taylor,  2  G.  M.  &  R. 
235.  143 

A.,  being  indebted  to  B.,  B.  sued  out  bailable 
process,  which  he  delivered  to  the  sheriff  to  exe- 
cute, and  the  sheriff  arrested  A.  whilst  he  was 
attending  a  trial  as  a  witness,  under  a  subpoena : 
—Held,  that  an  action  on  the  case  was  not  main- 
tainable by  A.  a^inst  B.  for  procuring  A.  to  be 
illegally  arrested,  it  not  being  shown  that  B.  had 
any  knowledge  that  A.  was  attending  as  a  wit- 
ness when  he  delivered  the  writ  to  the  sheriff  to 
be  executed.  Stokes  v.  White,  1  C.  M.  &  R.  223 ; 
4  Tyr.  786.  144 

Where  a  party  arrested  whilst  privile^^d  from 
anest  pays  money  into  court,  by  permission  of  a 
judge,  in  order  to  obtain  his  discnarge,  he  is  en- 
titled, upon  application  to  the  court,  to  have  the 
money  restored  to  him.  Pitt  v.  Coombs,  4  Nev. 
6l  M.  5:35;  2  Adol.  &.  £Uis,459;  1  Har.  <&  WoU. 
13.  144 

But  such  application  must  be  made  within  a 
reasonable  time  ailer  the  arrest,  or  the  delay 
most  be  satisfactorily  accounted  for.    Id. 

The  pendenc]r  of  a  motion  to  set  aside  the 
proeeedmgs  for  irregularity,  was  held  to  be  a  sa- 
tiffiictory  reason  for  having  deferred  the  applica^ 
lion  for  several  terms.    Id. 

Where  a  party  to  a  cause  is  arrested  upon  pro- 
cess oat  of  another  court,  while  attending  at  Nisi 
Prius  in  expectation  of  its  coming  on,  he  must 
apply  for  relief  to  the  judge  at  Nisi  Prius,  or  to 
toe  court  out  of  which  the  process  issues,  and  not 
to  the  court  in  which  the  cause  is.  Pitt  v.  £vans, 
3  Dowl.  ?.  C.  223.  145 

Where  a  party  in  custody  under  a  criminal 
charge  is  about  to  be  discharged,  but  is  then  de- 
tained in  custody  under  civil  process,  the  proper 
course  in  order  to  obtain  his  aischarge  from  the 


latter  is  by  applicatioo  to  the  eooit  out  of  which 
the  civil  process  has  been  issued.  Rex  «.  M*- 
Loughlin,  1  Aloock  d&  Napier,  130,  (IrtM).    145 

Where  a  party  attended  under  a  recognizance 
to  answer  a  criminal  charge,  and  was  acquitted 
and  discharged,  he  is  privileged  from  arrest 
while  going  to  and  letuming  from  the  court  where 
he  was  so  bound  to  attend ;  and  if  arrested  he  will 
be  discharged  out  of  costody  by  the  court  from 
which  the  process  issues,  under  which  he  is  so 
arrested.  CaUans  v.  Sherry,  1  Alcock  db  Napier, 
125,  {Iri^).  145 

DischtiTgtfrum.'] — No  debt  due.  Burton  v.  Ha- 
worth,  4  B.  dk  Adol.  462  \  1  Nev.  dk  M.  318.    146 

Where  the  affidavit  to  hold  to  bail  discloses 
that  the  debt  is  prima  facie  barred  by  the 
statute  of  limitations,  and  where  other  pecu- 
liar facts  are  stated  on  affidavit,  to  show  that 
the  plaintiff  has  no  cause  of  action,  the  court 
will  grant  a  rule  nisi  calling  upon  the  plain- 
tiff to  show  cause  why  the  defendant  should  not 
be  discharged  out  of  custody  on  entering  a  com- 
mon appearance.  Tucker  v.  Tucker,  1  Scott,  463 ; 
1  Hodges,  15.  146 

The  court  will  not  discharee  a  defendant  out  of 
custody  because  it  appears  by  the  particalars  of 
demand  that  the  debt  is  barred  by  the  statute  of 
limitations.  Pettier  r.  Macdonell,  1  Har.  6l  Woll. 
189.  146 

The  court  refused  to  interfere  sunmiarily  to 
discharge  a  defendant  out  of  custody,  on  the 
ground  that  the  arrest  was  against  good  fiuth,  in 
being  made  for  the  whole  deot,  after  an  engage- 
ment to  recieve  the  amount  by  instalments. 
UdaU  9.  Nelson,  4  Nev.  &  M.  637 ;  2  Adol.  dk 
EUis,  215 ;  1  Har.  &,  WoU.  177.  146 

If  the  debt  and  costs  in  an  action  are  paid  to 
the  plaintiff,  no  matter  by  whom,  tbe  delendant 
is  entitled  to  be  discharged  out  of  custody.  Rim- 
mer  v.  Turner,  3  Dowl.  P.  C.  601 .  146 

Semble,  that  the  sheriff  has  no  right  to  detain 
a  defendant  in  custody,  although  he  has  been 
compelled  to  pay  the  debt  and  costs  under  an  at- 
tachment.   Id. 

The  court  refused  to  discharge  a  defendant  oot 
of  custody  on  the  ground  of  trifling  defects  in 
the  process  on  which  he  had  been  arrested.  Fo- 
cock  V.  Mason,  1  Scott,  51.  146 

Bvidence  that  a  bailiff  *8  assistant  apprehended 
a  party  on  a  false  pretence,  and  that  the  bailiff 
being  at  hand  took  advantage  of  the  apprehen- 
sion to  arrest  him  on  a  writ  of  ca.  sa. : — Held 
sufficient  to  establish  an  issue  that  the  bailiff 
illegally  seized  snd  imprisoned  the  party.  Hum- 
phrey V.  Mitchell,  2  Bing.  N.  R.  619.  146 


ASSUMPSIT. 

When  moifUainaUe.] — A  declaration  stated, 
that  W.  P.  owed  the  phuntiff  13^.,  and  that  in 
consideration  thereof,  and  that  W.  P.,  at  the 
plaintiff's  request,  had  promised  to  work  for  him 
at  certain  wages,  and  also,  into  consideration  of  W . 
P.  leaving  the  amount  which  might  be  earned  by 
him  in  the  defendant's  hands,  he,  the  defendaat« 


[ASSUMPSIT] 


fr^r^  -  "•»? 


2303 


mdntook  aad  promised  to  pay  the  pliiintiff  the 
aid  sum  of  131.  Ayerment,  that  W.  P.  had  per- 
ibnned  his  part  of  the  agreement.  Judgment 
arrested,  because  the  plaintiff  was  a  stranger  to 
the  consideration.  Price  i;.  Easton,  4  fi.  &.  Adol. 
433  j  1  Ney.  &  M  803.  150 

A.  being  arrested  at  the  suit  of  B.^  upon  a  writ 
indotaed  **  oath  for  76/.,"  C.  writes  that,  in  con- 
sideration of  fi/s  instantly  drschar^ing  A.,  he  will 
give  his  promissory  note  to  B.  lor  10«  in  the 
pound  upon  the  debt  on  the  arrival  of  the  dis- 
charge. This  engagement  mav  be  declared  upon 
as  a  promise  to  pay  10«.  in  the  pound  upon  the 
debt  for  which  he  was  arrested.  Brown  r.  Dean, 
8  Nev.  &  M.  317 ;  5  B.  d&  Adol.  848.  151 

Although  a  request  to  deliver  the  note  be  al- 
leged, no  request  need  be  proved.  Id. 

A^  during  his  minority,  accepts  a  bill  of  ex- 
change ;  ana  when  of  a^,  A.  directs  B.  to  pay 
the  amount  out  of  funds  m  B.  's  hands.  This  con- 
tract need  not  be  declared  on  specially.  Hunt  v. 
MasBe7,3Nev.  &  M.   109;  5  B.  <&  Adol.  9()t>. 

149 

A  sum  of  money  was  delivered  by  the  plaintiff 
to  the  defendant  to  carry  to  a  particular  place, 
and  there  to  pay  to  a  certain  person  for  the  plain- 
tiff. The  defendant  took  the  money,  but  in  an- 
swer to  the  inquiries  of  .the  plaintiff  on  the  sub- 
ject, said  that  he  had  lost  it : — Held,  that  assomp- 
sit  for  money  had  and  received  was  maintainable 
oB  proof  of  these  facts  merely;  though  it  was  ob- 
jected that  the  proper  form  of  action  was  a  special 
setMA  for  the  negligence.  Barry  v.  Roberts,  5 
Nev.  «&  M.  669;  3  Adol.  &  Ellis,  1 18 :  I  Har.  & 
WoU.  343.  148 

Consideration.'] — The  following  agreement  was 
held  to  show  sufficient  consideration  moving  from 
the  plaintiff  by  way  of  detriment  to  him,  m  giv- 
ing up  the  security  of  the  debtor,  C,  for  150/.,  at 
the  defendant's  request : — ^^  1  undertake  on  'be- 
half of  Mr.  P.,  (the  plaintiff),  in  consideration  of 
Mr.  D.  (the  defendant)  having  this  day  gipren 
me  an  undertaking' to  procure  Mr.  W.'s  check  or 
note  in  favor  of  Mr.  P.  for  150^.  on  account  of  a 


debt  due  from  Mr.  C.  to  Mr.  P.,  that  Mr.  C.  shall 
haTB  credit  for  that  sum  in  his  accounts  with  Mr. 
P.,  sad  that  Mr.  W.  shall  stand  in  the  place  of 
Mr.  P.  to  that  amount ;  and  1  further  undertake 
that  Mr.  P.  shall  not  personally  dispute  Mr.  W.'s 
right  to  deduct  that  sum  from  the  accounts  owing 
by  the  colliers  of  the  B.  C.  colliery  to  Mr.  C. 
rienttv.  Dicken,  1  C.  M.  &  R.  422;  3  Dowl.  P. 
C.  171 ;  6  Tyr- 116.  150 

The  declaration  alleged  the  promise  of  D.  (the 
deieodant)  to  be  in  consideration  of  that  of  P. 

She  plaintiff)  by  way  of  mutual  promise  : — 
eld  good,  and  tnat  it  was  sufficient  to  aver  that 
plaiotiB  was  ready  and  willing  to  perform  his 
part    Id. 

in  eases  where  an  express  promise  will  be  sup- 
pOTled,  an  inopliable  promise  arising  out  of  the 
cnvaoMtances  of  the  case,  will  also  be  available. 
Betts  If.  Gibbios,  4  Ney.  &  M.  64;  2  Adol.  & 
Btis,  57.  150 

When  a  declaration  in  assumpsit  states  sev- 
ctal  matten  as  a  condition  for  the  defendant's 


promise,  though  all  be  not  good,  yet,  if  a  suffi- 
cient consideration  remains,  it  is  enough  to  sup- 
port the  promise  laid  in  the  declaration.  King  v. 
Sears,  2  C.  M.  &  R.  48;  5  Tyr.  587;  1  Gale,241. 

150 

It  is  only  necessary  in  cases  of  executed  con- 
siderations, to  state  that  the  consideration  for  the 
defendant's  promise  moved  at  the  defendant's 
special  instance  and  request.  Id. 

A.,  by  agreement,  not  under  seal,  in  considera- 
tion of  B.'s  consenting  to  a  supersedeas  of  a  com- 
mission against  him,  undertook,  in  the  event  of 
his  recovering  a  certain  estate,  to  liquidate  B.'» 
claim  on  him,  which  he  was  not  bound  legally  to 
do: — Held,  that  this  raised  an  implied  promise^ 
on  the  part  of  A .  to  take  some  steps  for  recovery" 
of  the  estate.  Edmunds  v.  Wilkinson,  7  C.  &-  r . 
387— Denman.  150 

In  assumpsit  on  an  agreement,  want  of  consid- 
eration for  the  promise  must  be  specially  pleaded. 
Passenger  v.  Brooks,  7   C.    &  P.tllO— Tindal. 

■  150 

Money  Pai  /.] — ^The  rule  that  a  tort-feasor  can- 
not recover  upon  a  promise  to  indemnify,  made- 
by  the  person  at  whose  request  the  tortious  act 
is  committed,  is  confined  to  cases  in  which  the 
act  is  of  an  obviously  illegal  character.  Betts  v, 
Gibbins,  4  Nev.  <&  M.  64 ;  2  Adol.  &  EUis,  57. 

152 

It  does  not  extend  to  a  case  in  which  there  is 
any  bona  fide  doubt  whatever,  whether  in  point 
of  law  the  act  was  authorized.  Id. 

The  rule  as  to  contribution  between  joint-tort- 
feasors  must  be  similarly  confined.  Id. 

Contribution  is  indemnity,  and  the  same  con- 
sideration that  will  support  a  promise  to  indem- 
nify, will  also  support  a  promise  to  contribute,  et 
a  converse.  Id. 

If  A.  has  accepted  three  bills  for  theacconuno> 
dation  of  B.,  and  is  obliged  to  pay  them,  and  also 
to  pay  the  costs  of  two  actions  brought  upon  two 
of  them : — Held,  that  A.  cannot,  in  an  action 
against  B.,  recover  the  amount  of  the  costs  of  the 
two  actions,  if  his  declaration  contain  only  the 
common  money  counts :  but  that  to  recover  these 
costs,  he  should  have  declared  specially.  Seaver 
V.  Seaver,  6  C.  &>  P.6T3— Denman.  152 

The  plaintiff  demised  a  house  to  the  defendant, 
who,  by  the  agreement  of  tenancy,  agreed  to  pay 
a  yearly  rent  clear  of  all  deductions  tor  taxes  and 
parochial  rates ;  afler  occupying  the  premises  tor 
some  time,  the  defendant  quitted  them,  leaving 
claims,  for  poo/s'  rate  and  laiid  tax  unpaid,  which 
the  plaintiff  as  landlord  was  obliged  to  pay  :— 
Held,  that  he  could  not  recover  thefamount  from 
the  defendant  in  an  action  for  money  paid,becauBe, 
as  there  was  no  originaf  liability  on  me  defendant 
to  pay,  it  could  not  be  said  to  be  money  paid  to 
his  use.  Spencer  v.  Parry,  4  Nev.  dk  M.  771 ;  3 
Adol.  &  Ellis,  331 ;  1  Har.  &  Well.  174.         153 

Money  had  and  received.] — Where  an  overseer 
had  stopt  part  of  a  pauper  s  parochial  weekly  al- 
lowance, and  engaged  to  pay  it  over  to  the  land- 
lord of  the  pauper,  in  pursuance  of  an  understand'^ 
ing  between  the  three  :~Held,  that  the  landlord 


2334 


[ASSUMPSIT] 


could  not  support  assumpsit  for  money  had  and 
received  against  the  overseer.  Blackledge  v. 
Harman,  1  M.  &  Rob.  344— Alderson.  156 

Where  a  party  sued  for  money  had  and  receiv- 
ed, rested  his  defence  on  his  having  obtained  the 
money  bona  fide,  in  satisfaction  of  an  equitable 
claim,  and  the  plaintiff,  at  tho  trial,  merely  en- 
deavored to  impeach  the  fairness  of  the  receipt, 
and  the  claim  generally,  and  the  jnry  found  for 
the  defendant ;  the  court  refused  to  entertain  a 
motion  for  a  new  trial,  made  on  the  ground  that, 
admitting  the  fairness  of  ihe  transaction,  the  de- 
fendant appeared,  upon  the  plaintiff's  case  at  the 
trial,  to  be  not  entitled  to  retain  more  than  a 
part.    Moore  v.  Eddowes,  2  Adol.   &  Ellis,  133. 

Where  the  plaintiff  and  defendant,  both  claim- 
ing to  act  as  clerks  to  the  justices  of  a  division, 
agreed  to  leave  the  dispute  to  the  determination 
of  third  parties,  who  directed  that  the  defendant 
should  act  in  the  office,  and  divide  his  fees  with 
the  plaintiff:— Held,  that  an  action  for  money 
had  and  received  might  be  maintained  to  recover 
the  moiety  of  the  fees  received,  and  that  the  de- 
fendant could  not  allege  that  he  was  legally  en- 
titled to  all  the  fees.  KoTand  or  Rowland  v.  Hall,  1 
Scott,  539 ;  1  Hodges,  ill.  156 

Assumpsit  for  money  had  and  received  lies  to 
recover  money  paid  by  the  plaintiff  under  a  for- 
getfulness  of  facts  which  were  within  his  know- 
ledge. Lucas  r.  Worswick,  1  M.  &  Rob.  2i)3— 
Denman  and  Bolland,  158 

Defendant  was  office-keeper  of  an  Exeter  and 
London  coach,  and  servant  to  C,  a  proprietor  at 
Exeter,  where  the  office  kept  by  defendant  was. 
Defendant  from  time  to  time  made  up  a4:count8 
of  the  shares  of  profits  due  to  the  several  propri- 
etors, and  sent  them  to  those  parties,  taking  the 
money  from  a  balance  of  C.'s  which  he  had  in 
hand.  On  one  occjision,  defendant  sent  to  plain- 
tiff, a  proprietor,  a  packet  purporting  to  contain 
5ai.,  which  was  due  to  him,  but  in  reality  con- 
taining 201.  only.  Plaintiff  sued  defendant  for 
21.  had  and  received  to  his  use :— Held,  that 
defendant  was  not  liable,  there  being  no  privity 
of  contract  between  him  and  tlie  plaintiff;  and 
that  he  was  not  precluded  from  this  defence  by 
having  told  the  plaintiff  (after  action  brought), 
that  he,  defendant,  had  had  the  23i.  of  C,  and 
•ent  it  to  the  plaintiff,  and  debited  C.  with  it. 
Howell  V.  Batt,  2  Nev.  A.  M.  381 ;  5  B.  A.  Adol. 
604.  160 

To  an  action  by  an  indorsee  for  value  of  a  bill 
which  had  been  lost,  it  is  no  defence  that  the  bill 
was  taken  under  circumstances  which  ought  to 
have  excited  the  suspicion  of  a  prudent  and  cau- 
tious man.  Crook  v.  Jadis,  3  Nev.  &  M.  257 ;  5 
B.  &  Adol.  909.  161 

Nothing  short  of  gross  negligence  will  be  an 
answer,    id. 

Unless  the  circumstances  be  such  that  mala 
fides  can  be  inferred.  Backhouse  v.  Harrison,  3 
Nev.  &  M.  188;  5  B.  &  Adol.  1098.  161 

Negligence  on  the  part  of  the  loser  of  a  bill  of 
txchange,  in  not  publishing  his  loss,  will  not 
euie  any  defect  in  the  title  of  a  tabsequent  hold- 


er, in  respect  of  the  mode  in  which  the  bill  cam* 
into  the  possession  of  the  Is^ter.    Id. 

In  1830  the  plaintiff  had  his  pocket  picked  of  a 
200Z.  bank-note  at  a  public  meeting.  The  note 
was  paid  to  the  defendant,  as  he  said,  upon  a  bet 
on  the  Derby  in  1832,  but  he  could  not  say  by 
whom  :  Held,  that  the  plaintiff  was  entitled  to 
recover.  Easeley  r.  Crockford,  3  M.  A  Scott, 
700;  lOBing.  24'3.  161 

Where  A.  has  accepted  a  bill  for  a  debt  due  to 
B.,  and  bef  )re  the  bill  becomes  due,  and  without 
the  privity  of  B  ,  lends  100/.  to  C,  (which,  at  the 
time  of  the  loan,  A.  was  proceeding  to  deposit 
with  his  bankers,  upon  account  of  the  bill),  upon 
the  a8:«urance  that  C.  would  lodge  the  amount 
for  tliat  purpose,  before  the  bill  became  due,  at 
the  bank ;  B.  cannot,  upon  failure  of  C.'s  promise, 
maintain  an  action  against  C.  for  money  had  and 
received.  M'Carthy  v.  Smith,  1  Alcock  &  Na^ 
pier,  69,  (Irish).  162 

Upon  the  reading  of  the  will  of  A.  in  the  pre- 
sence of  her  family,  B.,  who  had  resided  with  her, 
produced  a  parcel  containing  bank  notes,  and 
stated  that  A .  had  given  it  to  her  about  a  fort- 
night before  her  death ;  upon  which  C,  the  brother 
of  B.,  took  up  the  notes,  and  said  that  he  would 
keep  them  until  B.  required  them,  or,  as  stated 
by  other  witnesses,  until  the  claims  of  the  ex- 
ecutors were  disposed  of: — Held,  that  in  an  ac- 
tion by  B.  against  C.  for  money  had  and  received, 
evidence  of  what  had  been  stated  by  B.  was  ad- 
missible to  show  her  title  to  the  notes  ;--Held, 
also,  that  such  statement,  coupled  with  evidence 
of  possession,  of  B.'s  conduct  at  the  time  of  the 
reading  of  the  will,  of  her  having  told  her  sister 
some  days  before  the  death  of  A.  of  the  gift  hav- 
ing been  made  to  her,  and  of  the  circumstance  of 
other  money  of  A.'s  being  untouched,  although 
B.  had  had  opportunities  of  possessing  herself 
dishonestly  of  tne  notes,  was  sufficient  evidence 
to  go  to  the  jury,  upon  a  question  raised  whether 
B.  was  justly  entitled  to  the  notes.  Hay  slip  v. 
Gyifier,  3  Nev.  &  M.  479;  1  Adol.  &  EUis,  162. 

162 

There  being  mutual  accounts  between  A.  and 
B.  the  latter  met  C,  A.'s  brother,  to  settle  them. 
Two  accounts  were  brought  by  C.  The  first  con- 
tained various  items  of  money  received  by  B.  for 
A.  B.  settled  and  signed  this  account.  C.  then 
produced  another  account  between  the  parties 
respecting  other  items,  which  B.  disputed,  and 
refused  to  settle.  No  evidence  was  given  of  mo- 
ney had  and  received  .but  the  above : — Held,  that 
A.  was  entitled  to  recover  upon  ihe  count  for 
money  had  and  received.  Lorymer  v.  Stephens, 
1  C.  M.  &  R.  62;  4  Tyr.  869.  163 

Account  stated."] — An  offer  of  a  cognovit  after 
action  brought,  will  not  support  a  count  upon  an 
account  stated.  Spencer  v.  Parry,  4  Nev.  &  M. 
770;  3  Adol.  &  Ellis,  331 ;  1  Har.  Sl  WoU.  179. 

163 

Plaintiff  declared  for  ^oods  sold,  and  on  an  ac- 
count stated.  The  particular  delivered  with  the 
declaration  was,  **  to  a  beast  sold  and  delivered,  13/, 
10<."    The  only  evidence  was,  that  the  plaintiff 


[ASSUMPSIT] 


2305 


tdmitted  in  conireTsation  with  a  third  person,  not 
ihown  to  be  an  agent  of  the  plaintiff,  that  he 
oifed  the  latter  iS.  IO5.  -.—Held,  that  this  was 
no  evidence  of  an  account  stated,  and  that  it  was 
not  evidence  on  the  count  for  goods  sold,  as  it 
was  not  shown  to  be  applicable  to  the  particular. 
Leave  was  given  to  the  plaintiff  to  amend  his 
particular,  and  go  to  a  new  trial  on  payment  of 
coBtA.    Breckon  v.  Smith,  1  Adol.  &  Ellis,  468 

163 

Plaintiffs  sued  upon  an  account  rendered  by 
the  defendants — Held,  that  the  plaintiffs  might 
impeach  an  item  in  the  account  by  which  the 
det^ndants  sought  to  retain  money  under  an  ille- 
gal contract,  notwithstanding  that  account  was 
the  only  evidence  in  the  action.  Rose  r.  Savory, 
5  Bing.  N.  R.  145 ;     1  Hodges,  269.  163 

A  landlord  being  in  possession  of  the  premises 
lately  held  by  his  insolvent  tenant,  in  which  were 
fixtures  belonging  to  the  latter,  agreed  to  give 
up  possession  on  his  assignees  paying  11.  for  the 
rent  due.  They  entered  and  sold  the  fixtures, 
but  no  occupation  by  them  was  proved. — Held, 
that  the  7Z.  could  not  be  recoverd  on  the  count 
on  an  account  stated,  the  defendant's  agreement 
to  pay  that  sum  not  being  bottomed  on  any  pre- 
vious transaction  between  the  parties.  Clark  r. 
Webb,  I  C.  M.  «fc  R.  29 ;  2  Dowl.  P.  C.  671  j  4 
Tyr.  673.  163 

An  acknowledgment  by  a  defendant,  afler  ac- 
tion brought,  of  money  being  due  to  the  plaintiff, 
when  there  is  no  debtor  account  between  them 
proved  to  have  existed  before  action  brought,  is 
not  evidence  in  an  account  stated.  Allen  v.  Cook, 
2  Dowl.  P.  C.  546.  163 

In  an  action  on  an  account  stated,  the  defen- 
dant cannot  now,  under  the  plea  of  non  assump- 
sit, give  in  evidence  a  subsequent  account  al- 
leged to  be  in  his  favor.  Fidgett  r.  Penny,  2 
Dowl.  P.  C.  714 ;  1  C.  M.  &  R.  10b ;  4  Tyr. 
©0.  163 

A  banker*s  pass-book  deliveied  to  his  customer, 
in  which  there  are  entries  on  one  side  onl^,  is 
not  evidence  of  a  settled  account  between  the  par- 
ties, although  the  customer  keeps  the  book  witli- 
out  making  any  objection  to  the  entries  contain- 
ed in  iL  £z  parte  Randleson,  2  Deac.  6l  Chit. 
634.  163 

Jf  an  error  in  a  settled  account  is  discovered 
and  corrected  before  suit,  and  a  bill  be  subse- 
quently filed  to  surcharge  and  falsify,  the  cor- 
rected error  is  not  a  ground  for  a  decree  to  sur- 
charge and  falsify.  Davis  v.  Spurling,  1  Russ.  6l 
Mylne,  64.  163 

A  second  count  alleged  that  the  defendant,  on 
a  particular  day,  was  indebted  to  the  plaintiff  in 
30Uf.  ^  lor  money  found  to  be  due  on  an  account 
stated  between  them  :" — Held  bad  on  special  de- 
murrer for  not  stating  when  the  account  was 
•UU'd.  Spver  ».  Thelwell,  4  Dowl.  P.  C.  5()9 ; 
2  CM.  &  k.  692:  S.  P.Ferguson  r.  Mitchell,  2 
C.  M.  &  R.  687.  163 

PUadinss.] — A  declaration  stated  a  promise  to 
tbeplaint7ffand  A.  B.,  now  deceased,  in  his  life- 
time, and  in  a  second  count,  stated  that  the  de- 
fendant was  indebted  to  the  plaintiff  and  the  said 


A.  B.  in  his  lifetime,  but  did  not  aver  that  he 
was  deceased.  The  defendant  having  demurred  to 
the  second  count . — Held,  that  the  demurrer  was 
frivolous  within  the  2nd  rule  Hil.  T.  4  Will.  4. 
Undershell  v.  Fuller,  1  C.  M.  &  A.  900.         164 

Where  the  first  count  of  a  declaration  waa 
against  the  defendant  as  acceptor  of  a  bill  of  ex- 
change, stating  a  promise  to  pay  the  bill  without 
any  breach,  and  was  followed  by  a  count  for 
money  lent,  money  paid,  ^c,  with  a  promise  to 
pay  limited  to  the  latter  sums,    the  breach  is 

food  if  it  goes  on  to  state  that  he  has  disregarded 
is  promises,  and  hath  not  paid  the  said  monies 
to  the  said  plaintiffs.  Turner  v.  Denman,  4  Tyr. 
313.  '      164 

Where  a  declaration  alleged  the  defendant  to 
be  indebted  to  the  plaintiff  in  a  certain  sum  for 


work  and  labor,  without  laying  any  promise  to 

"' hereas  also,"  pi 
ceeds  to  state  him  to  be  indebted  to  plaintiff  in 


pay  it,  and  tl:en  under  a  '*  Whereas  also,"  prq- 


several  other  sums  for  goods  sold  and  delivered, 
&c.,  concluding  that  the  defendant  had  promised 
to  pay  the  said  last  mentioned  several  monies  re- 
spectively to  the  plaintiff  on  request : — Held  bad 
on  demurrer  for  want  of  a  promise  in  the  first 
count,  which  was  not  referred  to  by  the  words 
"  last  mentioned,"  in  the  second  count.  Harding 
V.  Hibel,  4  Tyr.  314.  164 

Where  a  promise  is  laid  to  pay  on  request 
the  licet  siepius  requisitus  need  not  be  laid  or 
proved.  Ring  v.  Koxbrough,  2  C.  &  J.  418 ;  2 
Tyr.  468.  164 

Where  several  distinct  causes  of  action » one  of 
which  is  not  sustainable,  are  stated  in  one  count 
in  assumpsit,  general  damages  may  be  given.  Id. 

In  assumpsit  under  a  plea  of  non-assumpsit, 
the  consideration  for  the-  promise  is  not  traversed. 
Passenger  v.  Brookes,  1  Scott,  560 ;  1  Bing.  N. 
R.  587  ;  1  Hodges,  123.  164 

Want  of  cosideration  or  any  matter  other 
than  a  direct  denial  of  the  contract,  cannot  be 
given  in  evidence  under  non-assumpsit.  Id. 

Where  it  is  doubtful  whether  a  statutable  ob- 
jection to  the  contract  can  be  rendered  available 
under  the  plea  of  non-assumpsit,  the  court  will 
allow  it  to  be  specially  pleaded.  Smith  v.  Dixon^ 
4  Dowl.  P.  C.  571.  164 

Indebitatus  assumpsit  on  promises  to  pay  on 
request.  Plea,  as  to  part,  that  defendant  has  paid 
the  same,  and  in  the  same  plea  non-assumpsit 
to  the  residue,  the  whole  concluding  to  the  coun- 
try : — Held,  on  special  demurrer,  that  the  plea 
was  bad  for  not  concluding  with  a  verification. 
Seinble,  the  plea  was  double,  and  that  its  subject- 
matters  should  have  been  divided  into  two  pleas, 
the  first  concluding  with  a  verification,  the  last 
to  the  country.  Ansell  v.  Smith,  1  CM.  &  R. 
522;  5  Tyr.  141.  164 

Assumpsit  for  money  paid.  Plea,  that  the 
money  was  paid  by  the  plaintiff  to  the  use  of  the 
defendant,  m  manner  therein  afler  mentioned, 
and  in  no  other  manner,  viz.  as  one-sixteenth  part, 
for  the  damages  and  costs  recovered  against  the 
plaintiff  as  owner  of  a  vessel  of  which  the  defen- 
dant was  a  part  owner  to  the  extent  of  one-six- 
teenth share,  for  the  loss  of  certain  goods  shipped 
I  on  board  the  vessel,  and  which  Iom  was  alleged 


2806 


[ASSUMPSIT— ATTACHMENT] 


in  Uw  actHm  to  have  happened  through  the  nejr. 
ligenoe,  Ac.  of  ihe  plaintiff,  by  his  mariners  and 
fleirants,  whereas  tne  loss  complained  of  was  not 
only  caased  by  the  negligence,  &c.  of  the  plain- 
tiff, by  his  mariners  and  servants,  but  that  the 
plaintiff,  by  his  own  personal  and  wilful  mis- 
conduct, &c.  contributed  to  the  loss.  The  de- 
fendant pleaded  further,  that,  altliough  he  was 
the  legal  owner  of  one-si  j^teenth  part  of  the 
said  vessel,  yet  he,  the  defendant,  did  not  con- 
cur with  the  plaintiff  and  the  other  part-owners 
in  the  employment  of  the  vessel  in  tnat  voyage, 
but  that  the  said  voyage  was  undertaken  and 
carried  on  for  the  profit  and  advantage  of  the 
plaintiff  and  certain  other  persons,  separate  and 
distinct  from  the  defendant,  and  without  his  be- 
ing concerned  or  in  any  way  participating  in  the 
adventnre.  On  special  demurrer  : — Held,  that 
both  pleas  were  bad,  as  amounting  to  the  general 
issue.  Gregory  v.  Hartnoll,  1  Mees.  dL  Wels. 
183 ;  4  Dowl  P.  C.  695.  164 

Where,  in  assumpsit,  the  plea  admits  the 
breach,  and  only  alleges  a  number  of  facts,  as 
matter  of  excuse,  the  replication  of  de  injuria  is 

S roper.  Isaac  v.  Farrer,  4  Oowl.  P.  C.  750;  1 
lees,  dk  Wels.  65 :  S.  P.  Griffin  v  Yates,  2  Bing. 
N.  R.  579;  4  Dowl.  P.  C.647;  Crisp  v.  Grif- 
fiths, 2  C.id.  &  R.  159;  3  Oowl.  P.  C.  752 ;  1 
Gale,  106.  164 

To  a  declaration  on  a  promissory  note,  by  an 
indorsee  against  the  maker,  the  defendant  plead- 
ed, that  an  advertisement  appesured  in  a  news- 
paper, ofierinff  loans  of  money  at  low  interest, 
and  that  the  oefendant,  being  in  want  of  a  loan, 
was  induced,  by  the  false  representations  of  the 
individuals  to  whom  he  applied,  to  draw  that  and 
other  promissory  notes  for  which  he  never  had 
any  consideration ;  and  that  all  the  parties  to  the 
bill  were  acquainted  with  these  circumstances : — 
Held,  upon  special  demurrer,  that  de  injuria  was 
JL  proper  replication  to  this  plea.  Id. 

The  replication  de  injuria  is  not  applicable  in 
assumpsit,  when  the  plea  does  not  admit  the  pro- 
mise stated  in  the  declaration :  as  where  the  ac- 
tion was  for  a  breach  of  contract  in  not  paying 
for  goods  by  bills  with  security,  and  the  plea  set 
out  a  custom  of  trade,  that  such  necurity  was 
only  given  when  it  was  demanded  before  the  goods 
were  delivered.  Whittaker  v.  Mason  or  Marson, 
*2  Scott,  567 ;  2  Bing.  N.  R  359 ;  1  Hodges,  319. 

164 

Semble,  that  to  a  plea,  showing  a  prima  facie 
case  of  a  promise,  but  avoiding  it  by  showing 
some  invalidiw  in  the  inception  of  a  contract,  ex. 

Sr.  a  want  ot  consideration, — a  replication  that 
le  defendant  broke  his  promise  without  the 
cause  alleged,  is  good  on  general  demurrer.  Noel 
9.  Rich,  4  Dowl.  P.  C.  228 ;  2  C.  M.  &  R.  360 ;  1 
Gale,  225.  164 

Assumpsit  for  5000Z.  had  and  receiver.  Plea, 
that  the  said  money  '*  being  the  money  in  the 
said  declaration  mentioned'*  was  the  proceeds  of 
divers  goods  pledged,  with  a  power  of  sale  to  the 
defendant,  by  persons  whom  the  plaintiff  allowed 
to  hold  the  ^oods  as  their  own,  and  which  were 
in  fact  the  joint  property  of  those  persons  and  the 
plaintiff,  and  that  the  defendant  was  willing  to  set 
off  against  the  proceeds  ef  the  goods  the  advance 


made  on  them.  Replication,  that  the  defendasty 
of  his  own  wrong,  and  without  the  cause  alleged, 
broke  his  said  promise;  and  further,  that  the 
action  was  brou^t.  not  only  for  the  proceeds  of 
the  goods  mentioned  in  the  plea,  but  also  fisr  the 
proceeds  of  other  goods : — Held,  on  special  de- 
murrer, that  the  replication  was  bad,  becatue 
it  alleged  that  the  defendant  broke  his  pio> 
mise,  when  the  plea  in  efiect  was,  that  he  never 
made  one,  and  not  an  excuse  for  a  breach.  Se- 
condly, because  the  plea  claimed  for  the  defen- 
dant an  interest  in  the  goods,  and  also  asserted 
an  authority  from  the  plaintiff.  Solly  v.  Neish^ 
2  C.  M.  &  B.  355 ;  4  Dowl.  P.  C.  248;  1  Gale, 
227.  164 

Diet,  the  plea  would  be  bad  on  special  demar- 
rer,  as  amounting  to  the  general  issue.    Id. 

Semble — Admitting  that  the  de  injuria,  &e. 
put  tile  whole  plea  in  issue,  nevertheless  the  n'ew 
assignment  did  not  make  the  replication  double, 
id. 


ATTACHMENT. 

Contempt'] — Mere  violent  snatching  an  original 
writ  of  summons  from  the  person  serving  a  copy 
of  it,  is  not  a  contempt  of  the  process  of  the  court. 
Weekes  v.  Whitely ,  3  Dowl.  P.  C.  536 ;  1  Har.  A 
Woll.  218.  166 

An  attachment  for  misconduct  cannot  be  mor- 
ed  for  by  a  complainant  in  person,  but  the  motion 
must  be  made  by  a  gentleman  at  the  bar.  £x 
parte  Fenn,  2  Dowl.  P.  C.  527.  166 

Contempt  of  court  for  nonpayment'of  costs, 
cannot  be  waived  by  the  parties.  Gompertz  v. 
Best,  IT.dt  Col.  619.  166 

An  attachment  will  not  be  granted  for  not 
obeying  a  judge's  order  which  hiui  not  been  made 
a  rule  of  court  Hinchli^  v.  Jones,  4  Dowl. 
P.  C.  86 ;  1  Har.  &  Woll.  337.  166 

Nonpayment  of  money.'] — A  conditional  order 
for  payment  qf  costs  cannot  be  enforced  by  at- 
tachment, although  the  step  to  be  allowed  on  pay- 
ment of  costs  has  been  taken  without  such  pay- 


'£ 


ment.    Rese  v.  Fenn,  2  Dowl.  P.  C.  541.         167 

An  attachment  cannot  be  obtained  for  nonpay- 
ment of  costs,  pursuant  to  the  master's  allocatur, 
if  there  was  no  undertaking,  in  the  judge's  order 
for  taxation,  to  pay  what  should  tie  found  due. 
Harrison  r.  Ward  3  Dowl.  P.  C.  54J .  167 

Where  a  party  is  allowed  to  amend,  on  condi- 
tton  of  paying  costs,  but  he  amends  and  pro- 
ceeds without  such  payment,  he  is  still  not  liable 
to  an  attachment.  Turner  v.  Gill,  3  Dowl.  P.  C. 
30.  167 

In  order  to  obtain  an  attachment  for  nonpay- 
ment of  costs,  pursuant  to  the  master's  allocatur, 
it  must  appear  by  the  affidavit,  that  the  persons 
denying  the  payment  are  those  mentionea  in  the 
allocatur.    France  v.  Wright,  3  Dowl.  P.  C.  325. 

167 

The  plaintiff,  an  attorney,  brought  an  action 
for  his  bill  of  costs.  The  defendant  obtained  an 
order  to  tax  the  bill,  which  order  did  not  contain 
a  submission  or  undertaking  to  pay  the  amount 


[ATTACHMENT] 


2907 


taied.  The  usual  tubminion  was,  however,  en- 
tersd  in  the  judge's  book.  The  master  proceed- 
ed in  the  taxation,  and  made  his  allocatur  for  6d. 
in  Ikyorof  the  defendant  The  plaintiff  applied 
on  affidaTita,  and  obtained  another  baron's  order 
for  the  master  to  review  his  taxation.  On  the 
review,  the  master  made  his  allocatur  for  18/.  in 
the  plaintiff's  favor.  The  plaintiff  made  the 
■econd  order  a  rule  of  court,  made  a  demand,  Ac. 
thereon,  and  moved  for  an  attachment.  Neither 
the  first  order  nor  the  submission  in  the  judge's 
book  was  made  a  rule  of  court.  The  court  held, 
that  the  attachment  was  irregular,  and  set  it 
■side.  Ryalis  v.  Emerson,  2  C.  ^  M.  464  ;  4  Tvr. 
364  ;  2  Dowl.  P.  C.  357.  167 

The  plaintiff  afterwards  made  the  first  order 
and  the  submission  in  the  judge's  book,  a  rule 
of  court,  served  the  two  rules,  uie  allocatur,  &c., 
and  made  a  fresh  demand,  and  then  obtained  an 
attachment: — Held,  that  the  second  attachment 
was  regular.  Id. 

DemandJ] — In  order  to  bring  a  party  into  con- 
tempt by  not  paying  money  accordmg  to  an  order, 
a  demand  of  the  money  must  be  made  after  the 
order  has  been  nuule  a  rule  of  court.  Chilton  v. 
Enis,  2  Dowl.  P.C.  338;  3  C.  &;  M.  459;  4  Tjt. 
369.  167 

A  personal  demand  is  absolutely  necessary  be- 
fim  matEDg  for  an  attaohment  for  non-payment 
•f  COTti.  etunnell  r.  Tower,  I  C.  M.  &  R.  88 ;  2 
DowL  P.  C.  673;  4  Tyr.  862.  167 

Where  a  judge's  order  directed  that  certain 
deeds  should  be  given  up  on  a  tender  of,  &c.,  to 
the  plaintifis  or  ueir  agent : — Held,  that,  before 
an  attachment  for  a  refusal  of  the  tender  to 
him,  the  pfauntiffs  must  have  notice  of  that  ten- 
te,  and  be  personally  required  to  give  up  the 
deeds.  Evans  v.  Millard,  3  Dowl.  P.  C.  661 ;  1 
Gale,  138.  167 

An  award  directed  that  a  bond  should  be  ds- 
liveied  up  to  the  plaintifis  upon  demand ; — Held, 
that  a  demand  made  by  one  plaintiff  without  a 
power  of  attorney  from  the  others,  was  an  insuffi- 
eient  demand  to  obtain  an  attachment  Sykes  v. 
Hagoe  or  Haigh,  2  Scott,  193 ;  4  Dowl.  P.  C.  114  ; 
1  Hodges,  197.  167 

In  order  to  bring  a  party  into  contempt  for 
non-delivery  of  a  bond  pursuant  to  a  rule  of 
court,  the  oemand  of  it  must  be  made  by  one  of 
the  JMUties  mentioned  in  the  rule  as  entitled  to 
receive  it.  Ex  parte  Fortescue,  2  Dowl.  P.  C. 
44a  167 

When  a  demand  is  made  under  a  power  of  at- 
torney a  copy  must  be  left.  Rex  v.  Pack  wood,  2 
Dowl.  P.  C.  570.  167 

And  the  ori^nal  jHroduoed.  Rex  o.  Martin,  1 
Akoek  A  Napier,  45,  (Irish).  16^ 

If  money  is  ordered  to  be  paid  to  a  certain 
peison,  (not  an  attorney),  or  nis  a^nt,  the  de- 
mand must  either  be  made  by  hmiself,  or  by 
some  one  authorized  by  power  ofattorney .  Brown 
V.  Jenks,  4  Dowl.  P.  C.  581.  167 

In  order  to  obtain  an  attachment  for  non-pay- 
ne^t  of  oosts,  pursuant  to  the  master's  allocatur, 
a  demand  is  not  necessary,  if  the  party  sought  to 

Vol.  IV.  5 


be  served,  by  his  violence  prevents  the  demand 
from  being  made.  Wenham  v.  Downes,  3  Dowl. 
P.  C.  573 ;  1  Har.  &  WoU.  216.  167 

Where  in  a  country  cause  costs  are  by  a  rule  of 
court  ordered  to  be  paid  **  to  the  party  or  his  at- 
torney,*' a  demand  by  the  attorney  in  the  country 
is  sufficient  to  founa  a  motion  for  an  attachment 
for  non-payment,  although  the  agent  in  London 
is  strictly  the  attorney  on  the  record.  Dennett 
V.  Pass,  1  Scott,  586;  1  Ring.  N.  R.  638;  3 
Dowl.  P.  C.  632 ;  1  Hodges,  157.  167 

An  attorney's  bill  having  been  ordered  te  be 
taxed  after  the,  client  had^iven  a  bill  of  exchange 
for  the  amount,  it  was  round  that  he  had  been 
overpaid,  and  the  attorney  was  ordered  to  refund 
the  over-payment  to  the  client ;  and  also,  by  a 
Bubaequent  order,  to  pay  the  costs  of  taxation, 
more  than  a  sixth  having  been  taken  off.  Upon 
the  application  of  the  attorney  to  be  allowed  to 
pay  these  sums  to  the  holder  of  the  bill  of  ex- 
change, (which  had  been  dishonored),  instead  of 
his  client,  he  was  ordered  to  do  so  within  a  week, 
or,  in  deiault,  that  an  attachment  should  issue  :— 
Held,  that  no  demand  of  theae  two  sums  was 
necessary  to  ground  an  attachment,  but  that  it 
was  his  duty  to  seek  the  holder  of  the  bill,  and 
pay  the  money  to  him.  WooUison  v.  Hodgson,  3 
Dowl.  P.  C.  178.  167 

J^on-pafomuince  of  Awards.] — On  a  rule  nisi 
for  an  attachment  on  an  award,  no  objection  can 
be  taken  to  it  that  does  not  appear  on  the  face  of 
it.  Paull  V.  Paull,  2  C.  «&  M.  235 ;  2  Dowl.  P.  C. 
340 ;  4  T^r.  72.  167 

An  attachment  will  not  be  granted  if  an  aetion 
has  been  commenced,  except  upon  the  terms  of 
disoontinuing  the  action,  and  paymg  the  costs.  Id. 

Where,  in  articles  of  agreement  for  the  sale  of 
land  by  A-  to  R.,  it  is  stipulated  that  the  price 
shall  he  fixed  by  an  arbitrator,  and  the  agree* 
ment  be  made  a  rule  of  court,  the  award  being  pub- 
lished, and  the  agreement  made  a  rule  of  court, 
A.  cannot  have  an  attachment  against  R.  for  non- 
payment of  the  price  awarded.  A.'s  only  remedy 
IS  by  action  on  the  articles.  In  re  Lee,  3  Nev. 
&  M.  860.  167 

Matter  of  objection,  not  apparent  upon  the  fiuse 
of  an  award, — as  an  omission  to  adjudicate  upon  a 
matter  or  dispute  brought  before  toe  arbitrator,— 
cannot  be  shown  for  cause  against  a  rule  nisi  for 
an  attachment  for  non-performance  of  the  award. 
M'Arthur  v.  Campbell,  4  Nev.  &  M.  208 ;  2  Adol. 
A  Ellis,  52.  167 

Praetice.'] — A  rule  for  an  attachment,  ibr  any 
other  cause  than  the  non-payment  of  money  pur- 
suant to  the  master's  allocatur,  is  only  nipi  m  the 
first  instance.  Richmond  v,  Bowdidge,  4  Dowl. 
P.  C.  749 ;  1  Mees.  A  Wels.  40.  160 

Upon  motion  for  an  attachment  for  non-pay- 
ment of  costs,  punnant  to  the  master's  allocatur, 
to  whom  accounts  had  been  referred  upon  the 
undertaking  of  the  party,  the  courts  will  not  grant 
a  rule  absolute  in  the  first  instance.  Rex  v, 
Spraggs,  2  Nev.  A  M.  678.  169 

When  for  non-payment  of  costs,  as  between  at- 


[ATTACHMENT] 


it  ■  ft  mle  Dili.    P^MWffr  r.  • 
Mcll0r,2I>oiH.P.C.d33;  8.  P.  Spragr  r.  WU- 
hB,9D9wL  P.C.  531 ;  Grceii v.  Liffat,  3DowL  P. 
C.  578;  Rjnn  r.  Fmicb,  4  Dowl.  P.  C.  563.   1G0 

A  party  tfOkDot  have  a  rule  absolote,  in  the 
inatanee,  Ibr  an  attachment  ior  not  paTing 
I,  ponDant  to  a  mJe  of  court,  where  tnose 
_  tarn  part  of  a  rule,  for  diaobedienoe  to 
which  a  role  niai  oolr  for  an  attachment  can  be 
fiaated.    Ex  mite  Townlej,  3  Dowl.  P.  C.  39. 

1G3 

In  the  C.  P.  two  motkmaaie  neceaaarr  to  make 
a  jndge'a  order  a  mle  of  court,  and  lor  an  attach- ' 
ment  Ibr  dianbedience  thereto.     Pilcher  r.  Woods, 
4  DowL  P.  C.  329.  IGD 

In  K.  B.,  an  application  to  make  a  judge's  or- 
der a  mle  of  court,  and  for  an  attachment  for 
diaobejin^  it,  may  be  made  on  the  same  motion. ' 
Hincmifle  v.  Jonea,  4  Dowl.  P.  C.  ^;  1  Har.  dt 
WoU.  337 ;  8.  P.  Forater  v.  Kirkwall,  4  Dowl. 
P.  C.  370.  169 1 

In  order  to  obtain  an  attachment,  it  is  not  i 
anfficient  that  all  the  necessary  ateps  are  taken, ' 
partly  at  one  time  and  partly  at  another,    fiogers 
V.  Twiadel,  3  Dowl.  P.  C.  572.  169 

In  order  to  obtain  an  attachment  for  non-pay- 
ment of  costs,  the  rule  (or  the  payment  of  them, 
aa  well  as  the  rule  niai  for  an  attachment  for  non- 

Eiymcnt  must  be  personally  aerved.    Birket  r. ' 
olme,  4  Dowl.  P.  C.  556.  170 

In  order  to  ground  an  attachment  for  non-pay- 1 
ment  of  coats,  pursuant  to  a  rule  of  court,  or  the 
prothonotary's  allocatur,  there  must  in  all  cases 
De  a  personal  aerFice,  unless  it  appeara  that  the 
rule  or  allocatur  has  been  seen  in  the  actual  pos- 
session of  the  party.  Dicaa  v.  Wame,  1  Scott, 
537 ;  I  Hodges,  91.  171 

The  court  of  K.  B.  will  not  grant  an  attach- 
ment without  personal  aenrice,  in  any  case  where 
the  party  tpplying  baa  another  remedy.  In  re 
Lowe,  4  B.  &  Adol.  412.  But  see  Allier  v.  New- 
ton, 2  Dowl.  P.  C.  582.  171 

It  IB  not  sufficient  to  show  the  party  the  origi- 
nal, rule,  without  personal  serrice  of  a  copy. 
Parker  v.  Burgess,  3  Nev.  A  M.  3G.  171 

It  is  not  necessary  to  place  the  original  in  the 
defendant's  hands ;  if  it  be  shown  to  him,  so  ihat 
he  can  read  the  contents,  it  is  sufficient.  Calvert 
V.  Redfearn,  2  Dowl.  P.  C.  505.  171 

In  order  to  obtain  an  attachment  for  non-pay- 
ment of  costs,  pursuant  to  the  master's  allocatur, 
it  is  not  indispensably  necessary  that  a  copy  of 
the  rule  and  allocatur  should  be  leil  on  the  per- 
son of  the  defendant.  Rex  v.  Koops,  3  Dowl  P. 
C  566:  S.  C.  nom.  Rose  v.  Koops,  1  Har.  & 
WoU.  213.  171 

Personal  service  of  the  rule  for  payment  of 
'coats  is  necessary  in  order  to  obtain  an  attach- 
ment, although  the  defendant  is  an  attorney.     Al- 
bin  V.  Toomet',3  Dowl.  P.  C.  563;  1  Har.  &  W. 
215.  171 

Where  it  is  clear  that  the  copy  of  the  rule  and 
allocatur  have  come  to  the  hands  of  the  defen- 
dant, an  attorney,  the  court  will  ^rant  a  rule  nisi 
for  an  attachment,  although  stnct  personal  ser- 


Tioe  has  not  been  efiected.  PhiBipa  r.  Hatehin- 
•OB,  3  Dowl.  P.C.  5d3:  8.  P.  Bex  «.  Dignam,  4 
DowL  P.  C.  S9.  171 

Where  there  had  not  been  personal  service  of 
the  rule  of  court  and  master's  allocatur,  but  copies 
had  be^n  lefl,  and  notice  had  been  given  of  a  call 
that  would  be  made,  the  court  macfe  a  rule  for  an 
attachment  against  an  attorney  absolute,  where, 
on  showmg  cause  against  the  rule  nisi,  he  did 
not  deny  having  received  the  papers  and  notice. 
Bottomley  r.  &lchamber,  4  DowL  P.  C.  26;  1 
Har.  Sl  WoU.  362.  IH 

Where  a  rule  ncn  issues  to  show  cause  why  an 
attachment  should  not  issue  for  not  obeying  a 
judge's  order,  which  has  been  made  a  rule  of 
covt,  and  the  rule  niai  is  not  personally  served, 
but  the  party  appears  upon  it  and  objects  to  the 
want  of  personal  service,  such  appearance  waives 
the  necessity  of  persona]  service.  Levi  e.  Dun> 
combe,  1  C  M.  ^L  R.  rJ7;  3 DowL  P.  C.  447 ;  5 
Tyr.490;  lGale,60.  171 

If  a  party  is  in  contempt,  it  is  not  necessary 
that  a  rule  calling  upon  him  to  answer  it  should 
be  personaUy  served.  Id. 

A  personal  service  of  the  rule  of  court  mutt  be 
made  to  ground  an  attachment  for  non-payment 
of  money,  pursuant  to  a  judge's  order,  which  is 
afterwards  made  %  rule  of  court ;  and  aervice  of 
the  order  and  allocatur  are  not  sufficient,  nor  is 
service  of  the  rule  on  the  London  agents  of  the 
attorney  sufficient ;  and  for  this  defect  an  attach- 
ment, issued  at  the  end  of  January,  and  executed 
on  the  12th  of  February,  was  set  aside  in  Trinitv 
term  following.  Woollison  r.  Hodgson,  3  Dowl. 
P.  C.  178.  171 

Personal  service  must  be  e&cted  before  an  at- 
tachment can  be  obtained  for  non-performance  at 
an  award  on  which  an  action  will  lie.  Rich- 
mond V.  Parkinson,  3  DowL  P.  C.  703.  171 

Affidavits,  in  answer  to  an  application  for  an 
attachment  in  a  criminal  case,  should  not  be 
intituled  in  that  case  unless  the  record  is  in  the 
K.  B.,  but  should  be  intituled  in  the  court  only. 
Rex  V.  Stretch,  4  DowL  P.  C.  30.  170 

Where  a  wife  sued  as  administratrix,  together 
with  her  husband,  and  the  title  of  an  order  to  tax 
the  attorney's  bill  took  no  notice  of  the  husband, 
a  rule  nisi  for  an  attachment  for  non-payment  oF 
a  sum  found  due  by  the  master's  aUocatur,  was 
granted  on  an  affidavit  intituled  as  in  the  action, 
and  not  like  the  order.  Schooling  r.  Crouchman, 
1  Har.  &  WoU.  369.  170 

Where,  in  the  copy  of  a  rule  for  an  attach- 
ment for  non-payment  of  costs  pursuant  to  the 
master's  allocatur,  the  defendant's  name  was 
spelt  Calver  instead  of  Calvert,  and  the  master's 
name  Day  instead  of  Dax,  the  court  set  aside 
the  attachment  and  discharged  the  defendant  out 
of  custody,  although  in  ue  original  rule  the 
names  were  spelt  correctly.  Rex  v.  Calvert,  S 
C.  <&  M.  189;  4  Tyr.  77;  S.  C.  nom.  Smith  v. 
Calvert,  2  Dowl.  P.  C.  276.  169 

Upon  a  motion  for  an  attachment  for  non- 
payment of  money,  the  court  refused  to  allow 
cause  to  be  shown  at  chambera,  though  it  was  at 


[ATTACHMENT— ATTORNEY   AND  SOLICITOR] 


8309 


the  end  of  the  term.    Fall  v.  Fall,  2  Dowl.  F.  C. 
83.  170 

Where  a  reasonable  time  had  not  been  given 
between  the  day  of  serving  a  rule  for  an  at- 
tachment, and  the  day  of  showing  cause,  the 
court,  on  making  the  rule  absolute,  directed  the 
attachment  to  lie  in  the  office  a  few  days,  until 
notice  of  that  step  being  takf*n  should  be  given 
to  the  defendant.  Rex  v.  Giles,  4  Dowl.  r.  C. 
569.  170 

The  proper  mode  of  charging  a  defendant, 
who  is  a  prisoner  in  custody  of  the  marshal, 
with  an  attachment,  is  by  lodging  the  attach- 
ment with  the  sheriff,  who  will  take  the  defen- 
dant upon  the  attachment  as  soon  as  he  is  out  of 
the  custody  of  the  marshal.  Boucher  v.  Simms, 
4  Dowl.  P.  C.  173  3  2  C.  M.  &  R.  392.  172 

Where  a  party  is  arrested  under  an  attach- 
ment for  contempt  of  court  in  not  paying  money, 
he  is  not  entitled  to  be  discharged  upon  tender- 
inf  the  amount  to  the  officer.  Fitt  v.  Coombs, 
3Nev.  &  M.  212;  5  B.  <&  Adol.  ]07d.  172 

ATTAINDER. 

Ejectment  may  be  maintained  for  freehold 
lands,  on  the  demise  of  a  person  attainted  of 
felony,  when  there  has  been  no  office  found  on 
behalf  of  the  king.  Doe  d.  Griffith  v.  Fritchard, 
BB.  &  Adol.  76o:  S.  C  nom.  Doe  d.  Evans  v. 
l*htchaid»  2  Nev.  &.  M .  489.  173 

A  lease  for  three  lives  contained  a  provision, 
that  if  the  lessee,  his  heirs,  ^c,  should,  during 
the  continuance  of  the  term,  happen  to  become 
msolyent,  and  unable  in  circumstances  to  go  on 
with  the  management  of  the  farm,  the  demise 
riiOQld  from  thenceforth  cease  and  be  absolutely 
Totd.  Tenant  (being  the  second  cestui  que  vie) 
imder  sach  lease  was  attainted  of  felony,  and 
tzansported.  His  mother  and  sister  occupied  the 
fitfm  from  that  time  till  the  expiration  of  the 
ibixd  life  named  in  the  lease,  and  during  that 

r'od  the  reserved  rent  was  regularly  paid  to 
W.  P.,  to  whom  the  reversion  had  come  by 
devise,  and  who  knew  all  the  facts.  The  time  of 
hia  becoming  entitled  did  not  appear.  The  re- 
TeraioDer,  on  the  expiration  of  the  third  life,  sup- 
posing that  the  term  was  at  an  end  in  point  of 
law,  let  the  land  to  a  new  tenant,  whom  he 
lAerwards  ejected,  the  attainted  party  being  still 
■live.  Quiere,  whether  the  attamder  of  the  te- 
nant was  a  forfeiture  of  the  lease  ?  but,  held, 
that  if  it  was  a  breach  of  the  condition,  it  was 
not  a  continuing  breach,  but  was  contempora- 
with  the  convicUon.  Id. 


QiMBfe  also,  if  a  forfeiture  was  committed, 
whether  it  was  one  of  which  an  assignee  of  the 
reversion  might  take  advantage  by  stat  32 
Hen.  8,  c.  34.  Id. 

Heldf  that  if  such  a  forfeiture  was  committed, 
the  reversioner  had  waived  it  by, accepting  the 
reserved  rent  nnder  the  lease  from  the  parties 
occupying  the  premises.  Id. 

SemhJe,  that  if  the  forfeiture  had  not  been 
waived,  a  sufficient  entry  had  been  made  to  avoid 
tkt  lease,  id. 


A.,  in  January,  1815,twas  convicted  of  bigamy. 
In  April,  1^1 5,  he  conveyed  away,  by  lease  and 
release,  certain  lands  in  which  he  had  an  estate 
for  life : — Held,  that  such  convevance  was  not 
void  as  against  the  crown,  there  having  been  no 
attainder.  Rex  v.  Bridger,  ]  Mees.  «&  Wels. 
145.  173 

In  an  action  on  the  case  for  slander,  the  plaintiff 
had  a  verdict.  Before  judgment  signed,  the 
plaintiff  was  attainted  of  felony.  Quere,  whe- 
ther, before  office  found,  the  damages  vested  in 
the  king,  and  whether  this  would  be  sufficient 
matter  suggested  by  the  defendant,  the  crown 
refusing  to  mterfere  on  a  writ  of  audita  querela, 
to  prevent  judgment  and  execution  following  the 
verdict  ?  Symonds  v.  Blake,  2  C.  M.  &  R.  416 ; 
4  Dowl.  P.  C.  263  J  1  Gale,  182.  173 

On  the  trial  of  the  felonv,  the  defendant  was 
examined  as  a  witness;  though  diet,  the  re- 
cord would  ne^rtheless  be  undoubtedly  admis- 
sible in  evidence  on  a  writ  of  audita  querela,  the 
court  refused,  in  the  exercise  of  its  discretion,  to 
stay  proceedings  on  a  motion  suggesting  this  con- 
viction. Id. 


ATTORNEY  AND  SOLICITOR. 

1.  Articled  Clxrxs. 

If  the  original  indenture  of  clerkship  is  lost,  a 
copy  may  be  inroUed.  Ex  parte  Chapman,  3 
Dowl.  P.  C.  562.  174 

Draft  of  the  articles  of  clerkship  to  an  attor- 
ney allowed  to  be  inrolled,  where  the  original  was 
lost  through  the  misconduct  of  the  person  who 
had  them  delivered  to  him  to  be  inrolled.  Ex 
parte  Beckenden,  1  Har.  &.  WoU.  193.  174 

If  an  attorney's  clerk  has  been  absent  part  of 
the  five  years  with  his  master's  consent,  but  has 
served  on  at  the  end  of  the  five  yeara  under  the 
same  articles  an  equivalent  additional  time,  he  is 
entitled  to  be  admitted.  Ex  parte  Frost,  3  Dowl. 
P.  C.  322 ;  1  Har.  &  Woll.  111.  174 

Where  a  clerk  has  been  articled  to  a  second 
master,  pursuant  to  the  22  Greo.  2,  c.  46,  s.  9, 
and  the  affidavit  of  such  articles  has  not  beep. 
filed  within  three  months  after  their  execution, 
in  accordance  with  section  3  of  that  statute,  he 
cannot  be  admitted,  nor  can  such  affidavit  be 
filed  nunc  pro  tunc.  Ex  parte  Joy,  3  Dowl.  P.  C. 
343.  174 


11.  Admission. 

jBuZe.] — Whereas,  by  the  statute  4  Hen.  4, 
c.  18,  it  was  enacted,  **  that  all  the  attorneys 
shall  be  examined  by  the  justices,  and  by  their 
discretions  their  names  put  on  the  roll ;  and  they 
that  be  good  and  virtuous  and  of  good  fame 
shall  be  received,  and  sworn  well  and  truly  to 
serve  in  their  offices:"  and  whereas,  by  the  sta- 
tute 3  Jac.  1,  e.  7,  s.  2,  it  was  enacted,  **  that 
none  shall  from  henceforth  be  admitted  attorneys 
in  any  of  the  kind's  courts  of  record  but  such 
as  have  been,  brought  up  in  the  same  courts,  or 


r    ' 


ssto 


[ATTORNEY  AND  SOUCITOR] 


otherwiM  well  praetued  in  soliciting  of  cantM, 
ftnd  haTO  been  found  by  their  dealings  to  be  skil- 
fol  and  of  honest  dispositioni  and  that  none  be 
•oflfefed  to  solicit  any  cause  or  causes  in  any 
of  the  courts  aforesaid,  but  only  such  as  are 
known  to  be  men  of  sufficient  and  honest  dispo- 
ntion :"  and  whereas,  by  a  rule  made  in  Michael- 
mas term,  1654,  in  the  courts  of  K.  B.  and  C.  P. 
it  was  ordered,  that  the  courtB  '*  should  once  in 
eyery  year,  in  Michaelmas  term,  nominate  twelre 
or  more  able  and  credible  practisers,  to  continue 
for  the  ensuing  year  to  examine  such  persons  as 
should  desire  to  be  admitted  attomcjs,  and  ap- 
point convenient  times  and  places  K)r  the  exa- 
mination ;  and  the  persons  desiring  to  be  admitted 
were  first  to  attend  with  their  proofs  of  service, 
then  to  repair  to  the  persons  appointed  to  exa- 
mine, and  oeing  approved,  to  be  presented  to  the 
court,  and  sworn  :  and  whereas,  by  the  statute 
2  Geo.  2,  c.  23,  s.  2,  it  was  enacted,  that  the 
judges,  or  any  jcme  or  more  of  them,  should,  and 
they  were  therebjr  autliorized  and  required,  before 
they  should  admit  such  person  to  take  the  oath 
to  exiamine  and  inquire  by  such  if^ays  and  means 
as  they  should  thina  proper,  touching  his  fitness 
and  capacity  to  act  as  an  attorney ;  and  if  such 
judj^  or  judges  respectivelv  should  be  thereby  sa- 
tisrod  that  such  person  is  duly  qualified  to  be  ad- 
mitted to  act  as  an  attorney,  then,  and  not  other- 
wise, the  said  judge  or  judges  of  the  said  courts 
respectively  should,  and  they  were  thereby  au- 
thorized to  administer  to  such  person  the  oath 
thereinafter  directed  to  be  taken  by  attorneys; 
and  after  such  oath  taken,  to  cause  him  to  be  ad- 
mitted an  attorney  of  such  court  respectively :" 
and  whereas,  in  order  to  carry  the  last  men- 
tioned statute  more  fully  into  efieet,  it  is  expe- 
dient annually  to  appoint  examiners,  subject  to 
the  control  or  the  judges,  in  manner  heremafter 
mentioned. 

It  is  ordered,  that  the  several  masters  and  pro- 
thonotaries  for  the  time  being  of  the  courts  of 
K.  B.,  C.  P.,  or  Exchequer  respectively,  toge- 
ther with  twelve  attorneys  or  solicitors,  be  ap- 
pointed by  a  role  of  court  in  Easter  term  in 
every  year,  to  be  examiners  for  one  year ;  and 
five  of  whom  (one  whereof  to  be  one  of  the  said 
masters  or  nrothonotaries)  shall  be  competent 
to  conduct  tne  examination  :  and  that  from  and 
af^r  the  last  day  of  next  Easter  term,  subject  to 
■och  appeal  as  hereinafter  mentioned,  no  per- 
son shall  be  admitted  to  be  sworn  an  attorney  of 
any  of  the  courts,  except  on  production  of  a  cer- 
tificate, signed  by  the  major  part  of  such  exa- 
miners actually  present  at  and  conducting  his 
examination,  testifying  his  fitness  and  capacity 
to  act  as  an  attomev,  such  certificate  to  be  in 
force  only  to  the  end  of  the  term  next  following 
the  date  thereof,  unless  such  time  shall,  be  spe- 
cially extended  by  the  order  of  a  judge. 

It  is  further  ordered,  that  the  examiners  so  to 
be  appointed,  shall  conduct  the  examinations 
under  regulations  to  be  first  submitted  to  and 
approved  by  the  judges. 

And  it  is  further  ordered,  that  in  case  any 
person  shall  be  dissatisfied  with  the  refusal  of 
the  examiners  to  grant  such  certificate,  he  shall 
be  at  liberty  to  apply  for  admission  by  petition 


in  writing  to  the  judges,  to  be  delivered  to  tite 
clerk  of  the  lord  chief  Justice  of  the  court  of 
K.  B.,  upon  which  no  fee  or  gratuity  shall  be 
received,  which  application  shall  be  heard  in 
Serjeant's  inn  Hall|  by  not  less  than  three  of 
the  judges. 

And  whereas  the  hall  or  building  of  the  Incor- 
porated Law  Society  of  the  UnitecT Kingdom,  in 
Chancery  Lane,  will  be  a  fit  and  convenient 
place  for  holding  the  said  examination,  and  the 
said  society  have  consented  to  allow  the  same  to 
be  used  for  that  purpose ;  it  is  further  ordered 
that  until  further  orders,  such  examinations  be 
there  held  on  such  days,  being  within  the  last 
ten  days  of  every  term,  as  the  said  examiners  or 
any  five  of  them  shall  appoint ;  and  that  any 
person  not  previously  admitted  an  attorney  of 
any  of  the  three  courts,  and  desirous  of  being 
admitted,  shall,  in  addition  to  the  notices  already 
required,  give  a  term's  notice  to  the  said  exa- 
miners, of^his  intention  to  apply  for  examina- 
tion, by  leaving  the  same  with  the  secretary  of 
the  said  society  at  their  said  hall,  which  notice 
shall  also  state  his  place  or  places  of  residence  or 
service  for  the  last  preceding  twelve  months }  and 
in  case  of  application  to  be  admitted  on  a  refusal 
of  tlie  certificate,  shall  give  ten  days'  notice,  to  be 
served  in  the  like  manner  of  the  day  appointed  for 
hearing  the  same. 

And  it  is  further  ordered,  that  three  days  at 
the  least  before  the  commencement  of  the  term 
next  preceding  that  in  which  any  person  not  be- 
fore admitted,  shall  propose  to  be  admitted  an 
attorney  of  either  of  the  courts,  he  shall  cause 
to  be  delivered  at  the  master's  or  prothonotarj's 
office,  as  the  case  may  be,  instead  of  affixing  the 
same  on  the  walls  of  the  courts  as  now  required, 
the  usual  written  notices,  which  shall  state,  in 
addition  to  the  particulars  now  required,  his 
place  or  places  of  abode  or  service  for  the  last 
preceding  twelve  months;  and  the  master  or 
prothonotary,  as  the  case  may  be,  shall  reduce 
all  such  notices  as  in  this  rule  first  mentioned, 
into  an  alphabetical  table  or  tables,  under  conve- 
nient heads,  and  affix  the  same  on  the  first  day 
of  term  in  some  conspicuous  place  within  or 
near  to,  and  on  the  outside  of  each  court 

And  whereas  it  is  expedient  that  upon  the  re- 
admission  of  attomies,  the  judges  should  have 
further  means  of  inquiring  as  to  the  circum- 
stances under  which  persons  applying  to  be  re- 
admitted discontinued  to  practise,  and  as  to  their 
conduct  and  employment  during  the  time  of  such 
discontinuance ;  it  is  further  ordered,  that,  at  the 
time  of  giving  the  usual  notice  of  the  intention 
to  apply  for  such  readmission,  the  party  shall 
cause  to  be  filed  the  affidavit  on  which  lie  seeks 
to  be  readmitted,  with  the  master  or  prothono- 
tary, as  the  case  may  be,  which  affidavit  shall 
contain,  in  addition  to  the  particulars  now  re- 
quired, a  statement  of  his  place  or  places  of 
abode  during  Uie  last  preceding  year :  and  such 
person  shall  also  at  the  same  time,  cause  to  be 
left  a  copy  of  such  affidavit  with  the  clerk  of  the 
lord  chief  justice  of  the  court  of  K.  B.;  and  the 
rule  for  the  admission  of  such  person  shall  be 
drawn  up  on  reading  such  affiaavit,  and  also 
an  affidavit  of  such  copy    having  been  left  in 


[ATTORNEY  AND  SOLICITOR] 


2311 


ooinplmnce  with  this  role.    Reg.   Gen.  K.  B., 
C.  P.  ftnd  Exch.  H.  T.  6  Will.  4? 

Generally. ] — Where  an  attorney  had  been  ad- 
mitted, and  had  practiced  in  the  court  of  Great 
Seanona  in  Wales  before  the  11  Geo.  4,  &  1 
Will.  4,  c.  70,  but  had  ceased  to  practice,  and 
was  not  **  practicing"  at  the  passing  of  that  act : 
— Held,  that  he  was  not  entitled  to  have  his 
name  inrolled  in  the  superior  courts  under  the 
■ot  Ex  parte  Garratt,  2  C.  &  M.  410;  2  Dowl. 
F.  C.  071 ;  4  Tyr.  2ffii.  ]75 

On  an  application  against  an  attorney  for  an 
attachment  for  his  contempt  of  a  judge  s  order, 
made  a  rule  of  court;  tlie  court  will  take  judi- 
cial notice  of  his  being  on  the  rolf.    Ex  parte 

^  cm;  1  Hap.  &Woll.2H. 

175 


Hoffe,3Dowl.  P. 


So  in  an  application  to  tax  an  attorney's  bill, 
the  court  will  take  judicial  notice  of  his  being 
on  the  roll.    Ex  parte  King,  3  Dowl.  P.  C.  41. 

175 

On  a  summary  application  against  an  attorney 
it  must  appear  upon  the  affidavit  that  he  is  an 
attorney  of  the  court.  In  re  Beck,  1  Har.  ^k 
Won.  417.  175 

The  court  will  not  entertain  a  motion  touching 
the  conduct  of  an  attorney,  unless  it  appears 
Qpcm  affidavit  that  he  is  an  attorney  of  the  court, 
cc  thmt  the  tnuisaction  arises  in  part  at  least  out 
of  a  eftm  before  the  court :  nor  will  the  court 
exeicise  its  Bummair  jurisdiction  over  an  officer, 
nnleas  in  a  cause  of  palpable  fraud.  In  re  Lord, 
S  Soott,  131 ;  1  Hodges,  105.  175 

An  attorney  who  has  been  admitted,  or  read- 
mitted in  another  court,  has  a  right  to  be  ad- 
mitted or  readmitted  in  the  court  of  Exchequer 
as  of  course,  without  g[iving  any  notice  or  un- 
dergoing any  examination.  Ex  parte  Parrv,  1 
Mees.  A  Wels.  295.  -^175 

The  court  of  review  will,  under  special  cir- 
cnmstaDoes,  admit  an  attorney  nunc  pro  tunc. 
Ex  parte  Tanner,  3  Deac.  &,  dhit  10  :  S.  P.  Ex 
pwte  A ,  3  Oeae.  &  Chit.  417.  175 

Every  person  admitted  an  attorney  of  C. 
P.,  not  having  already  entered  his  admission, 
and  also  every  attorney  hereafter  to  be  admitted, 
shall  forthwith  enter  his  admission,  and  shall 
caoae  his  annual  certificate  to  be,  on  or  before 
the  first  day  of  Easter  term  in  every  year,  en- 
tered with  the  clerk  of  the  warrants,  which  en- 
tries shall  in  all  cases,  where  tlie  annual  certifi- 
cate has  been  already  entered  in  one  of  the 
eoorts,  be  made  without  fee  or  reward,  and  shall 
•t  the  same  time  pay  and  discharge  all  his  ar- 
rears of  termage  fees.  Reg.  Gen.  C.  P.  M.  T.  5 
WiU.  4.  175 

The  inrolment  of  an  attorney  in  the  Common 
Pfeas  is  thus  effected  : — The  party  on  receiving 
his  admission  from  the  secondary,  takes  it  to  the 
clerk  of  the  warrants,  who  thereupon  enters  his 
name  and  address  in  a  book  kept  for  that  pur- 
pose in  alphabetical  order.  Unless  inrolled,  it 
Moot  competent  to  an  attorney  to  sue  for  any 
fees  or  disonrsements ;  therefore,  where  the  de- 


fendant's attorney  (in  every  other  respect  duly 
qualified  to  act  as  an  attorney)  had  omitted  to 
cause  his  name  to  be  inrolled  as  above,  the  de- 
fendant having  made  no  advances  on  account  of 
the  expenses  of  the  suit,  the  court  permitted  the 
plamtiff  to  discontinue  without  paying  costs. 
Humphrysr.  Harvey,  4  M.  &  Scott,  500;  1  Bine. 
N.  R.  62;  2  Dowl.  P.  C.  827.  17^ 

An  attorney  having,  through  inadvertence 
omitted  to  inscribe  his  name  on  the  roll  of  attor- 
nies,  although  he  had  observed  every  other  for- 
mality necessary  for  his  admittance,  the  court 
refused  to  enter  it  nunc  pro  tunc  to  defeat  an 
action   for  penalties   incurred  by  the  omission. 

I  JfvP'^^i'^'^'  *  ^»"S  N.  R.  734  ;  1  Scott,  706; 
3  Dowl.  P.  C.  636 ;  1  Hodges,  175.  175 

But  in  such  action  they  also  refused  to  allow 
plamtiff  to  amend  after  special  demurrer.    Id. 

Where  an  attorney,  through  the  negligence  of 
his  clerk,  has  omitted  to  make  the  entry  pursu- 
ant to  the  37  Geo.  3,  c.  90,  s.  27,  in  due  time, 
the  court  will  allow  that  entry  to  be  made  nunc 
pro  tunc,  if  he  has  taken  out  his  certificate  regu- 
larly and  paid  the  duty  for  tiiat  year.  Ex  parte 
Fry,  3  Dowl.  P.  C.  338:  ^  ^  y^ 

JTotice  Of  J9pplieatum.]— The  right  names  of 
all  the  persons  with  whom  a  clerk  has  served 
during  the  five  years,  must  be  introduced  into 
the  notices  of  his  mtention  to  apply  for  admission 
Ex  parte  Dobson,  2  Dowl.  P.  C.  S39.  17^ 

Where  a  second  christian  name  of  both  mas- 
ter and  clerk  was  omitted  in  the  articles  of  clerk- 
ship, and  the  notice  of  intention  to  apply  for  ad- 
mission, described  the  parties  by  such  second 
christian  name,  the  court  allowed  the  admission 
on  having  an  affidavit  of  the  identity  of  the  par- 
ties, m  addition  to  the  usual  affidavits.  Ex  narte 
Croft,  5  Nev.  &  M.  58;  1  Har.  &  Woll.^7^ 

176 

Where  the  notice  of  admission  as  an  attorney 
was  given  wiUi  a  view  to  admission  in  Easter 
Tenn,  but  by  mistake  the  name  of  the  person 
with  whom  he  resided  was  inserted  instead  of  the 
name  of  the  party  to  whom  he  was  articled,  the 
court,  on  an  affidavit  of  the  mistake,  and  denyinir 
any  intention  to  evade  inquiry,  allowed  him  S 
be  admitted  on  the  same  notice  on  the  last  day 
of  Trmity  term.    Anon.  1  Har.  &  WoU.  141  - 

a'^  i'  ^Tn.^°^^®  ^^"^^^^  ^  Ne^-  &  M.  709;  3 
Adol.  &  Ellis,  72.  |7g 

Where  an  attorney  applies  for  admission,  it 
must  be  positively  shown  that  his  notice  has  been 
regularly  put  up  m  the  King's  Bench  office.  Ex 
parte  Morgan,  4  Dowl.  P.  C.  2U6.  176 

The  notice  for  the  admission  of  an  attorney 
haviM  being  omitted  to  be  given  in  the  King's 
Bench  office  through  inadvertence,  the  court  al- 
lowed fresh  notice  to  be  given  for  admission  on  the 
hist  day  of  the  followiii^  term.  Ex  parte  Stone- 
huret,  1  Har.  &  Woll.  517.  17^ 

The  court  will  not  admit  an  attorney  on  th« 

last  day  of  the  term,  upon  a  notice  of  application 

posted  on  the  third  day  of  that  term.    In  re  Par- 

sons,  3  Nev.  &  M.  241 ;  3  Adol.  &  Ellis,  74 ;  1 

'  Har.  &  Woll.  349.  {7$ 


8812 


[ATTORNEY  AND  SOLICITOR] 


So,  although  sufficient  notice  had  been  posted 
during  the  vmole  of  a  preceding  term.  Id. 

Where  a  person  wanted  to  go  abroad  to  a  co- 
lony to  practice  as  an  attorney,  he  was  admitted 
without  giving  a  full  term's  notice.  Ex  parte 
Hulme,  4  Dowl.  P.  C.  88 ;  1  Har.  A  WoU.  366. 

176 

Severe  illness,  under  certain  circumstances, 
will  be  considered  as  an  excuse  for  not  comply- 
ing with  the  rule  of  court,  in  putting  up  notices 
in  tbe  King's  Bench  office,  and  outside  the  court 
of  K.  B.,  a  term  before  applying  for  admission  as 
an  attorney.    Ex  parte  Herbert,  2  Dowl.  P.  C.  172. 

176 

Where  an  attorney  seeks  to  be  admitted,  he 
does  not  sufficiently  comply  with  the  rule  of  T. 
T.  33  Geo.  3.  by  sticking  up  the  notice  of  his 
intention  to  apply  in  the  King's  Bench  office, 
and  outside  the  court,  before  the  sitting  of  the 
court,  on  the  first  day  of  the  term  in  which  he 
seeks  to  be  admitted.  Ex  parte  Gordon,  2  Dowl. 
P.  C.  470.  176 

An  attorney  who  was  off  the  rolls,  from  his 
agent  having  neglected  to  take  out  his  certificate, 

SLve  notice  to  the  stamp  office  before  Easter  term 
at  he  should  move  for  re-admission  in  Trinity 
term,  Trinity  being  mentioned  in  the  notice  by 
mistake  for  feaster.  On  affidavit  of  the  fact,  and 
by  consent  of  the  stamp  office,  the  court  allowed 
the  re-admission  in  Easter  term.  Ex  parte  Ntst- 
taU,  3  Adol.  &.  EUis,  118.  176 

The  notice  for  the  admission  of  the  attorney  was, 
by  the  inadvertence  of  an  agent's  clerk,  j^iven 
in  the  books  of  the  Chief  Justice,  but  not  in  the 
books  of  the  other  judges  of  the  court :  imme- 
diately on  its  being  discovered,  the  notices  were 
given : — Held,  that  the  party  might  be  admitted 
on  the  last  day  of  the  term.  Ex  parte  Woolright, 
4  Dowl.  P.  C.  274 ;  1  Har.  &  WoU.  517.  176 

Amendment  allowed  in  notice  for  admission  of 
an  attorney  by  inserting  his  place  of  residence. 
Ex  parte  Jones,  3  Adol.  &.  Ellis,  74.  176 

Pracdu  toiihout  ^dmisgian.'] — An  attorney 
who,  though  not  admitted  in  the  Exchequer, 
conducts  an  action  there  in  his  own  name,  not- 
withstanding 2  Geo.  2,  c.  23,  ss.  1,  5,  &  10,  can- 
not recover  liis  fees  or  costs  out  of  pocket  from 
his  client,  and  has  therefore  no  lien  for  them 
upon  a  judgment  recovered.  Thus  the  costs  of 
one  action  may  be  set  off  against  those  of  an- 
other, without  allowing  him  such  fees.  Hyde  v. 
Latham,  3  Tyr.  143.  176 

After  the  plaintiff's  costs  had  been  taxed  and 
paid,  it  was  discovered  that  their  a^ent  in  the 
cause  had  never  been  admitted  a  solicitor ;  and 
an  order  was  thereupon  made,  that  the  master 
should  review  his  taxation,  and  disallow  all  such 
items  as  did  not  consist  of  fees  paid  to  the  clerk 
in  court,  with  a  view  to  having  them  refunded. 
Coates  V.  Hawkyard,  1  Russ.  &  Mvlne,  746 :  S.  P. 
Prebble  v.  Bo^hurst,  1  Russ.  &  Mylne,  744 ;  and 
Bummer  v.  Ridgway,  1  Russ.  &  Mylne,  748.  176 

It  is  no  ground  for  disallowing  to  the  plain- 
tiff's attorney  his  costs  of  conducting  the  ac- 
tion, that  he  was  not  on  the  roll  of  attorneys  of 


tbe  court,  if  it  appears  that  he  conducted  the 
proceedings  in  the  name  of  a  London  attorney, 
wbo  was  an  attorney  of  the  court.  Goodner  v. 
Cover,  3  Dowl.  P.  C.  424 :  S.  C.  nom.  Gardner 
V.  Cover,  1  Gale,  45.  176 

Where  a  declaration  was  delivered  in  the  name 
of  a  person  as  the  attorney,  but  who  in  fact  was 
not  so :  it  was  held,  tliat  the  defendant  could  not 
treat  the  declaration  as  a  nullity,  and  sign  judg- 
ment. Bayley  v.  Thompson,  2  Dowl.  P.  C.  656 ; 
2  C.  &  M.  673.  176 

A  cause  had  been  tried  and  a  verdict  found  for 
the  plaintiff,  which  was  afterwards  set  aside  by 
the  court,  on  the  ground  that  tbe  contract  upon 
which  the  plaintiff  sued  was  illegal  and  void. 
After  the  rule  for  a  new  trial  was  made  absolute, 
it  appearing  that  the  defence  had  been  conducted 
by  an  attorney  of  the  court  of  King's  Bench, 
acting  in  the  name  of  one  who  had  for  some 
years  ceased  to  be  an  attorney  of  the  court  of  C. 
r . — The  court  permitted  the  plaintiff  to  discon- 
tinue without  payment  of  costs,  except  as  to  so 
much  money  as  might  be  found  to  have  been 
paid  by  the  defendant  to  his  attorney  on  account 
of  the  suit  Paterson  v.  Powell,  3  M.  &  Scott, 
105.  176 

Practising  at  quarter  sessions  without  admis- 
sion. Slack  q.  t.  v.  Wilkins,  3  Tyr.  158;  1  C  & 
M.  23.  177 

It  is  no  objection  to  a  habeas  corpus  that  the 
attorney  suing  it  out  was  not  on  the  roll,  by  rea- 
son of  having  omitted  to  take  out  a  oertiticate. 
Glynn  v.  Hutchinson,  3  Dowl.  P.  C.  528 ;  2  Adol. 
&  EUis,  660.  176 

A  solicitor  may  practise  in  the  name  of  an  at- 
torney as  his  agent  in  tlie  courts  of  law,  but  an 
attorney  at  law  cannot  practise  in  the  name  of  a 
solicitor,  as  his  agent  in  the  courts  of  equity. 
Hockley  v.  Bautock,  2  Mylne  &  K.  437.        177 

Certificate,] — ^An  attorney  who  has  taken  out 
his  certificate  within  a  year  from  the  expiration 
of  a  former  certificate,  out  has  transacted  busi- 
ness between  the  expiration  of  the  first  certificate, 
and  the  taking  out  of  the  second,  may  recover  for 
such  business  done,  unless  it  appear  that  he  de- 
layed renewing  the  certificate  with  intent  to 
evade  the  higher  duties  imposed  by  stat.  55  Geo. 
3,  c.  184,  sched.  Part  1,  tit.  "certificate,"  in 
which  case  he  is  disabled  from  renewing,  by  that 
act  and  by  stat.  37  Geo.  3,  c.  90,  s.  36.  Bowler 
V.  Brown,  3  Dowl.  P.  C.80;  2  Adol.  &  Ellis, 
116;  4Nev.  &M.17.  177 

Defendant,  on  being  sued,  paid  the  debt,  but 
refused  to  pay  the  costs;  plaintiff's  attorney  pro- 
ceeded to  trial  and  issued  execution  for  them ;  bat 
being  uncertificated,  and  the  plaintiff  havingr 
made  him  no  advances,  the  court  stayed  the  pro- 
ceedings. Meekin  v.  Whalley,  1  Bing.  N.  R.  59 ; 
2  Dowl.  P.  C.  823;  4  M.,&  Scott,  494.  177 


IV.  Readmissioii. 

Where  an  attorney  has  been  admitted,  but  has 
never  taken  out  his  certificate,  he  is  entitled  to 
take  it  out  without  readmission.  Ex  parte  Jones, 
2  Dowl.  P.O.  451.  178 


[ATTORNEY  AND  SOLICITOR] 


2313 


Semble,  that  if  an  attomej  has  been  admitted, 
and  doea  not  take  out  his  certificate  for  a  jear, 
be  need  not  be  readmitted  previous  to  taking  it 
oat ;  but  whether  he  need  or  not,  if  he  has  taken 
out  his  certificate  under  such  circumstances,  the 
client's  interest  will  not  be  affected.  Hilary  v. 
Hangate,  3  Dowl.  P.  C.  49.  178 

if  an  attorney  practises  aAer  the  expiration  of 
his  certificate,  even  though  with  the  hope  of  tak- 
ing oat  one,  he  cannot  be  readmitted  without 
payment  of  the  arrears  of  duty  for  the  years 
daring  which  he  has  practised,  and  something 
more  than  a  nominal  nne.  £x  parte  Fhilppt,  3 
Dowl.  P.  C.  339.  178 

An  attorney  will  be  readmitted,  although  upon 
two  occasions  he  has  acted  as  an  attorney  whilst 
nnoertificated.  £x  parte  Lowerton,  1  Hodges, 
77.  178 

If  an  attorney  omits  to  take  out  his  certifi- 
cate, bat  discontinues  to  practise,  he  may  be  re- 
admitted without  payment  of  fine  or  arrears  of 
dnty.     £x  parte  Thompson,  2  Dowl.  P.  C.  160. 

178 

If  an  attorney  has  practised  abroad  during  a 
period  for  which  he  has  not  taken  out  his  certi- 
ficate, he  may  be  readmitted  without  payment 
of  arrears  of  duty  or  fine.  Ex  parte  Philcpx,  2 
Dowl.  P.  C.  450.  178 

Where  an  attorney  has  by  accident  omitted  to 
pay  the  proper  amount  of  certificate  duty  for 
some  years,  aa  also  to  take  out  his  certificate 
daring  another  period,  and  has  practised  during 
that  time,  the  court  will  readmit  him  on  pay- 
ment of  the  arrears  of  duty  and  a  nominal  fine. 
£x  parte  Jones,  2  Dowl.  P.  C.  199.  178 

The  court  will,  upon  payment  of  a  moderate 
fine,  readmit  an  attorney  who  has  inadvertently 
practised  without  his  certificate,  through  the 
omiasion  of  a  clerk  usually  employed  to  take  it 
oot.    Ex  parte  Rigby,  1  Ney.  ^  M.  593.         178 

Rule  granted  to  readmit  an  attorney  without 

a  term**  notice,  when  the  omiraion  to   take  out 

the  certificate  for  the  current  year  was  the  act  of 

tlse  aeent     Ex  parte  Ford,  1  Har.  &  Woll.  192. 

^  178 

If  the  agent  of  an  attorney  neglect  to  take  out 
his  certificate,  and  the  latter  continues  to  prac- 
tise, in  ignorance  of  the  neglect,  he  may  be  re- 
admitted on  payment  of  a  nominal  fine  and  the 
artears  of  duty.  Ex  parte  Thorpe,  3  Dowl.  P.  C. 
592.  178 

An  attorney  who  through  inadvertence  has 
practised  without  his  certificate,  cannot  be  re- 
admitted without  an  affidavit  showing  that  a  no- 
tice baa  been  given  to  tlie  stamp  office  of  his 
intention  to  apply  for  readmisaion.  £x  parte 
Franks,  3  Dowl.  P.  C.  319;  S.  P.  £x  parte 
Bridgman,  3  Dowl,  P.  C.  371.  178 

if  an  attorney  has  practised  after  he  has  ceased 
to  fake  out  his  certificate,  but  has  had  tlie  penal- 
fief  remitted  by   the  commissioners  of  stamps, 
he  may  be  readmitted  on  taking  out  his  certifi- 
cate fot  the  current  year.    Ex  parte  Tuikin,  1 
Etr.  &  WoU.  516.  178 


On  applying  to  readmit  an  attorney,  it  is  suf- 
ficient if  the  affidavit  clearly  shows  by  its  state- 
ments that  he  must  have  been  admitted,  without 
positively  stating  the  facts.  Ex  parte  Wentworth, 
2  Dowl.  P.  C.  m.  178 

An  attorney  seeking  to  be  readmitted,  suf- 
ficiently complies  with  the  rule  as  to  the  term's 
notice  previous  to  his  application,  by  sticking  it 
up  in  the  King's  Bench  office  on  the  morning  of 
the  first  day  of  the  term  in  which  he  applies,  at 
the  opening  of  the  office.  Ex  parte  Pilkins,  2 
Dowl.  P.  C.  203.  178 

A  notice  by  an  attorney  to  tlie  last  day  of  one 
term  to  apply  for  readmission  in  the  next,  is 
not  sufficient,  although  the  notice  remain  up 
throughout  the  vacation.  Ex  parte  Cross,  4 
Dowl.  P.  C.  18.  178 

Where  by  some  inadvertence  the  necessary 
affidavits  could  not  be  procured  for  the  seadmis- 
sion  of  an  attorney  on  the  last  day  of  the  term, 
for  which  he  had  given  notice,  the  court  on  ap- 

f plication  the  first  clay  of  the  following  term,  re- 
iised  to  [readmit  him,  but  allowed  the  notices 
then  to  be  given  for  the  last  day  of  the  same  term. 
Ex  parte  Mosley,  4  Dowl.  P.  C.  69  j  1  Harr.  &, 
WoU.  331.  178 

Where  on  application  for  the  readmission  of 
an  attorney,  it  was  stated  that  he  had  not  prac- 
tised since  he  last  took  out  his  certificate,  the 
court  compelled  him  on  his  readmission  to  pay  a 
fine  of  5^,  besides  the  arrears  of  duty.  Ex  parte 
Stonccroft,  1  Har.  &  Woll.  368.  178 


V.  Privileges. 

Since  the  Uniformity  of  Process  Act,  an  attor- 
ney sued  with  an  unprivileged  person  does  not 
lose  his  own  privilege,  and  cannot  be  arrested. 
Reep  V.  Biggs,  2  Dowl.  P.  C.  278.  179 

An  attorney  sued  jointly  with  an  unprivileged 
person,  does  not  lose  his  privilege  of  freeoom 
from  arrest,  as  he  may  now  be  served  with  a  copy 
of  the  capias  under  which  the  other  person  is  ar- 
rested, pursuant  to  the  provision  of  the  4th  sec- 
tion of  the  2  Will.  4,  c.  39.  Pitt  v.  Pocock,  2 
C.  &  M.  146 ;  4  Tyr.  85.  180 

By  the  act  of  11  Geo.  4  &  1  Will.  4,  c.  70, 
s.  10,  which  opened  the  court  of  Exchequer  to 
all  attorneys,  and  gave  them  leave  to  practise 
there  without  employing  clerks  in  court,  the  pri- 
vileges of  the  sworn  and  side  clerks  are  not  abo- 
lished ;  and  therefore  they  may  still  arrest  other 
attorneys  who  become  indebted  to  them,  in  the 
same  way  as  they  did  before.  Stokes  v.  White,  2 
Dowl.  P.  C.  703  J  1  C.  M.  &  R.  223;  4  Tyr.  786. 

180 

The  office  of  sworn  clerk  of  the  court  of  Ex- 
chequer is  not  abolished  by  any  of  the  several 
statutes  of  11  Geo.  4  &  1  Will.  4,  c.58;  11  Geo. 
4  &  1  Will.  4,  c.  70 ;  and  2  &  3  Will.  4,  c.  110. 
The  object  of  the  first-mentioned  statute  is  to 
provide  means  of  paying  the  officers  of  the  vari- 
ous courts  of  justice  by  salaries  instead  of  fees  ; 
that  of  the  second,  to  abolish  the  monopoly  of  atr 


mu 


[ATTORNEY  AND  SOUCTTOR] 


on  the  |4em  side  of 
the  eonil  of  Ezcheqiier ;  and  that  of  the  third,  to 
diatrilmle  the  duties  of  the  offioen  of  that  ooint, 
and  to  me  to  them  appropriate  names.    Ckike 

r.  Richards,  1 Y.  A;  CoL  ^1.  180 

• 

Where  the  plainti^  under  an  apprehension  of 
the  defendant  going  abroad,  arrested  the  defen- 
dant, who  was  admitted  to  be  an  attorney  of  the 
coort  of  Ezcheqaer,  then  entitled  to  pririlege, 
and  the  defendant  lodged  In  court  the  deposit  re- 
quired by  sect.  2  of  10  Geo.  4,  c.  %,  the  court, 
on  application,  allowed  the  defenflant  to  draw  out 
the  money  so  lodged.  Curtis  v.  Brennan,  1  Al- 
cock  dL  Napier,  122,  {Iruh),  181 

A  party  cannot  be  deprived  of  his  privilege, 
unless  upon  a  strong  and  clear  case  of  facts, 
which  will  satisfy  the  court  of  the  necessity  of 
the  arrest  for  the  purposes  of  justice ;  and  where 
the  plaintiff  in  any  way  admits  the  pririlege,  the 
court  will  not  put  the  defendant  to  the  trouble 
and  delay  of  pleading  his  privilege.    Id. 

Qoere,  whether  an  attorney  of  the  Kind's 
Bench,  sued  by  a  writ  of  summons  in  C.  P., 
can  plead  his  privilege  in  abatement.  Davidson 
«.  Chihnan,  1  Bcott,  117  ;  1  Bing.  N.  R.  297.  181 

At  all  events  such  plea  must  be  verified  by 
affidavit,  or  the  plaintiff  may  .treat  it  as  a  nullity, 
«nd  sign  judgment.    Id. 

Trespass  is  not  maintainable  for  bnMing  an 
attorney  to  bail,  notwithstanding  his  privuege. 
Hoelv.  lsaac,lG.  M.AR.753;  5Tyr.376.  181 

An  attorney  plaintiff,  though  he  does  not  de- 
scribe himself  as  attorney  on  the  record,  does 
not,  since  the  Uniformity  of  Process  Act,  lose 
his  privilege  of  suing  in  the  superior  courts. 
Wright  V.  Skinner,  4  Bowl.  P.  C.  745 ;  1  Mees. 
A  Wels.  144.  181 

An  attorney  is  not  within  the  Court  of  Re- 
quests Act,  so  as  to  deprive  him  of  his  privilege 
of  suing  in  the  superior  courts  at  Westminster, 
unless  it  is  so  enacted  in  them,  notwithstanding 
the  Uniformity  of  Process  Act  Dyer  v.  Levy,  4 
Dowl.  P.  C.  630.  181 

An  attorney,  by  employing  another  to  bring 
an  action  for  him,  waives  nis  privilege,  and  there- 
fore cannot  as  a  matter  of  course  try  his  cause  in 
the  county  of  Middlesex.  Harrington  v.  Page,  2 
Oowl.  P.  C.  164.  181 

If  the  plaintiff,  being  an  attorney,  does  not 
sue  as  such,  but  appears  by  an  attorney,  the  de- 
fendant may  change  the  venue  as  a  matter  of 
course,  on  the  usual  affidavit.  Lowless  v.  'Hmms, 
5  Dowl.  P.  C.  707.  181 

Privilege  of  visiting  prisons.  Ex  parte  Ma- 
laule,  AB.Sl  Adol.  9&:  S.  C.  nom.  In  re  Jones, 
1  Nev.  A  M.  128.  182 


VI.  DUTIXS. 

JZctatner.]— By  2  Will.  4,  c.  30,  s.  17,  every  at- 
iamey  vAoae  name  ehaU  be  indorsed  an  any  writ 
iisned  by  authority  of  thai  act^shall^  on  demand  in 
writing  made  by  or  on  the  behalf  of  any  defendant^ 


dedare  Jmdtwitk  whether  sitdk  writ  has  been  issued 
by  Aon,  or  with  kis  maOhority  or  privity;  and  if  he 
shaU  answoer  m  the  s^bsMttoe,  then  he  shall  also^ 
in  ease  the  comrt  or  any  jwdge  of  the  same  or  any 
other  eomrt  shall  so  order  and  dtreet,  declare  in 
writings  within  a  tiwu  to  be  dUowed  by  smeh  court 
orjmdgejthefrofession^occapation^ormiality^and 
place  ef  obode  of  thejdamtif,  onpain  <^  being  guilttf 
of  a  conteaspt  rf  the  court  from  whuh  such  wnt 
shall  amearto  have  beenissued;  and  \f  suchattor" 
ney  shall  declare  thmt  the  writ  was  not  issued  by 
Aim,  or  with  his  authority  or  privity^  the  said  court^ 
or  any  judge  of  either  oj  the  said  courU^  shall  and 
may,  if  it  shall  appear  reasonable  so  to  do,  make 
an  order/or  the  immediale  discharge  of  any  defen- 
dant or  defendanU  uAo  may  have  been  arrested  on 
any  such  writj  on  enterimg  a  eomman.  appearance./ 


The  statute  applies  to  both  serviceable  and 
bailable  process.    Gilson  v.  Carr,  4  Dowl.  P.  C. 

618.  ie2 

Where  bail  made  a  motion  in  the  name  of  an 
attorney,  who  denied  bavins  given  any  authority 
to  allow  his  name  to  be  uaeo,  the  court  discharged 
the  rule,  but  refused  to  make  an  order  for  costs 
against  the  person  making  the  affidavit,  on  the 
ground  that  be  was  not  be£re  the  court.  Norton 
V.  Curtis,  3  DowL  P.  C.  245.  182 

To  obtain  such  costs  a  special  application  most 
be  made  against  him.    Id. 

Where  an  action  is  brought  by  an  attorney 
without  the  plaintiff's  consent,  and  the  defendant 
at  the  trial  agrees  to  withdraw  a  juror,  the  court 
will  not  order  the  attorney  acting  for  the  plaintiff 
to  pay  the  costs  of  the  defendant.  Hammond  v. 
ThOTpe,  IC.M.  A;R.64;  4Tyr.838;  2  Dowl. 
P.  C.  721.  183 

Where  a  plaintiff's  attorney  receives  a  sum  of 
money  from  the  defendant,  it  is  incumbent  ob 
the  plaintiff  to  show  that  the  receipt  was  without 
his  authority,  otherwise  it  is  money  paid  to  his 
use.    Vorley  V.  Garrard,  2  Dowl.  P.  C.  490.    I8d 

Where  an  attorney  has  been  employed  in  a 
cause,  and  is  afterwards  discharged  by  his  client, 
not  on  the  ground  of  misconduct,  the  court  will 
not  restrain  him  from  acting  for  the  opposite 
party,  unless  it  clearly  and  distinctly  anpears 
that  he  has  obtained  information  in  his  fomier 
character  which  it  would  be  prejudicial  to  the 
cause  of  his  former  client  to  communicate.  And, 
therefore,  where  an  attorney  was  employed  by 
the  assignees  of  a  bankrupt  to  commence  an  ao> 
tion,  and  he  accordingly  did  so,  and  went  on  to 
issue,  and  in  the  course  of  his  employment  laid 
a  case  before  counsel,  containing  all  the  facts  of 
the  case,  the  court  refused  to  restrain  him  from 
acting  for  the  defendant  after  his  dismissal  by  the 
plaintiffii,  there  being  no  affidavit  by  the  parties 
or  their  solicitor,  showing  that  the  attorney  ob- 
tained a  knowledge  of  fiu^ta  which  would  be  pre- 
judicial to  their  cause  to  communicate,  nor  any 
affidavit  stating  that  the  case  which  had  been  laid 
before  counsel  disclosed  facts  which  it  was  neces- 
sary to  conceal,  and  which  would  be  injurious  to 
the  plaintifis  if  they  were  communicated.  John- 
son ».  Marriott,  2  C  A.  M.  183 ;  2  DowL  P.  C. 
343i4Tyr.78.  183 


n 


[ATTORNEY  AND  SOLICITOR] 


2315 


A  solicitor  ooffht  to  have  a  special  authority 
from  his  client  for  instituting  a  suit,  bat  such 
aathority  need  not  be  in  writing.  Lord  v.  Kellett, 
2  Mjlne  &  K.  1.  Ib3 

If  A^  haying  employed  an  attorney  to  defend 
an  action,  assign  his  property  to  trustees  for  the 
benefit  of  his  creditors,  and  the  trustees  direct 
the  attorney  to  go  on  with  the  defence,  they  are 
liable  to  pay  the  attorney  for  what  he  does  after 
they  directed  him  to  go  on,  but  are  not  liable  for 
the  bygone  business,  unless  there  be  an  agree- 
ment m  writing  to  make  them  so.  Becke  v 
Penn,  7  C.  &  P.  397— Tindal.  183 

An  attorney,  who  is  retained  as  the  agent  of  a 
cardidate  to  represent  a  place  in  parliament,  is 
not  entitled  to  recover  any  thing  for  a  retaining 
fee,  anlesB  there  has  been  an  express  agreement 
that  soch  fee  should  be  paid  to  him.  Parker  v. 
Robinson,  7  C.  <Sl  P.  241— Williams.  184 

The  court  will  stay  proceeding's  in  an  action, 
if  it  appear  to  be  doubtful  whether  the  action  is 
brongnt  with  the  knowledge  and  consent  of  the 
plaintiff.     Doe  d.  Baker  v.  Roe,  3  Dowl.  P.  C.  496. 

184 

When  an  attorney,  who  has  not  been  admitted 
into  the  Exchequer,  practises  in  the  name  of  one 
who  has,  the  proceedings  must  appear  to  be  taken 
by  the  Exchequer  attorney.  That  does  not  ap- 
pear in  a  notice,  *'  A.  by  B."  B.  being  the  attor- 
ney of  that  court.  Chadwick  v.  Hough,  2  C.  M. 
&  R.  2D,  164 ;  1  Gale,  143.  164 

Where  bail  was  put  in  in  this  form  : — *'EIy  by 
Cole,"  the  former  not  being  an  attorney  of  the 
CoQit  of  Exchequer,  thougn  the  latter  was,  the 
proceedings  were  held  to  oe  informal,  but  time 
was  given  to  amend.  Marden's  Bail,  4  Dowl.  P. 
C.  6£l.  184 


Conduct  of  Business.] — An  attorney,  who  has 
commenced  an  action  for  his  client,  has  a  right 
to  refuse  to  go  on  without  an  advance  of  money 
oo  account,  provided  he  gives  his  client  sufficient 
notice  of  hie  intention,  to  enable  him  to  make  the 
rfqoired  provision.  Lawrence  v.  Potts,  6  C.  & 
P.  428— Tindal.  185 

If  an  attorney  has  reasonable  and  probable 
novnds  ibr  commencing  an  action,  and  desists 
Doffl  proeecQting  it  because  he  aHerwards  disco- 
vefB  that  the  cause  cannot  be  successfully  pro- 
eeeded  with,  he  is  entitled  to  recover  his  costs 
fion  his  client.    Id. 

An  attorney  who  has  undertaken  a  cause  is 
not  bound  to  proceed,  without  adequate  advances 
from  time  to  time  by  his  client,  for  expenses  out 
of  pocket ;  and,  therefore,  the  court  will  not  com- 
pel an  attorney,  even  after  notice  of  trial,  to  carry 
the  cause  into  court,  unless  the  client  supply 
him  with  sofficient  funds  to  pay  the  expenses  out 
of  pocket  thereby  incurred.  Wadsworth  v.  Mar- 
ihall,  2  C.  &  J.  665.  185 

The  contract  of  an  attorney  or  solicitor  re- 
tained to  conduct  or  defend  a  suit  is  entire  and 
eootinoing,  viz.  to  carry  it  on  till  its  termina- 
tion, and  can  only  be  determined  by  the  attorney 

Vol.  IV.  6 


upon  reasonable   notice.      Harris  v.  Osboum,  4 
Tyi.  445 ;  2  C.  &  M.  629.  185 

If  the  attorney  of  a  party  authorise  A.  to  pay 
money  for  his  client,  and  A.  pay  it,  and  the  at- 
torney mention  the  matter  to  his  client,  who  does 
not  disclaim  the  transaction  till  several  months 
afler,  this  is  evidence  to  go  tp  the  jury  that  the 
authority  to  pay  was  authorized  by  the  client. 
Parker  v.  Dubois,  7  C.  <&  P.  406— Abinger.    185 


Dealing  with  Client.'} — Where  an  attorney  who 
draws  the  will  of  the  testator  takes  a  benefit  un- 
der it,  the  case  is  to  be  considered  with  peculiar 
jealousy,  and  the  jury  who  try  the  validity  of  the 
will  must  be  satisfied  that  the  testator  knew  its 
contents;  but  their  consideration  need  not  be  con- 
fined to  direct  evidence ;  and  they  may  find  for 
the  will  upon  circumstantial  evidence  only.  Ra- 
worth  V.  Mariott,  1  Mylne  &  K.  643.  185 


VII.  Liability. 

On  Undertakings.] — The  undertaking  of  an 
attorney  cannot  be  summarily  enforced,  unless  he 
is  acting  as  attorney  in  the  cause.  In  re  Bateman, 
2  Dowl.  P.  C.  161.  187 

The  plaintiff's  attomies  gave  the  defendant's 
attornies  an  undertaking  to  pay  the  costs  in  the 
event  of  the  defendant  obtaining  a  verdict:  the 
defendant  obtained  a  verdict  and  died,  and  judg- 
ment was  entered  up  within  two  terms : — Held, 
that  the  plaintiff's  attornies  were  liable  to  pay 
the  costs,  although  no  sci.  fa.  had  been  sued  out 
by  the  personal  representatives*  Chauvel  v.  Chi- 
melli,  1  Nev.  <&  M.  731 ;  4  B.  dt  Adol.  590.     187 

The  solicitor  of  the  London  creditors  of  a 
bankrupt  in  the  country  wrote  to  B.,  the  solicitor 
of  the  country  creditors  of  the  same  bankrupt, 
the  following  letter : — ''  I  am  willing,  on  behalf 
of  the  London  creditors,  to  bear  two-Uiirds  of  the 
expense  of  Messrs.  B.  &>  B.,  or  such  barrister  as 
you  may  think  fit,  for  resisting  Mr.  K.'s  proof 
under  the  commission,  and  of  investigating  the 
accounts  of  assignees  at  the  meeting  on  the 
18th  instant.  1  hereby  undertake  to  bear  and 
pay  on  behalf  of  these  creditors,  two-thirds  of 
the  expenses  incident  thereto  accordingly."  And 
the  meeting  being  aflewards  adjourned,  A.  wrote 
to  B.  another  letter,  in  which  he  said — ^*'  1  shall 
have  no  objection  to  bear  as  before  the  proportion 
of  expense  of  the  barrister  attending  the  meeting 
stated  in  your  letter  :'* — Held,  that  A.  was  person- 
ally liable  for  the  proportion  of  the  expenses. 
Hall  V.  Ashurst,  1  C.  &.  M.  714  ;  3  Tyr.  420.  187 

The  solicitor  for  the  petitioning  creditor,  on 
the  commission  being  superseded,  writes  to  the 
bankrupt,  '*  I  am  ready,  and  hereby  ofier  to  allow 
and  pay  the  costs  incurred  by  the  bankrupt  in 
petitioning  for  the  supersedeas :" — Held  that  the 
solicitor  was  personally  liable  on  this  undertak- 
ing, and  that  the  bankrupt  might  petition  for  an 
order  on  the  solicitor  to  pay  these  costs,  notwith- 
standing a  subsequent  commission  had  issued 
against  him,  under  which  he  had  not  obtained  hie 


2310 


[ATTORNEY  AND  SOUCITOR] 


certificate,  his  anigneei  difclaiming  til  interest 
in  the  matter.  £x  parte  Bentley,  2  Deac.  Sl 
Chit.  578.  187 

The  prudent  coarse  ibr  attomies,  when  they 
enter  into  any  arrangement  with  an  opposite 
party,  is  to  draw  up  a  memorandum  of  the  terms 
agreed  upon,  and  read  it  over  to  the  pul^,  and 
let  him  sign  it.  Greenwood  v.  Eldridge,  6  C.  & 
P.  128— Gumey.  187 


To  Attachment.] — If  a  rule  of  court  requires  a 
client  to  pay  a  certam  sum  of  money,  an  attach- 
ment cannot  be  obtained  against  his  attorney  for 
its  non-payment.  Poole  v.  Watkins,  4  Dowl  P. 
C.  11.  187 

Where  an  attorney  is  in  contempt  by  disobey- 
ing a  rule  of  court,  the  proper  course  of  proceed- 
ing against  him  is  by  moving  for  an  attachment, 
and  not  by  applying  to  strike  him  oS  the  roll. 
Ex  parte  Townley,  3  Dowl.  P.  C.  39.  187 

Where  an  attorney  disobevs  a  rule  of  court, 
requiring  him  to  do  a  particular  act,  an  applica- 
tion cannot  in  the  first  mstance  be  made  to  strike 
him  off  the  roll ;  but  a  rule  nisi  for  an  attach- 
ment may  be  obtained.  £z  parte  Gran,  3  Dowl. 
P.  C.  320.  187 

If,  by  the  same  rule,  he  is  required  to  pay  cer- 
tain costs,  and  a  clause  is  also  introduced  into  it, 
authorizing  the  issue  of  an  attachment  in  case  of 
non-payment,  that' may  at  once  issue,  although  a 
rule  nisi  only  will  be  granted  for  disobedience  to 
the  other  piut  of  the  rule.    Id. 


To  tttmmarv  Jurisdietian.] — Where  an  attor- 
ney has  not  tullAled  his  enm^ment  with  re- 
spect to  a  loan  of  money,  moependent  of  his 
character  of  attorney,  the  court  will  not  sum- 
marily compel  him  to  fulfil  it.  In  re  Chitty,  2 
Dowl.  P.  C.  421.  188 

If  the  agent  of  an  attorney  does  wrong,  the 
client  cannot  make  a  summary  application  against 
the  agent.    £x   parte    Jones,   2   Dowl.    F.    C 
161.  188 

The  court  of  bankraptcy  will  only  exercise  a 
summary  jurisdiction  over  an  attorney,  when  he 
is  acting  m  the  character  of  an  officer  of  the 
court,  and  not  in  an  ordinary  case  between  at- 
torney and  client.  £x  parte  Bull,  3  Deac.  & 
Chit.  116.  188 

The  court  will  not  interfere  summarily  to  try 
the  question  of  negli^nce  on  the  part  of  an  at- 
torney towards  his  client's  interests.  Brazier  v 
Bryant,  2  Dowl.  P.  C.  600.  188 

Where  an  attorney  has  been  appointed  to  re- 
ceive certain  monies  in  furtherance  of  a  trust, 
punuant  to  the  provisions  of  the  Lords'  Act,  the 
court  will  not  deprive  him  of  that  trust,  unless 
some  ground  is  shown  fi)r  considering  him  unfit 
to  fulfil  it.    Davis  v.  Lane,  4  Dowl.  P.  C.  419. 

188 

Directing  an  attorney  to  employ  a  proctor  to 
obtain  probate  of  a  will  is  not  such  employment 
of  him  m  the  character  of  an  attorney,  as  will  give 
the  court  summary  jurisdiction  over  him,  as  to 


money  received  by  him  to  pay  the  proctor.  Ex 
parte  Cowie  or  Cohen,  3  Dowl.  P.  C.600;  1  Har. 
&  Wol.  211.  188 

An  attorney  cannot  be  ordered  to  pav  the  costs 
of  an  unsuccessful  application  to  whicti  be  is  not 
a  party,  ezcept  upon  special  motion.  Chealyn  v. 
iPearce,  4  Dowl.  P.  C.  603.  188 

Striking  of  Roll.] — Semble,  that  the  court 
will  not  strike  an  attorney  off  the  roll,  unless  for 
some  misconduct  in  his  business  of  attorney,  or 
where    criminal  proceedings  have    been   taken 

against  him.    Ex  parte ^  2  Dowl  P.  C.  110. 

188 

A  verdict  having  been  obtained  against  an  at- 
torney, in  an  action  for  publishing  a  libel  of  a 
very  aggravated  nature,  but  in  which  the  jury 
only  gave  one  shilling  damages,  the  court  refused 
to  strike  him  off  the  roll,  on  the  mere  ground  of 
the  publication  of  that  libel.  Ex  parte  '  ,  2 
Dowl.  P.  Clio.  188 

It  is  no  cause  for  striking  an  attorney  off  the 
roll,  that  he  has  commenced  several  qui  tarn 
actions  for  the  purpose  of  revenge.  Ex  parte 
Warren,  1  Har.  &  Woll.  113.  188 

Where  an  attorney  brings  several  qui  lam  ae- 
tions,  and  afler  their  commencement  makes  an 
ofier  to  the  defendant  to  coinpromise  them,  it  ia 
no  ground  for  striking  him  off  the  roU.  Smith  «. 
Gillett,  3  Dowl.  P.  Cf.  364.  188 

The  court  of  King's  Bench  will  not  grant  a 
rule,  calling  on  an  attorney  to  show  cause  why  be 
should  not  be  struck  off  the  roll,  if  the  affidavit* 
in  support  of  the  rule  state  an  offence  for  which 
he  would  be  liable  to  indictment.  In  re  -^^,  5 
B.  <&  Adol.  1088.  188 

The  court  will  not  receive  an  application  to 
strike  an  attorney  off  the  roll,  except  on  the  ap- 
plication of  a  barrister.  In  re ^  Gent.,  3  Nev. 

&  M.  566.  188 

Where  it  was  sworn  that  an  attorney  had  no 
place  of  residence  in  this  country,  an  order  nisi 
for  his  being  struck  off  the  roll  in  the  court  of 
bankruptcy,  was  permitted  to  be  served  at  his 
last  place  of  residence.  In  re  Mark,  4  Deac. 
<&  Chit.  28.  188 

Where  a  rule  for  striking  an  attorney  off  the 
roll  for  misconduct  is  referred  to  the  prothon- 
otary,  he  is  not  to  be  confined  to  the  affidavits  al- 
ready before  the  court,  but  may  receive  any  evi- 
dence tending  to  the  elucidation  of  the  matter. 
Dicasv.  Wame,  4  M.  &  Scott,  420;  2  Dowl. 
P.  C.  812.  188 

On  a  reference  to  the  prothonotary  of  a  rule  for 
striking  an  attorney  off  the  roll,  on  a  charge  of 
having  hired  sham  bail  in  error,  the  officer 
reported  that  the  attorney  did  not  actually  hire 
the  bail,  but  was  aware  they  were  hired  : — ^The 
court  discharged  the  rule  on  the  terms  of  the  at- 
torney paying  all  the  costs  of  and  occasioned  by 
the  proceedings.    Id. 

Though  the  rule  of  another  court  for  striking 
an  attorney  off  the  roll  be  produced,  semble,  an 
order  nisi  only  can  be  obtained   in  the  court  of 
bankruptcy  in  the  first  instance.     In  re  Mark,  4 
Deac.  &  Chit.  482.  188 


[ATTORNEY  AND  SOLICITOR] 


2317 


j9#  t9  Clarks.'\ — Where  an  attorney  receives  a 
{Hrom'iasory  note  from  the  father  of  a  clerk  ar- 
ticled to  him,  as  his  fee  for  taking  him,  on  an 
imdertakinff  that  the  note  should  not  be  negoti- 
ated until  the  expiration  of  a  certain  period,  and 
be  did  negotiate  it  contrary  to  his  undertaking, 
the  conrt  compelled  him  to  take  it  up.  £x  parte 
Gardner,  2  Dow  1.  P.  C.  520.  189 

AUowmg  others  to  use  thdr  .Barnes.] — A  supe- 
rior court  is  hound,  upon  summary  application, 
nnder  *J2  Geo.  2,  c.46,  s.  11,  to  order  an  attorney, 
who  is  shown  to  have  allowed  an  unqualified 
person  to  practice  in  his  name  in  such  court,  to 
he  struck  off  the  roll.  In  re  Palmer,  4  Nev.  &  M. 
&39  ;  2  Adol.  &  £Uis,  666 ;  1  Har.  &  WoU.  55. 

189 

But  that  court  only  from  which  the  abused 
process  issues,  can,  upon  summary  application 
under  this  enactment,  order  the  attorney  to  be 
struck  off  the  roll.    Id. 

Where,  upon  such  an  application  under  this 
statute,  the  court  referred  it  to  the  master  to  say 
whether,  in  any  instance,  the  unqualified  person 
Ittd  with  the  permission  of  the  attorney,  prac- 
tioed  in  that  court,  the  rule  can  be  made  absolute 
only  upon  its  appearing  by  the  master's  report, 
tfa^  the  case  is  within  the  statute,  not  upon  the 
ground  of  a  general  jurisdiction  of  the  court  over 
vts  oflicers.    Id. 

An  attorney  who  resided  at  A.,  occasionally 
occupied  part  of  a  bouse  in  B.,  where  his 
articled  clerk  lived,  the  names  of  both  being 
en  the  door.  The  clerk  was  in  the  habit  of  at- 
twmiing  a  conrt  of  requests  and  before  magis- 
trates, as  such  clerk,  but  deriving  a  profit  to 
UBseelf  therefrom  ;  be  also  conducted  an  appeal 
m  the  name  of  his  master,  who  allowed  part  of 
tlie  bill  to  he  paid  by  a  suit  of  clothes  made  for 
the  clerk.  It  also  appeared,  that  several  writs, 
issued  out  of  K.  B.,  had  been  placed  in  the 
hands  of  an  officer  to  be  executed,  having  the 
master's  name  upon  them,  for  part  of  which  he 
pud,  hut  referred  the  officer  to  the  clerk  for  the 
remainder,  saying  it  was  the  clerk's  business 
and  not  his ;  and  that  in  an  a'^tion  carried  on  in 
K.  B-j  in  the  name  of  the  master,  with  his  know- 
ledge and  concurrence,  the  clerk  appeared  and 
•eted  as  the  attorney,  and  after  verdict  obtained, 
chimed  to  have  the  costs  paid  to  himself,  and 
objected  to  have  them  paid  to  the  master : — Held, 
tfast  this  was  a  case  within  22  Geo.  2,  c.  46,  s.  11; 
ind  the  court  ordered  the  attorney  to  be  struck 
off  the  roOs.    Id. 

A  persos  who  has  been  regularly  admitted  as 
IB  attorney,  but  who  is  off  t&  roll,  by  reason  of 
Us  kavinf^  neglected  to  take  out  his  certificate  for 
sae  whole  jemr^  is  not  an  ^  unqualified  [person" 
vitkin  the  meaning  of  sect.  11  of  22  Geo.  2,  c.  46. 
fa  fs  Rom,  4  Ner.  A  M.  763 :  8.  C  nom.  In  re 
Hodgson,  1  Har.  Sl  WoU.  265  ;  3  Adol.  6l  £llis, 
«7  189 

But  he  may  be  proceeded  against  by  virtue  of 
the  general  jurisdiction  of  the  court  over  its  offi- 
ceiB,  if  he  takes  upon  himself  to  act  as  an  attor- 
■ey.    Semble.    la. 


Qufere,  whether  a  person,  who  had  been  struck 
off  the  roll  for  misconduct,  would  be  an  *'  unqua- 
lified person"  within  22  (}eo.  2,  c.  46,  s.  11  ?    Id. 

An  application  to  commit  a  person  to  prison, 
under  ii  Geo.  2,  c.  46,  s.  11,  for  having  acted  as 
an  attorney,  not  being  qualified,  must  also  be  to 
strike  tlie  agent,  through  whom  the  business  was 
transacted,  off  the  roll.  In  re  Hodgson,  3  Dowl. 
P.  C.  330;  1  Har.  &  WoU.  110.  189 

In  affidavits  filed  to  support  an  application  to 
strke  an  attorney  off  the  roll  for  suffering  an 
unprofessional  person  to  carry  on  business  for 
him  as  his  clerk,  contrary  to  I&  Geo  2,  c.  46,  s. 
11,  it  is  not  sufficient  to  state  facts  from  which 
the  eourt  may  infer  that  the  parties  shared  the 
profits;  the  prosecutors  must  state  their  belief 
that  such  was  the  case,  unless  the  facts  are  such 
as  cannot  lead  to  any  other  conclusion.  In  re 
King,  1  Adol.  &  EUis,  560 ;  3  Nev.   &  M.  716. 

189 

The  mere  fiict,  that  an  attorney  has  employ- 
ed an  unprofessional  person  to  carry  on  husi- 
ness  for  him  as  his  clerk,  at  a  place  nmety  miles 
distant  from  the  attorney's  own  residence,  is  not 
sufficient  ground  for  such  an  application.    Id. 

Delivery  up  of  Doeuments.'] — Where  a  client 
obtained  an  order  that  his  attornies  should  de- 
liver him  an  account  of  all  monies  received  on  his 
behalf,  and  they  accordingly  delivered  an  account, 
the  court  refused  to  grant  an  attachment  against 
them  upon  affidavits  impeaching  the  correctness 
of  the  account.  £x  parte  Lawrence,  2  Oowl.  P. 
C.  230.  190 

The  court  can  only  interfere  to  compel  an  at- 
torney to  deliver  up  deeds  in  his  possession,  at 
the  instance  of  the  party  who  deposited  them 
with  him.  In  re  Thornton,  2  Dowl.  P.  C 156. 190 

An  attorney,  with  whom  a  will  has  been  de- 
posited by  the  testator,  will  not  be  compelled  to 
deliver  it  up  to  the  sole  legatee  under  it.  £x 
parte  Crisp,  2  Dowl.  P.  C.  455.  190 

An  attorney,  with  whom  deeds  are  dej^ifeed 
in  order  to  enable  him  to  obtain  money  tor  the 
party  depositing,  is  bound,  upon  inquiry  by  his 
client,  to  inform  him  where  such  deeds  are. 
Wilmott  V.  EUcington,  1  Nov.  6l  M.  749.        190 

An  attorney,  with  whom  deeds  are  deposited, 
places  them,  without  his  client^s  knowledge,  in 
the  hands  of  a  party  from  whom  ]ie  has  borrowed 
money  for  his  client  The  attorney  afterwards 
is  unable  to  inform  his  client  where  the  deeds 
ue : — he  is  chargeable  with  having  mislaid  such 
deeds.   Id. 

If  a  party  sucoessfuUy  resists  an  action  by  an 
attornev  plaintiff  for  costs,  on  the  ground  of  his 
never  having  been  emploved,  he  cannot  after- 
wards summarUy  compel  tKe  attorney  to  give  up 
documents  which  have  come  to  his  possession  in 
the  course  of  the  business,  for  doing  which  the 
action  was  brought  £z  parte  Maxwell,  4  Dowl. 
P.  C.  87.  190 

Where  an  attorney,  having  the  custody  of 
I  certain  papers,  has  been  ordered  by  the  court  of 
\  Chancery,  in  which  he  has  been  made  a  party  to 


3318 


[ATTORNEY  AND  SOLICITOR] 


a  suit,  to  delirer  them  into  the  custodj  of  the 
(yffieer  of  that  court,  the  eonit  of  K.  B.  will  not 
direct  him  to  deliTer  them  up,  though  on  apf^ ! 
cation  of  a  par^  interested  in  them ;  hecao^r  it ' 
would  fender  the  attorney  liable  to  an  attach-  | 
ment  for  non-com|^iance  with  the  order  of  the , 
cooft  of  Chanoerj.    In  re  Walmaler,  4  Nev.  &  i 
M.  543;  2  Adol.  6l  EUia, 576;  1  Har.  &  WoU. 
8B.  190: 

Where  an  attorney  had  obtained  from  an  aged  ' 
lady,  in  the  absence  of  her  attorney,  her  signar 
tme  to  a  paper,  whereby  she  agreed  to  abandon  a ' 
judgment  in  e^ctment,  obtained  by  ber  by  de&nlt 
of  the  tenant  m  possession,  and  to  allow  the  ques- . 
tion  of  title  to  be  fairly  tried  as  between  her  and  the  ! 
attorney's  client,  landlord  of  the  tenant  in  posses-  j 
sion,  the  court  compelled  him  to  give  up  the  in- 
strument to  be  cancelled.   In  re  Oliver,  4  Nev.  & 
M.  471 ;  2  Adol.  &  Ellis,  620;  1  Har.  &  Woll. 
79.  190 

If  A  has  employed  B  as  his  attorney,  and  has 
paid  his  bill,  A.  has  a  right  to  have  his  papers 
delivered  up  to  him ;  and  it  is  no  defence  to  an 
action  of  detinue  brought  by  A.  against  B.,  for 
B.  to  shew  that  his  London  agent  detains  the 

Spers,  he  having  a  lien  on  them  as  against  B., 
r    a  balance    of  account  for  business    done. 
Anderson  v.  Passman,  7  C.  A  P.  193— Coleridge. 

190 

The  court  refused  to  order  an  attorney  to  de- 
liver up  a  deed  which  had  been  given  to  him  by 
one  of  the  parties  to  it  to  get  executed  by  his 
client,  who  was  another  party.  Ex  parte  Smart, 
1  Har.  db  Woll.  526.  190 

Where  a  client  has  deposited  a  deed  in  the 
hands  of  bis  attomev,  and  the  latter  aflerwards 
becomes  bankrupt,  toe  court  will  not  summarily 
interfere  to  compel  the  assignees  to  deliver  up 
those  deeds  which  have  come  to  their  hands  from 
the  bankrupt    Ex  parte  Roy,  4  Dowl.  P.  C.  573. 

190 

An  attorney  having  brought  an  action  for  his 
hill  of  costs,  which  was  derended  by  tbe  client, 
on  the  ground  of  negligence,  was  ordered  to  give 
to  the  defendant  a  copy  of  a  case,  with  the 
opinion  of  counsel  thereon,  (which  had  been  pro> 
cured  for  the  defendant  by  the  plaintiff  as  his 
attorney),  at  tbe  defendant's  expense,  or  to  deliver 
up  the  case  itself  on  being  paid  the  costs  which 
the  plaintiff  claimed  in  respect  of  such  case  and 
opinion.    Evans  «.  Delegal,  4  Dowl.  P.  C.  374. 

190 

By  a  deed  of  settlement,  estates  were  conveyed 
to  trustees  for  the  use  of  A.  for  his  life,  remain- 
der to  such  uses  as  he  should  direct  by  his  will, 
the  deed  giving  the  usual  powers  fer  appointing 
new  trustees  in  case  of  death,  Ac.  A.  devised 
all  the  real  estates  of  which  he  had  power  to  dis- 
pose, and  all  his  personalty  to  trustees,  (whom  he 
also  made  his  executors),  to  sell  and  invest  the 
produce,  and  pay  the  interest  to  his  widow  during 
ner  life,  and  aflerwards  to  stand  possessed  of  the 
funds,  in  trust  for  B.  and  C,  share  and  share 
alike.  A.  died  leaving  his  widow  surviving.  Two 
of  tbe  executors  proved  the  will.  The  last  sur- 
▼iving  trustee  unaer  the  settlement  died,  leaving 


a  son,  to  whom,  as  his  heir  at  law,  the  legal  estate 
in  the  settled  piopeitj  descended,  but  who  never 
was  appointed  a  trustee.  Before  and  afler  the 
testator's  death,  an  aUomey  was  employed  in  busi- 
ness  relating  to  the  settled  and  dievised  estates, 
for  which  a  sum  of  money  was  due  to  him.  and 

I  he  held  the  title  deeds.  After  the  tesUtor's  death, 
the  son  of  the  trustee  under  the  settlement,  and 

!  one  of  the  executors,  joined  in  an  application  to 

'  the  court,  that  the  attorney  might  account  for  ail 
sums  received  by  him  in  respect  of  the  estates, 

.  and  deliver  up  the  deeds  to  tne  trustees  for  the 
said  estates,  on  payment  to  him  of  any  thing  that 
might  appear  to  be  due  from  them.  The  other 
executor,  and  all  the  parties  beneficially  in- 
terested, objected  to  the  application.  The  court 
refused  to  interposr,  the  rights  of  tbe  parties  not 
being  clear,  and  one  executor  not  concurring  in 
the  motion.  In  re  Bunting,  2  Adol.  A.  Ellis,  497. 

190 


Pafmad  of  Jfeney.] — Liability  for  payment  of 
money,  in  re  Bonner,  4  B.  &  Adol.  bll ;  1  Nev. 
&  M.  555.  191 

The  court  will  not  interfere  to  compel  an  at- 
torney to  pay  over  money,  the  right  to  which  is 
dependent  on  the  existence  of  a  special  agree- 
ment between  the  client  and  tbe  attorney,  which 
tbe  latter  disputes.  Hodson  v.  Terrall,  2  Dowl. 
P.  C.  2b4.  191 

The  court  will  not  interfere  summarily  to  com- 
pel an  attorney  to  pay  over  or  account  for  money 
received  by  him  during  his  clerkship.  Ex  parte 
Deane,  2  IXowl.  P.  C.  m  191 

A  summary  application  being  made  against 
three  attomies  jointly,  to  pay  over  to  t&  as- 
signees a  sum  of  money  which  they  had  received 
as  the  bankrupt's  solicitors,  under  an  order  of 
the  court  of  Chancery  :--Held,  not  sustainable, 
as  they  were  not  all  collectively  attomies  of  the 
court  of  Review.  Ex  parte  Hicks,  2  Deac.  db 
Chit  573.  191 

Quere  whether  such  an  order  would  have  been 
made  if  they  had  been  all  attomies  of  that 
court  t  Id. 

A  bankrupt's  certificate  does  not  remove  an 
attorney's  liability  to  an  atachment  for  not  duly 
investing  his  client's  money.  ^  Ex  parte  Grant,  o 
Dowl.  P.  C.  320.  191 

Where  a  rale  is  made  absolute  by  consent,  order- 
ing that  A.,  an  attorney,  who  has  fraudulently  re- 
tamed  in  his  hands  the  money  of  bis  client,  shall 
pay  the  amount  bv  a  particular  day,  that  he  shall 
pay  the  costs  of  the  application,  and  that  other- 
wise, an  attachment  shall  issue. — ^it  is  no  answer 
to  a  motion  for  such  attachment,  that,  on  the 
day  afler  that  appointed  for  the  investment,  a  fiat 
in  bankruptcy  issued  against  A.,  under  which  he 
has  obtained  his  certificate,  and  that  no  service 
of  the  rule  and  allocatur  took  place  before  the 
bankruptcy.  In  re  Newberry,  5  Nev.  dt  M.  419; 
1  Har.  &  WoU.  375.  191 

Whether  the  supervention  of  the  fiat  and 
certificate  would  have  excused  the  non-obedience 
to  the  rale  by  A.,  so  as  to  have  exempted  him 


[ATTORNEY  AND  SOLICITOR] 


2319 


from  an  attachment,  if  no  fraud  had  been  shown, 
qaere?  Id. 

Whete  an  attorney  received  money  to  pay  over 
to  a  proctor  for  probate  of  a  will,  the  court  re- 
fused to  interfere  summarily  to  make  him  account 
for  it.  Ex  parte  Cohen  or  Cowie,  3  Dowl.  P.  C. 
600 ;  1  Har.  &  WoU.  211.  191 

The  court  will  not  order  an  attorney  to  pay 
orer  a  sum  of  money  received  by  him  in  his 
character  of  attorney,  except  upon  the  applica- 
tion of  the  client  to  whom  the  money  is  due.  In 
n  Fenton,  5  Nev.  ^Et  M.  239;  3  Adol.  &,  Ellis, 
404  ;  1  Har.  &  WoU.  310.  191 

No  rule  will  be  granted  at  the  instance  of  a 
third  party.  Id. 

The  court  refused  a  rule  made  on  the  behalf 
of  the  crown,  calling  on  an  attorney  to  pay  over 
to  the  receiver  of  stamp  duties  a  sum  of  money 
which  the  attorney  had  received  from  his  client, 
an  executor,  for  the  purpose  of  paying  legacy 
duty,  but  which  he  had  not  in  fact  paid.  Id. 

The  court  will  not  call  upon  an  attorney  to  re- 
pay money,  or  to  account  before  the  master,  on 
the  grounds  merely  that  the  attorney  obtained 
such  money  from  his  client  as  if  for  the  purposes 
of  a  suit,  but  that  his  bill  is  said  not  to  account 
satisfactorily  for  the  obtaining  and  application  of 
such  money;  that  the  amount  obtained  seems 
immoderate,  and  that  the  client  states  a  ease  of 
£rand.     In  re  Marris,  2  Adol.  &,  Ellis,  582.     191 

A  judge  at  chambers  has  power  to  make  an 
order  on  an  attorney  in  a  cause  to  pay  money,  and 
snch  order  will  be  made  a  rule  of  court,  as  of 
eonrae,  without  a  rule  to  show  cause.  Wilson  v. 
Northop,  2  C.  M.  dt  R.  326;  4  Dowl.  P.  C.  441. 

191 

Where  it  is  clearly  shown  that  an  attorney  keeps 
out  of  the  way  to  avoid  being  served  with  rules 
for  the  payment  of  money,  Uie  court  will  allow 
service  upon  his  clerk  to  be  good  service.  The 
affidavit,  however,  must  specify  the  endeavors  to 
e&ct  a  service,  and  the  reasons  for  believing  that 
he  is  in  town,  and  avoiding  service.  Hinton  v. 
Deane,  4  Dowl.  P.  G.  352.  191 


_  matters  of  .^fidamt."] — An  applica- 
tion for  a  rule  requiring  an  attorney  to  answer 
the  matters  of  an  affidavit,  must  be  made  by  a 

ritleman  at  the  bar.    Ex  parte  Pitt,  2  Dowl. 
C.  439;  5  B.  d&  Adol.  1077.  192 

It  is  too  late  to  move  for  a  rule,  calling  on  an 
attorney  to  answer  the  matters  of  an  affidavit, 
within  the  four  last  days  of  term ;  neither  can 
cause  be  shown  against  such  rule  on  the  last  day 
of  term.    Ex  parte ,  2  Dowl.  P.  C.  227.     192 

It  was  held  no  ground  for  making  an  applica- 
tion against  an  attorney,  that  he  ha3  advised  his 
client  to  hand  him  over  money  which  the  Insol- 
vent Debtors'  Court,  on  the  client's  application 
there  for  his  discharge,  considered  a  misappropria- 
tioD,  and  for  which  he  was  remanded  by  that 
eoort.    Smith  v.  Tower,  2  Dowl.  P.  C.  673.    192 

A  rale  nisi  affainst  an  attorney  to  answer  mat- 
Urs  in  an  affidavit,  cannot  be  moved  for  on  the 


last  day  of  term.    In  re  Turner,  3  Dowl.  P.  C 
557;  I  Har.  &  WoU.  217.  192 

Jire^ligeHce.]-At  is  not  every  mistake  or  mis- 
apprehension of  an  attorney  that  will  make  him 
liable  to  an  action  for  negligence.  The  question 
in  such  an  action  is,  whether  the  attorney  has 
used  reasonable  skill  and  reasonable  care.  In  an 
action  against  an  attorney  for  npffligence,  the  de- 
claration stated  that  the  plaintiff  was  a  prisoner 
in  execution  for  a  debt  not  exceeding  20Z.,  and 
had  been  so  for  twelve  calendar  months,  and  waa 
desirous  of  obtaining  his  discharge,  of  all  which 
the  defendant  had  notice;  and  fiat  he,  the  de- 
fendant, in  consideration  that  the  plaintiff  would 
employ  him  to  obtain  his  discharge,  undertook  to 
use  due  diligence,  yet  the  defendant,  not  regard- 
ing, &c.,  did  not  take  proper  meaaures  to  obuin 
the  plaintiff's  discharge.  To  this  declaration 
the  defendant  pleaded,  first,  non-assumpsit,  and 
secondly,  that  he  did  take  proper  measures,  and 
did  use  due  diligence  .—Held,  that  on  the  second 
issue  it  lay  on  the  plaintiff  to  prove  negligence  in 
the  defendant ;  and  held,  also,  that  by  these  plead- 
ings the  prefatory  allegations  of  the  declaration 
were  admitted  by  the  defendant.  Shilcock  v. 
Passman,  7  C.  &  P.  289— Alderson.  192 

Where  there  appears  to  be  negligence  or  igno- 
rance of  the  law  on  the  part  of^the  attorney, 
which  creates  unnecessary  costs,  the  court  will 
order  the  costs  to  be  disallowed  on  taxation^  ^ 
without  prejudicing  his  right  to  bring  an  action 
for  them.     Cliffe  v.  Prosser,  2  Dowl.  P.  C.  21. 

195 

If  attomies,  employed  by  a  vendor  to  settle  on 
his  part  the  assignment  of  a  term,  allow  him  to 
execute  an  unusual  covenant,  without  explainintr 
the  liability  thereby  incurred,  they  are  responsi*^ 
ble  to  him  for  consequent  loss,  notwithstanding 
he  is  himself,  at  the  time  of  the  assignment, 
aware  of  tlie  fact  in  respect  of  which  he  after- 
wards incurs  liability  on  his  covenant.  Stannard 
V.  UUithome,  10  Bing.  491 ;  4  M.  &  Scott,  359. 

194 

A.,  a  complainant  in  Chancery,  employed  B. 
as  his  solicitor,  during  whose  employment  an 
irregular  order  to  dismiss  the  bill  on  a  certain 
day,  unless  publication  passed,  was  obtained; 
before  that  day  arrived,  C.  was  appointed  the  so- 
licitor of  A. ;  and  the  bill  having  been  dismissed 
because  no  step  was  taken  by  Cf.,  an  action  was 
commenced  against  him  for  negligence,  which 
was  held  to  be  maintainable,  because  he  should 
have  conformed  with  the  order,  or  should  within 
the  time  have  moved  to  vacate  it.  Frankland  v. 
Cole,  2  C.  &  J.  590.  194 

The  court  of  Chancery  has  no  jurisdiction  to 
make  a  solicitor  responsible  for  negligence  in 
the  conduct  of  a  suit.  Frankltod  v,  Lucas,  4 
Sim.  587.  295 

An  action  having  been  brought  against  an  at^ 
tomey  for  negligence,  in  which  action  the  jury 
gave  a  verdict  for  the  plaintiff  finding  also  that 
the  attomev  had  been  ffuilty  ot  gross  negligence, 
and  then  the  attorney  brought  an  action  for  his 
bill  of  costs,  the  court  refused  to  stoy  proceedings 


2320 


[ATTORNEY  AND  SOUCITOR] 


in  tke  latter  action.    Smith  v,  Rolt,  2  Dowl.  P.  C. 
m.  19S 

Where  an  attorney  was  charged  with  oppres- 
sion towards  his  client,  but  the  application  was 
not  made  till  afler  three  terms  had  nearly  elapsed, 
and  no  attempt  was  made  to  explain  the  delay,  it 
was  held  that  the  motion  was  too  late.  Garry  v 
Wilks,  2  Dowl.  P.  C.  649.  195 

An  agreement  was  entered  into  between  A. 
and  B.  B.  died,  and  administration  to  his  e&cts 
was  granted  to  C.,'  his  daughter.  D.,  who  was  a 
fiiend  of  C,  employed  the  same  attorney  who 
had  prepared  the  original  amement  to  prepare 
another  between  him  and  C,  by  which  he  was 
aothorixed  to  bring  an  action  against  A.,  on  the 
original  agreement,  in  C.'s  name,  and  also  in- 
structed the  attorney  to  bring  such  action.  The 
action  was  brought,  and,  af&r  argument  on  de- 
murrer, the  original  agreement  was  declansd 
▼Old,  on  the  ground  of  champerty.  But  it  ap- 
peared that  the  attorney,  in  preparing  such  ori- 
ginal agreement,  had  consulted  a  oonyeyancer, 
who  gave  it  as  his  opinion  that  the  agreement 
was  valid : — Held,  at  Nisi  Prius,  that  Uie  attor- 
ney was  entitled,  under  the  circumstances,  to  re- 
cover from  D.,  his  employer,  the  costs  of  pre- 
paring the  second  agreement,  and  also  those  of 
bringmg  the  action  upon  the  first  Potts  v.  Spar- 
row, 6  C.  &  P.  749— Tindal.  194 

The  court  will  not  compel  an  attorney  to  re- 
fund to  his  client  costs  unnecessarily  incurred, 
unless  he  has  been  guilty  of  gross  negligence. 
Meggs  o.  Binns,  2  Bing.  K.  R.  &5.  195 

The  attorney  for  a  defendant  who  was  in  cus- 
tody on  final  process,  obtained  the  consent  of  the 
plamtifi''s  attorney  not  to  charge  him  in  execu- 
tion in  the  term  in  which  that  step  ought  to  have 
been  taken,  on  the  false  representation  that  he 
had  the  defendant's  authority  and  consent  to 
take  no  advantage  of  his  not  being  charged  in 
«xecntton  till  the  next  term.  The  defendant's 
attorney  signed  an  undertaking  to  that  efiect, 
which,  however,  did  not  state  Uiat  the  proceed- 
ings were  stayed  at  the  defendant's  request,  pur- 
suant to  Reg.  Gen.  of  the  Exch.,  Hil.  26  «&  27 
Geo.  2.  The  defendant  was  not  charged  in  exe- 
cution till  the  next  term,  and  was  afterwards  dis- 
charged on  the  ground  of  the  above  omission  in 
the  undertaking.  An  action  having  been  brought 
by  the  plaintin  against  the  defendant's  attorney, 
for  damages  accruing  from  the  defendant's  dis- 
charge by  the  felse  representation,  it  was  held 
that  it  could  not  be  maintained,  for  the  damage 
laid  arose  from  the  informality  of  the  under- 
taking. Hewitt  9.  Melton,  4  Tyr.  1003 ;  1 C.  M. 
A  R.  232.  193 


IX.  Bill  or  Costs. 

Dditery  of  Bta.]^Business  done  in  Middle- 
_jx  countv  court  Becke  v.  Wells,  3  Tyr.  193: 
IC.  &M.75.  197 

Business  done  in  county  court  Wardle  v.  Ni- 
cholson, 4  B.  &  Adol.  469 ;  1  Nev.  &  M.  355.  197 

(..Semble,  tliat  the  drawing  and  ingrossing  a 
warrant  M  attorney  is  a  taxi3»le  item.  James  v. 
Child,  2  C.  &  J.  678;  2  Tyr.  732.  197 


Charges  for  searching  the  Warrant  of  Attorney 
office,  and  for  a  fee  paid  there,  do  not  make  an 
attorney's  bill  taxable  under  stat.  2  Geo.  2,  c.  23. 
£x  parte  Bowles,  1  Scott,  563;  1  Bing.  N.  R. 
632 ;  1  Hodges,  143.  1U7 

Procuring  an  appearance  to  be  entered  by  a 
proctor  in  ue  Consistorv  Court,  is  not  a  taxable 
item  in  an  attorney's  bill.  In  re  Marris,  2  Adol. 
&  £llis,  582.  VJ7 

An  attorney  emploved  to  transfer  stock,  found 
that  a  distringas  tiaa  been  entered  at  the  Bank 
to  prevent  the  transfer.  He  thereupon  made 
several  inquiries  respecting  the  transactions  on 
behalf  of  his  client,  and  prepared  a  notice  to  the 
solicitor  of  the  Bank  to  file  a  bill  in  conseouence 
of  the  writ  being  entered : — Held,  that  his  charges 
were  not  taxable  items  hetween  him  and  tua 
client,  it  not  appearing  that  the  distringas  ori- 
OTuated  in  any  suit,  or  that  the  business  had  re« 
fere  nee  to  any  proceeding  in  a  court — Per  Patte- 
son,  J. — If  the  distringas  had  been  in  a  suit,  the 
steps  taken  by  the  plaintiff  did  form  taxable 
items.    Nicholas  v.  Hayter,  2  Adol.  &  Ellis,  348. 

197 

Charges  for  inquiries  made,  and  attendances 
in  the  course  of  such  inquiries,  relating  to  a  suit 
of  which  another  attorney  had  the  management, 
and  in  which,  afler  such  inquiries,  the  attorney 
making  them  did  not  further  interfere,  are  not 
taxable  items.  Id. 

Quiere,  whether  a  country  fiat  be  a  proceeding 
at  law  or  in  equity  ?  Ex  parte  Jones,  2  Mont  & 
Ayr.  207.  197 

If  an  attorney,  who  is  not  admitted  in  the 
court  of  Bankruptcy,  employ  an  agent  who  is 
admitted  to  strike  a  docket,  and  afler  payment  of 
the  agent  by  the  official  assignee,  the  attorney, 
who  IS  the  principal^  deliver  a  bill  with  charges 
for  striking  the  docket,  it  is  taxable.  Ex  parte 
Cass,  2  Mont  &  Ayr.  170.  197 

Items  of  the  costs  taxed  in  two  actions,  and 
paid  by  the  attorney,  and  for  which  he  had  re- 
ceived no  specific  payment  from  his  client,  are 
properly  inserted  in  the  bill  of  costs,  and  need 
not  be  in  the  cash  account.  Harrison  v.  Ward, 
4  Dowl.  P.  C.  39;  1  Har.  &  WoU.  353.  197 

If  an  attorney  deliver  a  bill  to  his  client  duly 
signed,  for  busmess  in  court,  and  another  sepa- 
rate bill  for  conveyancing,  not  signed^  in  an  ac- 
tion for  the  amount  of  the  conveyancing  bill,  its 
not  being  signed  is  no  objection  at  the  trial ;  but 
a  judge  would,  on  application,  order  both  bills  to 
be  Uxed.    Beck  v,  Penn,  7  C.  &  P.  397— Tindal. 

197 

If  various  matters  form  but  one  transaction, 
some  being  at  law,  and  others  for  conveyancing, 
one  bill  only  ought  to  be  made  out  Doe  3. 
Palmer  v.  Roe,  4  l^wl.  P.C.  95;  I  Har.  A  WoU. 
339.  197 

An  attorney  is  not  bound  to  insert  in  his  bill 
of  costs  the  amount  paid  to  a  proctor  employed 
by  him  for  his  client  Franklin  v.  Feathenton- 
haugh,  3  Nev.  db  M.  779;  1  Adol.  A.  Ellis,  475. 

197 

In  an  action  on  an  attorney's  bill,  the  defendant 
cannot,  afier  being  let  in  to  plead  to  the  merits, 


[ATTORNEY  AND  SOLICITOR] 


2321 


plnd  that  no  signed  bill  was  delivered.  Beck  v. 
Mordaant,4  Dowl.  P.  C.  U2;  2  Scott,  178;  1 
Hodges,  196 ;  2  fiing.  N.  R.  140 :  S.  P.  Holmes 
V.  Grant,  1  Gale,  59.  197 

Qosre,  whether  such  a  defence  can  be  giren 
in  evidence  under  the  general  issue  ?    Id. 

In  an  action  on  an  attorney's  bill,  the  defendant 
suffered  judgment  to  go  by  ciefault,  which  was  set 
aside  on  an  affidavit  of  merits  and  payment  of 
costs,  and  the  defendant  was  let  in  to  plead.  She 
pleaded  that  no  signed  bill  bad  been  delivered, 
and  afterwards  added  two  pleas  of  non-assumpsit, 
and  thai  the  plaintiff"  had  not  taken  out  his  cer- 
tificate. The  plaintiff',  on  application  to  a  judge 
at  chambers,  obtained  an  order  confining  the  de- 
iendsat  to  the  plea  of  the  general  issue.  The 
court  held  that  tnis  order  was  proper,  it  appear- 
ing that  the  defendant  bad  had  the  bill  taxed. 
Biggs  9.  Maxwell,  3  Dowl.  P.  C.  497.  197 

To  an  action  on  an  attorney's  bill,  defendant 
pleaded  that  the  bill  was  for  work  at  law  and  in 
equity,  and  was  not  delivered  to  her  a  month  be- 
fi»re  action.  Replication,  that  the  bill  was  not 
for  work  at  law  and  in  equity : — Held,  ill.  Moore 
V.  Boulcott,  1  fiing.  N.  R.  323 ;  1  Scott,  122.  197 

In  an  action  by  an  attorney  for  business  done, 
for  which  no  signed  bills  had  been  delivered,  in 
pursuance  of  the  statute,  an  admission  by  the 
defendant,  in  an  examination  before  the  commis- 
sioners under  a  commission  of  bankruptcy  since 
superseded,  that  the  sum  claimed  was  aue,  is  not 
sufficient  evidence  to  support  a  count  upon  an 
account  slated.  Eicke  v.  Nokes,  4  M.  &  Scott, 
;  1  M.  &.  Rob.  350.  197 


After  the  lapse  of  nine  years,  the  court  will  not 
compel  an  attorney  to  re-deliver  bills  for  busi- 
ness done  by  him,  without  some  suggestion  of 
fiiaud,  mistake,  or  overcharge.  Manning  v.  Brown, 
3Dowl.  P.  C.  ri.  197 

Whether  a  bill  delivered  by  an  attorney,  with- 
out mentioning  tlie  court  in  which  the  business 
is  done,  is  a  suracient  compliance  with  the  2  Geo. 
2,  quere  ?  Semble,  that  it  is.  lister  v.  Lazarus, 
4  Dowl.  P.  C.  397 ;  1  Gale,  317;  2  C.  M.  dt  R. 
€65;  1  Tyr.  &  G.  123.  •  197 

An  assignee  of  an  insolvent  attorney  is  entitled 
lo  recover  the  bills  of  costs  due  to  the  estate  with- 
out delivering  signed  bills,  according  to  the  direc- 
tions of  the  2  Geo.  2,  c.  23.  Id. 

It  is  the  duty  of  the  attorney  to  cause  his 
nasne  to  be  inrolled  ;  and  if  he  omits  to  do  so,  he 
is  incompetent  to  obtain  costs,  though  otherwise 
duly  qualified  as  an  attorney.  Humphreys  r. 
Harvey,  1  Ring.  N.  R.  62 ;  4  M.  <&  Scott,  500 ; 
2  Dowl.  P.  C.  «2.  198 

Ikzaium  of  BiU.]— 'Agreements  not  to  tax  at- 
torney's bills  are  discountenanced.  Woosnam  v. 
Piyce,3  Tyr.  375 ;  I  C.  &  M  352.  199 

Use  court  has  no  direct  power  to  refer  an  attor- 
ney's bill  for  taxation,  except  under  the  authority 
oTS  Geo.  2,  ciSi,  s.  23.  Ex  parte  Bowles,  1  fiing. 
N.  R.  632;  1  Scott, 583;  1  Hodges,  143:  S.  P. 
Dted.  Palmer  r.  Roe,  4  Dowl.  P.  C.  95;  1  Har 
A  WoU  3SI.  11>1 


An  attorney  does  not  waive  his  right  to  object 
to  the  jurisdiction  of  the  court  directly  to  rcfisr 
his  bill  for  taxation  by  attending  its  taxation  be- 
fore the  master,  on  which,  according  to  the  star 
tute,  he  would  be  liable  to  pay  the  costs  of  taxa* 
tion,  the  client  not  having  given  the  undertaking 
required  by  the  statute  to  pay  what  should  be 
found  due.  He  will,  however,  be  liable  to  refund 
what  should  be  overpaid  on  such  taxation. 
Howard  v.  G^oom,  4  Dowl.  P.  C.  21  ;  1  Har,  A. 
Woll.  355.  19^ 

The  court  cannot  direct  a  bill  to  be  taxed  at 
the  instance  of  any  person  but  the  original 
client  Doe  d.  Palmer  v.  Roe,  4  Dowl.  P.  if.  95 ;. 
1  Har.  &  Woll.  339.  199 

A  person,  who  is  the  real  plaintiff'  in  a  cause,, 
but  who  is  obliged  to  sue  in  the  name  of  another, 
may  apply  to  the  court  to  have  his  attorney's  bill 
in  the  cause  taxed.  In  re  Masters,  4  Dbwl.  P.  C. 
18 ;  1  Har.  A  Woll.  348.  199- 

It  is  no  answer  to  an  application  to  tax  an  attor* 
ney's  bill,  that  an  agreement  has  been  made  that 
the  attorney  shall  receive  one-half  the  proceeds- 
of  a  suit  carried  on  at  the  instance  of  the  client. 
Id. 

A  client  is  entitled  to  have  his  attorney's  bill 
taxed,  although  he  may  have  expressed  his  Mtis- 
faction  at  the  bills,  paid  a  sum  on  account,  and 
allowed  four  years  to  elapse  from  the  delivery  oF 
the  bills  before  he  applies  fi>r  an  order  to  tax. 
Woolaston  v.  Weston,  4  Dowl.  P.  C.  3 ;  1  Har.  A 
Woll.  dm.  199' 

In  an  application  to  tax  an  attorney's  bill,  it 
must  be  sworn  that  there  are  taxable  items  in 
the  bill,  although  the  bill  itself  is  exhibited.  £x 
parte  King,  3  Dowl.  P.  C.  41.  19^ 

An  order  was  made  for  the  taxation  of  four 
several  bills  of  a  solicitor  for  various  business^ 
done  for  the  same  assignee,  under  which  more 
than  one-sixth  was  taken  off*  the  gross  amount- 
of  every  one  of  the  bills : — Held,  that  as  the- 
bills  were  incurred  by  the  same  person,  in  the 
same  ri^ht,  there  was  no  need  for  a  separate  order 
of  taxation  for  each  bill ;  and  that,  as'more  tlian- 
a  sixth  was  taken  off  from  the  whole  amount,  the^ 
solicitor  must  pay  the  costs  of  the  tajsation.  Ex 
parte  Barrett,  3  Deac.  <SEe.  Chit  Tdl.  199 

Where  an  attorney's  bills  are  referred  for  tax- 
ation to  the  prothonctary  of  the  Common  Pleas^ 
he  may  refer  items  for  business  done  in  the  King's 
Bench  to  be  taxed  by  the  master  of  the  latter 
court ;  and  the  King's  Bench  has  no  jurisdiction 
to  interfere  with  that  taxation  of  the  master,  nor 
is  the  prothonotary  bound  by  it.  In  re  Jones,  1 
Dowl.  P.  C.  424.  200 

The  court  will  not  mnt  a  rule  for  the  taxa- 
tion of  an  attorney's  bill  of  costs  at  the  instance 
of  a  third  party,  who  makes  the  application  sim- 
plv  for  the  collateral  purpose  or  reducing  the 
,bill  so  low  as  to  make  him  a  bad  petitioning  cre- 
ditor. Clutterbuck  v.  Coombs,  2  Ne v.  &  M .  209  > 
5  B.  &  Adol.  400.  199 

A  party  agreeing  to  pay  the  costs  of  the  at- 
torney of  another,  as  between  attorney  and  client, 
is  entitled  to  have  the  attorney's  bill  taxed.    Sad- 


[ATTORNEY  AND  SOUCITOR] 


ler  V.  FMtejnmn^  3  Ner.  A  M.  599;  1  AdoL  A 
Ellis,  717.  199 

A  eonil  has  no  power  to  order  the  bill  of  an 
•ttomer  to  be  taxed,  onlesB  it  appear  tbat  aome 
part  of  the  busineai  waa  done  in  the  court  to 
which  application  for  the  order  is  made.  Ex 
parte  King,  3  Sev.  A  M.  437.  200 

Although  the  master,  on  taxation,  has  not  ju- 
risdiction to  determine  whether  acts  done  by  the 
attorney  were  useful,  be  may  determine  what 
were  neceasaiy.  Heald  v.  Hall,  2  Dowl.  P.  C. 
163.  200 

Sererd  perMus  having  agreed  to  share  with  a 
plaintiff  the  expenses  of  an  action,  and  he,  having 
paid  the  attorney's  bill,  brought  an  action  for 
contribution  against  one  of  Siose  persons ;  the 
court,  on  his  application,  ordered  the  attorney's 
bill  to  be  taxed,  though  it  had  been  paid,  and 
the  defendant  in  the  action  had  paid  his  full 
share  of  the  money  into  court.  Grover  v.  Heath, 
2  Dowl.  P.  C.  2&S.  200 

The  master,  to  whom  a  bill  of  costs  is  referred 
for  taxation,  has  no  power  to  inquire  into  the  fiict 
whether  the  business  charged  for  was  agreed  to 
be  done  for  costs  out  of  pocket  Evans  v.  Tay- 
lor, 2  l>owl.  P.  C.  349.  200 

A  fiat  was  sued  out  on  the  7th  of  June  by  an 
attorney  against  hm  debtor  for  the  amount  of  a 
bill  of  costs,  and  the  bankrupt  was  shortly  after- 
wards discharged  under  the  Insolvent  Act,  hav- 
ing inserted  the  amount  of  the  attorney's  bill  in 
hii  schedule.  The  bankrupt  passed  his  last  ex- 
amination, and  on  the  4th  December  petitioned 
for  an  order  to  tax  the  attorney's  bill,  with  a  view 
of  suspending  the  fiat,  on  the  ground  of  the  in- 
sufficiency or  the  petitioning  creditor's  debt : — 
Held,  that  the  bankrupt  could  not,  after  lying 
so  long,  and  after  his  previous  admission  of  the 
debt,  apply  for  such  an  order — Diss.  Cross,  J. 
Ex  parte  Gingell,  2  Deac.  &  Chit.  546.  200 

An  agreement  to  pay  costs  is  an  agreement  to 
pay  taxed  costs ;  and  a  third  party  paying  a  so- 
licitor's bill  of  costs,  in  order  to  compromise  a  suit, 
stands  in  the  same  situation  with  respect  to  the 
right  of  claiming  taxation  as  the  solicitor's  client. 
Vincent  v,  Venner,  1  Mylne  A,  K.  212.  200 

An  application  to  tax  an  attorney's  bill  ought 
to  be  made  at  chambers.  Bassett  v.  Giblett,  2 
Dowl.  P.  C.  650  201 

Where  an  action  was  brought  to  recover  an 
attorney's  bill  of  costs  for  several  distinct  busi- 
nesses, as  to  some  part  of  which  the  client  dis- 
puted his  liability  on  account  of  the  negligence 
of  the  attorney,  but  the  other  part  was  not  dis- 
puted ;  the  court  refused  to  order  the  master  to 
tax  the  disputed  part  of  the  bill  separately  from 
the  rest,  a  judge's  order  to  tax  having  been  be- 
fore obtained  on  the  usual  tetms.  Jones  v.  Ro- 
berts, 2  Dowl.  P.  C.  656;  4  Tyr.  310.  201 

Where  an  action  of  ejectment  was  brought  on 
the  forfeiture  of  a  lease  by  the  breach  of  Uie  co- 
venants, and  a  compromise  was  come  to,  by  which 
the  old  lease  was  to  be  surrendered  and  a  new 
one  granted,  and  the  costs  of  the  lessors  of  the 
plaintiflT  were  to  be  paid,  which  was  done,  the 
court  refused  afterwards  to  refer  the  bill  of  costs 


of  the  attomey  to  the  lesson  of  the  plaintiff  for 
taxation.  Doe  d.  Palmer  v.  Boe,  4  Dowl.  P.  C. 
95;  1  Har.  db  WoU.  339.  201 

In  taxing  an  attorney's  bill,  the  master  b  not 
bound  to  enquire  into  the  reasonableness  of  a  bill 
paid  to  a  proctor.  Franklin  v  Featherstonhaogh, 
3  Nev.  &  M.  779;  1  Adc^  Sl  EUis,  475.         §01 

Aceordinjr  to  the  practice  of  the  Ecclesiastical 
Court,  a  bill  of  costs  cannot  be  taxed  as  between 
proctor  and  clienL    Id. 


CottM  ejf  Tttzation.] — In  taxing  an  attorney's 
bill,  if  a  mil  sixth  is  taken  oS,  the  attomey  is  al- 
ways liable  to  pay  the  costs  of  taxation ;  if  less 
than  a  sixth  is  taken  off,  it  is  in  the  discretion  of 
the  court  to  make  him  pay  the  costs  or  not ;  and 
therefore,  where  a  larse  sum  u  taken  off,  being 
within  a  trifle  of  a  sixths — ^Held,  that  the  master 
was  justified  in  charring  the  attomey  with  the 
costs  of  taxation.  Buer  v.  Mills,  (or  Wills),  2 
Dowl.  P.  C.  382;  2  C.  AM.  415;  4  Tyr.  279. 

201 

An  attomey  having  taken  a  bill  of  exchange 
from  his  client  in  payment  of  a  bill  of  costs,  but 
the  bill  of  exchange  not  being  paid,  the  attomey 
sued  upon  it ;  the  court  allowed  him  to  pay  thie 
costs  or  taxing  h'ls  bill  (more  than  a  sixth  having 
been  taken  off)  to  the  holder  of  the  bill  in  part 
payment.  Woollison  v.  Hodgson,  2  Dowl.  P.  C. 
351.  201 

An  attomey  employed  to  defend  an  action,  and 
receiving  from  his  client  the  debt  anjl  costs,  for 
the  purpose  of  being  paid  over  to  the  {daintiff^  is 
not  entitled  to  make  tnat  sum  an  item  in  his  bill, 
so  as  to  increase  the  amount  of  it.  Woollison  v. 
Hodgson,  2  Dowl.  P.  C.  360.  201 

A  defendant's  attomey  having  delivered  to  his 
client  his  bill  of  costs,  from  which  more  than  one 
sixth  is  taxed  ofi^  cannot  afterwards  alter  that  pro- 
portion by  adding  on  both  sides  of  the  account  a 
sum  received  by  bim  from  his  client  and  paid  into 
court  Hays  v.  Trotter,  3  Nev.  A  M.  176 ;  5  B. 
A  Adol.  1106.  201 

Where  an  attomey  brings  an  action  to  recover 
the  amount  of  his  bill,  and  after  action  brought 
his  bill  is  taxed,  he  is  not  bound  to  pay  the  costs 
of  taxation,  unless  it  appears  that  the  action  was 
brought  to  avoid  those  costs.  Toomer  v.  Fuller, 
2  Dowl.  P.  C.  195.  201 

An  action  between  A.  and  B.  is  compromised, 
B.  undertaking,  to  pay  A.'s  costs  as  between  at- 
tomey and  client.  The  bill  of  costs  of  A.'s  at- 
torney being  taxed,  more  than  a  sixth  is  taken  off. 
The  attorney  is  liable  to  pay  the  costs  of  the  tax- 
ation to  B.  Saddler  v.  Palireyman,  3  Nev.  A  M. 
599 ;  1  Adol.  A  Ellis,  717.  201 

An  attomey  delivered  his  account  in  three 
bills;  a  class  of  items  in  one  bill  was  disallowed, 
and  the  whole  amount  of  the  three  bills  reduced 
one-sixth : — Held,  that  the  attorney  was  liable  to 
the  whole  costs  of  taxation .  Morris  v.  Parkinson, 
2C.  M.  ^;&R.  178;  3  Dowl.  P.  C.  744 ;  1  Gale, 
160.  201 

The  court  refused  to  require  an  attomey  to  pay 
the  costs  of  taxation,  where  the  deduction  be- 
yond one-sixth  was  occasioned  by  the  master's 


[ATTORNEY  AND  SOLICITOR] 


2323 


^Hallowing  one  of  the  bills  delivered,  on  the 
groand  of  non-liability.  Mills  v.  Reyett,  3  Nev. 
%  M.  767 ;  I  Adol.  &  Ellis,  856.  201 

Where  leu  than  oue-fixth  is,  upon  taxation, 
atmck  off*  an  attorney's  bill,  the  court  will,  as  a 
matter  of  course,  order  the  client  to  pay  the  costs 
of  taxation.  Id. 

In  considering  whether  more  than  one-sixth 
of  an  attorney's  bill  has  been  taxed  off,  the  entire 
amount  of  the  bill  must  be  taken,  inclusive  of  a 
proctor's  bill.  Franklin  v.  Featherstonhaugh,  3 
Nev.  &  M.  779 ;  1  Adol.  &  £l]is,  475.  201 

On  the  taxation  of  an  attorney 's  bill,  very  nearly 
one-aixth  was  taxed  off,  and  afterwards  a  rule 
to  refer  back  the  bill  for  taxation  was  discharged 
on  the  merits ;  no  objection  was,  however,  made 
to  items  being  inserted  in  the  bill  of  costs  instead 
of  the  caah  account,  where,  if  they  had  been  in- 
serted, more  than  one-sixth  would  have  been  de- 
ducted : — The  court  afterwards  refused,  on  a  fresh 
rule,  to  listen  to  that  objection.  Harrison  v. 
Ward,  4  DowL  P.  C.  39 ;  1  Uar.  &,  WoU.  353. 

201 

It  is  too  late  to  rescind  a  judge's  order  allow- 
ing to  the  plaintiff's  attorney  the  costs  of  taxing 
the  coats  on  the  back  of  a  writ,  from  which  more 
than  a  sixth  was  taken  off,  after  the  order  has 
been  made  a  rule  of  court,  and  an  attachment 
obtained  upon  iL  Thomson  v.  Carter,  3  Dowl.  P. 
C.  657.  201 

Taxation  of  bankrupt  attorney's  bill.  Fea- 
tbprsUmehaugh  v.  Reece,  2  Dowl.  P.  G.  30;  1  C. 
A  M.  496 :  S.  C.  nom.  Featherstonehaugh  v.  Keen, 
3  Tyr.  540.  201 

The  assignees  or  executors  of  a  bankrupt  are 
Dot  under  uie  statute  liable  to  pay  the  costs  of 
taxation  if  more  than  one-sixth  of  the  bill  of  costs 
of  the  solicitor  is  deducted  on  taxation.  Willasey 
V.  Maahiter,  3  Mylne  &  Keen,  990C  201 

The  costs  of  taxing  the  bill  of  costs  of  a  soli- 
citor who  has  become  bankrupt,  do  not  h\\  upon 
his  assignees  on  the  ground  that  more  than  a 
sixth  part  is  deducted  on  taxation,  although  the 
assignees  may  have  attended  the  taxation  by  their 
solicitor.  Allsop  v.  Oxford  (Lord),  1  Mylne  Sl 
Craig,  26.  201 

The  plaintiff  had  obtained  an  order  for  taxa- 
tion of  his  solicitor's  bill,  amounting  to  399/. 
The  solicitor,  with  the  Master's  permission, 
strock  out  certain  items  as  having  been  inserted 
by  mistake.  The  bills  were  then  taxed,  and  less 
tosn  a  sixth  was  taken  off,  but  if  the  items 
strock  out  were  included,  more  than  a  sixth 
woold  have  been  taken  off: — Held,  that  as  less 
than  a  sixth  had  been  taxed  off,  the  plaintiff  must 
pa^  the  costs  of  taxation.  Marshall  v.  Oxford,  5 
Sim.  456.  201 

Upon  an  i4>plication  that  the  solicitor  may  be 
directed  to  pay  the  costs  of  taxation,  more  than 
a  sixth  part  having  been  taken  off  his  bill,  the 
court  will  not  enter  into  the  particulars  of  the 
items  of  the  bill.  Ex  parte  Millington,  1  Deac. 
114.  201 


hems  of  Charge.'} — In  an  action  on  an  attor- 

'  Vol.  IV.  7 


ney's  bill,  an  order  for  better  particulars  was  ob- 
tained on  payment  of  costs : — Held,  that  a  charge 
for  drawing  the  bill,  as  part  of  the  costs,  was 
properly  disallowed  by  the  Master.  Junes  v.  Ro- 
berts, 2  Dowl.  P.  C.  374 ;  4  Tyr.  310.  202 

Where  a  London  agent  has  been  employed  to 
attend  the  trial  of  a  cause,  it  is  a  matter  within 
the  discretion  of  the  Master,  whether  the  costs  of 
a  joumev  to  London  by  the  countrv  attorney,  to 
attend  the  trial  of  the  cause,  shall  be  allowed. 
Parsloetj.  Foy,2Dowl.  P.  C.  181.  202 

The  Master's  decision  on  qqestions  of  taxation 
is  final  as  to  matters  of  fact  and  amount  of 
charges,  and  is  only  reviewed  by  the  court  when 
the  Master  acts  upon  a  mistaken  principle ;  and 
if  the  solicitor  negligently  or  ignorantly  takes 
some  unnecessary  proceeuing,  it  is  the  duty  of 
the  Master  to  disallow  the  charge  made  in  respect 
of  such  proceeding.  Alsop  v.  Oxford  (Lord),  1 
Mylne  <&  K.  564.  202 

Where  it  is  the  usage  of  the  profession  that 
certain  business  should  be  intrusted  to  an  agent 
in  London,  a  country  solicitor  will  not  be  allowed 
to  charge  for  his  attendance  in  London  to  per- 
form that  business,  although  his  client  has  re- 
2 nested  his  attendance,  unless  the  solicitor  has 
rat  explained  to  his  client  that,  by  the  usage  of 
the  profession,  such  attendance  is  considered  to 
be  unnecessary.  Id. 

The  comparison  of  an  abstract  of  title  with 
thelitle  deeds  is  business  witliin  this  rule,  and  a 
country  solicitor  will  not  be  allowed  to  charge  for 
his  personal  attendance  in  London  in  respect  of 
such  business.  Id. 

The  proper  charges  in  respect  of  an  abstract  of 
title  are  65.  8d.  per  sheet  for  drawing,  and  3«.  4d. 
for  copying,  firoadhurst  o.  Darlington,  2  Dowl. 
P.C.38.  202 

An  attorney  who  is  a  party  to  a  suit  is  not  en- 
titled to  charge  a  |[uinea  for  attending  the  trial, 
though  he  acta  as  his  own  attorney,  unless  it  ap- 
pears that  it  was  necessary  he  should  attend  m 
person.    Leaver  v.  Whalley,  2  Dowl.  P.  C.  80.  202 

Where  a  vendor's  attorney  disclosed  outstand- 
iuff  terms  upon  an  abstract,  although  a  market^ 
able  title  might  have  been  shown  by  taking  it  up 
at  a  subsequent  date : — Held,  that  upon  taxation 
of  the  attorney's  costs,  he  was  entitled  to  be  paid 
his  charges  incurred  in  getting  in  the  outstanding 
terms.  £x  parte  Quicke,  2  Scott,  184 ;  1  Hodges, 
202.  209 

But  the  attorney  will  not  be  allowed  his  charges 
for  attested  copies  of  a  will,  which,  by  the  con- 
ditions of  sale,  were  to  be  given  at  the  vendor's 
expense,  such  a  condition  not  being  unusual.  Id. 

Where  a  country  attorney,  a  defendant  in  a 
cause,  not  being  an  attorney  of  the  court,  defend- 
ed in  the  name  of  a  London  agent,  who  was  an 
attorney  of  the  court,  and  the  defendant  attended 
the  assizes  in  person,  and  the  plaintiff  was  non- 
suited : — Held,  that  the  defendant  was  entitled  to 
his  fees  for  attending  the  trial,  drawing  brieft, 
&.C.,  as  all  the  business  must  be'  considered  to 
have  been  done  in  the  name  of  the  London  agent. 
Jervis  v.  Dewes,  4  Dowl.  P.  C.  764.  208 


3324 


[ATTORNEY  AND  SOLICITOR] 


llie  expense  of  an  accountant,  employed  with 
reference  to  and  pending  the  suit,  does  not  come 
under  the  general  denomination  of  costs,  and  will 
not  be  allowed  on  taxation.  Small  v.  Attwood, 
1  Y.  dt  Col.  ».  202 

Recovery  of  Bill.'] — Where  a  party  has  employ- 
ed two  attomies,  partners,  to  manage  a  cause  lor 
him  in  the  Palace  Court,  an  action  in  the  com- 
mon form  lies  against  him  at  the  suit  of  both,  for 
the  bill  of  costs,  though  one  only  was  an  attorney 
of  the  court,  and  actually  did  the  business  there. 
Arden  v.  Tucker,  1  Nev.  ^S&  M.  759 ;  4  B.  d&  Ad. 
815 ;  5  C.  &  P.  248 ;  1  M.  dlt,  Rob.  191.  202 

Although  the  client  gave  a  written  retainer  to 
the  latter  attorney  only,  and  he  only  was  mention- 
ed in  the  rule  for  taxing  costs,  these  facts  were 
held  not  conclusive,  there  being  evidence,  aliunde, 
of  a  contract  with  both.  Id. 

if  a  party  taxes  the  bill  of  an  attorney  for  costs 
due  from  a  third  person,  and  pays  that  bill,  he 
cannot  aflerwards  recover  the  amount  without 
showing  the  paj^ment  to  have  been  made  through 
ignorance  or  misrepresentation,  and  if  an  action 
oe  brought,  the  court  will  stay  proceedings.  Ken- 
dall v.  Allen  or  Aiken,  4  M.  &.  Scott,  319;  4 
Bing.  438 ;  2  Dowl.  P.  C.  783.  202 

The  plaintiff  obtained  a  judge's  order,  with  the 
usual  undertaking  for  the  taxation  of  the  bill  of 
coats  due  from  her  son  to  the  defendant : — Held, 
that  it  was  not  competent  to  her  aflerwards  to 
bring  an  action  against  the  defendant  to  recover 
back  the  money  paid  by  her  in  pursuance  of  that 
order,  in  the  absence  of  proof  of^  fraud  or  misrep- 
resentation by  the  defendant.  The  court  there- 
Ibra  stayed  the  proceedings.  Id. 

Where  an  order  was  made  for  the  taxation  of  a 
solicitor's  bill,  and  for  staying  all  proceedings  at 
law  till  after  the  Master's  report,  and  the  solici- 
tor died  pending  the  taxation  and  before  any  re- 
port, and  no  revived  order  for  taxation  being 
made,  the  solicitor's  personal  representative  pro- 
ceeded at  law  against  the  client: — Held,  that 
this  was  not  a  contempt.    Houlditch  v.  Houl- 


ditch,  1  Wils.  C.  C.  17. 


202 


Where  an  action  was  brought  by  an  attorney 
for  his  bill  of  costs,  and  the  defendant  obtained 
an  order  to  tax  the  bill,  but  which  order  did  not 
contain  any  direction  to  the  defendant  to  pay 
what  was  due,  though  he  signed  the  usual  con- 
sent in  the  judge's  Iwok,  and  another  order  was 
aflerwards  made  for  reviewing  the  taxation, 
which  also  contained  no  direction  to  the  defen- 
dant to  pay  what  was  due,  and  the  Master  found 
a  sam  of  money  to  be  due  to  the  plaintiff,  who 
made  the  latter  order  only  a  rule  of  court: — 
Held,  that  an  attachment  obtained  thereon  was 
irregular,  as  it  did  not  contain  any  order  on  the 
defendant  to  pay.  Ryalls  v.  Emerson,  2  Dowl.  P. 
C.  357;  2  C.  &  M.  464  ;  4  Tyr.  364.  203 

Where  in  an  order  to  refer  an  attorney's  bill 
for  'axation,  the  usual  undcrtikin^  to  pay  the 
amount  taxed  is  omitted,  the  court  will  not  grant 
an  attachment  for  non-payment  in  pursuance  of 
the  Master's  allocatur,  fix  parte  Ward,  1  Har. 
A.  WoU.  212.  203 


Whilst  proceedings  are  pending  on  an  order  to 
tax  an  attorney  s  bill,  he  cannot  oring  an  action 
for  the  amount.  Sheriff  v.  Gresley  (Lady),  6 
Nev.   <&  M.  491 ;  1  Har.  &  Woll.  588.  203 

A  delay  of  two  days  in  following  up  an  order 
for  the  taxation  of  a  bill  of  costs,  is  not  a  waiver 
of  such  order.  Id. 

If,  afler  such  a  delay,  a  client  is  arrested  for  the 
amount  of  the  bill,  the  court  will  stay  the  pro- 
ceedings in  the  action,  and  discharge  tne  defend- 
ant. Id. 

A  summons  to  refer  an  attorney's  bill  for  taxa- 
tion, and  a  judge's  order  thereupon,  do  not  oper- 
ate as  a  stay  of  proceedings,  so  as  to  prevent  the 
attorney  from  suing  upon  the  bill.  Williams  v. 
RoberU,  1  C.  M.  &  R.  676 ;  5  Tyr.  421 ;  3  DowL 
P.  C.  512 ;  1  Gale,  56.  203 

It  is  no  ground  of  demurrer  to  a  declaration 
in  an  action  by  an  attorney,  tliat  he  seeks  to  reco- 
ver for  "  materials"  supphed  by  him  to  his  client. 
Fisher  v.  Snow,  3  Dowl.  P.  C.  27.  203 

A  solicitor  cannot  receive  a  deposit  of  title 
deeds  as  security  for  future  bills*  Ex  parte  JLiaing, 
2  Mont  &.  Ayr.  381.  204 

Upon  a  sumojons  to  refer  an  attorney's  bill  for 
taxation,  if  he  intends  to  insist  upon  interest  un- 
der 3  &  4  Will.  4,  c  42,  8.  28,  he  ought  jto  have 
it  made  part  of  the  order  that  the  Master  shall 
allow  interest  Berrington  v.  Phillips,  4  Dowl. 
P.  C.  758.  204 

Where  an  attorney,  defendant  in  assumpsit, 
sets  off  the  amount  of  his  bill,  the  plaintiff  can- 
not deduct  from  that  set-off  costs  or  taxation  al- 
lowed against  tiie  attorney,  pursuant  to  2  Geo. 
4,  c.  23,  s.  23.  Field  v.  Becant,  2  Nev.  &  M. 
207 ;  5  B.  &  Adol.  357.  204 

Payment  of  bill.  James  v.  Child,  2  <C.  <k  J. 
678 ;  2  Tyr.  732.  204 


X.  liiXH  FOB  Costs. 

Lien  of  mortgagee's  attorney.  Ogle  r.  Story, 
I  Nev.  &  M.  474;  4  B.&  Adol.  735.  1^ 

A.,  the  attorney  of  B.,  an  intended  mortgages, 
has  no  lien  as  against  C,  the  intended  mortgagor, 
fyr  the  costs  of  preparing  the  mortgage  upon 
deeds  delivered  by  C.  to  B.,  and  by  the  latter 
handed  over  to  A  for  the  purpose  of  investigating 
C.'s  UUe.    Pratt  v.  Vizard,  2  Nev.  AM.&S.l 

B.  &  Adol.  808.  204 

An  attorney  has  no  right  as  against  his  client 
to  retain  money  in  his  nands  which  he  has  re- 
ceived as  attorney  for  his  client,  even  though  it 
should  be  the  proceeds  of  an  execution  against 
the  goods  of  a  defendant  who  objects  to  the 
amount  levied,  and  who  has  a  rule  then  pending 
before  the  Master,  calling  on  the  plaintiff  or  his 
attorney  to  refund  part  of  the  money.  Sibley  9. 
Leicester,  2  Dowl.  P.  C.  234.  204 

Where  a  defendant  is  entitled  against  the 
plaintiff  to  be  released  from  a  verdict  obtained 
against  him,  the  court  will  not  abstain  from  in- 
terfering, on  the  ground  of  the  lien  of  the  plain- 
tiff's attorney  upon  the  verdict  for  his  costs. 
Symons  v.  Blake,  2C.  M.  &  R.416 ;  4  Dowl.  P. 

C.  263  ;  1  Gale,  182.  204 


[ATTORNEY  AND  SOLICITOR—BAIL] 


2325 


TIm  lien  of  an  attorney  is  only  eo-extenaive 
with  the  rights  of  his  client,  ana  therefore,  as 
between  the  plaintiff  and  defendant,  the  lien  of 
the  pliintiff's  attorney  cannot  affect  the  right  of 
the  defendant.     Id. 

Ad  attorney  is  not  justified  in  proceeding  with 
to  setion  afler  it  has  been  settled  between  the 
Mrties  themselres,  thongh-it  is  known  that  costs 
MTe  been  incarred,  and  that  the  plaintiff  himself 
is  not  in  a  condition  to  pay  them ;  it  must  be 
■howo  affirmatively,  that  the  settlement  was 
come  to  for  the  purpose  of  cheating  the  attorney. 
Jordan  v.  Hvint,  3  Dowl.  P.  C.  666;  1  Gale,  159. 

204 

The  lies  of  an  attorney  cannot  be  affected  by 
t  reference  of  the  cause  and  all  matters  in  dispute 
between  the  parties.  Cowell  v.  Betteley,  4  M.  di; 
Scott,  2GS ;  10  Bing.  432 ;  2  Dowl.  P.   C.  780. 

205 

Where  an  attorney  has  a  lien  for  his  costs  upon 
t  sum  recnyered,  and  gives  notice  to  the  attorney 
for  the  opposite  party  to  have  his  lien  made  avail- 
able before  a  fin^  settlement  between  the  parties ; 
if  ifierwards  a  final  settlement  be  made,  without 
having  the  lien  made  available,  the  attorney  hav- 
ing the  lien  may  proceed  with  the  cause  for  the 
exciosiye  parpose  of  securing  his  costs.  Fleury 
«.  Heath  (Earl),  1  Aloock  ^  Napier,  88,  {Irish,) 

206 

« 

Semble,  that  it  is  a  better  course  to  apply  to 
the  court  on  motion,     id. 

Where  iha  plaintiff  and  defendant  compromise 
Reaction  without  consulting  the  plaintiff's  at- 
torney, the  interference  of  the  court  upon  mo- 
tion 18  an  equitable  jurisdiction,  and  tne  court 
vUl  not  assist  the  attorney  unless  he  come  in 
with  clean  hands.  Sheppard  «.  Sherrock,  1  Al- 
€oek  &  Napier,  93^  (Msh).  206 

The  attorney's  right  to  lien,  under  Reg.  H.  T.  2 
Win.  4,  No.  93,  extends  to  costs  taxed  as  between 
ittoney  and  client.  Waston  v.  Masckall,  1 
8wtt,158;  1  Bing.  N.  R.  366j  3  Dowl.  P.  C. 
638;  1  Hodges,  73.  206 

Where  one  judgment  is  set  off  against  another 
the  lien  of  an  attorney  does  not  extend  beyond  his 
Cttti  in  the  particular  cause.    Id. 

Where,  in  an  action  of  trespass,  a  verdict  is 
firand  against  one  defendant,  but  in  favor  of 
another,  the  costs  may  be  set  off,  notwithstand- 
ing the  efiect  of  it  would  be  to  deprive  the  attor- 
ns of  his  lien.  Reg.  H.  T.  2  Will.  4,  does  not 
*pply  to  such  a  case.  George  v,  Elston,  1  Scott, 
W8;  3  Dowl.  P.  C.  419;  1  Bing.  N.  R.  513;  1 
Hodges,  63.  -  206 

4»tf  in  Uncn."] —  If  a  London  agent  receives 
"oney  improperly,  the  remedy  of  the  client  is 
iKt  against  him,  but  against  his  attorney.  Gray 
••  Ki%,  2  Dowl.  P.  C.  601.  262 

Where  an  aCBdavit  is  reported  to  be  scandal- 
^  the  agent  in  London,  who  files  the  affidavit, 
■  reapoiMile  for  the  costs  as  between  attorney 
*nd  Client,  notwithstanding  the  country  attorney 
>ny  have  himself  drawn  the  affidavit.  £x  parte 
^«lke,3  Deao.dk  Chit  246.  207 


Xn.   Chakoe  of  AtT0RNJ£8. 

In  all  cases,  the  order  for  changing  an  attor- 
ney must  be  served  on  the  opposite  party.  Rex  v. 
Middlesex  (SheHff),  2  Dowl  P.  C  147.  208 

Where  a  defendant  pleaded  by  an  attorney  who 
was  in  partnership,  and  the  partnership  was  after- 
wards disaolved ;  and  the  other  partner  took  a  step 
in  the  cause,  which  the  plaintiff's  attorney  re- 
cognized ;  the  court  refused  to  set  aside  the  pro- 
ceedings for  want  of  an  order  to  change  the  attor- 
ney. Farley  v.  Hebbs,  3  Dowl.  P.  C.  538;  1  Har. 
A.  WoU.  203.  208 

If  the  attorney  on  the  record  is  changed,  with- 
out an  order  for  that  purpose,  but  the  opposite 
party  treats  the  new  attorney  as  the  attorney  in 
the  cause,  he  cannot  afterwards  object  that  no 
order  was  obtained.  Id. 


AUDITA  QUERELA. 

The  court  will  relieve  on  motion,  instead  of 
putting  a  party  to  his  audita  querela,  where  the 
case  is  clear,  but  not  otherwise  ;  and,  therefore, 
where  a  plaintiff,  afler  he  recovered  damages  in 
an  action  of  slander,  for  words  imputing  telony, 
was  convicted  and  attainted  for  felony,  and  the 
defendant  in  the  action  was  a  witness  against  him, 
the  court  refused  to  interfere,  by  staymg  all  fur- 
ther proceedings  in  the  action,  though  the  crown 
declined  to  interfere.  Symons  v.  Blake,  4  Dowl. 
P.  C.  263 ;  2  C.  M.  ife  R.  416 ;  1  Gale,  182.      209 


BAIL. 

Form  of  Bail-Bond.] — A  bail-bond  conditioned 
to  appear  in  eight  days  afler  the  date  (the  arrest 
having  been  on  the  same  day) : — Held  sufficient. 
Evans  q.  t.  v.  Moseley,  2  Dowl.  P.  C.  364 ;  S.  C. 
nom.  Evans  v.  Shropshire  (Sheriff),  4  Tyr.  169. 

211 

An  attorney  ought  not  to  prepare  a  bail-bond 
for  a  larger  sum  than  is  requisite  according  to  the 
practice  of  the  court  Wingrave  v.  Grodmond, 
6  C.  &  P.  66— Tindal.  211 

Where  the  sheriff  has  taken  only  one  surety  to 
the  bail-bond,  the  court  will  set  aside  an  attach- 
ment against  him  for  not  bringing  in  the  body  on 
payment  of  costs,  at  the  instance  of  the  bail,  though 
it  would  not  do  so  on  his  own  application.  Rex  v. 
Middlesex  (Sheriff),  2  Dowl.  P.  C.  140.  211 

The  sheriff  took  a  bail-bond  with  one  surety 
only ;  he  afterwards  'made  a  day's  defiiult  in  re- 
turning the  writ.  The  court  set  aside  an  tittach- 
ment  obtained  against  him  on  payment  of  costs. 
Rex  V.  Surrey  (Sheriff),  2  C.  M.  &  R.  696;  1 
Tyr.  A  G.  32.  211 

A  bail-bond  is  a  nullity,  if  executed  without 
filling  in  blank  spaces  left  for  the  name  of  the 
party  to  whom  the  copy  of  the  writ  has  been  de- 
livered, and  for  the  name  of  the  party  upon  whose 
putting  in  special  bail  the  bond  is  to  be  void. 
Holding  V.  Raphael,  5  Ney.  &  M.  655 ;  1  Har.  dt 
WoU.OT.  211 

In  an  action  against  the  sheriff  for  an  escape, 
the  production  of  a  bond  so  executed  will  not, 


[BAIL] 


tfacrefoiv,  lopport  a  plea  mstifym^  by  reason  of 
iHTiiif  taken  a  bail-bond  with  a  condition,  aob- 
•eribed  according  to  the  atatnie.    Id. 

Disekarfe  of  BoiZ-BoiiJ.]— Althongh  a  bail- 
bond  ia  £iTen,  a  render  maj  be  accepted  at  any 
time  within  eight  days  from  the  time  of  the  arrest. 
Ttuner  v.  Brown,  2  I>owl.  P.  C.  547.  212 

The  Uniformity  of  Proces*  Act,  2  WiU.  4,  c.  39, 
ached.  No.  4,  repeab  lect.  24  of  the  first  geueral 
rale  of  Hilary  term,  2  Will.  4  ;  and,  therefore,  if 
*  P^y  ^'«  to  ^1  o^  a  capias  do  not  pat  in 

r;iaJ  bail  within  eight  days  afler  ezecation  of 
process  upon  him,  inclading  the  day  of  such 
ezecntion,  the  plaintiff,  immediately  on  the  expi- 
ration of  that  time,  may  put  the  bail-bond  in  suit. 
HillaiT  V.  Rowles,  5  B.  &  Adol.  460;  2  Dowl.  P. 
C.aoL  213 

When  to  proceed.  Alston  v.  Underbill,  2  Dowl. 
P.  C.  26;  1  CAM.  492;  3  Tyr.427.  213 

Time  given  to  principal.  Woosman  v.  Pryce, 
1  C.  &  M.  352 ;  3  Tyr.  375.  213 

The  assignment  of  a  bail-bond  without  more  is 
not  a  step  m  a  cause.    Id. 

^  A  defendant  who  has  been  arrested  on  a  capias 
since  the  Uniformity  of  Process  Act,  and  given  a 
bail-bond,  cannot  discharge  the  bail-bond  by  a 
surrender  into  actual  custody  within  eight  days 
after  the  arrest.  Hodson  v.  Mee,  5  Nev.  &  M. 
a02 ;  1  Har  A  Woll.  398.  213 

And  if  the  plaintiff  omit  to  declare  de  bene 
esse,  when  he  is  at  liberty  to  do  so,  be  is  not  en- 
titled to  have  the  bail-bond  stand  as  a  aecurity. 
Id. 

if  one  of  the  bail  below  consents  to  time  being 
given  to  the  defendant  to  perfect  bail  above,  this 
act  is  binding  on  both.  Howard  v.  Bradberry,  3 
Dowl.  P.  C.  92.  1213 

Notice  of  render  having  been  given  to  plaintiff's 
attorney,  be,  notwithstanding, took  an  assignment 
of  the  bail-bond,  and  commenced  proceedmgs,  as 
no  notice  of  bail  had  been  given,  and  no  entry  of 
the  render  could  be  found  on  searching  the 
books : — Held,  that  the  proceedings  were  irregu- 
lar.   Short  V.  Doyle,  4  Dowl.  P.  C.  202.         213 

JtsMignmeni  of  Bail^ Bond.]— The  assignment 
of  a  bail-bond  must  be  executed  in  the  presence 
af  two  witnesses,  but  it  is  not  necessary  that  they 
should  both  subscribe  their  names  in  the  presence 
of  the  officer  assigning.  Phillips  v.  Barlow,  or 
Barber,  1  Scott,  322 ;  1  Bing.  N.  A.  433;  3  Dowl. 
P.  C.d81;6C.  d:P.  781.  214 

An  assignment  of  a  bail-bond  is  invalid,  if 
executed  m  the  presence  of  and  atteated  by  the 
plaintiff  ia  the  action  and  another  person ;  the 
Stat  4  Anne,  c.  16,  s.  20,  requiring  the  assign- 
ment to  be  made  to  the  plaintiff  in  the  presence 
of  two  "credible**  witnesses,  which  means  disin- 
terested persons.  White  v.  Barrack,  1  Mee"^.  & 
WeU.  42S.  214 

A  bail-bond,  taken  under  an  attachment  for  not 
putting  in  an  answer,  cannot  be  assigned.  Mel- 
Ut  V.  Palfiayman,  1  Nev.  At  M.  696.  215 


The  creditor'a  remedy  iaby  action  in  the  name 
oftheaheriff.    Id. 

An  action  by  the  aasignee  of  a  bail-bond  must 
be  brought  in  the  court  out  ni  which  the  bailable 
process  issued.  Id. 

A  bail-bond  was  given  to  the  sheriff  on  the 
24th  of  November,  and  it  recited,  that  the  de- 
fendant had  been  arrested  on  the  17th :  bail  above 
not  having  been  put  in  within  due  time  afler  the 
17th,  the  plaintiff  took  an  assignment  of  the  bond. 
Upon  a  motion  to  aet  aside  the  assignment  as 
having  been  made  too  early,  upon  an  affidavit 
that  the  recital  ia  the  bond  was  ftlse — that,  in 
fact,  no  arrest  was  made,  but  only  a  letter  sent, 
and  that  therefore  the  writ  could  not  be  .said  to 
be  executed  till  the  24th,  when  the  bond  was 
given,  the  court  reftned  to  interfere.  Call  v, 
Thelwall,  3  Dowl.  P.  C.  443 ;  I  C.  M.  &  R.  780 ; 

5  T>r.  231 ;  I  Gale,  16.  215 

Action  on  BaiUBond.'] — It  is  no  plea  to  debt 
on  bail-bond,  that  there  was  no  affidavit  of  debt 
filed  in  the  action  against  the  principal.  Knowlea 
V.  Stevens,  1  C.  M.  &  R.  26;  4  Tyr.  1016:  S.C. 
nom.  Snow  v.  Stevens,  2  Dowl.  P.  C.  664.      216 

In  an  application  by  bul  to  stay  proceedings 
on  a  bail-bond,  collusion  with  the  defendant  miut 
be  denied  by  both  the  bail.    Dowson  v.  Cull,  2  C. 

6  J.  671.  217 

The  court  of  Exchequer  will  stay  proceedings 
on  the  bail-bond,  (when  bail  above  is  put  in  and 
perfected),  on  payment  of  costs,  if  it  i^ppear  that 
a  trial  has  not  been  lost,  without  an  affidavit  of 
merits,  and  without  complying  with  the  rule  of 
Michaelmas,  59  Geo.  3,  *K..  B.,  which  is  not 
adopted  in  the  Exchequer.  Bourke  o.  Bourne,  2 
Dowl.  P.  C.  250;  S.  C.  nom.  Bourne  o.  Walker, 
2  C.  &  M.  338;  nom.  Walker  v.  Bourne,  4  Tyr. 
121.  217 

It  is  irregular  to  sue  out  process  on  a  bail-bond 
after  the  rule  for  the  allowance  of  bail  has  been 
served,  although  the  bail-bond  has  been  forfeited, 
and  an  assignment  has  been  written  for  before  the 
justification  of  the  bail.  Ellis  v.  Bates,  2  C.  db 
M.  143 ;  4  Tyr.  54.  217 

In  making  the  rule  to  set  aside  such  proceed- 
ings absolute,  the  court  directed  the  costs  of  tak- 
ing an  assignment  of  the  bail-bond,  which  had 
been  occasioned  by  the  defendant's  de&ult,  to  be 
allowed  to  the  plaintiff,  and  to  be  deducted  from 
the  costs  of ,  the  rule.    Id. 

Though  a  plaintiff  is  not  bound  to  declare  de 
bene  esse ;  yet,  if  he  do  not,  he  cannot  say  that 
he  has  lost  a  trial,  so  as  to  have  the  bail-bond  stand 
as  a  security  on  setting  aside  proceedings  upon 
the  bail-bond.  Balmont  «.  Morris,  1  C.  dt  M. 
661 ;  3  Tyr.  821.  218 

Where  two  of  three  parties  to  a  bail-bond  were 
sued  jointly : — Held  to  be  no  irregularity .  Knowlea 
V.  Johnson,  2  Dowl.  P.  C.  653.  219 

Where  several  actions  are  brought  on  the  same 
bail-bond,  it  is  too  late,  after  verdict,  to  move  to 
stay  proceedings  on  payment  of  the  costs  of  one 
action  only.  Johnson  v.  Macdonald,  2  Dowl.  P. 
C.45.  219 


[BAIL] 


2327 


The  Blaintiff  declared  in  the  commencement 
of  his  declaration,  as  assignee  of  the  sheriff,  and 
then  set  forth  a  bond  to  himself : — Held,  no  ground 
of  demurrer.     Reynolds  v.  Walsh,  1  C.  M.  ^  R 
580 ;  5  Tyr.  202 ;  3  Dowl.  P.  C.  441.  215 

Where  there  has  been  delay  in  applying  to 
the  court  to  haye  a  bail-bond  set  aside,  which  has 
arisen  from  compliance  with  the  request  of  the 
plaintiff: — Held,  that  it  could  not  be  objected 
that  the  application  was  not  made  in  a  reasonable 
time.     Gould  v.  Williams,  1  Har.  &  WoU.  344. 

2J7 

Where  prooedings  were  taken  on  a  bail-bond 
before  defiiult  in  the  original  action,  the  mode  of 
taking  the  objection  is.  by  movinor  to  set  aside 
the  writ  itself,  and  not  the  service  ox  it.  Edwards 
«.  Danks,  4  l>owl.  P.  C.  357.  217 

Proceedings  against  bail  to  the  sheriff,  are  not 
waived  by  the  plaintiff  declaring  de  bene  esse  in 
the  original  action,  afler  the  bailhave  been  served 
with  process.  Vernon  v.  Turley,  4  Dowl.  P.  C. 
660 ;  2  Mees.  &  Wels.  316.  215 

Though  the  defendant  is  sued  jointly  with  the 
bail,  proceedings  in  the  action  may  be  stayed  on 
the  application  of  the  latter  only.  Stride  v.  Hill, 
4  Dowl.  P.  C.  709 ;  1  Mees.  &  Wels.  37.         217 

To  have  the  bail* bond  stand  as  a  security,  it 
must  appear  that  a  trial  was  lost  at  the  time  of 
moring  for  the  rule.    Id. 

In  an  action  against  the  defendant  and  bail,  on 
a  bail-bond,  the  affidavits  in  support  of  a  rule  for 
setting  aside  proceedings,  mav  be  intituled  eitlier 
in  the  original  action,  or  in  that  against  the  bail 

I!^  in  consequence  of  bail  not  being  put  in  and 
perfected,  the  plaintiff  obtains  an  attachment 
against  the  sheriff,  without  having  declared  de 
bene  ease,  the  latter  may  Wt  aside  the  attachment 
upon  the  defendant  being  rendered,  without  the 
attachment  or  b^l-bond  standing  as  a  security. 
Rez  V.  Harrington,  2  Dowl.  P.  C.  648.  218 

The  plaintiff  is  not  entitled  to  insist  upon  the 
bail-bond  standing  as  a  security,  where,  the  de- 
fendant not  being  in  custody,  the  plaintiff  has  not 
declared  de  bene  esse.  Call  v.  Thelwall,  1  CM. 
&  R.  280;  5  Tyr.  231 ;  3  Dowl.  P.  C.  443;  1 
Gale,  16.  218 

On  an  application  by  the  bail  to  stay  proceed- 

Xon  the  bail-bond  on  payment  of  costs,  the 
avit  stated  that  the  application  was  made  by 
them  at  their  own  expense,  and  for  their  own  in- 
demnity : — Held,  that  the  affidavit  was  irregu- 
lar for  not  complying  with  the  rule  59  Geo.  3 
Id. 

The  plaintiff  cannot  have  the  bail-bond  to  stand 
as  a  security  where  he  has  not  declared  de  bene 
esse,  although  he  was  prevented  from  declaring 
by  the  vacation.  Stanies  v.  Stoneham,  2  C  M .  &. 
1L658;  4  Dowl.  P.  C.  678.  218 


Diponi  of  money.] — Where  money  is  paid  into 
cmnt  mider  the  7  d&  8  Greo.  4,  c.  71,  in  lieu  of 
kuif  and  issue  is  joinf  d,  an  application  to  take  it 
out  most  be  made  before  issue  joined.  Han  well 
a.  Mure,  2  Dowl.  P.  C.  155.  220 


Where  a  motion  is  to  be,  made  to  take  out 
money  paid  into  court  by  a  defendant  in  lieu  of 
bail,  notice  of  the  motion  should  be  given  to  the 
solicitor  of  the  treasury.  Haines  v.  Nairn,  2 
Dowl.  P.  C.  43.  220 

Semble,  that  poundage  cannot  be  claimed  on 
money  so  paid  in,  where  it  is  not  sufficient  to 
satisfy  the  amount  of  the  plaintiff's  verdict.  Id. 

Where  money  has  been  paid  into  court  in  lieu 
of  bail,  the  plaintiff,  on  moving  to  have  it  paid 
out  to  him,  is  entitled  to  the  costs  of  the  applica- 
tion. Freeman  v.  Paganini,  4  M.  &  Scott,  165  ; 
2  Dowl.  P.  C.  776.  221 

The  court  cannot  allow  part  of  a  sum  paid  into 
court  in  lieu  of  special  bail,  to  be  appropriated  to 
the  purposes  of  a  plea  of  tender — the  3rd  section 
of  the  7  &  8  Geo.  4,  c.  71,  expressly  pointing  out 
the  only  mode  in  which  money  so  deposited  can, 
during  the  progress  of  the  cause,  be  released,  viz. 
by  putting  m  and  perfecting  special  bail.  Stultz 
V.  Heneage,  4  M.  «&  Scott,  472 ;  2  Dowl.  P.  C. 
806.  221 

Where  a  defendant  has  paid  the  debt,  and 
lOZ.  for  costs,  to  the  sheriff  in  lieu  of  bail,  under 
the  43  Geo.  3,  c.  46 : — Held,  that  he  has,  under 
7  (&  8  Geo  4,  c.  71,  till  the  day  for  perfecting 
special  bail,  to  pay  in  the  additional  10^.  for  costs. 
Strafford  v.  Love,  3  Dowl.  P.  C.  593 :  S.  C.  nom. 
Stafford  v.  Love,  1  Har.  &  WoU.  195.  220 

And  where,  previous  to  that  day,  a  bona  fide 
correspondence  to  settle  the  action  commenced, 
which  did  not  terminate  until  afler  that  day,  and 
on  the  termination  the  defendant  paid  in  the  KU. 
additional : — Held,  that  the  plaintiff  was  not  en- 
titled to  have  the  debt  and  costs  paid  out  of  court 
to  him.    Id. 

If  a  defendant  has  deposited  money  in  lien  of 
bail,  which  the  sheriff  pays  into  court,  he  is  enti- 
tled to  take  it  out  on  justifying  bail  in  due  time. 
Young  v.  Maltby,  3  L»owl.  P.  C.  604 ;  1  Har.  & 
WoU.  214.  220 

An  affidavit  by  the  defendant,  on  taking  money 
out  of  court  which  had  been  deposited  in  lieu  of 
bail,  stating  tliat  bail  had  been  put  in,  but  not 
stating  "  in  due  time  :" — Held  sufficient.    Id. 

If  a  defendant  deposits  money  in  the  hands  of 
the  sheriff,  pursuant  to  the  43  Geo.  3,  c.  46,  s.  2, 
which  is  paid  into  court,  the  defendant  will  not  be 
allowed  to  take  it  out,  unless  he  has  put  in  bail 
according  to  the  exigency  of  the  capias,  although 
such  a  deposit  is  not  mentioned  in  the  warning 
attached  to  that  writ.  Geach  v.  Coppin,  3  Dowl. 
P.  C.  74.  220 

If,  however,  bail  has  been  perfected,  but  not  in 
due  time,  before  the  plaintiff  takes  the  money 
out,  he  must  make  his  election  as  to  which  secu- 
rity he  will  take.    Id. 

Money  paid  into  court  in  lieu  of  bail,  cannot 
be  transierred  to  the  account  of  a  payment  into 
court.  Ball  v,  Stafford,  2  Scott,  421;  4  Dowl. 
P.  C.  327 ;  1  Hodges,  316.  290 

Before  bail  are  perfected,  or  until  the  time  for 
excepting  to  them  has  jsassed,  the  defendant  is 
entitied  as  a  matter  of  right  to  pi^  in  the  debt, 
with  a  sum  for  costs,  under  the  7  &  o  Geo.  4,  c.  71 , 


2328 


[BAIL] 


f .  3 ;  and,  therefovp,  t&ou^b  he  does  not  pay  in 
the  money  until  after  he  liaa  pat  in,  thongh  not 
joftified  bail  above,  and  the  plaintiff  has  been  put 
to  expenw  by  searching  for  them,  and  makioff  in- 
qairies,  the  defendant  is  not  liable  to  pay  uose 
expenses,  but  they  are  properly  costs  in  the  cause. 
Stanforth  or  Stanford  r.  M'Uann,  4  Dowl.  P.  C. 
367;  2C.  pi.&R.  631.  230 

Where  money  is  paid  into  court  under  the  stat 
7  &  8  Geo.  4,  c.  71,  s.  2,  in  lieu  of  special  bail,  it 
can  only  be  taken  out  on  putting  in  and  perfect- 
ing bail,  notwitlistandlnff  it  has  been  paid  in  with- 
out prejudice  to  an  application  to  the  court  for 
defects  in  the  affidavit  of  debt.  Green  v.  Glas- 
brooke.l  Scott,  4C2;  1  Bing.  N.  R  516;  1  Hodges, 
27.  220 

A  defendant  who  deposits  money  with  the  she- 
riff in  lieu  of  bail,  is  not  in  court,  so  as  to  demand 
a  declaration,  until  the  money  is  actually  paid 
into  court,  though  the  sheriff  has  returned  that 
he  has  paid  in  the  money,  and  the  plaintiff  has 
consented  to  the  defendant  entering  a  common 
appearance,  and  paying  into  court  ue  additional 
1(M.,  under  the  7  A;8  Geo.  4,  c.  71,  s.  1.  Hall  v. 
Champneys,  4  Dowl.  P.  C.  713.  221 

Money  deposited  by  a  third  person,  in  lieu  of 
special  bail,  cannot  be  got  back  bv  application  to 
thie  court,  on  the  defendants  rendering ;  it  must 
lemain  in  court  to  abide  the  event  Bull  v.  Tur- 
ner, 4  Dowl.  P.  C.  734  ;  1  Mees.  &  Wels.  47.  220 

Where  money  is  paid  int^  court  in  lieu  of  bail, 
not  by  the  defendant  himself,  but  by  one  of  the 
bail,  and  the  plaintiff  obtains  judgment,  he  is  en- 
titled to  have  -the  money  paid  out  to  him  in  dis* 
charge  of  the  debt  and  costs.    Id. 

A  plaintiff  is  not  entitled  to  receive  out  of 
enurt,  money  paid  in  b^  a  defendant  in  lieu  of 
bail,  under  the  7  &  8  deo.  4,  c.  72,  s.  2,  unless 
jodgaient  has  been  obtained,  or  the  suit  otlier- 
wise  legally  determined.  Johnson  v.  Wall,  4 
Dowl.  P.  C.  315.  220 

Where  the  friend  of  a  party  arrested  makes  a 
deposit  of  his  own  money  on  the  defendant's  be- 
half, in  lien  of  bail,  and  the  sum  is  ailerwards 
paid  into  court  to  abide  the  event  of  the  suit,  and 
the  defendant  then  renders,  the  owner  of  the 
money  may  have  it  restored  to  him  on  motion, 
under  stat.  7^8  Geo.  4,  c.  71,  s.  5,  if  the  defen- 
dant appears  in  court  and  assents.  For  this  pur- 
pose the  render  is  equivalent  to  putting  in  and 
r^rfecting  special  bail.  Douglass  i7.  Stanbrongh, 
Adol.  &  Ellis,  316.  2^ 

A  sheriff,  against  whom  an  action  for  falsely 
returning  that  money  deposited  with  him  by  a 
del^dant,  in  lieu  ot  bail,  had  been  paid  into 
court,  had  been  brought,  was  allowed  to  pay  into 
court  in  the  original  action  the  money  so  deposit- 
ed, though  the  plaintiff  had  been  delayed  two 
months  by  the  sheriff's  neglect.  Hall  v,  Jones, 
4  Dowl.  P.  C.  712.  221 

Where  the  action  has  been  commenced  in  an 
inferior  court,  without  process,  against  the  per- 
■on,  and  afterwards  removed,  semble,  that  the 
defendant  cannot  pay  mooev  into  court  in  lieu  of 
tpeeial  ImH.    Morgan  «.  redlar,  4  Dowl.  P.  C. 

25tt 


The  rnle  for  taking  money,  deposited  ii^  lieu 
of  bail,  out  of  court,  in  consequence  of  the  plain- 
tiff becoming  nonsuit,  is  nisi  in  the  first  instance. 
Grant  v.  Willis,  4  Dowl.  P.  C.  581.  221 


Q^aaiifiaUion  of  Bail.'] — ^In  justifying  for  bail, 
where  the  qualifying  property  consisted  of  money 
deposited  in  the  hands  of  bail  to  indemnify  him, 
the  qualification  was  held  insufficient.  NichoUs' 
bail,  Hodges,  77.  223 

Keeping  a  brothel  is  not  of  itself  a  ground  for 
rejecting  bail.     Gouge's  bail,  3  Dowl.  P.  C.  320. 

223 

Although  bail  are  unopposed,  the  court  will 
not  allow  them  to  justify,  if  it  has  been  satisfied 
in  a  previous  case  that  they  are  unfit  Laporte's 
bail,  3  Dowl.  P.  C.  110.  223 

PutUng  in.  Bad.]— Tha  2  Will.  4,  c.  39,  ex- 
cepting the  period  between  the  10th  of  August 
and  24th  of  October,  is  applicable  only  to  de- 
clarations and  pleadings  after  declaration  ;  and  & 
defendant  arrested  within  that  interval  must  put 
in  and  justify  bail  before  a  judge  at  chambers,  in 
the  same  way  as  in  any  other  part  of  the  vaca- 
tion.   Rex  V.  Middlesex  (Sheriff),  2  C.  dt.  M.  333 ; 

2  Dowl.  P.  C.  286 ;  4  Tyr.  60.  224 

Where  a  defendant  is  arrested  upon  an  alias 
or  pluries  capias,  issued  into  another  county,  the 
derendant  must  put  in  bail  in  the  county  where 
he  was  arrested.  Reg.  Gen.  M.  T.  4  Will.  4,  K. 
B.,  C.  P.,  and  Exch. :  S.  P.  Rex  v.  Essex  (Sheriff), 

3  M.  d^  Scott,  870.  224^ 

The  14th  rule  of  H.  T.  2  Will.  4,  is  virtuaUr 
rescinded  by  the  statute  2  Will.  4,  c.  39,  sched. 
No.  4.  Tfaierefore  a  defendant  arrested  on  a 
writ  of  capias  has  only  eight  days  to  put  in  spe- 
cial bail,  whether  in  a  town  or  a  country  oanse. 
Grant  v,  Gibbs,  1  Scott,  390;  3  Dowl.  P.  C. 
409 ;  1  Hodges,  56.  224 

And  such  bail  is  not  deemed  to  be  put  in  until 
notice  thereof  served  on  the  plaintiff  *s  attorney 
or  agent.    Id. 

Where  bail  are  put  in  to  render,  no  notice  of 
their  having  been  put  in  is  necessary.  Wilson  «. 
Griffin,  3  C.  <&  J.  683.  226 

A  notice  of  bail  describing  him  as  a  house- 
keeper is  insufficient,  if  he  is  only  a  lodger, 
although  on  examination  it  appears  that  he  is 
a  freeholder.     Wilson's  bail,  2  Dowl.  P.  C.  431. 

226 

The  objection  to  a  notice  of  bail,  that  the  num- 
ber of  the  street  is  not  stated,  must  be  taken  in 
the  first  instance ;  and  it  is  waived  by  obtaining 
time  to  inquire,  unless  it  is  sworn  that  the  bail's 
residence  cannot  be  found.\  Foster's  bail,  2  Dowl. 
P.  C.  586.  227 

If  a  bail  has  two  places  of  residence,  it  is  only 
necessary  to  state  one  of  them  in  the  notice. 
Fortescue's  bail,  2  Dowl.  P.  C.  541.  227 

A  notice  of  bail  did  not  state  the  nnmbers  of 
the  houses  where  the  bail  resided,  upon  which 
ground,  the  bail  having  been  foimd  and  being 


(BAIL] 


3339 


634. 


the  plaintiff  had  the  coits  of  his  ap- 
to  <^poae.    innifl  9.  Smith,  \2  C.  &  J. 

227 

It  18  sufficient  if  the  notice  of  bail  by  a  pri- 
soner be  signed  by  him  as  being  "  in  custody," 
tfaoQgh  it  does  not  state  in  the  usual  way  that 
he  is  a  priaoner.  Frith's  bail,  2  Dowl.  P.  C. 
a».  226 

Informality  in  the  notice  of  bail.  Rex  v. 
Middlemex  (Sheriff),  1  C.  &  M.  482:  3  Tyr 
440.  & 

Notice  of  bail.  Ward's  bail,  3  Tyr.  208 ;  1  C. 
&  M.  28;  1  Dowl.  P.  C.  536.  228 

Where  the  notice  of  bail  omitted  to  state  the 
residences  of  the  bail  for  six  months,  and  whether 
they  were  housekeepers  or  freeholders  .—Held, 
Ihit  this  was  not  such  a  defect  as  entitled  the 
plaintiff  to  treat  it  as  a  nullity,  and  an  attach- 
ment against  the  sheriff  was  set  aside.  Rex  v. 
Middlesex  (Sheriff),  2  Dowl.  P.  C.  5;  1  C.  &  M. 
482.  228 

A  plaintiff  cannot  take  proceedings  on  the 
baiVbond  on  the  ground  of  an  informality  in  the 
notice  ofbail.  Wigley  r.  Edwards,  2  C.  &  M.  320 ; 
20OW1.  P.  C.  aaf;  4  Tyr.  235.  22Q 

In  future,  it  is  not  to  be  considered  necessary 
to  state  in  a  notice  of  bail  that  the  baiUpiece 
hss  been  filed  "  with  the  filacer  at  the  proper 
oflice."    id. 

A  notice  of  bail' describing  them  as  of  a  parish 
Bjerely  is  sufficient.  Treasurer's  bail,  2  Dowl. 
P.  C.  670.  228 


An  affidavit  of  justification  giving  the  depo- 
nent's residence  without  hia  addition  is  bad.  Id. 

A  noliee  of  bail  emitting  to  state  the  residence 
of  the  bail  **  fiw  the  last  six  months,"  is  an  irre- 
gnlanty  of  which  the  court  will  take  notice,  though 
the  bail  be  unopposed.  Sy  wood  v,  Dogherty,  1 
Scott,  79.  ^       ^^28 

If  the  defendant  be  a  prisoner,  the  notice  of 
bail  must  sUte  that  fact.  Fuller's  bail,  5  Tyr. 
491.  1^ 

fofep£Mm.]— The  want  of  entry  in  the  book 
of  the  notice  of  exception  is  waived  by  giving 
notice  of  justification.  Hanwell's  bail,  3  DowL 
r.  C.  425.  228 

After  bail  had  Justified,  the  plaintiff  not  haying 
excepted  to  them,  in  consequence  of  each  of 
IJem  positively  swearing  to  the  requisite  amount, 
tbe  plamtiff  discovered  that  they  were  both  in- 
wlvent:— The  court  refused  to  compel  the  de- 
fendant to  put  in  other  bail.  Lazarus  v.  Levaux, 
4  Dowl.  P.  C.  353,  228 

1  5^/-^  Justijicatian.]--^  Reg.  Gen.  T.  T. 
1  Will.  4,  as  to  givmg  four  days*  notice  of  jus- 
ijcation,  only  applies  where  the  bail  justify  at 
IJe  ume  of  putting  io.  Jones's  bail,  2  Dowl.  P. 
^- 1«3-  229 

.  If  notice  of  country  bail  is  given,  who  are  to 
justify  pursuant  to  the  old    pracUce,  the    four 


days'  notice  reautred  by  1  Reg.  Gen.  T.  T. 
1  Will.  4,  need  not  be  given.  Hardbottle  v. 
Ckrk,  4  Dowl.  P.  C.  12.  289 

The  days  between  Thursday  next  before,  and 
Wednesday  next  after  Easter-day,  are  not  to  be 
reckoned  in  notices  of  justification  of  bail.  Cnm- 
ming  r.  PuUen,  1  Scott,  638.  2829 

A  notice  of  justification  of  bail  omitted  to 
state  where  the  bail  resided  for  the  last  six  months, 
and  also  whether  they  were  householders  or  firee- 
holders  : — Held,  not  to  be  cured  by  the  affidavit 
of  justification  according  to  the  old  rules, 
though  it  contained  those  requisites;  and  time 
to  sinend  was  refused,  the  bail  having  been  put 
in  too  late ;  snd  also  the  costs  of  opposition. 
Real's  hail,  3  Dowl.  P.  C.  708.  229 

A  notice  to  justify  at  eleven,  all  parties  ap- 
pearing at  ten :— Held  sufficient.    Id. 

A  notice  of  justification  of  bail  at  charaben, 
not  specifying  the  hour,  is  a  nullity ;  and  though 
a  notice  of  waiver  of  the  first  notice,  and  a  fresh 
notice  of  justification  specifying  the  time,  were 
served  two  hours  afterwards,  yet,  being  too  late  : 
—Held,  that  the  plaintiff  was  justified  in  not 
attending  to  oppose  the  bail  .—Held,  also,  that 
the  plaintiff  was  entitled  to  move  to  set  aside 
the  allowance  of  bail,  though  a  judge  at  cham- 
bers had  decided  that  the  proceedings  were  rego- 
lar.  Staines  v.  Stoneham,  4  Dowl.T.  C.  678 ;  2 
C.  M.  &  K.  658.  ^ 

A  notice  of  justification,  which  stated  that  the 
bail  had  resided  for  the  last  six  months  at  the 
parish  of  W.,  without  stating  the  street,  &c., 
held  bad.    Hanwell's  bail,  3  Bowl.  P.  C.  425. 

A  two  days*  notice  of  justification  by  t  pri- 
soner, accompanied  by  an  affidavit  accordiair  to 
the  rule  of  T.  T.  1  Will.  4,  is  bad,  unless  it  ex- 
presses that  he  ts  a  prisoner.  Bullen's  bail  3 
Dowl.  P.  C.  422.  i» 


T  '^fCi/Mf^.i  """^^Siving  Time.]^The  rule  of 
1 .  1 .  1  WiU.  4,  as  to  changing  bail,  does  not  ap- 
^^J^  ^o  *^**^  ^^*  priioner.    Bird's  bail,  2  DowL 

231. 


P.  C.  683. 


The  fifth  rule  of  Hilary  Term,  1  Will.  4,  which 
prohibits  the  changing  of  bail  without  leave  of 
court  or  a  judge,  applies  to  the  case  of  baU  put 
in  by  the  sheriff  for  the  purpose  of  rendering  the 

Where  one  of  the  bail  put  in  for  a  prisoner 
justifies,  time  must  be  granted  for  juetilVinff 
another ;  if  neither  justified,  it  would  not  ha4 
been  necessary.    Foy's  bail,  2  Dowl.  P.  C.  442. 

232 

Tlie  4th  rule  of  T.  T.  1  WUl.  4,  which  directs, 
that,  if  a  plamtiff  does  not  give  one  day's  notice 
of  exception,  where  the  bail  justify  under  the 
new  rules,  the  recognizance  may  be  taken  out  of 
court,  does  not  apply  where  the  bail  are  put  in 
in  ttiat  niode  after  the  regular  time  for  putting 
in  bail  has  expired,  for  then  the  bail  must  ac- 


3S90 


[BAIL] 


tnallj  justify  ••  fiormerlj,  befine  a  motkni  can 
be  nMde  to  wt  aside  proceedings  npon  the  nootod 
that  bail  ha?e  been  pat  in  and  justified.  Rex  v. 
Wilson,  3  OowL  P.  C.  255.  231 

A  defendant  had  leaye  to  add  another  bail  on 
condition  of  making  an  affidavit  of  merits,  which 
he  did,  but  pleaded  a  plea  hy  which  the  merits 
•onld  not  come  in  qaestion.  This  was  held  not 
to  be  a  yirtnal  breach  of  the  condition. '  Riz  v. 
Kingston,  3  Dowl  P.  C.  158.  231 

Where  time  is  ifiTen  to  add  new  bail,  the 
rule  is  imperative  in  all  cases,  that  the  notice  of 
justification  of  new  bail  must  be  senred  before 
three  o'clock  of  the  day  on  which  the  order  for 
new  bail  was  granted,  riewton's  bail,  4  Dowl.  P. 
C.  270;  S.  C.  nom.  Sievers  v.  Newton,  1  Gale, 
171.  231 

Time  to  justify  bail  on  account  of  the  illness 
of  the  bail,  refused,  because  it  did  not  appear  on 
the  affidavit  that  he  was  really  ill.  Gablentz's 
baU,lHar.&.WoU.  111.  233 

JusUficatioji.] — Affidavit  of  justification.     Ro- 

fers  V.  Jones,  I  C.  &.  M.  323;  1  Dowl.  P.  C 
04;3Tyr.256.  236 

The  affidavit  of  justification  must  agree  with 
the  form :  it  is  not  sufficient  that  it  is  equii^ent. 
OkiU's  bail,  2  Dowl.  P.  C.  19.  236 

The  affidavit  of  sufficiency  made  by  bail  pur- 
suant to  the  rules  of  T.  T.,  must  state  the  bail  to 
be  ^  worth,"  and  not  '^  possessed  of,"  the  required 
sum.    Harrison's  bail,  2  Dowl.  P.  C.  198.        236 

If  bail  justify  by  affidavit,  which  states  that 
they  are  *^  possessed,"  instead  of  "  worth,"  Slc, 
the  plaintin  is  not  liable  to  pay  the  costs  of  an 
unsuccessful  opposition.  Thompson's  bail,  2 
Dowl.  P.  C.  50.  236 

Affidavits  of  justification,  which  merely  state 
that  the  bail  is  "  possessed,"  instead  of  **  worth," 
will  not  in  future  be  allowed  to  be  amended. 
Worlisen's  bail,  2  Dowl.  P.  C.  53:  S.  P.  Naylor's 
baU,  3  Dowl.  P.  C.  452.  236 

An  affidavit  of  iustification  stated  the  depo- 
nent to  be  possessed  of  a  certain  sum  "  over  and 
above  all  bis  just  debts :"— Held  sufficient 
Housley  v.  Boyd,  1  Scott,  698:  S.  C.  nom. 
Boyd's  bail,  1  Hodges,  93.  236 

An  affidavit  statins  that  the  deponent's  property 
consists  of  "  a  freehold  house  situate  witnout, 
dkc."  without  stating  its  value,  is  sufficient.     Id. 

An  affidavit  of  justification  of  bail,  describing 
bne  as  of  a  parish  which  contained  7000  inha- 
bitants, "  Ely,  in  the  county  of  Cambridge,"  but 
not  saying  of  any  street,  is  sufficient  Hunt's 
bail,  4  Dowl.  P.  C.  272;  1  Har.  &  WoU.  520. 

236 

Stating  that  the  bail  was  worth  property  to  the 
requisite  amount  "  over  and  above  his  just  debts," 
but  omitting  ^^  what  will  pay,"  is  also  sufficient. 
Id. 

Stating  that  he  was  not  bail  in  any  other  action 
for  any  defendant  is  also  sufficient.  Id. 


An  affidavit  of  sufficiency  mmt  give  the  addi- 
tion of  the  bail.    Morgan  v.  Stone,  1  Gale,  15. 

836 

An  affidavit  in  justification  of  bail,  omitting 
to  disclose  their  residence,  is  insufficient,  not- 
withstanding the  plaintiff  does  not  appear  to 
oppose.     Welsh  v.  Lywood,  1  Bing.  N.  K.  258. 

236 

Country  bail  stating  himself  to  be  a  house- 
keeper at  a  place  named,  but  not  that  he  was 
resident  there,  allowed  without  costs.  Heald's 
bail,  3  Dowl.  P.  C.  423:  S.  C.  nom.  Batley  v. 
Heald,  5  Tyr.  231;  236 

*'*■  €ventleman"  is  a  good  description  of  a  clerk 
in  the  postroffice.  Wood  v.  Ray,  4  Dowl.  P.  C 
698.  


The  place  where  the  affidavit  of  justification 
was  sworn  need  not  be  mentioned.    Id. 

Where  it  was  sworn  that  bail  justi^ng  by 
affidavit  was  an  infant,  time  was  given  tne  other 
party  to  answer,  without  payment  of  costs.  Hig- 
gin's  bail,  1  Hodges,  94.  ^ 

If  a  defendant,  in  justifying  his  bail,  >dopta 
the  new  practice  under  Reg.  Gen.  T.  T.  1  WiU. 
4,  he  must  conform  to  it  strictly  ;  and  therefore 
an  affidavit  of  sufficiency,  though  good  by  the 
old  practice,  but  deficient  by  the  new,  is  insuffi- 
cient.   Penson's  bail,  4  Dowl.  P.  C.  627.        236 

*^He's"  is  sufficient  in  an  affidavit  of  justifi- 
cation, instead  of  ^  he  is."  Lanyon's  bail,  3 
Dowl.  P.  C.  85.  836 

The  name  of  a  township,  without  the  name  of 
a  street,  stated  to  be  in  a  certain  parish  named  in 
the  notice  of  bail,  is  sufficient    Id. 

It  is  sufficient  for  a  bail  to  swear  to  property 
over  and  above  "  what  will  pay  his  debts."    Id. 

"  Debts,"  without  describing  them  as  "  book 
debts"  is  sufficient    Id. 

^'Teoman"  is  a  good  description  of  a  bail. 
Id. 


Costs  of  Justification.] — In  order  to  obtain  the 
costs  of  justifying  bail,  an  application  should  bo 
made  at  the  time  of  justification.  Fream  o.  Best» 
2  Dowl.  P.  C.  590.  237 

In  the  Exchequer,  if  bail  have  been  once  re- 
jected, a  deposit  must  be  made  for  coats  before  the 
second  set  of  bail  iustify,  in  the  case  of  countar 
as  well  as  town  bail.  Goodricke  v.  Turley,  2  C. 
M.  &  R  636 ;  S.  C.  nom.  Turley 's  bail,  4  Dowl. 
P.  C.  498.  237 

It  is  no  objection  that  bail  has  been  already  re- 
jected, unless  it  appear  that  he  was  rejected  on 
the  merits.    Id. 

Bail  coming  up  a  second  time  to  justify,  must 
pay  or  deposit  the  costs  of  a  former  unsuccess- 
ful attempt;  and  where  costs  are  payable,  the 
defendant  being  in  prison  will  not  excuse  him 
from  payment.  Pasmore's  bail,  3  Dowl.  P.  C 
214.  837 

The  affidavit  filed  of  country  bail  at  a  judge's 


[BAIL] 


2331 


chamben  wbb  ineorrect,  but  that  upon  which  the 
iDOtion  was  made  to  jostify  them  was  right ; — 
Held,  that  they  were  entitled  to  justify  without 
the  defendant  either  receiying  or  paying  costs. 
Saunders  r.  Popjoy,  5  Tyr.  196  :  S.  C.  uom.  Fop- 
joy's  bail,  1  C.  M.  &  R.  594  ;  3  Dowl.  P.  C.  170. 

237 

Coet3  of  opposition  on  technical  grounds  are 
not  aUowed.    Uanweirs  bail,  3  Dowl.  P.  C.  425. 

237 

It  is  too  late  afler  bail  are  sworn,  to  object 
that  the  costs  of  a  former  opposition  haye  not 
been  deposited  with  the  officer  of  the  court. 
Knight's  bail,  4    Dowl.  P.  C.  328;    1  Hodges 


370. 


237 


Upon  the  justification  of  bail  in  a  country 
cause,  one  of  the  bail  was  allowed  time  to  ex- 
plain respecting  some  property  which  it  was 
alleged  was  mortgaged:  this  being  afterwards 
done: — Heldf  that  Uie  defendant  was  entitled  to 
the  costs  of  justification.  Grant's  bail,  3  Dowl. 
P.  C.  1^;  1  C.  M.  &  R.  598;  5  Tyr.  227.      237 

Where  an  affidayit  of  sufficiency  omits  to  state 
the  place  where  the  property  of  the  bail  is  situate, 
and  only  ascribes  the  yalne  to  aeyeral  kinds  of 
property  coUectiyely,  it  is  a  departure  from  the 
form  giyen  by  the  rule  3  T.  T.  1  Will.  4  ;  and 
the  bail  haying  justified,  the  defendant  is  not 
entitled  to  the  costs  of  justification.  Hodgson  v 
Cooper,  2  C.  M.  d:  R.  43 :  S.  C.  nom.  Cooper's 
bail,  3  Dowl.  P.  C  692.  237 

On  bail  justifying,  the  plaintiff  was  allowed 
the  costs  of  a  former  successful  opposition, 
tboagh  he  did  not  ask  for  them  until  after  the 
bail  nad  passed.  Lewis  v.  Glossop,  2  C.  M.  6l 
K655.  237 

Attmaaus  of  BailJ] — ^The  court  refused,  on 
behalf  of  bail  to  the  action,  to  set  aside  a  regular 
attachment  aeainst  the  sheriff,  upon  an  affidayit 
of  merits,  and  on  payment  of  costs,  where  the 
mle  for  the  allowance  of  bail  had  not  been  seryed 
on  the  plaintiffs  attorney.  Rex  v.  Middlesex 
(SherifT),  2  Dow).  P.  C.  116.  239 

Where  a  bail  has  misdescribed  his  place  of 
rettdeoce  on  justification,  but  has  been  allowed 
to  pass,  the  court  will  not  set  aside  the  rule  for 
the  allowance  of  the  bail,  but  he  may  be  indicted 
far  peijnry.    Eaglefield  v.  Stephens,  2  Dowl.  P. 

LuiUI&yfff  Bail:.]— Under  mle  21  of  H.  T.  2 
Wdl.  4,  toe  liability  of  bail  upon  their  recogni- 
xanee  b  limited  to  tne  sum  sworn  to  by  the  affi- 
davit of  debt  and  the  costs  of  suit,  not  exceeding 
in  the  whole  the  single  amount  of  one  recogni- 
zance. Vansandan  v.  Nash,  3  M.  d&  Scott,  &4 ; 
10  Ring.  329 ;  2  Dowl.  P.  C.  767.  240 

la  a  case  arising  before  the  rules  of  Hilary 
Term,  2  Will.  4,  the  court  of  K.  B.  sUyed  pro- 
ceedings in  an  action  on  a  recognizance  of  bail, 
(where  the  action  against  (he  original  defendant 
was  by  bill,)  on  payment  of  double  the  sum 
•vors  to^  and  costs  of  the  action  against  the  bail. 
Bbner  r.  Holt,  5  0.  A^  Adol.  241 ;  3  Ney.  St  M. 
S29,  »*0 

Vol.  IV.  8 


The  liability  of  bail  upon  a  recognizance  giyen 
in  an  action  commenced  by  ori^pnal  writ,  is  nei- 
ther destroyed  nor  extended  by  mserting  in  the 
declaration  under  an  order  to  amend,  new  causes 
of  action  not  included  in  the  writ,  and  increasing 
the  general  claim  of  damages,  and  also  increas- 
ing uie  aiuount  claimed  in  the  aeyeral  causes  of 
action  stated  in  the  writ.  Taylor  v.  Wilkinson, 
5  Ney.  &  M.  189 ;  1  Har.  &  VVoU.  451.  240 


Discharge  of  BaU."] — Where  a  cause  in  the 
Palace  Court  was  remoyed  by  habeas  corpus  into 
the  court  of  the  King's  Bench,  but  was  remanded 
back  by  procedendo,  and  afterwards  interlocutory 
judgment  was  signed  in  the  court  below,  and  a 
writ  of  inquiry  executed  : — Held,  that  the  bail  of 
the  same  defendant  in  another  action  brought  in 
the  Exch.,  had  no  ri^ht  to  remoye  the  cause  to 
the  Palace  Court  again  by  habeas  corpus,  in  order 
that  the  defendant  might  be  rendered  in  dis- 
charge of  his  bail  in  the  action  in  the  Exch. 
Lawes  v.  Hutchinson,  1  C.  M.  &  R.  766;  5  Tyr. 
236;  3  Dowl.  P.  C.  506.  241 

But  the  court  gaye  the  bail  time  to  render, 
until  fourteen  days  after  the  ^xpiration  of  the 
custody  in  the  ralaoe  Court,  no  cause  being 
shown  against  so  much  of  the  rule  for  such 
time.    Id. 

^mble,  that  Doyer  Castle  is  the  county  jail 
(upon  an  arrest  in  the  Cinque  Ports)  to  which  to 
render  a  defendant,  within  the  11  Geo.  4  Stl 
Will.  4,  c.  70,  s.  21,  and  Reg.  Gen.  Exch.  M. 
T.  1  Will.  4,  Reg,  12.  Stride  v.  Hill,  4  Dowl. 
P.  C.  709 ;  1  Mees  &,  Wels.  37.  242 

Defendant  in  criminal  custody.  Campbel  9. 
Acland,  1  C.  &  M.  73;  1  Dowl.  P.  C.  635^  3 
Tyr.  230.  244 

Where  a  sheriff  has  put  in  bail  aboye  ia  ordar 
to  render,  and  has  obtained  a  judge's  order  for 
rendering  at  the  instance  of  himself  and  his  bail 
(see  11  Geo.  4&]  WUl.  4,  c.  70,  s.  1),  that 
order  will  not  be  rescinded,  though  it  might  be 
amended  by  striking  out  all  which  showed  it  to 
be  granted  at  the  sheriffs  instance.  Green  v. 
Jacobs,  3  Tyr.  231.  245 

Semble,  the  notice  of  render  should  not  be 
stated  to  be  signed  by  any  persoa  as  attorney  to 
the  sheriff.    Id. 

Where  the  principal  and  bail  both  became 
bankrupts,  the  court  ordered  them  to  be  relieyed 
on  motion,  without  pleading,  though  the  batK 
bond  had  been  ordered  to  stand  as  a  securihr. 
Streeter  or  Slater  r.  Scott,  2  Dowl.  P.  C.  9(»; 
2  G.  M.  &  R.  475 :  S.  C.  nom.  Slatler  «.  Stacey, 
4  Tyr.  372.  247 

In  such  a  case  the  bail  must  sw«ar  that  they 
obtained  their  certificates.    Id. 

In  the  case  of  a  London  as  well  as  a  country 
commission,  the  court,  on  behalf  of  bail,  will> 
to  preyent  inconyenience,  allow  the  time  for  the 
render  to  be  eidarged.  Ruston  v.  Green,  2  Dowl. 
P.  C.  617.  *^ 

In  the  case  of  a  London  commission,  the  court 
of  C.  P.  refused  to  enlarge  the  time  for  the  ren- 
der of  the  principal  until  after  his  final  examinar 


23S2 


[BAIL] 


tion  before  tbe  commiMionen.    Coombe  v.  Dod, 

3  M.  &  Scott,  617 ;  2  DowL  P.  C.  766.  SM6 

If  a  defendant  against  whom  judgment  hai 
been  recovered,  afler wards  become  bankrupt  and 
obtain  his  certificate  within  fourteen  days  of 
service  of  process  upon  his  bail,  the  bail  are  en- 
titled, under  the  general  rule  of  17th  June,  1833, 
to  have  proceedings  stayed,  though  no  notice  be 
given  to  the  plainuff,  or  application  made  to  stay 
such  proceedmgs,  till  afler  the  expiration  of  the 
fourteen  days.  Jones  r.  Ellis,  1  Ad«l.  Sl  1*111  is, 
382.  246 

The  defendant  having  been  committed  to  the 
King's  Bench  prison  by  a  court  of  bankruptcy, 
the  court  of  Common  Pleas  gave  the  bail  time 
to  render,  notwithstanding  the  committal  was 
under  a  London  commission  of  bankruptcy,  and 
the  bail  had  justified  afler  the  bankruptcy,  after 
judgment  and  at  tbe  request  of  the  defendant's 
attorney.  Waugh  v.  Ashford,  1  Scott,  167;  1 
Bing.  N.  R.  ad4  ;  3  Dowl.  P.  C.  1^.  246 

Although  not  **  till  he  has  passed  his  last  exa- 
mination.      Id. 

Defendant,  with  consent  of  bail,  gave  a  cogno- 
vit with  stay  of  execution.  He  omitted  to  ^y 
when  the  time  had  elapsed.  Plaintiff  not  havmg 
given  the  bail  notice  of  this: — Held,  that  he 
could  not  proceed  against  them  half  a  year  after- 
wards, upon  defendant's  death.  Surman  v.  Bruce, 

4  M.  dfc  Scott,  lb4 ;  2  Dowl.  P.  C.  777 ;  10  Bing. 
434.  Srf8 

Bail  are  dischsrged  by  time  being  oiven  to 
their  principal  without  their  consent,  uthough 
they  may  not  have  been  damnified.  Hannington 
V.  Beare,  4  Dowl.  P.  C.  256.  248 

Bail  knowing  of  an  a^rreement  to  give  time, 
must  apply  for  relief  immediately  on  being 
served  with  process.  Vernon  v.  Turley,  4  Dowl. 
P.  C.  660 ;  1  Mees.  A  Wels.  316.  248 

The  plaintiff  signed  an  afireement  with  an 
a«ent  of  the  defendant  on  the%)th  of  September, 
that  on  the  defendant's  entering  into  an  agree- 
ment to  pay  the  debt,  part  in  iron  within  a  month, 
and  the  remainder  by  bill  at  two  months,  the 
action  should  be  discontinued;  and  tlie  defen- 
dant was  to  call  on  the  plaintiff  on  the  following 
day,  to  enter  into  the  agreement.  He  never  did 
so  call.  On  the  8th  of  October,  the  plaintiff  gave 
notice  to  the  defendant  that  he  hela  himself  dis- 
engaged from  the  agreement,  and  should  pro- 
ceed with  tbe  action  forthwith.  On  the  20th  of 
October,  the  defendant  delivered  to  the  plaintiff, 
and  tbe  latter  received,  two  b'lUs  of  exchange  for 
the  greater  portion  of  the  debt  He  did  not  de- 
liver any  iron,  and  became  bankrupt  on  the  6th 
of  November: — Held,  that  there  was  not  a  giving 
of  time  to  the  defendant,  so  as  to  discharge  the 
bail.    Id. 

If  plaintiff,  at  defendant's  request,  accepts 
without  opposition  bail  named  by  the  defendant, 
defendant  cannot  afterwards  move  to  discharge 
the  bail  on  the  ground  of  a  defect  in  the  affidavit 
of  debt.  Mammatt  v.  Mathew,  A  M.  &,  Scott, 
356 ;  2  Dowl.  P.  C.  797 ;  10  Bing.  506.  249 

The  eourt  will  not  exonerate  bail  for  a  vari- 
ance  heUreen  the  declaration  and  affidavit  of 


debt,  where  they  have  oonsented  Urtk  at^  of  ex- 
ecution, and  apply  htte  for  relief.  Coppm  v. 
Potter,  I  Bing.  N.  R.  443 :  S.  C.  nom.  Coppin  v. 
Mkcqneen,  1  Scott,  372.  960 

Irregularities  in  the  conduct  of  the  ca.  sa. 
against  the  principal,  may  be  objected  to  on  mo* 
tion,  in  proceedings  under  the  sci.  fa.  against  the 
bail  as  well  as  by  plea.  Goldney  v.  Laporte,S 
Bing.  N.  R.  456;  4  Dowl.  P.  C.  699.  S50 

Where  bail  would  be  fixed  by  an  indulgence 
granted  by  the  court,  such  terms  will  be  imposed 
upon  the  plaintiff  as  will  give  the  bail  an  oppor- 
tunity of  treeing  himself  from  his  liability.  Brad- 
ley r.  BaUey,  3  Dowl.  P.  C.  111.  250 

Proceedings  against  Bail  by  Actum  ] — In  debt 
on  a  recognixance  of  bail,  the  declaration  stated 
the  recognizance  to  have  been  entered  into  in  an 
action  of  debt  against  J.  S.  On  the  production  of 
the  record  (on  a  plea  of  nul  tiel  record),  it  ap- 
peared that  the  original  action  was  on  promiaea. 
llie  court  allowed  the  declaration  to  be  amended 
on  payment  of  costs,  but  required  a  special  ap- 
plication for  that  purpose.  Munkenbeek  v,  Buaii- 
nell,  1  Scott,  569.  251 

It  is  not  a  ground  of  general  demurrer,  that 
the  plaintiff  in  an  action  against  bail,  is  stated  to 
have  brought  a  bill  into  court,  if  upon  the  whole 
record  it  appears  to  be  a  proceeding  by  scire 
facias.  Darling  v.  Gumey,  2  Dowl.  P.  C.  101, 
235;  2C.&M.I^;  4Tyr.2.  253 

To  debt  on  a  recognizance  of  bail,  the  defen- 
dant having  pleaded  that  no  ca.  .sa.  issued,  to 
which  tbe  plaintiff  replied  that  a  ca.  sa.  did  issue 
directed  to  the  sherins  of  London,  and  the  de- 
fendant rejoined  that  the  original  action  was 
brought  in  Middlesex  and  not  in  London,  which 
the  plaintiff  denied  in  his  surrejoinder,  aad  con- 
cluded with  a  verification  by  the  record : — Held, 
on  special  demurrer,  that  the  conelaaioB  was 
proper.    Id. 

A  plaintiff  having  recovered  a  verdict  at  the 
summer  assizes,  the  judge  who  tried  the  caaae, 
under  tlie  power  given  dv  1  Will.  4,  c.  7,  made 
an  order  that  execution  should  issue  forthwith, 
and  a  ca.  sa.  was  thereupon  issued  returnable 
^^immediately  afler  execution  thereof,"  pursaant 
to  3  4&  4  Will.  4,  c.  67,  s.  2.  This  writ  having 
remained  in  the  sheriff's  office  a  considerable 
time  without  having  been  executed,  an  order  waa 
made  by  a  judge  on  the  12th  of  September,  for 
the  sheriff  to  return  the  writ  in  six  days,  which 
order  was  served  upon  him  on  the  14tJi,  and  be 
on  the  same  day  returned  non  est  inventaa, 
whereupon  the  plaintiff  commenced  an  actioii 
against  Uie  defendant's  bail : — ^Held,  that  under 
these  circumstances  the  bail  were  not  fixed,  and 
that  the  action  was  prematurely  coamienoed. 
Kemp  V.  Hyslop,  1  Mees.  (k»  Wels.  58;  4  Dowl. 
P.  C.  687i  1  Tyr.  &  G.  77.  251 

The  bail  ought  either  to  have  notice  given 
them  of  the  order,  or  else  the  order  witn  the 
writ  should  be  entered  in  the  public  book,  four 
clear  days  at  least  before  the  writ  is  made  return- 
able by  the  order ;  and  for  want  of  this,  proceed- 
ings alter^ards  taken  against  the  bail  were  set 
aside  as  irregular.    Id. 


[BAIL— BAILMENT] 


8333 


I 

/ 


it  is  Teeonmended  bj  the  eourt,  that  when  a 
ca.  ML  ia  iaaued  with  tlie  intention  of  fiiisff  the 
bail,  il  ihovid  be  in  the  old  fonn,  returnable  in 
lenn ;  and  it  seems  doubfful  whether  a  ca.  sa. 
retBrnable  immediately  is  sufficient  for  the  pur- 
pose of  fixing  bail.     Id. 

The  mk  of  M.,  59  Geo.  3,  K.  B.,  is  now 
adopted  into  the  practice  of  the  court  of  Exche- 
qoer ;  and,  therefore,  bail  or  sheriiiii,  applying  for 
relief^  must  comply  with  the  terms  or  that  rule. 
An  affidarit  by  bail,  applying  to  stay  proceedinors 
so  payment  of  costs,  which  stated  that  the  appli- 
cation was  made  for  their  own  indemnity,  instead 
of  only  indemnity,  was  held  insufficient  Call  v. 
ThelweU,  3  Dowl.  P.  C.  444 ;  1  C.  M.  &.  R.  780 ; 
5Tyr.231;  1  Gale,  16.  254 


ProcitdJMgs  awainut  Bail  by  sci,  fa.] — ^Proceed- 
ings against  bail  are  ine^lar,  if  the  plaintiff  has 
pncoied  the  ca.  sa.  against  the  defendant  to  be 
leComed  non  est  inventus,  knowing  that  the  de- 
fendant is  in  custody  of  the  sheriff,  althoa?h  by 
a  difierent  name.  Briggs  o.  Richardson,  2  Dowl. 
P.  C.  158.  250 

Hie  sei.  fa.  against  bail  need  not  be  tested  on 
fhe  return  day  of  the  ca.  sa.  Sandland  v.  Cla- 
ridge,2  Dowl.  P.O.  115;  1  C.  &M.673;  3  Tyr. 
604.  &2 

It  may  be  tested  afterwards.    Id. 

The  fimr  days  during  whieh  a  sci.  fa.  against 
il  niist  lie  m  the  sheriff's  office  need  not  be 
m  term.    Id. 

A  sci.  la.  served  upon  bail  on  the  evening  be- 
foe  the  retnm  day — Held,  regular.  Lewis  v. 
9ine  or  Pyne,  *2  Dowl.  P.  C.  m ;  3  Tyr.  867 ;  1 
C.dkM.77l.  252 

Jndgnaent  eannot  be  signed  on  a  sci.  fa.  against 
bail  sendent  out  of  the  county  of  Middlesex,  un- 
less they  have  leceired  notice  of  the  proceedings, 
or  attempts  hare  been  made  to  give  such  a  no- 
tice.   Wimall  V.  Cook,  2  Dowl.  P.  C.  173.      252 

Hie  court  will  not  give  leave  to  sign  judgment 
OB  a  sci.  fiL  against  nail,  on  a  summons  of  one 
in  Middlesex,  unless  the  other,  resident  out  of 
Middlesex,  is  warned  of  the  proceeding.  Newton 
«.  Maxwell,  2  .C.  &.  J.  635.  252 

lo  aei.  fiu  against  bail  and  return  of  sci.  feci, 
Ike  bail  most  have  been  summoned  before  the 
rinigor  thecoort  Stevenson  v.  Molony,  1  Al- 
l  Napier,  225,  (/rtfft).  252 

When  a  writ  of  sci.  ft.  has  not  lain  in  the 
the  proper  number  of  days,  the  motion 
flhoold  be  to  set  aside  the  proceedings  thereon, 
ud  not  die  writ  itself.  Williams  v.  £own,  3  M. 
4k8eoCt,8ia  252 

It  is  Inegular  in  a  sei.  &.  to  state  the  bail  to 
bare  been  pat  in  on  a  day  previous  to  the  issu- 
■V  of  the  writ.  Peaisock  v.  Day,  3  Dowl.  P.  C. 
91.  252 

it  is  an  immaterial  objection  to  a  sci.  fa.  that 
k  m  tested  on  the  3rd  of  November,  and  return- 
able on  the  15th  of  November,  '*  next  coming." 
Jd. 

f^Pf,^  the  VwnSonoky  of  Process  Act,  it  is 
inwolar  fitf  *  aci.  fiu  to  lacits  the  action  as  com* 


1  menced  "  by  bill,  without  6va  writ,"  if  it  has 
been  commenced  by  summons.    Id. 

In  sci.  ia.  upon  a  recognizance  of  bail  taken 
before  a  commissioner  in  the  country,  it  is  ne- 
cessary to  aver  that  the  recognizance  was  trans- 
mitted to,  and  inrolled  in,  the  court  above,  as  a 
sci.  fa.  can  only,  issue  on  a  matter  of  record,  and 
inrolment  is  essential  to  constitute  a  record. 
Laverty  d.   Duffin,   1   Alcock    Sl  Napier,  296, 


{JrUh). 


253 


Where  the  writ  of  sci.  fa.  does  not  aver  any 
record  upon  which  it  is  founded,  the  proper 
course  is  to  demur ;  a  plea  of  nul  tiel  record 
would  be  improper.    Id. 

The  absence  of  such  an  averment  will  render 
the  writ  defective  on  special  demurrer,    id. 

Bail  in  Error,] — If  a  defendant  brings  a  writ 
of  error  and  puts  in  sham  bail,  the  plaintiff  may 
treat  them  as  a  nullity,  and  issue  execution. 
Sutcliffe  V.  £ldred,  2  Dowl.  P.  C.  184.  257 

In  order  to  obtain  time  to  justify  bail  in  error, 
on  account  of  the  bail  suddenly  leaving  town,  it 
must  be  sworn  that  the  fact  of  such  departure 
was  a  surprise  on  the  defendant.  R(^r  s  bail, 
2  Dowl.  P.  C.  197.  258 


BAILMENT. 

Upon  a  bailment  without  reward,  in  order  that 
an  act  may  be  done  by  the  bailee  for  the  sole  be- 
nefit of  the  bailor,  such  bailee  (or  mandatory)  is 
liable  only  for  gross  negligence.  Doorman  v. 
Jenkins,  4  Nev.^M.  170;  2  Adol.  &  Ellis,  256. 

259 

WhM  shall  amount  to  gross  negligence  is  a 
question  for  the  jury.     Id. 

In  assumpsit  against  a  bailee  it  was  proved 
that  the  detendant,  a  coffee-house  keeper,  hav- 
ing custody  of  money  withoub  reward,  lost  it  and 
made  tlie  following  statement: — ^That  he  had 
unfortunately  put  it  with  a  larger  sum  of  money 
of  his  own,  mto  his  cash  box,  which  was  kept  in 
his  tap  room  ;  that  the  tap  room  had  a  bar  m  it, 
and  was  open  on  a  Sunday,  but  the  rest  of  his  house 
which  was  inhabited  was  not  open  on  Sunday,  and 
that  the  cash  box,  with  his  own  and  the  plain- 
tiff's  money,  had  been  stolen  on  that  day.  The 
judge  leil  it  to  the  jury  whether  the  defendant 
was  guilhr  of  gross  negligence  ;  and  he  told  them 
that  the  loss  of  the  defendant's  own  money  did 
not  necessarily  prove  reasonable  care.  _The  jury 
found  for  the  plaintiff: — Held,  first,  that  the 
Question  of  grois  negligence  was  properly  left  to 
taem;  secondly,  that  there  was  evidence  upon 
which  they  might  find  for  the  plaintiff.    Id. 

In  the  case  of  the  simple  bailment  of  a  chattel, 
without  reward,  it  may  be  recovered  in  trover 
either  bv  the  bailor  or  bailee,  if  tidcen  wrongfhllv 
oui  of  the  bailee's  possession.  Nithols  v.  Bastard, 
3C.M.&.R.659;  lTyr.&G.156;  lGale,296i 

25if 

Trover  for  horses,  oows,  furniture,  Slc.  Ac. — 
Plea,  that  J.  H.  was  possessed  of  the  cattle, 
^oods,  and  chattels,  in  the  declaration  men- 
tioned, and  fraudulently  sold  them  to  the  plain- 


ftSM 


[BAILMENT— BANKER]. 


tiff  to  aToid  an  ezecation  against  the  goods  of  J. 
H.,  and  that  tha  defendant  (the  sheriff)  seized 
them  under  such  ezecation  Replication,  that 
J.  H.  did  not  fraodalently  sell  the  cattle,  goods, 
and  chattels,  in  the  declaration  mentioned,  to  the 
plaintiff,  and  issne  thereon ;  the  particular  of  de- 
mand was  merely  **  one  cow."  It  appeared  that 
the  plaintiff  had  lent  a  cow  to  J.  U.;  that  the 
goods  of  J.  H.  were  fraudulently  sold  to  SFoid 
an  execution,  and  the  greater  part  of  them 
bought  by  the  plaintiff;  that  the  plaintiff's  cow 
was  not  sold,  nor  was  any  cow  sold  at  such  sale  : 
— Held,  that  the  plaintiff  was  entitled  to  a  Terdict 
on  the  above  issue,    id. 

A  person  has  no  right  to  keep  the  property  of 
another,  and  char^  ror  the  standing  of  it^  unless 
there  was  a  preyious  bargain  between  him  and 
the  owner  of  the  property,  or  between  him  and 
some  agent  authorized  by  the  owner.  Buxton  v. 
Baughan,  6  C.  &  P.  674— Alderaon.  259 


BANKER. 

Money  deposited  with  bankers  is,  in  law,  a 
loan  by  the  customer  to  the  bankers.  Suns  v. 
Bond,  2  Ney.  d^  M.  608.  262 

Where  A.,  haying  certain  funds  standing  to 
his  credit  at  his  bankers,  by  letter  directed  them 
to  carry  some  parts  of  such  funds  to  the  account 
of  certaip  persons  as  trustees  for  his  wife,  and 
after  her  decease  for  his  son,  and  other  parts 
thereof  to  the  account  of  certain  persons  as  trus- 
tees for  his  son ;  and  such  sums  were  accordingly 
carried  oyer  by  the  bankers  to  the  account  of 
such  persons  in  their  books,  and  the  dividends 
were  from  time  to  time  carried  to  the  same  ac- 
counts, but  the  testator  never  communicated  the 
facts  to  the  trustees,  and  there  was  some  evidence 
that  the  testator  had  directed  the  transfers  under 
an  impression  that  he  should  be  able  by  that 
means  to  evade  the  legacy  duty,  and  that  ne  had 
shown  an  intention  to  exercise  some  acts  of  own- 
ership over  the  funds ;  the  court  held,  that  the 
appropriations  were  void,  and  that  the  testator 
might  have  revoked  them.  Gaakell  v.  Gaskell, 
2  f.  &  J.  502.  262 

On  the  23rd  November  country  bank-notes 
were  paid  by  A.,  a  purchaser  of  goods,  to  B.  the 
vendor.  On  the  2Bth,  B.  requested  the  pur- 
chaser's shopman  as  a  favor  to  exchange  the 
notes  for  money,  and  received  the  amount  ac- 
cordingly. The  bank,  which  was  situated  at  a 
considerable  distance  from  the  place  where  the 
shopman  gave  the  money,  had  stopped  payment 
two  hours  before.  A.,  the  purchaser  heard  of  it 
on  the  29th,  and  on  the  30th  wrote  to  B.  to  in- 
form him  of  the  event,  and  that  he,  B.,  was  to  be 
liable  for  the  notes,  but  did  not  tender  them  to 
him  then  or  for  some  days  after,  nor  were  they 
eieer  presented  at  the  bank : — Held,  that  A.  should 
have  returned  them  to  B.  without  delay,  or  pre- 
sented them  at  the  bank  as  holder;  and  that 
having  done  neither,  he  could  not  recover  the 
amount  from  B.  Rogers  v  Langford,  1  C.  Sl 
M  6:J7;  3Tyr.664.  262 

Where  a  customer  of  the  Bank  of  England 
was  in  the  habit  of  making  his  acceptances  pay- 


able at  the  bank,  and  one  of  sQch  acoepfanoe* 
being  presented  for  payment  at  eleven  o'clock  in 
the  morning  was  dishonored  for  want  of  assets, 
and  was  presented  again  by  a  notary  at  six  in 
the  evening  when  the  same  answer  was  given  br 
a  person  stationed  for  that  purpose,  it  was  hela, 
that  the  bank,  although  they  had  before  six 
o'clock  received  assets,  were  not  bound  to  pay 
the  bill,  it  being  after  the  usual  hours  of  business. 
Whitaker  v.  England  (Bank),  1  C.  M.  &  R.  744  ; 
5Tyr.26b;  6C.dLP.700;  lGale,54.  260 

Semble,  that  it  was  the  duty  of  the  bank  to 
have  informed  the  notary  that  they  had  received 
assets,  and  that  the  bill  would  be  paid  the  follow- 
ing day.    Id. 

The  production  of  a  bank  promissoxj  noto« 
though  it  be  payable  to  A.  B.  or  bearer,  is  prima 
facie  evidence  in  an  action  against  the  banlier,  of 
money  had  and  received  by  him  for  the  use  of 
the  plaintiff.    Kerr  v..  James,  1  Gale,  21.         260 

When  a  customer  pays  to  his  bankers  a  cb^sk 
drawn  upon  them  by  another  customer,  he  must, 
in  order  to  make  them  liable  at  all  events,  demand 
payment,  or  reauest  that  the  amount  may  be 
placed  to  his  credit  Boydr.  Emmer8on,4  Nev.  A 
M.  99 ;  2  Adol.  <&  Ellis,  184.  260 

An  assent,  on  the  part  of  the  banker,  to  such  a 
demand  or  request,  would  raise  an  implied  pro- 
mise to  pay  or  give  credit  for  the  amount.    Id. 

When  a  customer  pays  into  his  bankers,  in  the 
ordinary  way,  a  check  drawn  upon  them  by  an- 
other of  th«%ir  customers,  the  bankers  are  entitled 
to  the  same  time  fur  ascertaining  whether  the 
check  will  be  paid  and  giving  notice  of  dishonor 
(in  case  it  be  resolved  by  them  not  to  pay  the 
check)  as  in  t£e  case  where  a  check  is  drawn 
upon  other  bankers.    Id. 

^  Therefore,  in  such  a  case,  no  promise  to  pay 
the  check  on  the  part  of  the  bankers  will  be  im- 
plied from  the  absence  of  earlier  notice.    Id. 

A.  and  B.  are  respectively  customers  of  C.^ 
a  banker.  A.  eoes  to  C.'s  bank  at  a  quarter  be- 
fore one  on  Monday,  and  gives  C.'s  managing 
clerk  directions  as  to  the  payment  of  a  bill,  and, 
whilst  the  clerk  is  making  a  memorandum  of 
those  directions,  lays  on  the  counter  a  check  drawn 
by  B.  on  C,  and  says  **  place  this  to  my  account*' 
or  *^  credit."  No  intimation  as  to  whether  the 
check  would  or  would  not  be  paid  was  given  to 
the  clerk.  The  clerk  did  not  debit  B.  with  the 
amount,  or  place  it  to  A.'s  credit,  or  cancel  the 
check.  B.  having  overdrawn  his  account,  in- 
quiries were  made  on  Tuesday,  the  result  of  which 
was,  that  C.  resolved  not  to  pay  the  check.  The 
check,  with  notice  of  dishonor,  was  sent  to  A.  at 
his  residence,  by  seven  o'clock,  p.  m.  on  Tuesday  : 
— Held,  sufficient  notice  of  dishonor,    id. 

Semble,  that  as  the  post  did  not  leave  the  town 
in  which  the  bank  was  situate  until  seven  o'clock 
p.  m.,A  notice  of  dishonor  received  by  A.  at  his 
residence,  at  a  few  miles  distance,  at  7  o'clock, 
was  earlier  than  necessary.    Id. 

A  bill  for  an  account  will  li^  against  a  banker 
by  his  customer.  Bowles  r.  Orr,  1  T.  db  Col. 
464.  .     262 


[BANKRUPT] 


2335 


BANKRUPT. 


11.    JURIIPICTION     IN    BaNKRUPTCT. 

T^  Lord  Chaocellor  sitting  in  bankruptcy 
eommttted  the  9olicitor  to  the  commission  for 
not  obeyine  an  order: — Held,  that  the  Lord 
Chancellor  nad  jurisdiction  so  to  do  ;  and  that  ho 
action  lay  a^inst  him  for  so  doing : — Held,  also, 
that  the  Lord  Chancellor,  in  an  action  broiiffht 
against  him  for  so  doing,  need  not  plead  specially. 
Dicas  V,  Brougham,  (Lord),  6  C.  &  P.i^9 ;  1  M. 
A,  Rob.  30(J— Lyndhurst.  267 

Tiie  Lord  Chancellor's  jurisdiction  to  annul  a 
fiat  stHI  exists.  In  re  Chambers,  4  Deac.  ^  Chit. 
57d :  S.  P.  Ex  parte  Keys,  3  Deac.  &,  Chit.  263 ; 

1  Mont,  ik  Ayr.  226.  267 

A  petition  presented  to  the  Lord  Chancellor 
before  1  &  2  Will.  4,  c.  56,  must  be  transferred 
by  the  Lord  Chancellor,  to  the  court  of  Review, 
before  that  court  can  hear  it.  In  re  Stokes,  4 
Deac  &  Chit.  578.  267 

Although  upon  a  fiat  being  superseded  the 
Lord  Chancellor  has  issued  nis  confirmatory 
order,  the  court  of  Review,  upon  a  proper  case 
on  rehearing,  can  in  efiect  order  a  procedendo, 
by  means  of  its  intimation  to  the  Lord  Chan- 
cellor.    £x parte  Lavender,  4  Deac.  &  Chit.  496 ; 

2  Mont  A&  Ayr.  103.  267 

Quaere,  as  to  the  power  oi  the  court  of  Review 
to  issoe  a  writ  of  habeas  corpus  ?  £x  parte  Jones, 
2  Mont.  &  Ayr.  41 ;  4  De^c.  <&  Chit.  536.     267 

In  general  an  uncertificated  bankrupt  cannot 
file  a  bill  against  his  assignees  for  an  account  of 
their  dealings  under  the  bankruptcy ;  nor  can  the 
bankrupt  obtain  this  relief  indirectly,  by  charg- 
ing iraud  and  collusion  between  the  assignc^es  and 
atiiird  party,  where  the  bill  states  no  specific  acts 
of  fraud  on  the  part  of  tlie  assignees,  and  prays 
no  relief  against  them  on  the  ground  of  uuud. 
Tarleton  «.  Hornby,  1  T.  &  Col.  172.  267 

A  general  order  acts  as  if  a  particular  order  in 
each  ease.  Ex  parte  Sidebotham,  2  Mont.  &  Ayr. 
151.  2iS7 


Hi.  Who  mat  be  fi/ hkrupts. 

A  fiat  was  superseded  with  costs,  to  be  paid  by 
the  petitioning  creditor,  on  the  ground  of  the 
bankrupt's  minority;  but  the  court  of  Review 
made  no  order  for  assigning  the  bond.  Ex  parte 
Hehir,  3  Deac.  &,  Chit.  107.  269 

A  person  who  keeps  livery  stables  and  buys 
large  quantities  of  hay  and  straw  and  oats,  which 
be  supplies  to  the  horses  standing  in  the  stables, 
and  sells  to  any  person  generally,  is  a  trader, 
sabject  to  the  bankrupt  law.  Cannan  v.  Denew, 
3  M.  &  Scott,  761 ;  10  Bing.  2U2.  272 

Cow-keepers.  (,^arter  v.  Dean,  1  Wils.  C.  C. 
8b ',  1  Swans.  64.  271 

A  country  attorney  hired  a  room  in  Bell- 
conn,  Brook's  Market,  London,  which  he  kept 
ibor  weeks,  and  in  which  he  put  eighty-two 
old  Toiomea  of  books,  sticking  up  a  pa,'9<'r  in  tU« 


window,  in  which  his  name  was  written,  with  the 
addition  of  "  bookseller ;"  a  fiat  having  been  is- 
sued against  him  by  this  description,  was  an- 
nulled on  tlie  ground  of  fraud.  £x  parte  Dart,  2 
Deac.  <&  Chit.  543.  270 

By  2  Will.  4,  c.  39,  s.  9,  in  aU  personal  actions^ 
wherein  it  shall  be  intended  to  proceed  against  a 
member  of  Parliament^  according  to  the  provisions 
of  the  statiUe  6  Geo.  4,  c.  16,  s.  10,  the  process 
shall  be  according  to  the  form  contained  in  the  sche- 
dule annexed  to  the  2  fVUl.  4,  c.  39,  marked  JVb.  6, 
and  which  process  and  a  copy  thereof  stkoU  he  in 
lieu  qf  the  summons,  or  original  bill  and  summons 
and  copy  thereof  mentioned  in  the  said  statute.  273 

Semble,  a  coach  proprietor  is  not  a  trader.  In 
re  Walker,  2  Mont.  &  Ayr.  267.  273 

A  builder  is  a  person  who  builds  either  on  his 
own  or  another's  land  for  a  profit.  Ex  parte 
Neirincks,  2  Mont.  &  Ayr.  384 ;  1  Deac.  78.  271 

A  party  who  bought  six  carcases  of  houses  for 
the  purpose  of  finishing  them,  and  selling  them 
a^in  when  he  had  made  them  habitable,  and 
who  ordered  materials  for  this  purpose,  repre- 
senting himself  to  be  a  builder,  may  be  made  a 
bankrupt  as  a  builder,  within  the  6  Geo.  4,  c.  16, 
.8.2.    Id. 

A  single  act  of  buying  and  selKog  by  a  fanner, 
with  evidence  of  intent  to  continue,  is  a  sufiicient 
act  of  trading.  E)x  parte  Lavender,  4  Deac.  & 
Chit.  487 ;  2  Mont.  <5l  Ayr.  11.  .269 

Although  there  be  not  evidence  of  the  trading 
on  tlie  proceedings,  the  fiat  will  not  be  super- 
seded, if  the  bankrupt  admitted  to  the  petitioning 
creditor  that  he  was  a  trader.  Ex  parte  Bailey, 
2  Mont.  &  Ayr.  86.  2& 

Afler  the  issuing  of  the  fiat,  the  petitioning 
creditor  heard  and  believed  that  the  party  against 
whom  it  was  issued  was  a  married  woman.  The 
court  would  not  for  this  cause,  on  the  petition  of 
the  petitioning  creditor,  order  the  fiat  to  be  an- 
nulled, but  merely  suspended  the  prosecution  of 
it.    Ex. parte  Harland,  1  Deacon,  75.  269 

The  non-possession  of  property  by  the  bank- 
rupt ^is  not  a  sufficient  reason  for  not  declaring 
him  a  bankrupt  Ex  parte  Johnson,  2  Mont.  <Sl 
Ayr.  390.  273 


IV.  Act  of  Bankruptcy. 

Act  of  bankruptcy  afler  ceasing  to  trade. 
Bailley  v.  Grant,  1  Clark  &  Fin.  238 ;  2  M.  & 
Scott,  193 ;  9  Bing.  121.  275 

Breaking  an  appointment  to  delay  creditors  it 
an  act  of  bankruptcy.  Robinson  v,  Carriogton 
(Lord),  1  Mont.  &  Ayr.  13.  278 

The  bare  neglect  to  keep  an  appointment  to 
meet  a  creditor  does  not  amount  to  an  act  cf 
bankruptcy.  Ex  parte  Lavender,  4  Deac.  &  Chit. 
484  ;  2  Mont.  d&  Ayr.  11.  277 

A  bankrupt,  pending  a  negotiation  for  the  loan 
of  mone^,  is  arrested  in  the  country,  and  discharg- 
ed on  bail.  He  at  the  time  promises  to  meet  the 
creditor  a|td  his  solicitor  on  the  following  day, 
and  g*Te  s«'*arity.    On  the  following  day,  how- 


t2336 


[BANKRUPT] 


eyer,  he  goes  to  London,  in  order  to  procure  part 
of  the  loan,  and  therewith  to  pay  the  creditor  the 
debt  instead  of  ^iyin^  aecuritj.  He  writes  to 
the  solicitor,  statiiiff  the  fact  and  its  oSject,  and 
promises  to  return  in  a  daj  or  two  and  pay  the 
debt.  He  is,  howeyer,  detained  longer  in  London, 
bona  fide,  upon  the  same  negotiation: — Held, 
that  eyidence  of  the  intent  to  delay  his  creditor 
was  rebutted.  Id. 

A  trader  does  not  commit  an  act  of  bankruptcy 
within  6  Geo.  4,  c.  16,  s.  3.  by  absenting  himself 
from  some  place  at  which  he  would  in  the  ordi- 
nary course  of  his  life  and  business,  be  expected 
to  be  found,  or  at  which  he  has  appointed  to  meet 
particular  creditors.  Bernaaconi  v  Farebrother,  5 
M.  &  R.  964.  277 

A  trader,  being  in  debt  to  seyeral  persons, 
leayes  this  country  in  June,  1831,  for  America, 
with  some  intention  of  returning,  but  does  not 
actually  return,  nor  does  he  make  proyision  for 
the  payment  of  all  his  debts.  In  September, 
1833,  one  of  th^  creditors  whose  debt  was  left 
unproyided  for,  issues  a  fiat  against  hira,  which 
the  bankrupt,  by  his  agent  in  uiis  country,  after 
the  42nd  day,  petitions  to  supersede. — Held, 
(diss.  Sir  J.  Cross),  that  the  fiat  could  not  be 
superseded  without  the  preyious  surrender  of  the 
bankrupt : — Held,  also,  per  tot.  cur.,  that  the  con- 
tinned  absence  of  the  bankrupt,  under  these  cir- 
cumstances, amounted  to  an  act  of  bankruptcy. 
£z  parte  Kirkman,  3  Deac.  &,  Chit  451.        277 

Where  a  trader,  whose  goods  are  under  seizure 
quits  his  home,  it  is  for  the  jury  to  say  whether 
he  departs  with  the  bona  fide  intention  to  en- 
deayor  to  procure  the  means  of  remoying  the 
execution,  or,  whether,  haying  gone  tor  that  pur- 
pose, he  stays  away  for  the  purpose  of  ayoiding 
nis  creditors,  fiatohelor  v.  Vyse,  4  M.  &  Scott, 
553;  IM.  &Rob.331.  277 

A  trader  in  embarrassed  circumstances,  ab- 
sented himself  from  his  house  from  the  I6th  of 
February  till  the  9th  of  March.  Upon  an  issue, 
whether  he  had  commitfbd  an  act  of  bankruptey 
on  or  before  the  5th  of  March,  two  letters,  written 
by  him  on  the  16th  of  January  preceding,  asking 
rar  time  on  two  bills  of  exchange,  payal^e  by 
him  in  February,  were  received  in  eyidence  to 
show  the  motiye  of  his  absence.  Smith  v.  Cramer, 
1  Scott,  541 ;  1  Sing.  N.  R.  1 ;  1  Hodges,  124 

277 

Upon  an  issue  directed  to  try  whether  one  P. 
had  committed  an  act  of  bankruptey  on  a  giyen 
day,  it  appeared  that  on  the  preceding  day  he 
sent  a  letter  from  his  dwelling-house  at  Green- 
wich to  his  place  of  business,  addressed  to  his 
son,  stating  that, he  was  unable  to  meet  his  en- 
gagements, and  desiriujg  that  he  might  be  denied 
to  any  creditor  who  might  call,  and  immediately 
after  dispatohing  his  letter  he  left  home,  and  re- 
mained absent  during  the  whole  of  that  and  the 
following  day.  A  witnesi  proyed  that  P.  called 
on  the  day  in  question  at  her  brother's  house  in 
liondon ;  that  he  expressed  to  her  an  apprehen- 
sion of  being  sent  to  the  Fleet,  and  stated  that 
he  was  m  no  hurry  to  set  home,  and  would  not 
go  yery  early,  as  he  had  creditors  who  Would  lay 
Sold  oT  him,  and  that  he  did  not  leaye  till  after 


dark.  The  jury  were  told,  that  if  they  belieyed 
the  statements  made  by  the  witness,  P.  on  that 
occasion  committed  an  act  of  bankruptey ;  they 
said  they  did  belieye  the  witness,  but  tney  did 
not  think  P.  spoke  with  bona  fides : — Held,  that 
P.  had  committed  an  act  of  bankruptey ;  and 
that  eyidence  of  his  conduct  and  conversations, 
on  the  day  subsequent  to  the  date  mentioned  in 
the  issue,  was  not  admissible  to  explain  his  con- 
duct on  that  day.  Johnston  v,  Woolf,  2  Scott, 
373.  277 

A  trader  conveying  away  property  to  such  an 
extent  as  will  prevent  him  from  continuing  his 
business,  and  render  him  insolvent,  thereby  com- 
mits an  act  of  bankruptey.  Wedge  v.  Newlyn, 
4B.  &Adol.83l.  26^ 

But  those  who  rely  upon  such  act  of  bankrupt- 
cy on  a  trial  must  show  that  it  was  calculated  to 
have  the  alleged  effect,  by  eyidence  of  the  general 
state  of  the  party's  aiSairs  at  the  time  of  such 
conveyance.    Id. 

It  is  not  sufficient  to  prove  that  the  trader,  un- 
der pecuniary  pressure,  disposed  of  some  article 
essential  to  the  carrying  on  of  his  business ;  as 
that  a  miller,  by  bill  of  nle,  transferred  his  wag- 

fon  and  horses  to  a  creditor  who  had  arrested 
im.    Id. 

A  fair  and  bona  fide  sale  of  the  whole  of  a  tra- 
der's property  is  not,  of  itself,  an  act  of  bank- 
ruptey. Rose  V.  Haycock,  3  Nev.  &  M.  645 ;  1 
Adol.  &  Ellis,  460.  282 

The  party  who  impeaches  the  sale  of  the  whole 
of  a  bankrupt's  property  must  show  some  facta 
from  which  fraud  may  he  inferred.    Ijd. 

A  sale  of  the  whole  of  a  trader's  stock  in  trade, 
with  an  intention  to  abscond  with  the  money  and 
cheat  his  creditors,  to  a  bona  fide  purchaser,  who 
is  ignorant  of  the  trader's  design,  is  not  an  act 
of  Dankruptey*  Baxter  v.  Pritohard,  3  JNev.  &. 
M.  638 ;  1  Adol.  &  EUis,  456.  282 

An  assignment  by  a  trader  of  all  his  estate  and 
efiecto,  for  the  benefit  of  all  his  creditors,  execut- 
ed by  the  trader,  but  not  executed  by  the  trustee 
or  by  any  <;reditor,  or  further  acted  on,  is  an  act 
of  biankruptey.  fioteherley  v.  Lancaster,  3  Nev. 
^k  M.  3^;  1  Adol.  &  EUis,  77.  282 

Qusre,  whether  the  court  can,  upon  showing 
cause  against  a  rule  for  a  new  trial,  entertain  a 
question  as  to  whether  a  deed  amounted  to  an  act 
of  bankruptey,  where  the  rule  nisi  was  obtained 
upon  the  ground  of  the  improper  reception  of 
eyidence  to  show  insolvency  preparatory  to  proof 
of  another  act  of  bankruptey,  in  which  the  par- 
ties &iled  at  the  trial  ?    Id. 

A  conveyance  of  part  of  a  bankrupt's  property 
in  trust  to  sell  and  dispose  of  the  proceeds  as 
he  shall  direct,  is  not  an  act  of  bankruptcy. 
Robinson  v.  Carrington  (Lord),  1  Mont.  &,  Ayr.  1 . 

263 

A  trader  entitled  to  large  freehold  and  lease- 
hold estates,  but  ^atly  embarrassed,  and  haying 
committed  acts  ot  bankruptey,  conveyed  his  free- 
hold and  leasehold  estates  to  trustees,  upon  trust 
to  sell  or  mortgage,  and  to  apply  the  product  as 
he  should  direct ;  it  appeared  that  the  trust*deed 


[BANKRUPT] 


3337 


WM  executed  under  advice,  for  the  purpose  of 
efiecting  a  eonversion  of  the  trader*8  property, 
with  a  Tiew  to  an  arrangement  with  his  creditors, 
to  which  be  was  himseff  considered  incompetent 
fion  the  state  of  his  health  :~Helcl,  that  the 
tmst  deed  was  not  an  act  of  bankruptcy.  Green- 
wood V.  ChurchiU,  1  Mybie  &  K.  546.  2d2 

Two  creditors  persuaded  a  bankrupt  to  execute 
an  assignment  of  his  effects  to  them  for  the  be- 
nefit  of  his  creditors,  and  issued  a  fiat  against 
him,  setting  up  this  assignment  as  the  act  of 
bankruptcy  :  they  then  seized  his  furniture  and 
stock,  witnout  taking  any  proceedings  under  the 
fiat:  on  the  application  of  a  bona  fide  creditor, 
this  fiat  was  ordered  to  be  annulled,  and  a  new 
one  issued.  Ex  parte  Mucklow,  3  Deac.  <& 
Chit  25.  285 

Where  a  trader  assigned  by  deed  all  his  pro- 
perty in  trust  for  the  wnefit  of  his  creditors : — 
Held,  that  it  was  an  act  of  bankruptcy  under  6 
Geo.  4,  c.  16,  8.  3,  although,  in  so  doing,  he  did 
not  intend  to  defeat  or  delay  his  creditors,  as  that 
being  the  necessary  consequence  of  the  assign- 
ment, he  must,  in  law,  be  taken  to  have  intended 
it.  Stewart  v.  Moody,  1  C.  M.  ^b  R.  777 ;  5  Tyr. 

493.  'iesi 

A  deed  by  F.,  one  of  two  traders  in  partner- 
ship, conveyed  his  separate  estate  to  trustees  f  )r 
the  joint  creditors  of  both  :  the  joint  creditors 
agreeing  that  the  traders  should  continue  in  pos- 
session of  theip  stock,  and  carry  on  business  with 
a  view  to  retrieve  themselves :  and  that  upon  their 
paying  4s.  6d.  in  the  pound  by  certain  install- 
ments, they  should  receive  a  general  release : — 
Held,  not  an  act  of  bankruptcy  : — Held,  also,  that 
it  was  properly  lei\  to  the  jury  to  say,  whether 
the  deed  was  executed  bona  nde  to  enable  the 
traders  to  retrieve  themselves,  or  was  executed 
by  y.  with  intent  to  defraud  bis  separate  credi- 
tors.    Abbott  V.  Borbage,  2  Bing.  N.  R.  444.  282 

A  fraudulent  delivery  of  goods  by  a  trader,  will 
be  of  itself  an  act  of  bankruptcy.  A  delivery  of 
goods  to  one  to  whom  no  debt  was  due,  would  be 
such  a  fraudulent  delivery ;  and  the  delivery 
would  likewise  be  fraudulent,  though  a  debt  was 
doe,  if  the  transfer  of  the  soods  was  made  volun- 
tarily, and  in  contemplation  of  bankruptcy. 
ScoU  0.  Thomas,  6  C.  ^  P.  611— Parke.         283 

Qoere,  whether  the  payment  of  a  country 
bank  'note  to  a  creditor,  with  the  intention  of 

E'ving  him  a  fraudulent  preference,  is  an  act  of 
mkruptcy  within  the  6  Geo.  4,  c.  16,  s.  3  ?    Carr 
V.  Bnrdiss,  1  C.  M.  <fc  R.  782>  5  Tyr.  309.      283 

A.,  a  soap  and  alkali  manufacturer,  being  in- 
debted to  a  banking  company,  assigned  to  them, 
to  secure  past  and  Tuture  advances,  his  leasehold 
property,  with  all  the  stock  in  trade,  utensils,  and 
effects  thereon,  and  also  a  policy  of  insurance,  as 
a  security  for  monies  advanced  or  to  be  advanced. 
The  deed  contained  a  power  of  sale,  and  a  pro- 
viso, that  the  trader  should  remain  in  possession 
ontil  de&nlt.  The  assignment  did  not  include 
another  part  of  A/s  property,  equal  in  amount  to 
the  debt  covered  by  the  security.  In  an  action 
by  A.*s  assignees  to  recover  part  of  the  property 
gned,  the  jury  found  that  the  deed  was  not 


executed  in  contemplation  of  bankruptcy : — Held,, 
that  it  was  a  valid  deed,  and  did  not  amount  to 
an  act  of  bankruptcy.  Carr  v.  Bnrdiss,  1  C.  M. 
&  R.  443 ;  5  Tyr.  136.  283 

The  court  h&>  no  jurisdiction  to  control  the 
discretion  of  a  commissioner  as  to  what  docu- 
mentary evidence  be  shall  require  to  be  produced 
to  prove  an  act  of  bankruptcy.  But  the  court  in- 
timated its  opinion,  that  a  fetter  written  by  the 
bankrupt's  wife  to  a  third  party,  in  whose  pos- 
session it  remained,  though  it  could  not  in  any 
way  afiTord  direct  evidence  of  the  act  of  bank- 
ruptcy (unless  it  was  also  proved  that  she  was 
authorized  by  her  husband  to  write  it  as  his 
agent),  she  not  being  examinable  as  a  witness 
upon  that  point,  yet  might  be  ordered  to  be  pro- 
duced, to  be  used  only  as  a  cine  to  the  procure- 
ment of  other  evidence  as  to  the  act  of  bank- 
ruptcy.   £x  parte  Groom,  4  Deac  Sl  Chit  640. 

287 

Concerted  act  of  bankniptcy .  Marshall «.  Bark- 
worth,  1  Nev.  A  M.  279;  4 B. <%  Add. 506.   285 


V.  Petitiokino  Creditor. 

The  assignees  of  a  bankrupt  gave  B.,  their 
licitor,  a  check  for  the  amount  of  the  bUl  of  cost» 
of  A.,  the  petitioning  creditor  (who  was  his  own 
solicitor);  B.  oflR?red  to  pay  A.  the  fuU  amount 
of  those  costs,  provided  that  he  would  engage  in 
the  receipts  that  the  costs  should  be  afterwards- 
liable  to  taxation ;  A.  refused  to  give  such  en- 
gagement, and  requested  B. ,  to  pay  out  of  the 
same  some  commissioners'  fees  included  in  the 
bill : — Held,  that  no  promise  arose  upon  the  offer^ 
the  terms  of  which  were  not  acceded  to;  and 
without  the  promise  there  was  no  privity  of  con- 
tract to  support  aii  action  for  money  had  and  re- 
ceived. Barron  v.  Husband,  1  Nev.  &  M.  728  ^ 
4  B.  ds  Adol.  611.  290 

The  petitioning  creditor's  bill  was  ordered  ta 
be  taxed  by  an  ofiicer  of  the  court  of  Review,, 
where  objectionable  charges  had  been  allowed  by 
the  commissioners.  £x  parte  Hattendey,  2  Deac. 
&  Chit.  373.  290 

Attendance  of  petitioning  creditor  dispensed 
with,  under  the  circumstances,  at  the  opening  of 
the  fiat.    In  re  Polton,  3  Deac.  &  Chit.  6B8.    289 

A  petitioning  creditor  is  entitled  to  be  repaid 
out  of^  the  estate  a  sum  paid  to  the  creditor  to  ren- 
der him  a  competent  witness  to  support  the  fiat. 
Ex  parte  Forth,  2  Mont,  dc  Ayr.  381.  289^ 

Although  the  money  first  received  under  a  fiat 
is  by  the  statute  required  to  be  appropriated  in 
discharge  of  the  expenses  incurred  by  the  peti- 
tioning creditor,  yet,  where  he  assents  to  a  differ- 
ent appropriation,  he  is  estopped  from  afterwards 
contending  that  the  directions  of  the  act  have 
not  been  complied  with.  Homidge  v.  Eyland,  2 
Scott,  357.  889 

Reference  to  the  commissionen  to  allow,  on 
the  taxation  of  the  petitioning  creditor's  bill  of 
costs,  certain  expenses  incurred  before  adjudica- 
tion, by  parties  appointed  by  the  creditors  to  act 
for  the  benefit  of  the  estate.  Ex  parte  Evans,  4 
Deac.  «c  Chit.  31)2.  28» 


I 


2838 


[BANKRUPT] 


Altboajphtfae  petitioning  creditor  is  not  entitled 
to  an  order  on  the  usigneei  to  pay  the  amoant 
of  his  costs  before  they  Sayb  received  money  un- 
der the  fiat,  he  is,  nevertheless,  entitled  to  an  in- 
quiry whether  any  assets  have  been  received  by 
the  assismes.  £x  parte  Abnun,  4  Deac.  &  Chit. 
401.  ^  289 

VI.   PsTITIOlflRG  CrZDITOR's  DeBT. 

Validity.] — A  docket  was  struck  on  a  note  on 
which  the  bankrupt  and  one  W.  were  jointly  lia- 
ble ;  afterwards  a  tender  was  made  on  behalf  of 
W. :  a  petition  to  supersede  for  want  of  a  petition- 
ing creditor's  debt,  dismissed — payment,  after 
docket  struck,  would  have  been  mvalid.  Kx 
parte  Jones,  1  Mont,  dt  Ayr.  442^  3  Deac.  & 
Chit.  697.  203 

Semble,  that  pending  a  replevin  on  a  distress 
for  rent,  the  landlord  cannot  sue  out  a  commis- 
sion of  bankruptcy  against  the  tenant,  founded  on 
his  demand  for  rent.  Emery  v.  Mucklow,  4  M. 
Sl  Scott,  263.  294 

If  money  be  advanced  to  a  trader,  to  enable 
him  to  commence  a  trade,  of  which  the  lender  is 
to  share  the  profits,  it  is  a  good  petitioning  cre- 
ditor's debt.  £z  parte  Notley,  1  Mont.  &  Ayr- 
46.  294 

Sooh  debt  may  be  proved.    Id. 

Qua»re,  whether  a  mortgagee  in  trust  can  alone 
issue  a  fiat  against  the  mortgagor  on  the  mort- 
gage deed  ?  He  can,  if  the  legal  validity  of  his 
debt  has  been  previously  established  by  an  action 
at  law.    £z  parte  Gray,  2  Mont.  &  Ayr.  283.    293 

Per  C.  J. — If  a  partner  files  a  bill,  and  treats 
a  debt  as  mixed  with  the  partnership,  a  fiat  can- 
not afterwards  be  issued  on  that  debt.    Id. 

Qniere,  whether  a  joint  commission  against 
two,  joint  traders  with  a  third,  not  included  in 
the  commission,  on  a  debt  due  from  the  two,  is 
valid  >    Ex  parte  Chambers,  2  Mont.  &  Ayr.  440. 

293 

Where  a  bankrupt,  on  a  petition  to  annul  a  fiat, 
pressed  for  further  inouiry  as  to  the  validity  of 
the  petitioning  creditor  s  debt  against  the  opinion 
of  the  court,  and  the  matter  was  accordingly  re- 
ferred to  the  deputy  registrar,  who  reported  that 
the  debt  was  a  good  one ;  the  court  ordered  the 
bankrupt  to  pay  the  costs  of  the  inquiry,  there 
being  no  estate  in  the  hands  of  the  assignee.  £z 
parte  Ne'urincks,  1  Deacon,  78 ;  2  Mont.  A  Ayr. 
§84.  .29S 

The  bankrupt,  who  was  in  partnership  with  W. 
P.,  borrowed  money  of  him  by  way  of  personal 
loan,  and  upon  the  dissolution  of  the  partnership, 
purchased  the  stock  in  trade  for  a  stipulated  sum. 
W.  P.  made  out  an  accoui^t,  entitled  ^'Mr.  H.  P. 
(the  bankrupt)  in  account  with  H.  &  W.  P.  :'* — 
Held,  that  W,  P.  had  a  good  pelitioning  credi- 
tor's debt,  notwithstanding  this  mode  of  intituling 
the  account.  Ex  parte  Aichardson,  3  Deac.  ^ 
Chit  244.  293 

If  a  trader  take  the  benefit  of  the  Insolvent 
Debtors*  Act,  a  creditor,  whose  debt  is  inserted 
in  the  schedule,  may  afterwards  issue  a  fiat  on 
that  debt  against  the  trader.  Ex  parte  Barring- 
ton,  8  Mont.  A  Ayr.  255 ;  I  Deacon,  3.  293 


Substitution.'] — Where  a  new  petitioning  credi- 
tor's debt  has  been  substituted  under  the  stat  6 
Geo.  4,  c.  16,  s  Id,  it  is  sufficient  to  prove  the 
petition  to  the  chancellor  for  the  substitution  of 
the  new  debt,  the  chancellor's  order  referring  the 
sufficiency  of  the  debt,  dtc.  to  the  commissioner, 
and  the  finding  of  the  commissioner  thereon.  It 
is  not  necessary  to  produce  the  chancellor's  order 
confirming  such  finding.  Batchelor  v.  Vyse,  1 
M.  &,  Rob.  331— Tindaf:  S.  C.  not  S.  P.  4  M.  & 
Scott,  552.  296 

If,  on  an  application  to  substitute  a  petitioning 
creditor's  debt,  by  any  other  creditor,  it  appean 
that  the  original  debt  was  proved  under  a  mistake 
in  law,  and  was  reduced  on  legal  grounds,  and 
without  firaud  on  the  part  of  the  original  petition- 
ing creditor,  though  he  comes  to  substitute  under 
such  circumstances  in  autre  droit.  Ex  parte 
Rogers,  4  Deac.  &.  Chit  637 ;  S^Mont.  &  Ayr.  153. 

296 

An  order  by  the  Lord  Chancellor,  under  6  Geo. 
4,  c.  16,  s.  18,  substituting  a  new  petitioning  cre- 
ditor's debt  for  one  alleged  to  be  insufficient  to 
support  a  commission,  is  invalid,  if  it  direct  the 
commissionen  to  inquire  only  as  to  the  suffi- 
ciency of  the  new  debt,  and  is  silent  as  to  the  in- 
sufficiency of  the  old.  Muskett  v.  Drummond, 
5M.  &.R.210.  296 

Whether  a  valid  order  under  that  section  made 
pendente  lite,  would  be  evidence  against  a  party 
who  had  no  notice  of  such  order,  quere .'    Id. 

On  a  petition  for  a  substitution  of  a  debt,  in  lieu 
of  the  petitioning  creditor's  debt,  under  the  6  Geo. 
4,  o.  lb,  s.  18,  uie  costs  of  the  proceeding  must 
be  paid  by  the  petitioning  creditor,  and  not  out 
of  the  bankrupt's  estate.  Ex  parte  Hayne,  4 
Deac.  &,  Chit  403.  896 

The  petitioning  creditor  issued  the  fiat  on  a 
debt  of  700Z.,  but  the  greater  paK  being  contract- 
ed during  the  bankrupt's  minority,  and  not  for 
necessaries,  the  debt  was  reduced  below  1001., 
and  was  therefore  insufficient  to  support  the  fiat. 
But  the  petitioning  creditor  had  also  accepted 
bills  for  the  accommodation  of  the  bankrupt, 
which  having  been  indorsed  by  the  bankrupt  to 
A.,  A.  proved  them  under  the  nut  The  petition- 
ing creditor  subseouently  paid  these  bills :-— Held, 
that,  on  indemnitying  A.,  and  on  presenting  a 
petition  in  the  name  of  A.  for  that  purpose,  the 
petitioning  creditor  was  entitled,  under  6  Geo.  4, 
c.  18,  ss.  18, 52,  as  a  surety  paying  the  debt,  to 
substitute  the  debt  so  proved  on  the  bills*by  A.» 
for  the  original  petitioning  creditor's  debt,  so  aa 
to  support  the  fiat,  notwithstanding  the  words 
<'  any  other  creditor'!  in  the  18th  sect  Ex  parte 
Rogers,  4  Deac.  &  Chit  623;  2  Mont  ik,  Ayr. 
153-  296 

Costs  of  the  application  to  substitute  another 
debt  for  the  debt  of  the  petitioning  creditor  or- 
dered to  be  paid  by  the  petitioning  creditor.  Ez 
parte  Lloyd,  2  Deac.  &  Chit  506. '  296 

Where  the  commissioners  find  the  petitioning 
creditor's  debt  insufficient  to  support  the  fiat,  they 
should  also  expressly  find,  that  the  debt  proposed 
to  be  substituted  was  incurred  not  anterior  to  the 

KUtioning  creditor's  debt.    Ex  parte  Hunter,  2 
»ac.  A  Chit.  507.  296 


[BANKRUPT] 


2339 


Vll;  DocxxT. 

A.  tendeTed  docket  p^pen,  of  which  the  affida- 
Til  of  debt  w«e  sworn  before  the  solicitor  to  the 
petitUming  creditor ;  at  the  same  time  B.  tender- 
ed paoers  not  so  sworn ;  they  drew  lots,  and  the 
lot  Kll  to  A.,  whose  JMLpers  were  entered :  the 
coort  vefnsed  to  interKre,  to  give  the  fiat  to  B. 
Ex  parte  Darkins,  1  Mont.  &,  Ayr.  417.  298 

A  country  fiat  will  be  preferred  to  a  London 
one,  where  the  m^or  part  of  the  creditors,  the 
witnesses  to  prove  the  requisites  of  the  bank- 
Tvptcy,  as  well  as  <»ie  of  the  bankmpts,  reside  in 
the  ooontryy  and  all  the  eftcts  of  toe  bankmpts 
are  also  there.  £x  parte  Bolan,  2  Deac.  A.  Chit. 
331.  299 

The  same  creditor  cannot  strike  another  docket 
befiue  the  time  for  opening  has  expired.  In  re 
Gerrish,  S  Mont.  &  Ayr.  491 .  299 

VIII.  Fiat  or  Comiissiox. 

iMtmrng  ami  Form,'] — ^If  the  fiat  be  lost,  a  new 
one  must  be  issued.  In  re  Levet,  1  Mont  6l 
Ayr.  306 ;  3  Oeae.  &  Chit.  567.  299 

Where  a  bankrupt,  who  had  been  for  some  time 
residing  in  Brompton  Square,  was  described  in 
the  fiat  "  of  Arundel  Street,  in  the  county  of 
Middlesex,"  where  he  had  taken  temporary  lodg- 
ings only  four  days  before  the  issuing  of  the  fiat ; 
the  fiat  was  superseded,  on  thejrround  of  misde- 
sexiptkm.    £x  parte  Tanner,  2  Deac.  6l  Chit  563. 

301 

The  instances  in  which  commissions  and  fiats 
have  been  superseded  on  the  ground  of  misde- 
scription are  either  where  the  error  was  so  gross 
as  to  mislead  the  creditors,  or  where,  though  not 
so  gross,  yet  the  petitioner  undertook  to  issue  a 
new  fiat,  or  where  two  commissions  existed,  aod 
the  eoart  supported  that  which  contained  the 
most  accorate  description.  £x  parte  Mills,  1 
Mont  dt  Ayr.  310 ;  3  Deac.  &  Chit.  606.       301 

A  coBimission  of  bankrupt,  describing  the 
parties  as  '^bankers,  being  traders  according  to 
the  provision  of  thestat  6  Geo.  4,  intituled,  £c." 
is  good,  though  they  had  ceased  to  be  bankers 
be&e  that  stat.  passed ;  for  the  word  "  bankers" 
is  descriptive  of  thepersons  only,  and  the  word 
**  traders"  is  a  sufficient  allegation  that  they 
were,  as  such,  liable  to  the  bankrupt  laws.  Ber- 
V.  Farebrother,  5  M.  dt  R.  364.  301 


Such  a  commission  may  be  supported  bv  evi- 
dence of  any  species  of  trading  carried  on  oy  the 
bankrupts  after  the  psssing  of  the  statute.    Id. 


J.] — Unopened  fiat  not  amended.    Ex 
parte  Hawes,  1  Mont.  &  Ayr.  708.  3G2 

Unopened  fiat  amended,  by  inserting  the  pro- 
per parish.  Ex  parte  Elliott,  1  Mont.  &  Ayr. 
664:  S  C.  nom.  In  re  Humphrey,  4  Deac.  &, 
Chit  484.  302 

Docket  papers  and  the  fiat  cannot  be  amended 
by  inserting  the  bankrupt's  place  of  business. 
Ex  parte  Graves,  1  Mont  St.  kjx.  315.  302 

(^nsBie,  if  the  docket  be  correct,  and  the  fiat 
Bconect,  through  the  error  of  the  ofiice.^    Id. 

A  fiat  win  not  be  amended  by  altering  the 
4ate  to  let  in  a  later  act  of  bankruptcy,  unless 

Vol.  IV.  0 


under  special  circumstances.  Ex  parte  Jacobs, 
2  Mont  ds  Ayr.  102  \  4  Deac.  &  Chit  277 :  8. 
P.  in  re  Roberts,  3  Deac.  ds  Chit  315.  302 

Semble,  that  the  name  of  one  of  the  commis- 
sioners who  has  not  acted  under  the  fiat,  being 
misspelt,  is  not  such  an  error  as  to  require 
amendment.    In  re  Bell,  3  Deac.  &  Chit  326. 

308 

Quaere,  whether  the  court  of  Review  can  direct 
an  amendment  of  a  fiat,  without  the  approbation 
of  the  Lord  Chancellor ;  and  whether  this  can 
be  done  now,  after  adjudication.    Id. 

An  unopened  fiat  was  amended,  by  altering 
the  description  of  one  of  the  petitioning  creditors, 
so  as  to  make  it  agree  with  that  in  the  docket 
papers.  Ex  parte  Jervis  or  Jarvis,  4  Deac.  Sl 
Chit.  27 ;  1  Mont.  ^  Ayr.  619.  302 

VaUdUy  generally.'] — A  commission  issued  by 
one  partner  against  another,  not  for  the  purpose 
of  distributing  the  bankrupt's  efl^cts  among  his 
creditors,  but  for  the  sole  purpose  of  dissolving 
the  partnership,  is  supersedeable.  Ex  parte 
Christie,  2  Deac.  &  Chit  465.    Confirmed  on  ap- 

ral  to  the  Lord  Chancellor.    Ex  parte  Christie, 
Deac.  &  Chit  488.  303 

A  commission  held,  under  the  circumstances, 
not  supersedeable,  though  there  were  not  the  re- 
quisites to  support  it  Ex  parte  Munk,  1  Mont. 
dL  Ayr.  612.  303 

Although  a  fiai  is  concerted,  for  the  purpose  of 
defeating  an  action  brought  by  a  creditor  against 
the  bankrupt  for  the  recovery  of  his  debt,  yet, 
where  the  creditor  proves  his  debt  under  the  fiat, 
and  lies  by  for  ten  months  before  he  presente  a 
petition  to  annul  the  fiat,  the  court  will  dismiss 
the  petition.  Ex  parte  Mills,  3  Deac.  &  Chit 
606 ;  1  Mont  A  Ayr.  311.  303 

Second  CommusUm.']  —  Operation  of  second 
commission.  Carew  r.  Edwards,  1  Nev.  &  M. 
632 ;  4  fi.  ^k  Adol.  351 ;  2  Dowl.  P.  C.  613.  304 

The  person  of  a  defendant  is  discharged  by 
certificate,  after  prior  insolvency,  although  15s. 
in  the  pound  were  not  paid.    Id. 

In  such  case  the  certificate  being  proved,  but 
the  verdict  entered  generally,  the  court  will  make 
use  of  affidavite  to  ascertein  the  fiust  df  such 
proof.    Id. 

After  such  general  finding,  the  defendant  be- 
ing taken  in  execution,  he  may  at  once  apply  to 
be  discharged,  without  moving  to  restrict  the 
judgment.    Id. 

The  6  Geo.  4,  c.  16,  s.  127,  is  retrospective, 
and  applies  to  discharges  by  bankruptoy  or  in- 
solvency before  the  passing  of  the  act,  as  well  as 
to  discharges  obtained  subsequent  to  the  passing  of 
the  act.  Elston  v.  Braddick,  2  C.  db  M.  435 ;  4 
Tyr.  122:  8.  P.  Ex  parte  Hawley,  2  Mont  A, 
Ayr.  436.  303 

But  not  where  the  second  commission  was  be- 
fore the  6  Geo.  4,  c.  16.  Ex  parte  Hawley,  2 
Mont.  &  Ayr.  426.  909 

A.,  in  the  year  1816,  was  discharffsd  under  an 
insolvent  act,  and  in  1830  obteined  Eis  certificate 


£840 


[BANKRUPT] 


middr  a  eMUAiitiott  of  bAAknifttey  iMoed  in 
lt29f  Wi4f!r  which  eommisBioa  mB  estate  pr<^ 
dttoed  less  than  iufficient  to  psj  hn  ereditora  15*. 
in  the  pound.  A-,  in  the  yeu  1832^  opened  an 
account  with  the  Bank  of  England,  and  a  sum  of 
^1941. 1^9.  was  deposited  by  him  in  the  Bank : — 
Held,  that  an  action  for  monev  had  and  received, 
brought  by  the  assignees  under  the  commission 
against  the  Bank  of  England,  to  recoTer  the 
aoionnt  so  deposited,  was  maintainable.  Elston 
».  Braddiek,  2  C.  dfc  M.  435 ;  4  Tyt.  122. 

It  is  not  of  coune  to  supersede  a  second  com* 
mission  against  an  uncertificated  bankrupt,  on 
the  ap^ieation  of  the  assignees,  d&c.  under  the 
tint  Et  parte  Detas,  1  ifont.  Sc  Ayr.  420 ;  4 
Dese.  A  Chit.  366.  303 

Where  a  trader,  after  having  obtained  his  certi- 
ficate under  three  commissions  of  bankruptcy, 
under  none  of  which  any  dividend  bad  oeen 
paid,  was  arrested  for  a  debt  Contracted  between 
the  second  certificate  and  the  third  bankruptcv, 
th6  court  refiised  to  discbarse  him  out  of  custodv 
on  finding  wminou  bail.  F«wler  t.  Coster,  5  M. 
AR.3o2.  306 

And  such  third  commission  was  said  to  be  a 
nullity.     Id. 

If  there  have  been  two  commissions,  and  no 
dividend,  it  is  in  the  discretion  of  the  court  to 
allow  or  refuse  the  certificate.  Ex  parte  Green, 
2  Mont.  &  Ayr.  31.  303 

A  commission  issued  against  the  bankrupt  in 
1823,  under  which  a  creditor  omitted  to  prove 
his  debt,  being  informed  there  was  no  assets.  A 
subsequent  nat  was  issued  against  the  bankrupt 
in  1834,  who  had  not  then  obtained  his  tertiftcate 
under  the  former  commission,  when  the  tonrt 
ordered  the  commission  to  be  impounded.  A 
petition  by  the  creditor,  praying  that  the  com- 
mission  might  be  delivered  out  of  the  ofiice,  to 
enable  him  to  ffo  in  under  it,  and  prove  his  debt, 
was  dismissea  with  costa.  Ex  parte  Martin,  1 
Deacon,  44.  303 

Ifnptachment  of  VaUdUy.] — Where  a  bankrupt 
petitions  to  supersede,  and  brings  an  action  at 
the  same  time  to  disjpute  the  bankruptey,  the 
court  of  Review  declined  compelling  him  to  elect 
which  proceeding  he  would  contmue,  but  or- 
dered that  the  petition  should  stand  over  until 
the  result  of  the  action  was  known.  Ex  parte 
Chambers,  3  Deac.  A  Chit.  378.  306 

Thi  court  of  Review  have  jurisdiction  to  re- 
stiain  the  bankrupt  from  bringing  actions  to  up- 
set his  commission.  Ex  parte  Davy,  1  Mont.  & 
Ayr.  283 ;  4  Deac.  &  Chit.  322.  306 

The  court  of  Review  can  stay  any  action 
brought  by  the  bankrupt  in  any  court,  semble.  Id. 

After  twenty-two  years  and  acquiescence,  the 
court  of  Review  will  restrain  the  bankrupt  from 
bringing  actions  against  purchasers  und^r  the 
commission.    Id. 

Long  aequieseence  is  enough  to  refase  to  su^ 
persede  on  the  application  or  the  bmkrupt,  but 
not  alone  enough  to  enable  the  court  of  Review 
t$  fMtMin  him  mm  bringing  actions.  £t  parte 
tttty,  1  ikiit.  A  Ayr.  ftff.  306 


Petitioning  to  enltrge  tte  time  for  aarrsader 
is  a  slight  mA  of  aeqaiesomtia.    ld< 

Lying  in  prison  under  a  commitment  by  com- 
missioners, is  a  strong  act  of  acquiescence.    Id. 

The  court  of  Review  would  not  restnun  an  ac- 
tion in  which  the  bankrupt  intended  Ihhrly  to  ttf 
the  validity  of  the  commianon.    Id. 

If  a  bankrupt,  having  actions  Oendlng,  peti- 
tion to  supersede,  he  must  elect.    Id. 

Where  the  bankropt  petttkHia  to  aoperwdbf 
having  commenced  actions,  lie  mvst  ttndertaktf 
to  stay  them,  and  not  bring  ethtrs  without  toaw 
of  the  court  of  Review.  £x  parte  Pownall,  1 
Mont«  &  Ayr.  314 ;  3  Deac.  &,  Chit.  733,  7!i!6. 

The  bankrupt  may  petition  to  cuptfraede  with- 
out undertaking  not  to  bring  actions.  Ex  parte 
Daly,  1  Mont.  &  Ayr.  343 ;  3  Deac.  &  Chit  728. 

306 

The  certificate  obtained  ixnder  a  ftatidulent 
eommissioil  is  no  protection  against  a  petition  Uf 
supersede.  Exparte  Wyatt,!  Mont.  &  Ayr.  407; 
3  Deac.  A  Chit.  665.  306 

Where  the  bankrunt  petitions  to  alintd  the  fiat, 
on  the  ground  that  ne  has  not  committed  an  act 
of  bankruptoy,  the  court  of  Review  will  ord^r 
him  to  be  furnished  with  copies  of  the  deboeitiona 
relating  to  the  act  of  bankruntey.  Ex  parte 
Smith,  3  Deac.  &  Chit.  101.  306 

It  requires  a  very  lArong  case  to  restraiA  a 
bankrupt  from  disputing  his  commission.  Ex 
parte  Chambers,  2  Mont.  ^  Ayr.  476w  306 

A  party  is  not  bound  by  aequieseettce  whetir 
ignorant  of  his  rights.    Id. 

If  either  Surrendering,  interfering  in  the  choice 
of  assignees,  interposing  as  to  the  disposition  of 
the  estete,  passing  the  last  examination,  nor  en- 
deavoring to  obtain  the  certificate,  are  acte  of 
acquiescence.  Ex  parte  Chamben,  2  Mont.  Sl 
Ayr.  440.  90S 

A  cdmmtssion  of  bankrupt  having  issued  s^ainst 
plaintiff,  which  was  invalid  for  want  of  a  sumcient 
petitioning  creditor's  debt,  plaintiff  applied  to  » 
commissioner  to  appoint  an  official  assignee  to 
investigate  the  sumciencv  of  the  debt,  and  take 
care  or  the  property :  defendant  having  been  ap- 
pointed accordingly,  without  notice  that  the  com- 
mission was  disputed : — Held,  that  the  applica^ 
tion  made  bv  the  plaintiff  did  not  prpclade  hint 
firom  suing  the  defendant  for  monev  received  un- 
der the  conunisaion.  Munk  v.  C5lark,  2  Scott, 
476;  2  Bing.  N.  R.  299;  1  Hodges,  310.        306 

Perpetual  injunction  issued  to  restrain  the 
bankrupt  proceeding  at  law,  to  invafidate  a  com- 
mission issued  ten  years  back,  after  actions  and 
unsuceessfhl  petitions,  and  acte  of  acquiescenee. 
Ex  parte  White,  2  Mont  &  Ayr.  104 ;  4  Deac. 
A  Chit  279.  )06 

Where  the  bankrupt  knows  he  hat  commtttedl 
an  act  of  bankruptey,  his  petition  to  supemede 
will  be  dismissed  with  cotti.  El  parte  Thomp- 
son, BMeiit4t  Ayr.  41;  4  Deae.dfc  Chit  634.  30(1 

kmaeed  and  AuxUiary  FmU.]— >A  woewtd  fiat 


[BANKRUPT] 


8341 


mmt  be  tnkitm  ooi  bf  or  io  the  ownt  of  a  cndi* 
tor  for  1<KU.  Ex  parte  Maade,  1  Mont.  ^  i^yr. 
46;  3  Deac.  Sl  cAiit.  365.  310 

Ao  anxiliarj  fiat  was  |rranted  bj  the  court  of 
ReTiew  to  examine  witneMcs  in  London,  the  ori- 
ginal  fiat  being  worked  at  Portimouth.  Ex  parte 
Cwter,  3  Deac.  &  Chit.  J06.  .310 

Unlrap  tb«Be  ana  ■pecitl  cireomstaneed,  the 
oobK  win  oeTer  allow  the  petitioning  creditor  to 
take  oat  a  new  fiat  before  (he  time  for  opening 
ham  dawad.  6z  parte  Jacefca,  2  Mont.  4&  Ayr. 
IDS;  4  £>ea.  Sl  Chit.  377.  310 

A  new  fiat  issued  on  the  petition  of  the  9ame 
petitioning  creditor  before  the  time  for  opeiling 
had  expired,  he  hAv'tng  been  unable  to  prove  an 
act  of  bankruptcy  before,  but  one  having  been 
aince  committed.  £z  parte  Llewellyn,  2  Alont.  dr 
Ayr.  296:  S.  P.  In  re  Crawley,  3  Deac.  &  Chit. 
i^J.  310 

A  patitianing  creditor  haying  become  bankrupt 
haiore  tha  14  days  for  opening  the  fiat  had 
elapsed  ;  kt  was  ordered  that  another  cfeditor 
BiAitaka  new  docket  papers  into  the  office, 
and  if  the  first  fiat  araa  not  prosecuted,  that  he 
SBichft  then  issue  a  fresh  fiat  £z  parte  Smith,  3 
Oeae.  dk  Chit.  309.  310 

Upon  the  loss  by  the  petitioning  creditor  of  his 
evidence  to  support  the  nat,  the  court  of  Review 
will  not,  on  a  petition  by  another  person  for 
aaeChar  fiat,  order  him  to  be  exempt  finrnm  paying 
the  102.  uuier  section  45,  and  the  UOl.  under  sec* 
tioa  47.  QfUBtm  whether  the  court  of  Review 
liave  ianadictioB .'  Ex  parte  Osborne,  2  Mont.  Hi 
Ajr.  140 ;  4  Deac.  A  Chit.  396.  310 

A  Sat  omitted  to  be  opened  within  the  time 
limited  by  the  general  order,  is  not,  for  that  cause, 
abaolutaly  superseded,  but  only  supersedeable. 
Ex  parte  Smith,  3  De«c.  &.  Chit.  761.  310 

What  ia  nequixed  to  be  stated  in  an  affidayit  on 
aa  application  to  enlarge  the  time  tor  opening 
a  fiat.    See  id. 

The  petitioning  creditor,  after  issuing  a  fiat, 
foand  he  could  not  support  it,  on  account  of  his 
iaahSitjr  to  prove  the  trading.  The  court  refused 
to  permit  another  petitioning  creditor  to  issue  a 
second  fiat,  before  the  time  Tor  proceeding  in  the 
Ibst  waa  expired.  £x  parte  Howes,  3  Deac.  & 
Chit.  493.  310 

Wfaaie  the  time  fi>r  opening  a  fiat  expins,  and 
aaeeond  is  then  issued  oy  another  party,  it  is  no 
Roond  for  superseding  the  second,  that  it  did  not 
Hsoa  QBtil  after  the  first  was  actually  opened, 
nnlMS  the  p«^  issuing  the  second  knew  that 
fret,  or  was  guiUy  of  some  fraud.  £x  parte  West- 
stt,  4  Deae.  A  Chit.  360.  310 

AHhongh  the  petitioning  creditor  goes  abroad, 
after  iseninff  a  fiat,  the  court  will  not  permit 
ansther  ereditor  to  issue  a  second  fiat,  until  the 
tisM  fiir  proaeeding  in  the  first  has  expired.  Ex 
psrte  Hedlej,  3  Deac.  dk  Chit  503;  1  Mont.  A 
Ayr,  79.  310 

Wlwie  a  time  for  opening  the  town  fiat  is  nearly 
ma  fwft,  the  court  will  not,  at  the  instance  of  the 
ptitioDiiig   creditor,  supersede    it  and  issue  a 


country  fiat  lor  an  aUegad  convenieaee  of  credi- 
tors.   Ex  parte  fiell,  4  Deac.  dit  Chit.  481.      310 

When  a  country  fiat  is  superseded  because  the 
commissioners  decline  to  act,  and  a  new  one 
issues  to  a  London  commissioner,  this  is  not  a 
"  renewed"  fiat  under  1  dc  2  Will.  4,  c.  56,  s.  4?^ 
and  full  fees  must  be  paid.  Jn  re  WeUman,  2 
Mont,  dp  Ayr.  2J)3.  310 

Joint  or  saturate  Fiai.]-Af  the  exiatenee  of 
two  commissions  creates  inconvenience,  one  of 
them,  probably  the  first,  will  be  supersetfed.  Ex 
parte  Devas,  1  Mont.  A  Ayr.  436.  311 

A  joint  fiat  issued  against  two  partners :  then 
commissioners  were  appointed  in  pursuance  of 
1  d:  2  Will.  4,  o.  56)  s.  14 ;  a  separate  fiat  against 
the  third  partner  cannot  be  directed  to  the  old 
commissioners.  Ex  parte  Beague.  1  Mont.  4k 
Ayr.  445 ;  3  Deac.  A  Chit  747.  311 

An  application  to  consolidate  the  ioint  and  se- 
parate estates  will  not  be  granted,  if  one  creditor 
dissents.  Ex  parte  Sheppard,  3  Deac.  4k  Chit. 
190.  3U 

If  the  commissioners  certify  that  a  ooiMolida- 
tion  will  be  beneficial,  the  assignees  need  not  be 
served.  Ez  parte  Smith,  2  Mont.  4k  Ayr.  60.   311 

A  eeparate  fiat  having  issued  against  one  of 
three  partners,  it  was  ordered  that  another  sepa- 
rate fiat  which  was  about  to  be  issued  against  pne 
of  the  other  partners,  should  be  directed  to  the 
same  commissioners  as  those  named  in  the  first 
fiat.  Ex  party  filake,  1  Deacon,  191 ;  2  Mont. 
4k  Ayr.  481.  311 

The  court  will  not  annul  a  separate  fiat,  to 
give  effect  to  a  subsequent  joint  one,  on  tha 

Sound  that  the  only  witness  who  could  prove 
e  act  of  bankruptcy,  is  kept  out  of  the  way ; 
nor  will  they  for  such  cause,  make  an  order  mr 
the  inspection  of  the  proceedings  under  the  septr 
rate  fiat,  but  will  merely  enlarge  the  time  for 
opening  the  joint  fiat.  Ex  parte  fiurdekin,  1 
Deacon,  57.  311 

IX.  Declamno  Party  a  Baitkrcpt. 

Where  a  trader,  against  whom  a  fiat  issues, 
swears  that  he  owes  no  petitioning  creditor's 
debt,  and  has  committed  no  act  of  bankruptcy, 
the  court  of  Review  will  stay  the  advertisement 
in  the  Gazette :  a  fortiori,  if  there  does  not  appear 
to  be  a  clear  debt  and  act  of  bankruptcy  on  tha 
proceedings.    In  re  Fletcher,  2  Deac.  4k  Chit.  327. 

812 

On  such  an  application,  it  is  not  neooiSBrv 
that  the  court  should  inspect  the  proceedings.  Id. 

The  application  to  stay  the  advertisement  in 
the  Gazette  will  not  be  heard  unless  the  pro- 
ceedings be  in  court,  or,  as  it  seems,  unless  there 
be  a  very  strong  affidavit  of  solvency.  Ex  parte 
Pownall,  1  Mont,  dk  Ayr.  116;  3  Deac.  4k  Chit. 
723.  312 

Where  there  are  not  the  requisites  to  support 
a  fiat,  the  Chancellor  will  recommend  to  the  com- 
missioner to  hear  counsel  against  the  adjudioa- 
tion ;  and,  if  the  bankruptey  be  fomid,  will  stay 


[BANKRUPT] 


tke 

md  ID 
461. 


of  the  Mdwetiuemeni  m  the  Gtzette, 
£z  parte  Nokes,  1  Mont.  Sl  Ayr. 

312 


Wheie  the  baakropt,  after  the  clioice  of  as- 
•ignees,  petitiona  to  reverBc  the  adradication  an- 
der  the  17th  aectionof  the  1  &  2  WUl.  4,  c.  5(>, 
the  aangnees  are  not  prevented  from  addocinj^ 
Ibrther  eridenoe  to  eatabliah  the  act  of  bank- 
roptcj,  npon  which  the  adjudication  of  the  coin- 
mianoner  proeecded.  Ex  parte  Jackaon,  2  Deac. 
A  CtuL  601.  312 

On  the  hearing  of  anch  a  petition,  the  bank- 
mpt  ia  entitled  to  have  copiea  of  the  depoaitiona, 
to  enable  him  furlj  to  dispute  the  bankruptcy. 
Id* 

On  an  application  for  enlarging  the  time  for 
opening  a  nat,  an  affidavit  muat  be  made  that  the 
party  bona  fide  intenda  to  prosecute  the  fiat,  that 
there  ia  no  compoaition  deed  pending  or  intended, 
and  no  conniTanoe  with  the  bankrupt.  £z  parte 
Smith,  1  Mont  A  Ayr.  473.  312 

The  court  of  Reriew  will  stay  the  insertion  of 
the  advertiaement  in  the  Gazette.  Ex  parte  La- 
vender, 1  Mont  A  Ayr.  699.  312 

On  a  petition  to  revene  the  adjudication,  copies 
of  the  depositions  will  not  be  granted  till  the 
hearing.    £z  parte  Smith,  2  Mont.  &  Ayr.  75. 

312 

It  is  not  of  eoorse  on  a  petition  to  reverse  the 
adjudication,  to  grant  copies  of  the  depositions  be- 
fore the  hearing.  Ex  parte  Matthew,  2  Mont  Sl 
Ayr.  74.  312 

Without  an  affidavit  that  there  is  no  collusion, 
copies  will  not  be  granted  betbre  the  hearing. 
Id. 

Where  the  commissioners  were  absent  from  the 
first  meeting,  the  court  will  appoint  another.  £z 
parte  HaU,  2  Mont  A  Ayr.  294.  312 

The  court  cannot  compel  a  commissioner  to 
adjudieate  a  man  a  bankrupt ;  it  can  only  order 
him  to  proceed.  Ez  parte  Johnson,  2  Alont  dt 
Ayr.  300.  312 


X.  Proof  or  Debts. 


Jttoikmaag  and  Orderwfor  Patfmmt  of  Money. ] 
—A  person  having  been  ordered  to  pay  a  sum 
into  Chancery,  became  bankrupt  without  having 
done  so;  a  supplement  bill  was  filed  against 
his  assignees,  but  no  order  was  made  thereunder. 
Ordered,  that  a  claim  should  be  entered  for  that 
•am.  Ez  parte  Farden,  1  Mont.  &,  Ayr.  219 ;  3 
Deac.  4k  Chit  477.  317 

So,  where  the  asaignees  did  not  appear.  Ez 
parte  Haneock,  1  Mont  A  Ayr.  990:  3  Deac.  A 
Chit  693.  317 

Interlocutory  costs  payable  under  an  order  of 
nisi  Pnus,  by  a  defendant  previous  to  his  bank- 
ruptcy, are  proveable  under  the  fiat,  and  therefore 
the  certificate  is  a  discharge  from  them,  although 
in  attachment  has  been  obtained  before  the  c^- 


tificafte  is  allowed.    Jacobs  v.  PhilTips,  2  Dowl. 
P.C.716;  lC.M.4kR.  196;  4Tyr.65a.    317 

AmuddesJ] — ^An  annuity  was  given  by  a  frtber 
on  his  daughter's  marriage,  by  a  letter  to  the  in- 
tended husband  in  these  words,  via. :  **  I  promise 
vou  until  it  is  Gonvenient  to  me  to  do  soqjiething 
better  for  you,  to  allow  my  daa^ter  llXM.  a  year^ 
which  you  can  have  as  you  may  require  :" — Held, 
to  be  an  annuity  daring  the  joint  lives  of  the 
&ther  and  daughter;  and  though  incapable  of 
valuation,  and  tnere  was  no  evidenee  of  the  gen- 
uineness of  the  latter,  held  to  be  provable--Sir 
J.  Cross,  dissent^  upon  the  ground  that  the  &ets 
required  further  investigation.  Ez  parte  /Lnnan- 
dale,  4  Deac.  A  Chit  511 ;  2  Mont&  Ayr.  19. 

315 


BiUs  and  JVoCes.] — ^A.  discounts  for  K.  k,  Co., 
who  afterwards  become  bankrupt,  three  bills 
drawn  by  them  on  D.  &  8. ;  one  of  the  bilb  b^ 
conies  due  before  the  bankruptcy,  and  the  two 
othen  afterwards :  none  of  them  are  paid  br  the 
acceptors,  and  A.  rives  no  notiee  to  K.  &  Co.  of 
their  dishonor : — Held,  that  A.  could  not  prove 
the  first  bill,  but  might  prove  the  two  othen.  Ez 
parte  Sohurte,  2  Deac.  A  Chit  251 ;  1  Mont  & 
Ayr.  270.  312 

K.  4k  Co.  also  sent  to  A.  five  other  bills  dravna 
by  tbem  on  D.  &  S.,  and  received  .from  him  in 
return  his  acceptances  for  the  precise  amount, 
which  they  discounted  with  their  own  bankers ; 
but  none  of  which  being  paid  by  A.,  (who  became 
bankrupt  before  they  became  due),  they  were 
proved  by  the  holders  under  K.  &  Co.*s  commis- 
sion. A.  having  negotiated  the  five  bills  sent  him 
by  K.  &  Co. : — Held,  that  A.  having  become 
bankrupt,  his  assignee  could  not  prove  them  un- 
der K.  Sl  Co.*s  commission.    Id. 

A.  4k  B.  ezchange  their  acceptances  of  va- 
rious bills  drawn  npon  them  respectively  b^  C. 
and  all  three  become  bankrupt  befi>re  any  of  the 
bills  iall  due.  The  acceptances  of  A.  are  nego- 
tiated by  the  drawer,  C,  and  are  proved  hj  Sie 
holden  under  each  commission,  who  receive  di- 
vidends on  their  respective  proofr : — Held,  that 
A.'s  assignees  might  prove  the  amount  of  B.'s 
acceptances,  under  B.  s  commission,  subject  to  a 
retention  of  the  dividends,  until  it  was  ascer- 
tained what  each  estate  would  pay  on  the  whole 
of  their  liabilities.  Ez  parte  Solarte,  3  Deac.  4k 
Chit  419.  317 

If  a  parbr  take  bills  for  the  price  of  goods,  and 
it  be  ajpreed  that  the  bills  are  to  be  paid  out  of 
the  proceeds,  and  the  acceptors  become  bank- 
rupt, the  indorsen  of  the  bills,  without  notice  of 
the  agreement,  are  entitled  to  the  benefit  of  it 
Ez  parte  Presoott,  1  Mont  4k  Ayr.  316.  317 

One  of  two  partners  accepts  bills  for  a  pre- 
vious partnenhip  liability,  after  his  copartner 
has  committed  an  act  of  bankruptcy: — Held, 
that  these  bills  were,  in  the  hands  of  a  bona  fide 
holder,  proveable  against  the  joint  estate  under 
a  subsequent  commission  issued  against  both 
partnen.  Ez  parte  Robinson,  3  Deac.  4k  Chit. 
376.  317 


[BANKRUPT] 


2343 


6.  A  Co^  to  aecnre  a  permanent  loan  from 
their  bankers,  V.  Sl  Co.,  to  the  amoant  of 
90,0001.,  agree  to  deposit  with  them  their  joint 
note  for  that  amount,  and  as  collateral  security, 
10,000L  in  bills  not  to  be  moved,  and  10,000^ 
in  bills  to  be  with  G.  db  Co.  during  the  day,  and 
also  to  leave  a  standing  balance  on  the  account 
every  night  of  4000f.  In  pursuance  of  this 
agreement,  G.  &  Co.  every  evening  delivered  to 
V .  A,  Co.  bills  of  varioos  amounts,  but  not  less 
than  10,0001.  on  any  occasion,  unless  their  cash 
balance  exceeded  4000^,  and  every  morning 
thej  received  these  bills  back  again  from  V.  £ 
Co.,  which  were  either  returned,  or  others  of 
cqoal  amount  substituted,  every  evening.  On 
the  last  dav  of  dealing  between  the  parties,  G. 
A  Co.  inarmed  V.  &  Co.  that  as  they  had 
drawn  out  the  cash  balance,  which  they  ought  to 
have  left  in  their  hands,  they  had  given  addi- 
tional security  to  V.  (k.  Co.  by  legging  bills 
with  them  to  a  greater  amount.  The  amount  of 
the  sum  so  overdrawn  was,  in  fact  3000^.,  and 
the  amoant  of  the  bills  then  deposited  was 
92fiB6i  ,  including  a  note  of  hand  of  B.  A  Co. 
fi>r  10,0001.,  for  which  B.  &  Co.  had  only  re- 
ceived a  partial  consideration  from  G.  &,  Co., 
bot  y.  A  Co.  had  no  notice  of  such  want  of 
eonstderatioa  attaching  to  this  note.  At  the 
elosing^  of  the  account  between  G.  &  Co.  and 
v.  &  Co.,  a  balance  was  due  to  V.  &  Co.  of 
3S,3862.,  for  which  they  held  the  deposit  of  the 
biUs  and  note  to  the  amount  of  22,666/.,  besides 
the  note  of  G.  A  Co.  for  20,000/.  G.  &  Co.  aOer- 
wards  stopt  payment,  when  V.  <&  Co.  gave  them 
a  letter  of  licence,  which  was,  however,  subse- 
quently recalled.  B.  &>  Co.  became  bankrupt: 
— Held,  that  V.  &  Co.  were  entitled  to  prove  the 
ftdl  amoant  of  the  note  for  10,000/.  against  B. 
A.  Co.'s  estate,  but  as  the  specified  purpose  of 
Ibe  depomte  of  the  bills  by  G.  &  Co.  with  V.  A 
Co.  was  not  to  secure  any  general  balance,  but 
merely  the  two  loans  of  20,000/.  and  3000/., 
the  buls  deposited  were  to  be  considered  only  as 
a  ooUaleral  secority  for  those  two  sums,  and  not 
far  the  amoant  of  the  whole  debt  due  to  V.  ^ 
Co  ;  that  the  proceeds  of  the  other  bills,  and  of 
O.  dk  Co.'s  joint  note,  most  therefore  be  de- 
dooted  from  the  23,000/.,  and  that  V.  A  Co. 
were  entitled  to  receive  dividends  on  their  proof 
against  B.  A  Co.'s  estate,  until  they  should 
have  received  fall  payment  of  the  unsatisfied  ba- 
lance of  this  latter  sum.  Ex  parte  Vere,  4  Deac. 
A  Chit.  295;  S  Mont  A  Ayr.  123.  317 


BorndgJ] — Bond  of  indemnity  to  sheriff.  Ex 
pvte  HmhaU,  3  Deac.  A  Chit.  120 ;  2  Deac.  A 
Chit  589;  1  Mont  A  Ayr.  118, 145 ;  1  Mont  A 
B%h,  913.  319 

A  bond  is  proveable,  given  by  the  bankrupt  in 
eonnderation  of  his  wife's  fortune,  that  he,  his 
beiTs,  Ac,  would,  within  three  months  from  the 
marnagei  on  receiving  notice  from  the  trustees, 
pay  them  lOOOf.,  to  be  held  on  the  trusts  of  the 
marriage  settlement,  though  no  notice  was  given 
before  the  bankraptcy.  £x  parte  Hooper,  1  Mont, 
ft  AjT,  395.  319 


Debts  compounded  for,'] — By  a  deed  of  compo- 
sition entered  into  by  the  bankrupt  with  his  cre- 
ditors, dated  September  5,  1831,  he  agreed  to 
pay  them  IO5.  in  the  pound,  by  two  instalments 
of  55.  each ;  in  consideration  or  which  the  credi- 
tors covenanted  to  release  him  from  his  debts,  as 
soon  as  both  the  instalments  were  paid.  This 
deed  was  executed  by  the  mo^or  part  of  the 
creditors.  After  the  payment  of  the  first  instal- 
ment, on  the  31st  of  October,  1831,  a  commis- 
sion issued  on  an  act  of  bankruptcy  committed 
in  June,  1831  : — Held,  that  the  creditors  who 
had  received  the  first  instalments  were  entitled  to 
prove  for  the  residue  of  their  debts,  without  re- 
funding the  amount  of  the  instalment.  £z  parte 
^ood,  2  Deac.  A  Chit  508.  321 

A  composition  creditor,  who  receives  an  a»> 
stgnment  of  a  debt  as  security  for  the  compo- 
sition, is  not,  when  the  old  debt  revives,  entitled 
to  retain  the  debt  on  a  question  of  proof— Cross, 
J.,  diss.    Ex  parte  Ellis,  2  Mont  A  Ayr.  370. 

321 

An  insolvent  compounds  with  her  creditors  for 
13«.  6<i.  in  the  pound,  but  promises  to  pay  one 
of  her  creditors  the  whole  of  his  debt,  in  order  to 
induce  him  to  sign  the  composition  deed.  After 
paying  him  in  full,  she  contracts  a  firesh  debt  with 
him,  and  then  becomes  bankrupt : — Held,  that 
the  payments  made  to  the  creditor  above  the  com- 
position of  13«.  Qd.  in  the  pound,  were  fraudulent 
and  void,  and  that  the  creditor  could  not  prove 
for  the  amount  of  his  fresh  debt  contracted  with 
the  bankrupt,  without  first  deducting  these  pay- 
ments.   Ex  parte   Minton,  3  Deac.  A  Chit.  688. 

321 

A  creditor  having  agreed  to  accept  a  composi- 
tion for  his  debt,  takes  bills  for  the  amount  of  the 
composition,  and  also  has  a  bond  assigned  to 
him  as  part  security  for  the  composition.  The 
composition  deed  contained  a  clause,  that  in  de- 
fault in  payment  of  the  instalments,  the  composi- 
tion should  fall  to  the  ground.  Default  is  made, 
and  subsequently  a  fiat  issues : — Held,  that  the 
creditor  might  prove  the  balance  of  the  original 
debt,  and  also  retain  the  bond.  Ex  parte  Reay,  4 
Deac.  A  Chit.  525 ;  2  Mont.  A  Ayr.  33.        321 

Marriage  Contracts.'] — Proof  of  marriage  con- 
tracts, bx  parte  Shute,  3  Deac.  A  Chit.  1 :  1 
Mont  A  Bligh,  385.  322 

The  two  trustees  under  the  marriage  settle- 
ment of  H.,  a  bankrupt,  advanced  him,  on  the  se- 
curity of  his  bond,  the  amount  of  the  trust  fund, 
(which  was  his  wife's  fortune),  for  the  purpose 
of  being  employed  in  his  business ;  and  one  of  the 
trustees  afterwards  entered  into  a  parol  agree- 
ment with  H.  and  his  partner  that  the  loan 
should  be  considered  a  debt  due  from  the  part- 
nership : — Held,  that  this  subsequent  agreement 
was  in  the  nature  of  a  collateral  security,  and 
that  the  trustees  could  prove  both  against  the 
joint  estate  and  the  separate  estate  of  H.,  making 
their  election  afterwards  from  which  estate  they 
would  receive  dividends.  Ex  parte  Kedie,  2 
Deac.  &  Chit  321.  323 


2344 


[BANKRUPT] 


What  is  rafficent  evidence  of  a  marritjre  con- 
tract to  entiUe  the  party  to  prove.  See  £zpa  rie 
Annaadale,  2  Mont  &.  Ayr.  19 ;  4  Deac.  &  Chit. 
5U.  322 

The  bankrupt  having  received  5502.  with  his 
wife  on  his  marriage,  gave  a  bond  to  tnistees 
conditioned  for  the  payment  of  1100^,  **on  re- 
ceiving notice  from  the  trustees  :*' — Held,  that 
although  no  notice  was  firiven  to  the  bankrupt 
before  his  bankruptcy,  tnis  was  nevertheless  a 
contingent  debt  provable  within  the  provisions  of 
the  56m  section  of  6  Geo.  4,  c.  16.  Ex  parte 
Hooper,  3  Deac.  &  Chit.  655.  322 

By  the  terms  of  the  bankrupts  marriage  settle- 
ment, the  wife's  property  was  settled  upon  her, 
in  case  of  the  bankrupt's  death,  or  the  parties 
being  divorced,  but  the  bankrupt  was  entitled 
to  the  interest  for  his  life ;  and  in  case  he  sur- 
vived his  wife,  he  was  to  have  a  certain  share  of 
this  property : — Held,  that  the  wife  might,  in  the 
name  of  her  trustees,  make  such  proof  as  the 
commissioners  might  Uiink  she  was  entitled  to. 
£z  parte  Saunders,  3  Deac.  &  Chit.  568.        322 

By  will,  the  lather-in-law  of  the  bankrupt  gave 
40001.  in  trust  for  has  daughter  for  life,  to  her 
separate  use,  then  to  the  bankrupt  for  life,  and 
then  to  the  issue  of  the  marriage.  The  will  re- 
citing that  the  bankrupt  was  indebted  to  the 
testator  600(M.  on  bond,  declared  that  so  much  of 
the  debt  on  the  bond  as  remained  unpaid  in  the 
testator's  lifetime,  should  go  in  redemption  and 
satisfaction  of  the  above  bequest  of  40002.  Prior 
to  the  bankruptcy,  and  subsequently,  by  means 
of  dividends  from  his  estate,  1069/.,  part  of  the 
60002.  bond,  was  paid  off  and  invested  in  the 
funds.  On  petition  of  the  assignees,  claiming  to 
be  entitled  to  the  interest  of  the  10692.  (the 
wife  being  dead),  (Sir  J.  Cross,  diss.) : — Held,  that 
until  the  40002.  should  be  made  up,  the  10692. 
should  accumulate,  after  which  the  assignees  were 
declared  entitled  to  the  interest  for  the  bankrupt's 
life.  £z  parte  Young,  4  Deac.  &  Chit.  645  ;  2 
Mont.  A  Ayr.  228.  322 

One  of  several  patners,  previous  to  his  mar- 
riage, agreed  with  his  intended  wife's  trustees, 
that  he  would  assign  to  them  a  portion  of  his  ca- 
pital in  the  business,  to  secure  to  them  certain 
periodical  payments  of  5002.,  on  the  trusts  of  his 
marriaffe  settlement.  In  pursuance  of  this  agree- 
ment, toe  partnership  opened  an  account  in*  their 
books  with  the  trustees,  in  which  they  placed  to 
the  credit  of  the  trustees  the  sum  of  30002 ,  and 
debited  their  partner  with  the  same  sum,  giving 
the  trustees  notice  that  they  had  transferred  this 
sum  from  their  partner's  private  account.  De- 
lantt  having  been  made  in  uie  payments  of  5002., 
and  the  firm  havin&r  become  bajikrupt: — Held, 
tliat  this  was  an  acknowledgment  or  a  present 
debt  from  the  firm  to  the  trustees,  the  considera- 
tion for  which  was  the  intended  marriage.  Ex 
parte  Hill,  1  Deacon,  123.  322 

The  bankrupt  previous  to  his  marriage,  en- 
tered into  a  l)ond  that  incase  his  wife  should 
survive  him,  and  should  within  two  months  after 
his  desAh,  release  her  dower,  his  heirs  or 
ezeeators  should  within  three  months  afler  his 
death,  pay  to  her  20002.    The  wife  survived  the 


bankrupt,  but  did  not  within  two  months  after 
his  decease  release  the  dower,  although  she  was 
always  ready  and  willing  to  do  so: — Held,  that 
this  bond  was  not  provaUe,  either  under  the  firat 
or  the  last  part  of  the  56th  section  of  the  Bank- 
rupt Act,  inasmuch  as  the  contingency  had  not 
happened,  and  no  value  could  bS  set  upon  it 
£x  parte  Davies,  1  Deac.  115.  SBg 

Proof  of  sureties  1 — A.,  surety  with  B.  for  C, 
is  compellable  to  pay  the  debt  afler  tlie  bank- 
ruptcy of  B.  The  certificate  of  B.  is  no  answer 
to  the  action  of  A.  for  contribution.  Clements 
V.  Langley,  2  Nev.  &  M .  269 ;  5  B.  &  Adol.  372. 

327 

The  instalments  of  an  annuity,  for  the  payment 
of  which  a  bankrupt  is  surety  only,  and  which  he 
covenants  to  pay  in  case  of  the  default  of  the 
grantor,  are  not,*where  thev  become  due  after  his 
bankruptcy,  provable  unoier  a  fiat  against  the 
surety.  'Thompson  r.  Thompson,  2  Bmg.  N.  R. 
168 ;  2  Scott,  266 ;  1  Hodges,  225.  327 

If  A.  and  B.  give  a  joint  and  several  promissory 
note  for  the  debt  of  C,  and  B.  becomes  bankrupt, 
and  A.  pays  the  amount,  he  cannot  prove  against 
B.  as  a  surety,  under  section  52.  Ex  parte  rorter, 
2  Mont.  dL  Ayr.  281.  327 

L.  &  Co.  were  the  agents  of  H.  S.  A  party 
accepted  bills  under  the  following  document, 
ffiven  by  H.  S. : — ^*^  In  consequence  of  your  al- 
lowing Messrs.  L,  to  draw  on  you  to  the  amount 
of  12,0002.,  I  hereby  guarantee  to  you  that 
amount,  it  being  understood  that  payment 
of  these  drafts  is  to  be  provided  for  bv  myself  or 
Messrs.  L.,  in  direct  discountable  bifls,  14  days 
at  least  before  they  fall  due,  dec."  Messrs.  L.  ac- 
cordingly accepted  bills ;  H.  S.  became  bankrupt 
before  some  of  the  bills  became  due : — Held,  that 
there  was  a  debt  provable,  the  document  being, 
not  a  guarantie,  but  an  original  undertaking.  Ex 
parte  Simpson,  I  Mont.  &  Ayr.  541 :  3  Deac.  ik 
Chit.  792.  327 

Semble,  it  would  have  been  provable  if  a  mors 
guarantie.    Id. 

fVagesJ]^A  clerk,  though  enffaced  at  a  weekly 
salary,  is  within  the  meanmg  of  tne  48th  sectioD 
of  the  Bankrupt  Act.  £z  narte  Humphrey,  3 
Deac.  Sl  Chit.  114 ;  1  Mont.  &  Bligh,413.        328 

A  clerk,  who  had  served  more  than  six  months, 
is  entitled  to  the  allowance,  although  the  bank- 
rupt was  not,  in  fact,  a  trader  foe  more  than  two 
months  out  of  the  six.  £x  parte  Gough,  3  Deac. 
<&  Chit.  189.  328 

Tlie  contracts  of  a  trader  with  his  clerks  and 
servants  are  not  dissolved  by  the  issuing  of  a  com- 
mission of  bankruptcy  against  him  :  therefore, 
the  clerk  of  a  trader,  against  whom  a  commission 
issues,  may,  after  the  bankrupt  has  obtained  his 
certificate,  recover  his  salary  for  the  whole  year. 
Thomas  v.  Williams,  3  Nev.  dit  M.  545;  1  Adol. 
&  Ellis,  685.  328 

The  ^ard  of  a  stage  coach,  hired  at  weekly 
wages,  IS  not  a  servant,  within  the  meaning  of  the 
6  ^o.  4,  c.  16,  8.  48.  Ex  parte  Skinner,  3  Deac. 
A,  Chit.  332.  328 


[BANKRUPT] 


td45 


Undef  the  6  Geo.  4^  e.  16,  i«  48,  it  is  ndt  re- 
ppumXe  to  prove  a  hiring  for  a  year  certain,  but  it 
matfi  be  something  more  than  a  mere  hiring  by 
the  «reek.  £z  parte  Collier,  4  Deac.  &  Chit. 
NO ',  2  Mont.  A  Ayr.  d9.  Ez  parte  Skinner,  1 
Moot  Sb  Bligh,  417i  oertMted*  328 

Mortgage  DtHsJ] — After  an  order  for  sale  ob- 
tained by  an  equitable  oiortgaffee,  if  the  assignees 
delay  the  sale,  semblei  that  Oie  course  is  not  to 
present  a  fresh  petition  for  a  sale,  bat  to  prosecute 
the  fonner  order.  £i  parte  Robinson,  3  Deac.  & 
ChH.103.  32) 

The  eeort  refused  to  postpone  the  sale  on  ap- 
plication by  the  8ssi|aiees,  where  the  mortgagee 
objects.  £z  parte  Selcher,  2  Deac.  &  Chit. 
S^.  329 

Wher*  an  equitable  mortgagee  is  also  an  as- 
■ipiee,  u  solicitor  will  be  appointed  to  take  the 
account,  and  conduct  the  sale.  Ez  parte  Lees, 
2  Deac.  &  Chit  364.  330 

Both  freehold  and  leasehold  may  be  included 
m  an  order  of  sale.  Ez  parte  Leathes,  3  Deac. 
4b  Chit  112.  330 

A  legal  mortgage  of  an  equitable  estate,  is 
within  Xiord  Lougnborougb's  order.  Ez  parte 
Attwood.  2  Mont  ^  Ayr.  24  :  8.  P.  £z  parte 
Aple,  1  Mont.  A  Ayr.  621.  329 

The  court  will  only  interfere  to  order  the  sale 
of  equitable  mortgages  in  cases  where  there  is  no 
4ispate.  Id. 

A  bankrupt  mortgagee  of  a  term  gave  an  equi- 
table  mortgage,  and  subsequently  purchased  the 
equity  of  redemption  :— Held,  that  the  equitable 
mortgagee  was  entitled  to  a  sale  of  the  equity  of 
ndemption,  if  it  be  rejected  by  the  assignees. 
Ez  parte  Tufihell,  1  Mont  &,  Ayr.  &0;  4 
Dene.  4k  Chit  29.  329 

A  eeal  mine  was  worked  by  seTeral  persons 
uider  a  lease,  the  articles  of  partnership  gtring 
each  a  power  of  preemption,  m  case  any  partner 
wished  to  dispose  of  his  share ;  a  partner  de- 
posited on  attested  copy  of  the  lease,  in  order  to 
give  an  equitable  mortgage  on  his  share  to  a 
stranger  :-^Held,  that  the  court  of  Review  could 
not  make  the  usual  order  for  sale,  &c.,  as  the  pu't- 
nerahip  iceounte  must  first  be  taken,  which  that 
eonrt  nas  no  jurisdiction  to  do,  and  the  case  was 
not  fi«e  ham  doubt — Cross,  J.,  diss.  Ex  parte 
Broidhent,  1  Mont.  A  Ayr.  635  ;  4  Deac.  & 
Chit.  3.  329 

The  court  will  not  interfere  in  making  an 
ofder  for  the  sale  of  mortgaged  property,  where 
the  circumstances  are  suspicious,  as  to  tiie  niort- 
|age  being  a  fraudulent  preference.  Ez  parte 
Dewdney,  4  Deae.  A.  Chit.  181 ;  2  Mont.  & 
Ayr.  72.  329 

The  court  will  not  interfere  between  two  ad*^ 
Ycrse  claimants — one  claiming  as  equitable  mort 
sagee,  and  the  ether  under  a  prior  lease  made  by  the 
■sakmpt  of  the  same  property, — when  the  estate 
of  the  oankrupt  has  no  interest  in  the  question. 
fii  parte  Boyds,  3  Deao.  &Chit  292.  329 

A  memorandun  in  writing  drawn  up  entirely 
by  the    clerk    of  an  equitable  mortgagee,  and 


which  was  not  signed  by  the  bankrupt,  is  not 
sufficient  to  ezempt  the  mortgagee  fVom  paying 
the  costs  of  the  petition  for  the  sale.  Ex  parte 
Emnierton,  3  Deac.  Sl  Chit  654.  2S» 

Letters  sent  subsequent  to  the  deposit  are 
sufficient  memoranda  to  entitle  to  costs  on  a 
petition  for  sale  of  an  equitable  mortgage.  £z 
parte  Reynolds,  2  Mont.  &,  Ayr.  104 ;  4  Deao.  dk 
Chit  278.  329 

Slaves  in  Antigua  could  not  be  equitably 
mortgaged  by  a  deposit  of  a  registered  title  deed 
containing  a  schedule  of  slaves,  if  the  memo- 
randum accompanying  the  deposit,  which  is  re- 
gistered, do  not  contain  a  list  of  the  slaves.  Ex 
parte  Borrowdaile,  2  Mont  Sl  ^jt.  396,  re- 
versing Ez  parte  Rucker,  3  Deae.  A  Chit  704  ;• 
1  Mont  &  Ayr.  398  :  S.  P.  contra.  329 

The  bankrupts  deposited  only  one  of  their  title 
deeds,  which  however  was  the  principal  convey- 
ance of  the  property,  with  the  petitioners  as  a 
security  for  a  debt,  leaving  the  otner  deeds  in  the 
hands  of  their  own  solicitors  :*^Held,  that  thie 
was  a  good  equitable  mortgage.  Ez  parte  Chip- 
pendale, 1  Deac.  67.  Ss9 

In  e<|uitable  mortgages  by  deposit  of  title 
deeds  without  a  memorandum,  the  mortgagee  ie 
not  entitled  to  past  advances,  in  opposition  to 
the  bankrupt's  affidavit.  Ez  parte  Martin,  2 
Mont  &,  Ayr.  243;  4  Deac.  dk  Chit  457.      329 

The  bankrupt  being  indebted  to  the  petitioner* 
as  the  acceptor  of  two  bills  of  ezchange,  entered 
into  an  agreement  with  them  and  W.  L.,  that  the 
bills  should  be  paid  out  of  the  proceeds  of  certain 
property,  the  deeds  of  which  were  then  in  the 
hands  of  W.  L.  for  sale:  Held,  that  the  pe- 
titioners might  claim  as  equitable  mortgagees^ 
but  subject  to  any  prior  lien  of  W.  L.  Ez  parte 
Greenhill,  3  Deac.  A  Chit.  334.  329 

If  a  legal  mortgage  is  ordered  to  be  sold  by 
the  commissioners,  &e  assignees  are  entitled  to 
the  rents  to  the  thne  of  sole,  unless  the  mott- 

Sigee  makes  an  actual  entry,  or  gives  notice  to 
e  tenants  to  pay  the  rents  to  him.    £z  parte 
Living,  2  Mont  &  Ayr.  223 ;  1  Deao.  1 .         230 

An  equitable  mortgagee  of  leasehold  property 
must  satisfy  a  distress  for  rent  out  of  the  pro- 
ceeds  of  the  sale,  and  can  only  prove  for  the  de- 
ficiency.   Ez  parte  Cocks,  3  Deac.  &  Chit.  8.  330 

Where  there  has  been  an  order  for  the  sale  of 
mortgaged  property,  and  the  sale  is  aflerwarde 
deferred,  the  mortgagee  is  entitled  to  apply  the 
rents  and  profits  in  reduction  of  the  interest  ac- 
cruing sulnequent  to  the  order  of  sale,  and  up  to 
the  time  of  taking  the  account.  Ez  parte  Rams- 
buttom,  4  Deac.  A  Chit  198 ;  2  Mont  dk  Ayr.  79. 

330 

In  general,  an  equitable  mortgagee  is  not  en- 
titled to  his  rents,  dkc.  prior  to  the  date  of  the 
order  for  sale.  But  where,  prior  to  the  bank«- 
rpptcy,  the  mortgagor  absconds,  and  the  equitable 
mortgagee  of  part  of  the  property  takes  possession 
of  that  part  from  the  agent,  and  a  fiat  issues  against 
the  mortgagor,  and  then  the  iiolicitor  to  the  com- 
mission, on  oe half  of  the  creditors  and  ihe  equi- 
table mortgagee  jointlj,  appoint  the  ssme  agent 
to  manage  the  whole  property,  which  agent  is 


[BANKRUPT] 


itly  idopled  bj  the  assiffiieet : — Held, 
i,  thoQgrh  he  was  also  petitioning 
'entitked  to  the  rents,  &«.  from  the 
of  his  first  takinf  poaseasion.  Ex  parte 
BigMld«4  Deac.  &  Chit.  359;  2  Mont.  A  Ayr. 
16:  8.  C.  SDeac.  A  Chit  396;  2  Mont  A  Ayr. 
214.  S30 

Hie  oout  will  not  rescind  a  bona  fide  pnrchase 
hj  the  mortgagee,  becanae  he  had  bid  without 
leave.  £z  pane  Ashley,  I  Mont  A,  Ayr.  82 ;  3 
Oeac.  &  Chit.  510.  330 

They  will  make  an  order  nunc  pro  tunc.  Ex 
parte  redder,  1  Mont  &  Ayr.  327 ;  3  Deac.  & 
Chit  622.  330 

A  mortgagee  who  bids  must  pay  a  deposit  Ex 
parte  Tatham,!  Mont  <k  Ayr.  335 ;  4  Deac.  & 
Chit  360.  230 

A  mortgagee,  with  a  power  of  sale  himself,  put 
np  the  premises  for  sale,  and  then  applied  for 
leaye  to  bid : — Held,  that  he  could  not  be  permit* 
ted,  unless  he  waived  the  power,  and  had  tne  pro- 
perty sold  under  the  order  of  the  commissioners. 
£z  parte  Daris,  1  Mont  A  Ayr.  89 ;  3  Deac.  &, 
Chit  504.  330 

A  reserved  bidding  allowed  to  assignees,  on 
the  sale  of  an  estate,  which  had  been  mortgaged 

.  &  Chit 


by  the  bankrupt    Ex  parte  Ellis,  3  Deac 
897. 


330 


Under  what  circumstances  a  reserved  bidding 
will  be  refused  to  assignees  on  the  property  under 
an  equitable  mortgage.    See  Ex  parte  &imard, 
t.  S5l. 


3  Deac.  A  Chit. 


330 


On  the  usual  petition  of  an  eouitable  mort- 
gagee for  a  sale,  and  leave  to  bid,  the  costs  come 
out  of  the  estate,  though  the  assignees  do  not  con- 
sent. Secus  on  an  independent  petition,  to  bid 
alone.    Ex  parte  Berkeley,  2  Mont  A  Ayr.  54. 

330 

An  equitable  mortgagee  is  not  entitled  to  the 
costs  of  defending  an  extent  in  aid,  or  to  be  ex- 
cused from  paying  a  depoait  Ex  parte  Stephens, 
2  Mont  &  AyrTIi.  3^ 

The  court  of  Review  has  jurisdiction  to  decree 
specific  performance  of  an  agreement  to  purchase 
mortgaged  premises,  sold  wfore  the  commis- 
sioners under  Lord  Loughborough's  general 
order.  Ex  parte  fiarrington,  2  Mont  £  Ayr. 
245;  4  Deac.  A  Chit  461,  confirming  Ex  parte 
Sidebotham,  3  Deac.  A  Chit  818 ;  2  Mont  A 
Ayr.  146, 655.  330 

Froperhf  pledged,] — On  the  sale  of  property 
pledged,  the  assignees  cannot  have  a  reserved 
bidding.    In  re  Skinner,  1  Mont  A  Ayr.  81.  331 

H.,  a  money  broker,  was  in  the  habit  of  de- 
positing bills  of  exchange  with  B.  d&  Co.,  as  a  se- 
curity for  advances,  but  he  did  not  indorse  the 
bills,  nor  were  they  negotiated  by  B.  A  Co.,  or 
ever  presented  for  payment.  A  monirst  other  bills 
so  deposited  was  one  for  lOttV.  accepted  by  C, 
who  became  bankrupt  on  the  5th  of  March,  1824, 
which  was  some  time  aflerthe  bill  became  due. 
He  also  became  bankrupt  on  the  12th  Decem- 
ber, 1825,  when  B«  &  Co.  proved  the  amount  of 
the  balance  he  owed  them,  excepting  this  bill  as 


a  secnrity ;  but  made  no  attempt  to  prove  the  bill 
under  C.'s  commission,  until  January,.  1826, 
when  the  commissioners  rejected  the  proof: — 
Held,  that  the  delivery  of  the  bill  by  H.  to  B.  dk 
Co.,  must  be  taken  to  have  been  by  way  of 
pledge  only,  to  secure  the  amountof  the  advances 
then  due  from  H.  to  B.  &  Co.;  and  that  the 
amount  of  those  advances  having  been  since  paid, 
B.  A  Co.  could  not  prove  the  bill  under  C.'s  com- 
mission. Ex  parte  Britten,  3  Deac.  A  Chit  36. 331 

A  claim  or  proof  cannot  be  resisted  because 
the  creditor  has  property  belonging  to  the  estate 
in  his  possession ; — that  is  only  a  ground  to  m- 
strain  payment  of  the  dividends.  Ex  parte  Dob> 
son,  IMont  dk  Ayr.  666;  4Dea.  dbQi.e9.     331 

The  mere  circumstance  of  a  creditor  coming 
in  under  the  eommission  to  prove,  or  claim  a  debt 
only  gives  the  court  jurisdiction  as  to  the  proof 
or  claim,  and  not  over  any  property  in  his  pos- 
session, of  which  he  claims  the  legal  owneranip. 
Id. 

The  petitioners,  who  were  the  ftctors  of  the 
bankrupt,  held  a  larffe  quantity  of  sugar  in  their 
hands  at  the  time  of  the  bankruptcy,  on  which 
they  had  a  lien  for  41,5912.  15*.  4a.,  and  inte- 
rest in  respect  of  previous  advances.  They  had 
deferred  the  sale  of  the  sugar  at  the  request  of 
the  bankrupt  before  the  bankruptcjTi  and  of  the 
assignees  afterwards,  in  the  expectation  of  a  rising 
market ;  and  the  sugar  was  eventually  sola 
to  great  advantage: — Held,  that  the  petition- 
ers were  entitled  to  apply  the  proceeds  of  the 
sugar  in  payment  of  the  interest  of  the  debt 
accruing  afler  the  bankruptcj^,  and  to  prove  for 
the  balance  of  the  principal,  vrithont  any  deduc- 
tion being  made  in  respect  of  the  interest  so  re- 
ceived. £x  parte  Kensington,  1  Deac.  58;  8 
Mont  A  Ayr.  300.  331 

Where  goods,  in  which  the  bankrupts  were 
jointly  interested  with  A.  B.,  were  pledged  with 
a  creditor  to  secure  the  payment  of  an  acceptance 
of  the  bankrupts,  and  part  of  the  proceeds  were 
received  by  the  creditor  before  he  applied  to 
prove : — ^Held,  that  he  must  deduct  the  amount 
so  received  befine  he  could  prove  on  the  aocept- 
anoe.  Aliter  if  the  goods  hiui  belonged  to  A.  B. 
alone.  Ex  parte  Prescott,  4  Dea.  A  Ch.  23.    331 

Where  property  pledged  by  the  bankrupt  with 
a  creditor  is  claimed  by  a  third  person,  the  credi- 
tor may  enter  a  claim  on  the  proceedings  fiir  the 
whole  of  his  debt,  till  the'legal  right  to  the  pro- 
perty is  determined.  Ex  parte  WiUiams,  4  DSmc. 
A  Chit.  180.  331 

Bjf  vkom  and  hate.} — ^Where  a  creditor,  after 
the  issuing  of  the  fiat,  assigns  his  debt,  this  does 
not  give  the  assignee  a  right  to  prove  it,  but 
merrily  a  right  to  call  on  the  assignor  to  prove 
the  debt,  as  a  trustee  for  the  assignee.  Ex  parte 
Dickenson,  2  Deac.  A  Chit  520.  >       332 

Proof  by  Bank  of  England.  Ex  parte  Eng- 
land (Bank),  1  WUs.  C.  C.  295 ;  1  Swans.  10 ;  1 
Rose,  142.  


Under  a  fiat  against  a  banker,  one  person 
allowed  to  prove  on  behalf  of  a  large  number  of 
hddera  of  II.  notes ;  not  interfering  as  to  the  aa- 


1 


[BANKRUPT] 


S347 


■ifneea  or  tbe  oertjfioate.    £z  parte  Gordon,  1 
Mont.  &  Ayr.  2^.  333 

Where  a  oeditor  leat  op  the  proper  documents 
to  prove  hie  debt  at  a  dividend  meeting,  and  his 
aoLcitor  forgot  the  daj  ;  another  meeting  waa  ap- 
pointed, at  his  ezpeiise,  to  enable  him  to  prove 
Ilia  debt,  the  payment  of  the  dividend  beinjr  or- 
dered to  be  stayed  in  the  meantime,  and  to  be 
calculated  afresh,  in  case  he  substantiated  his 
pcoof.    In  re  Graham,  2  Deac.  &  Chit.  554.  333 

Whcra  a  creditor  delajred  proving^  her  debt 
mtH  after  a  diridend  had  been  declared,  having 
relied  on  the  promise  oi  tbe  assignee  to  inform 
lier  of  the  progress  of  the  commission,  which  he 
ftiled  to  do,  the  court  of  Review  made  an  order 
that  the  creditor  might  prove  her  debt  within  a 
month,  and  that  the  payment  of  the  dividend 
sboaM  be  in  the  mean  time  suspended.  £x  parte 
Colton,  3  Deac.  &  Chit  194.  333 

A  party  is  not  estopped  from  amending  his 
ilepQntion  of  proof,  by  making  a  second  deposi- 
tioo  ooatradictory  to  the  first :  the  only  question 
is,  which  is  the  most  worthy  of  belief.  Ex  parte 
Britten,  3  Deac.  &,  Chit  35.  334 

Hie  court  of  Review  ordered  a  bankrupt  execu- 
tor to  prove  against  his  own  estate,  and  the  as- 
signees to  pay  the  dividends  into  the  hands  of 
the  aeeoontant-general,  to  the  credit  of  a  cause 
pending  lor  the  administration  of  assets.  Ex 
parte  CoUnan,  2  Deac.  A  Chit  564.  334 

Where  tbe  commissioners  have  exercised  their 
iodgment  with  respect  to  the  proof  of  a  debt,  and 
have  refused  to  admit  it,  the  successful  petitioner 
against  their  decision  is  not  entitled  to  costs ;  it 
being  a  general  rule  that  costs  cannot  be  given 
when  commissioners  exercise  their  jurisdiction. 
Ex  parte  Millington,  1  Mont  db  Ayr.  114.        334 

The  eosts  of  a  petition  to  prove  must  be  paid 
by  the  creditor,  if^  he  adduces  new  evidence.  £x 
parte  Price,  1  Mont  d&  Ayr.  51.  334 

if  he  fluceeed  on  evidence  which  was  tendered 
before  the  commissioner  and  rejected,  it  seems 
he  might  be  entitled  to  eosts.    Id. 

A  creditor  tendered  a  proof  for  35002.,  which  the 
commissioners  rejected  m  toto ;  and  after  present- 
iBf  a  petitioB  against  their  decision,  an  order  was 
BiMie,  by  consent,  that  he  should  prove  for  500/. 
Hie  court  of  Review  would  not  grant  him  costs 
oBt  of  tbe  estate ;  but  ordered  each  party  to  pav 
his  own  costs.  Ex  parte  Waterhouse,  3  Deac.  i. 
Chit  106.  334 

Where  an  actuary  embezxled  various  sums, 
rendering  forty  indictments  necessary,  and  be- 
came bankrupt,  and  five  indictments  were  pre- 
ferred, which  failed  firom  technical  reasons  which 
would  apply  to  any  other  indictment,  the  proof 
was  allowed  for  the  whole  sum  embezzled.  Ex 
parte  Jones,  2  Mont.  &  Ayr.  193  3  3  Deac.  db 
Chit  585.  334 

^  A  poof,  resting  on  a  felony,  cannot  be  made 
till  aner  a  prosecution,  except  where  conviction 
is  hopeless.    Id. 

Where  one  of  two  executors  becomes  bank- 
rapt,  the  solvent  executor  may  prove  against  the 
buiknipt*s  estate  without  an  order.    £x*  parte 

Vol.  IV.  10 


Courtnay,  3  Mont  &,  Ayr.  227;  4  Deao.  &  Chit. 
456. 


A  stranger  to  th^  commission  obtained  an 
signment  of  the  creditor's  proofs,  and  therewith 
bought  part  of  the  bankrupt's  estate  from  the 
assignees : — Held,  that  the  court  had  no  jurisdic- 
tion to  set  aside  the  purchnse — Cross,  J.,  diss. 
Ex  parte  Holder,  1  Mont  &  Ayr.  518.  332 

If  a  defective  affidavit  be  produced,  the  com- 
missioner should  not  reject,  but  adjourn  the 
proof.  £x  parte  Maberly,  2  Mont  A.  Ayr.  83.  333 

An  affidavit  in  support  of  a  deposition  of  proof 
on  a  bill  must  state  the  consideration.    Id. 

On  a  petition  for  leave  to  prove,  and  stay  the 
bankrupt's  certificate,  the  court  will,  where  tho 
circumstances  are  suspicious,  direct  a  meeting  to 
enable  the  creditor  to  prove,  and  will  order  the 
commissioners  to  review  the  certificate.  Ex  parte 
Bray,  3  Deac.  Sc  Chit  495.  333 

F.,  a  partner  in  a  banking  house,  transferred 
bank  stock  belonging  to  a  customer,  by  a  forged 
power  of  attorney ;  the  proceeds  were  paid  to  the 
account  of  the  partnership,  and  aflerwards  appro- 
priated by  F.,  who  was  subsec|uently  executed 
for  other  forgeries,  and  a  commission  issued  against 
the  other  partners,  who  were  ignorant  of  the  trans- 
action, but  with  common  diligence  would  have 
known  it.  Quiere,  whether  the  customer  can 
prove  for  the  value  of  the  stock  under  the  com- 
mission ?   Ex  parte  Bolland,  1  Mont,  db  Ayr.  570. 

333 

The  Lord  Chancellor  ordered  an  action  to  try 
whether  the  partners  were  indebted  to  the  cus- 
tomer.   Id. 

The  customer  could  maintain  an  action  acainst 
tbepartners  for  money  had  and  received.  Slanh 
V.  Keating,  1  Mont  &  Ayr.  582 ;  confirmed  on 
appeal,  1  Mont  A  Ayr.  5d3.  333 

The  commissioners  having  improperly  rejeoted 
a  proof  because  tbe  claim  was  merged  in  a  felony, 
the  petitioner  was  allowed  costs  out  of  the  estate. 
Ex  parte  Birks,  2  Mont  d&  Ayr.  208,  n.  333 

Redmetum  and  expunging.} — Upon  an  applica- 
tion by  assignees  to  expunge  a  proof  upon  a  bill 
of  exchange  by  the  holder  against  the  acceptor, 
because  the  bill  had  since  been  paid  by  a  thira 
party,  the  drawer  must  be  served,  notwithstand- 
mg  the  assignees  have  the  bill  in  their  possession. 
Ex  parte  Greenwood,  3  Deac.  db  Chit  396;  1 


Mont  A  Ayr.  65. 


33B 


The  bankrupt,  who  was  a  tavern-keeper,  had 
bought  of  petitioners  large  quantitiei  of  wine* 
lying  in  the  docks,  which  were  sold  to  him  by 
sample,  for  stipulated  prices,  and  at  long  credit, 
and  for  which  the  petitioners  deliveie<r  to  him 
the  usual  transfisr  wsrrants.  The  assifoees  sold 
the  wines  by  auction  at  a  considerable  loss,  in 
consequence  of  which,  the  commissioner  made  a 
reduction  in  the  petitioners'  proof,  on  the  ground 
that  the  prices  charged  for  the  wines  were  too 
high : — Held,  that  he  was  not  justified  in  making 
the  reduction.  Ex  parte  Reay,  3  Deac.  &  Chit. 
175.  f  /»  33Q 

The  costs  of  the  petitioners,  under  these  eir- 


2348 


[BANKRUPT] 


cnmstances,  were  ordered  to  be  paid  out  of  the 
estate.    Id. 

A.,  B.,  C.  &  D.  contract  a  debt  with  W.  for 
ffoods  supplied  to  them  on  their  joint  account. 
A.\  B.  &,  C.  become  bankrupts,  and  W.  proves 
the  amount  of  his  debt  under  tiieir  commission, 
stating  in  his  deposition  that  A.,  B.  &  C.  onlj 
(without  noticing  D.)  were  jointly  indebted  to 
him,  but  he  afterwards  sues  and  recovers  the 
amount  of'  his  debt  against  D.,  the  solvent  part- 
ner:— Held,  that  in  consequence  of  the  infor- 
mality of  his  proof,  W.  must  pay  the  costs  of 
the  application  of  the  assignees  to  expunge  it. 
Ex  parte  Adams,  3  Deac.  &,  Chit.  623.  338 

A  person,  before  ex  parte  Moult  was  decided, 
made  a  double  proof,  to  which,  according  to  that 
case,  he  was  not  entitled.  Afler  seven  .years,  the 
court  would  not  order  the  dividends  to  be  refunded 
but  made  a  prospective  order.  Ex  parte  Soper,  2 
Mont  &  Ayr.  55 ;  4  Deac.  &  Chit.  569.         338 

A  mere  claim  cannot  be  ezpuncred.  Ex  parte 
Dobson,  1  Mont.  A  Ayr.  670;  4  Deac.  &>  Chit. 
69.  337 

On  an  application  by  two  creditors  to  the  com- 
missioners to  expunge  a  proof,  under  the  6  Geo. 
4,  c  16,  8.  60,  the  commissioners  have  a  discre- 
tionary power  to  adjudge  to  the  creditor  whose 
proof  18  sought  to  be  expunged,  such  costs  as  he 
may  think  reasonable,  including  the  costs  of  the 
meetings,  as  well  as  those  of  a  creditor.  And 
though  the  commissioners  may  have  allowed  ra- 
ther too  much  to  the  creditor,  this  will  not  make 
the  order  bad  for  the  whole  allowance,  but  the 
party  objecting  may  have  the  costs  taxed.  Ex 
parte  Kirkaldy,  4  Deac.  &  Chit.  52 ;  1  Mont.  A, 
Ayr.  642.  338 

'fhe  court  can  reverse  the  decision  of  a  sub- 
division court  on  a  matter  of  fact  as  to  expunging 
a  proof:  that  not  being  within  s.  30  of  1  &  2 
Will.  4,  c.  56.  Ex  parte  Baldwin,  1  Mont.  &  Ajrr. 
615.  338 

Where,  afler  the  rejection  of  a  proof  by  the 
commissioners,  the  creditor  on  petition  succeeds 
in  establishing  a  debt  by  the  affiaavit  of  witnesses, 
who  were  not  tendered  to  the  commissioners 
for  examination,  he  pays  his  own  costs.  Ex  parte 
Price,  3  Deac.  A  Chit.  489.  338 


Proof  ai^nst  Joint  or  Separate  Estate.]-^A 
testator  indebted  on  bond  devised  his  real  estate 
to  the  bankrupt  and  two  other  trustees,  for  pay- 
ment of  his  debts.  The  bond  creditor,  afler  the 
testator's  death,  brought  an  action  against  the 
iMukrftpt  and  the  other  devisees,  and  recovered  a 
jttint  judgment  against  them : — Held,  that  he 
could  not  prove  under  the  separate  commission 
against  the  bankrupt,  even  for  the  purpose  of 
voting  in  the  choice  of  assignees.  Ex  parte 
Pearse,  2  Deac.  A  Chit.  451.  338 

Proof  cannot  be  made  by  the  joint  estate 
against  the  separate  estate,  except  in  the  case  of 
a  fraudulent  abstraction  from  the  joint  funds  by 
one  of  the  partners ;  and  not  then,  if  there  has  been 
any  waiver  of  the  tortious  act  by  the  othftr  part- 


ner, BO  as  to  reduce  it  to  a  matter  of  contract. 
Ez  parte  Turner,  4  Deac.  A  Chit.  169.  338 

A.,  B.  A  C.  agreed  to  dissolve  partnership,  and 
that  A.  should  receive  550^  in  discharge  of  his 
share  in  the  concern;  of  which  502.  was  agreed 
to  be  paid  at  the  date  of  the  agreement,  and  the 
remaining  500^  bv  five  bills  payable  at  futore 
dates,  ^parate  nats  were  subsequentlv  issued 
against  A.,  B.  A  C,  and  the  stock  and  effects, 
wnich  originally  belonged  to  the  firm  of  the 
three,  were  taken  in  possession  of  and  sold  by  the 
assignee  under  the  separate  fiat  against  B.: — Held, 
that  the  agreement  or  dissolution  of  the  partner- 
ship was  executed,  and  not  ezecutorv ;  and  that 
the  joint  creditors  of  A.,  B.  A  C.  nad  no  lien 
on  such  stock  and  effects  for  the  payment  of  the 
debts  owing  to  them  at  the  time  of  A.'s  retiring 
from  the  partnership.  Ex  parte  Clarkson,  4 
Deac.  A  Chit.  56.  338 

A  partnership  of  A.,  B.  A  C.  was  dissolved,  A. 
A  B.  agreeing  to  pay  all  the  partnership  debte. 
D.,  a  creditor  of  the  whole  firm,  Ignorant  of  the 
terms  of  dissolution,  applied  for  payment,  and 
A.  A  B.  by  letter  begged  time,  and  ultimately  D. 
drew  a  bill  on  A.,  B.  A  C.  which  A.  A  B.  accepted 
in  the  name  of  A.,  B.  &  C,  but  without  C.'s  au- 
thority. A.  A  B.  also  by  letter  signed  by  them 
alone  promised  payment  of  the  bill.  A.  A  B.  be- 
came bankrupts;  C.  also  became  bankrupt  : — 
Held,  under  the  circumstances,  that  D.  might 
prove  the  amount  of  the  bill  against  A.  A  B.*s 
estate.  Ex  parte  Liddiard,  4  Deac.  A  Chit  603.  338 

A  testator,  who  was  possessed  of  a  large  capi- 
tal  in  a  house  of  trade,  in  which  he  was  a  part- 
ner, bequeathed  the  residue  of  his  estate  to 
trustees,  of  whom  A.  B.  was  one,  upon  trust  to 
permit  A.  B.  to  receive  the  annual  produce  for 
his  life,  and  after  his  death  to  transfer  the  prin- 
cipal to  his  children  ;  directing  that  if  A.  B. 
became  a  partner  in  the  house  of  trade,  the  tes- 
tator's whole  capital  should  continue  therein, 
A.  B.  and  the  other  partners  giving  to  his  execu- 
tors a  joint  bond  for  the  amount ;  A  B.  became  & 
partner,  the  bond  was  given,  and  the  firm  became 
bankrupt,  and  the  trustees  proved  the  amount 
due  against  the  joint  estate: — Held,  that  the 
dividends  on  the  proof  should  be  invested  in 
stock ;  and  that  the  interest  should  accumulate  un- 
til the  loss  occasioned  by  the  bankruptcy  was  made 
good,  and  the  whole  of  the  principal  sum  then 
due  was  realised.    Ex  parte  King,  ]  Deac.  143. 

338 


Proof  on  several  Estaies."] — If  two  proofs  be 
made  on  a  joint  and  several  bond,  afainst  two 
separate  estates,  a  subsequent  consoFidation  of 
the  estates  does  not  affect  the  double  proof. 
Costs  given  out  of  the  estate,  because  the  com- 
missioners held  the  case  dvubtful.  Ez  parte  Ful- 
ler, 1  Mont.  A  Ayr.  222;  3  Deac.  A  Chit  520. 

342 

B.  &  G.  carried  on  business  at  M.,  under  the 
firm  of  T.  B.  A  Ce. ;  6.  also  carried  on  a  separate 
business  at  N.,  under  the  firm  of  G.  A  Co.,  and 
was  likewise  a  partner  with  J.  in  another  business 
at  L.,, under  the  firm  ofT.,  J.  A  Co.,  and  in  an 
other  business  at  N.,  under  the  firm  of  8.  R. 


[BANKRUPT] 


3349 


TVe  finm  of  T.  B.  &  Co.  and  G.  &  Co.  became 
banknipt: — Held,  that  the  holders  of  a  bill  drawn 
by  T.  B.  6l  Co.,  on  T.  J.  &>  Co.,  and  indorsed 
by  G.  &  Co.  and  S.  R.,  were  not  entitled  to  prove 
it  against  the  joint  estate  of  B.  &  G.,  and  also 
afraioBt  the  separate  estate  of  G.,  bat  must  elect ; 
Bothwithstanding  they  were  i^orant  that  G.  was 
a  partner  in  the  firn  of  T.  B.  &  Co.  £x  parte 
Monlt,  2  Deac.  &  Chit.  419.  342 

F.  dE.  Co.  sold  cochineal  to  John  W.,  for  which 
a  small  part  of  the  price  was  paid  in  cash,  and 
the  remainder  by  two  bills  at  four  months,  but 
the  cochineal  was  to  remain  in  the  hands  of  F.  &, 
Co.  as  a  secnrity  for  the  payment  of  the  bills. 
The  bills  not  being  paid  when  due,  John  W.  sent 
F.  &,  Co.  two  other  bills  drawn  by  himself  on 
Joahna  W.,  for  which  no  considertion  was  given 
to  Joshua  W.,  the  acceptor.  Before  these  bills  fell 
doe,  both  John  W.  and  Joshua  W.  became  bank- 
mpts,  and  the  price  of  cochineal  had  fallen  so 
macb  in  the  market  that  F.  A,  Co.  afterwards 
sold  it  for  not  a  third  of  the  price  at  which  John 
"W.  bought  it,  and  they  .then  proved  for  the  de- 
ficiency under  John  W.'s  commission  : — Held, 
that  they  had  also  a  ri^ht  to  prove  the  amount  of 
the  two  bills  under  Joshua  W.'s  commission, 
without  deducting  the  proceeds  arising  from  the 
sale  of  the  cochineal.  £jt  parte  Fairlie,  3  Deac. 
&  Chit.  285.  341 

B.  A.  Co.,  being  largely  indebted  to  R.  &  Co., 
hidoTsed  to  them  various  bills,  which  had  been 
drawn  or  indorsed  by  C.  &  Co.  for  the  accom- 
modation of  B.  &  Co.  B.  &.  Co.  and  C.  &  Co. 
vespectiTely  became  bankrupt,  .and  R.  &  Co. 
proTed  the  bills  under  each  commission  : — Held, 
that  the  estate  of  C.  dc  Co.  was  a  security  to  make 

rd  the  amount  of  principal  and  interest  due  to 
dt  Co.  from  B.  &  Co. ;  and  thatR.  &  Co.  were 
esCitifid  to  receive  dividends  on  their  proof  under 
C.  db  Co.*8  commission,  until  not  only  the  ba- 
famee  of  the  principal  sum  due  from  B.  &  Co., 
but  alflo  all  interest  thereon,  was  fully  satisfied. 
£x  parte  Read,  3  Deac.  &  Chit  481.  341 


Proof  by  partners.} — A  firm  composed  of  A. 
&  B.  may  prove  imnai  a  firm  composed  of 
B.  &  C.  Ex  parte  rfiiompson,  1  Mont  &  Ayr. 
3M  i  3  Deac.  &  Chit  612.  314 

A  firm  abroad  drew  bills  on  one  of  its  own 
partners,  trading  on  his  own  account  in  England, 
payable  to  an  agent  of  the  foreign  government. 
Toe  bills  were  not  paid.  Process  of  insolvency 
iasned  against  the  foreign  firm,  and  a  commis- 
non  against  the  English  partner : — Held,  that 
the  aeent  might  prove  under  the  commission,  but 
would  be  restrained  from  receiving  dividends  un- 
less he  elected  not  to  prove  against  the  insolvency 
abroad.    Ez  parte  Chevalier,  Mont  dt  Ayr.  34o. 

344 

A.,  B.  A  C.  dissolved  their  partnership,  by  B. 

lefirinj^  fioia  the  concern,  and  assigning  all  his 

share  m  the  partnership  stock,  debts,  and  effects 

to  A.  A  C,  bat  no  notice  of  such  assignment 

WIS  giyen,  IndiTtdaally,  to  the  debtors  of  the 

psrtoership.    A.  &  C.  continued  to  carry  on  the 

business  till  the   death  of  A.    A  fiat  was  then 

JMied  against  B.  Sl.  C.  as  surviving  partners  of 


A.  when  some  of  the  debts  due  to  the  firm  of  the 
three  still  remained  uncollected  : — Held,  that  the 
joint  creditors  of  the  firm  of  the  thr^^e  could  not 
prove  against  the  separate  estates  of  B.  <&  C, 
as  the  outstanding  debts  due  to  the  three  consti- 
tuted joint  property  of  that  firm,  existing  at  the 
time  of  the  bankruptcy.  £x  parte  Leaf,  1  Deac. 
176.  344 

XI.  Assionheht. 

Freehold  Property.'] — If  the  bankrupt  refuses 
to  join  in  the  conveyance  of  any  part  of  his  es- 
tate, the  court  of  review  will  make  an  order  for 
him  to  do  so,  under  the  6  Geo.  4,  c.  16,  s.  78.  Ex 
parte  Jackson,  2  Dea.  &  Chit.  458.  346 

Qusre,  whether  the  commissioners  can  convey 
an  estate  tail  afler  the  death  of  the  bankrupt  ?  Ex 
parte  Somerville,  1  Mont.  &  Ayr.  408 ;  3  Deac. 
<&  Chit.  668.  346 

The  commissioners  would  not  do  wrong  in  ex- 
ecuting a  conveyance  to  enable  the  question  to 
be  tried.    Id. 


A  common  bargain  and  sale  to  assignees 
passes  an  estate  tail  of  which  the  bankrupt  was 
possessed.    Id. 

Two  estates  were  devised  charged  with  lega- 
cies ;  the  devisee  mortgaged  both,  became  bank- 
rupt, and  both  were  sold :  the  proceeds  of  one 
were  sufficient  to  pay  legacies  and  mortga^ 
money ;  secus  the  other : — ^Held,  that  the  legacies 
should  be  paid  out  of  the  former  alone.  Ex  parte 
HarUey,  2  Mont  &  Ayr.  497.  o46 

Leasehold  Property.'] — ^An  agreement  for  a 
lease  is  not  annulled^  by  the  b^krupU^  of  the 
intended  lessee.  Morgan  v.  Rhodes,  1  Mont.  & 
Ayr.  214.  346 

Nor  is  it  annulled  by  his  insolvency.  Crosby 
«•  Tooke,  }  Mont  &  Ayr.  215,  n.  346 

A.,  before  his  bankruptcy,  agrees  to  take  a 
lease  of  a  cotton  mill,  and  enters  into  possession. 
Afler  his  bankruptcy,  one  of  his  assignees  takes 
possession,  and  agrees  to  accept  the  lease,  a  draft 
of  which  was  sent  to  the  assignee,  containing 
covenants  personally  binding  on  them  during  the 
whole  of  tne  term,  and  one,  in  particular,  to  pre- 
vent them  from  assigning  without  the  licence  of 
the  lessor : — Held,  that  Sie  assignees  were  not 
bound  to  accept  of  such  a  lease ;  and  even  if  they 
were,  that  the  court  of  Review  had  no  jurisdiction 
to  compel  specific  performance  of  the  agreement. 
Ex  parte  Lucas,  3  Deac.  &  Chit  144;  1  Mont.  Sc 
Ayr.  93.  346 

In  answer  to  an  action  by  a  landlord  against 
the  assignees  of  a  bankrupt  for  rent,  thO&tter 
mav  plead  that  the  term  did  not  vest  in  them ; 
and  to  avoid  the  effect  of  1  &.  2  Will.  4,  c.  56,  s. 
25,  also,  that  it  did  vedt,'but  that  they  abandoned 
it,  and  were  not  therefore  liable.  Thompson  v. 
Bradbury,  3  Dowl.  F.  C.  147;  1  Scott,5279;  1 
Bing.  N.  R.  327.  346 

In  an  action  for  rent,  for  two  years'  use  and 
occupation,  judgment  was  signed  for  want  of  s 
plea,  but  was  set  aside  on  an  afiidavit  of  meritSi 


[BANKRUPT] 


a»d  pleidiiij;  iMUabljr,  Jko.  The  defim^ant  plead- | 
ed  that  the  two  yean'  rent  became  due  under  a 
kaae,  and  afl»r  a  fiat  had  iMved  against  him,  and 
he  had  been  declared  a  bankrupt ;  and  that  after 
the  rent  became  due,  he  applied  to  the  aasi^neee  to 
accept  or  decline  the  leaae,and  that  the  ani^ees 
declined  the  leaae,  and  thereapon  the  defendant 
tendered  the  lease  and  possession  to  the  landlord, 
who  accepted  the  same.  This  plea  was  pleaded 
at  the  end  of  Trinitj  term,  too  late  to  be  argued 
in  that  term.  The  court  discharced  the  rule  for 
isiting  aside  the  judgment,  as  Uiey  considered 
the  plea  as  friyolous.  Worthington  e.  Prince,  4 
PowK  P.  C.  343.  346 

The  bankrupt  agreed  in  writinff  to  take  a  lease 
of  a  manufactory  for  a  term  of  years,  and  the 
landlord  a^eed  to  erect  at  his  own  expense  cer- 
tain buildings  upon  the  bankrupt  paying,  as  an 
additional  rent,7i.  lOs.  percent,  upon  the  amount 
so  expended.  The  buildings,  however,  were  sub- 
sequently erected  by  the  bankrupt,  on  the  verbal 
assuranee  of  the  landlord,  that  the  bankrupt 
might  deduct  the  amount  expended  fVom  the 
rent  The  assifipiees  elected  not  to  adopt  the 
•gNement  for  ue  lease,  but  refused  to  deliver 
up  posiossion  to  the  landlord  unless  he  allowed 
them  the  sum  which  the  bankrupt  had  expended 
on  the  buildings : — Held,  that  as  both  the  written 
tad  verbal  agreement  between  the  landlord  and 
the  bankrupt  contemplated  a  continuance  of  the 
tenancy,  which  the  assignees  had  themselves  re- 
pudiated,  they  had  no  Tien  on  the  premises  for 
tlie  money  expended  by  the  bankrupt  Ex  parte 
Ladd,  3  Deac.  &  Chit.  647.  346 

The  petitioner  covenanted  with  the  bankrupt 
that  he  would  procure  a  lease  to  be  granted  to  him 
of  certain  premises  by  a  third  person : — Held, 
that  this  was  aa  agreement  for  a  lease,  within  the 
76th  section  of  the  Bankrupt  Act ;  and  that  the 
petitioner  was  entitled  to  call  on  the  assignees  to 
elect  whether  they  would  accept  or  decline  such 
agreement    £x  parte  Benecke,  1  Deac.  186.  346 


CAeM»  m  AetumJ] — An  equitable  mortgagee  of 
two  policies  of  assurance,  which  the  bankrupt 
bad  effected  on  his  own  life,  writes  to  the  insur- 
ance ofl>ce.  Baying,  "  1  am  holder  of  the  under- 
mentioned policies,'*  slating  particulars  of  the 
policies  in  question,  and  inquiring  what  sum  the 
office  would  flive  if  they  were  dehvered  up  to  be 
cancelled  : — Held,  that  this  was  a  sufficient  notice 
of  a  change  of  ownership.  Ex  parte  Strigfat,  2 
Deac.  Sl  Chit.  314.  365 

A.  made  advances  to  B.,  a  trader,  and  after- 
wards took  from  him  as  a  security,  an  assignment 
of  an  equitable  life  interest  in  stock  and  other 
property,  standing  in  the  name  of  and  vest^ 
ed  in  three  trustees  under  a  marriage  settle- 
ment There  being  rumors  about  the  solvency 
of  B..  A.,  in  the  course  of  conversation,  subse- 
quently to  the  assignment,  and  not  with  a  view 
of  givmg  validity  to  his  security,  mentioned  to 
one  of  t£e  trustees,  who  was  not  the  acting  trus- 
tee, that  he  was  secured  by  the  assignment : — 
Held,  that  this  communication  was  a  sufficient 
notice  to  prevent  the  interest  of  B.  passing  to  his 
assignees  on  his  bankxupicyt  aa  property  ia  hia 


order  and  disposition.    Smith  v.  Smith,  2  C.  A  M. 
231 ;  4  Tyr.  52.  366 

Reputed  Ownerghip.] — A.,  tenant  in  fee  of  a 
cotton  mill,  in  whicn  there  was  a  steam-engine, 
boilers,  Ac,  mortga^pd  the  mill,  en|rine,  boueis, 
d^c.  to  B.  but  remained  in  possession  until  hia 
bankruptcy.  The  entablature  plate  of  the  en- 
gine, which,  however,  formed  no  part  of  the 
working  apparatus,  was  fixed  to  the  freehold  of 
the  milT ;  every  other  part  of  the  engine  was  se> 
cured  by  bolts  and  screws,  and  might  oe  removed 
without  iniury  to  the  buildings : — Held,  that  the 
steam-engine  was  not  in  the  order  and  disposi- 
tion of  A.  at  his  bankruptcy.  Hubbard  «.  Bag- 
shaw,  4  Sim.  326.  357 

Upon  the  assignment  of  a  aimple  contract 
debt,  the  assignor  must  be  considered  as  having 
the  order  and  disposition  of  the  debt  with  the  con- 
sent of  the  true  owner,  until  the  debtor  has  notice 
of  the  assignment  Such  debt  will  therefore  pass 
to  the  assignees  under  a  bankruptcy,  by  virtue  ef 
6  Geo.  4,  c.  16,  s.  72,  and  to  the  assignees  under 
the  Insolvent  Debtors'  Act,  7  Geo.  4,  c.  &7,  a.  31. 
Buck  V.  Lee,  3  I>iev.  &.  M.  580.  357 

Where  A.  took  the  lease  of  a  bouse  wad  pre- 
•mises  for  a  term  of  years,  and  took  the  tenant's 
fixtures  in  the  house  at  a  valuation  from  the 
landlord,  andx  afterwards  assigned  the  term  to  B. 
by  way  of  mortgage,  express^  including  the  fix- 
tures, and  subeequently  became  bankrupt: — 
Held,  that  the  fixtures  were  not  goods  and  chat- 
tels within  the  order  and  disposition  of  the  bank- 
rupt, and  did  not  pass  to  hia  assignees.  Bojdell 
V,  M'Michael,  1  C.  M.  &  R.  177 ;  3  Tyr.  974.  358 

The  assiffiiees  who  removed  and  eonveited 
them  were  liable  -in  trover  by  the  mortgagee  to 
pay  the  value  of  the  fixtures  while  fixed  on  tlie 
demised  premises.  Id. 

A  coal  merchant,  at  the  time  of  his  bankruptcy^ 
had  in  his  possession  barges  which  bore  his  own 
name  and  number,  and  were  registered  in  hia 
name  under  the  Waterman's  Act.  l^ese  barges 
he  had  hired  of  defendant,  it  being  the  custom 
fi)r  coal  merehants  to  hire  barges,  and  to  paint  oik 
them  the  name  of  the  hirer.  Upon  a  qnestioa 
whether  the  barges  passed  to  the  coal  merchant's 
assignees  under  his  bankruptcy : — Held,  that  it 
was  properly  left  to  the  jury  to  find  whether  tiio 
custom  was  generally  notorious  in  the  coal  trade  ^ 
and  that  it  was  not  necessary  to  direct  them  to 
inquire  whether  the  custom  was  notorious  to  the 
world  at  large.  Watson  v.  Peach,  1  Soott,  ]49f 
1  Bing.  N.  R.  327.  3Sd 

€rood8  were  sold  under  an  invoice  which  ex- 
pressed that  they  remained  at  rent.  The  vendee 
subsequently  accepted  a  bill  drawn  by  the  vendor 
for  the  price,  which  was  negotiated  by  the  vendor. 
Whilst  the  bill  was  running,  the  vendee  sold  a 
part,  which,  by  his  direction,  was  delivered  by 
the  vendor  to  the  sub-vendee,  whom  the  veador 
charged  with  warehouse  rent  for  the  part>  whieb 
be  paid.  Subse«^uently  the  vendee  became  b«ak- 
rupt,  and  the  bill  was  dishonored : — Held,  that 
the  assignee  of  the  bankrupt  vendee  could  not 
without  paying  the  price  maintain  trover  agssast 
the  vendor  for  the  xeaidue  of  t\m  goods  vhieb 


[BANKRUPT] 


3351 


had  Tcnained  in  hw  hukdB.    Miks  v.  GortoD,  2 
C.  &.  M.  504  ;  4  Tjr.  295.  358 

By  the  custom  of  trade  in  Liverpool,  the  Irani- 
ftr  of  a  deliyerjr  order  from  the  vendor  to  the 
Tendee  of  goods,  enables  the  latter  to  go  into 
the  market  and  dispose  of  such  goods.  In  a  case 
where  the  vendee  had  thus  disposed  of  part  which 
had  been  delivered  according  to  his  order,  and 
then  became  bankrupt,  the  rest  of  th^  goods 
renaatning  in  the  warehouse  of  the  vendor : — 
Held,  that  the  latter  was  entitled  to  retain  them  ; 
the  giving  of  the  delivery  order  not  operating  as 
between  tne  original  vendor  and  vendee  as  a  com- 
plete transfer  of  the  goods.  Townley  v.  Crump, 
5  Nev.  &  M.  606;  1  Bar.  A  Woll.  564.  35ti 

Goods,  under  such  circumstances,  are  not  in 
the  order  and  disposition  of  the  bankrupt  vendee, 
at  the  time  of  his  bankruptcy,  within  the  opera- 
tion of  6  Geo.  4,  c.  16,  s.  72.    Id. 

In  trover  by  assignees  for  timber,  an  arbitra- 
tor, to  whom  the  cause  was  referred,  found  that 
the  bankrupt,  before  his  bankruptcy,  had  oh  be- 
half of  an  unnamed  principal  (the  defendant) 
taken  in  ezchauffe  a  quantity  of  timber,  to  be 
deliveied  free  on  board ;  and  that  he  had  at  the 
same  time  booght  other  timber  of  the  same  party 
on  his  own  account ;  that  the  timber  was  delivered 
t9  the  bankrupt,  and  laj,  till  after  the  bank- 
ruptcy, on  a  common,  mixed  with  other  timber 
of  tlie  bankrupt,  and  in  his  actual  possession ; 
that  the  defendant,  after  the  bankruptcy,  but 
BMire  than  two  months  before  the  commission 
iasoed,  wrote  to  the  vendor,  stating  himself  to  be 
the  principal,  adopting  the  contract  as  to  the 
goods  taken  in  ezcnange,  (but  no  othera),  and  di- 
leeting  that  the  bankrupt  should  not  be  suffered 
la  take  them ;  and  that  the  vemlor  accepted  him 
as  purchaser  accordingly.  The  arbitrator  also 
fbond,  that  before  the  commencement  of  the  two 
months,  the  defendant  had  required  the  bankrupt 
to  deliver  the  timber  belonging  to  him,  (Vhe  de- 
ftndant),  and  that  the  bankrupt  had  proposed  to 
make  np  a  deficiency  in  the  quantity  by  deliver- 
ing some  of  his  own  timber ;  that  no  contract  of 
sale  was  made  as  to  the  latter,  nor  did  anj^thing 
farther  pass  respecting  the  timber  till  within  two 
months  before  the  commission,  when  the  bank- 
rapt  made  a  formal  deliverv  to  the  defendant  of 
•act  of  the  sold  and  part  of  the  exchanged  tim- 
ber, Iving  on  the  common  as  above  mentioned ; 
and  that  the  whole  of  the  timber  belonging  to  the 
defendant  was  in  the  order,  possession,  and  dis- 
position of  the  bankrupt,  with  the  consent  of  the 
true  owner,  till  after  the  bankruptcy : — Held, 
faaraming  the  court  could  review  the  arbitrator's 
anding  as  to  the  above  fects),  1.  That  he  was 
nwranled  in  finding  a  deliveiy  of  the  timber  to 
the  banknipt,  ihooffi  it  was  not  shipped.  2.  That 
the  timber  remained  in  the  bankrupt's  apparent 
poaRssion,  with  the  owner's  consent,  up  to  the 
time  of  the  above  delivery  3.  That  the  oelivery 
to  the  defendant  of  the  timber  belonging  to  the 
banknipt  was  not  referrable  to  any  contract  pto- 
toeted  bv  sect.  81  of  the  Bankrupt  Act.  Shaw 
r  Brrwej,  1  Adol.  A  Ellis,  920.  356 

A.,  in  Fnmtey  employed  B.,  in  England,  to  seD 
wiaes  on  comminBion,  as  well  as  to  purchase  other 


wines  on  A.'s  account,  in  London,  for  which  ha 
furnished  him  with  letiera  of  credit.  The  wines 
were  generally  bought  and  sold  by  B.  in  his  own 
name.  Part  of  the  wines  consigned  by  Ak.  were 
in  the  dock  warehouses,  standing  in  B.'s  name, 
and  part  formed  one  indiscriminate  stock  in  B.'a 
ceUar.  A.  closed  connection  with  B.,  and  re- 
quired him  to  deliver  up  all  the  wines ;  but  B. 
neglected  to  comply  with  this  requisition,  and 
shortly  afterwards  became  bankrupt: — Held, 
first,  that  the  court  had  jurisdiction  to  order  the 
assignees  of  B.  to  deliver  up  these  wines  to  A. ; 
secondly,  that  it  was  not  a  case  of  reputed  owner- 
ship ;  thirdly,  that  A.  might  sue  the  purchasers 
of  the  wines,  in  the  name  of  B.,  or  his  assignees 
But  fourthly,  that  no  order  could  be  made  for 
the  payment  to  A.  of  any  monies,  the  produce  of 
the  wines,  if  mixed  with  the  other  monies  of  B. 
at  the  time  of  his  bankruptcy.  Ex  parte  Moldant, 
3  Deac.  ^  Chit.  351.  358 

A.  was  in  the  habit  of  sending  skins  to  B.'s  tan- 
yard  to  be  dressed,  with  an  account,  as  of  a  sale, 
of  each  parcel  of  skins  to  B. ;  and  B.  rendered  an 
account  of  the  dressed  leather,  as  being  sold  by 
him  to  A.  This  mode  of  dealing  was  only  prac- 
tised by  B.  with  A.,  nor  was  S.  in  the  habit  of 
dressing  skins  for  anv  other  persons : — Held,  that 
a  quantity  of  these  skins,  which  were  mixed  with 
B.'s  general  stock  at  the  time  of  his  bankruptcy, 
passed  to  his  assignee,  on  the  principles  of  re- 
puted ownerehip.  £x  parte  Batten,  3  Deac.  A 
Chit.  328.  358 

Slaves,  being  real  property  in  the  island  of 
Antigua,  could  not  be  considered  as  within  the 
order  and  disposition  of  a  bankrupt  at  the  time 
of  his  bankruptcy.  Ex  parte  Rucker,  3  Deac.  A 
Chit  704  ;  1  Mont.  A  Ayr.  398.  358 

If  A.,  the  true  owner  of  goods  in  the  order  and 
disposition  of  B.,  demand  them  from  B.  before 
an  act  of  bankruptcy,  they  will  not  pass  to  B.'a 
assignees  under  6  Geo.  4,  c.  16,  s.  72.  Smith  v. 
Topping,  ^2  Nev.  &  M.  421 ;  5  B    ik.  AdoL  674. 

To  entitle  the  assignees  of  a  bankrupt,  under 
the  72nd  section,  it  is  not  sufficient  to  show  that 
the  goods  were  in  the  order  and  disposition  of  the 
bankrupt,  with  the  consent  of  a  party  who  wan 
permitted  by  the  true  owner  to  deal  with  them  aa 
his  own,  but  that  the  consent  must  move  directly 
from  the  true  owner  to  the  bankrupt.  Frazer  v. 
Swansea  Canal  Comp.  3  Nev.  &.  M.  391 ;  1  Adol. 
dL  Ellis,  354.  359 

Where  goods  are  delivered  id  a  bankrupt  ta 
sell  in  the  name  of  another,  his  selling  them  in 
his  own  name  does  not  place  tliem  in  his  reputed 
ownenhip.  Ex  parte  Carlow  or  Carlon,  2  Mont« 
&  Ayr.  39 ;  4  Deac.  &.  Chit.  120.  359 

Furniture,  the  separate  property  of  one  part- 
ner, used  by  the  firm,  is  not  in  the  reputed  own- 
erehip of  the  firm,  ut  semble.  Ex  parte  Hare,  2 
Mont.  A  Ayr.  478 ;  1  Deac.  16.  359 

M.  6l  a.,  partnera,  were  consignees  of  a 
West  India  estate,  and  in  that  character  became 
crediton  to  the  estate.  By  deed,  long  prior  to 
the  bankruptcy,  the  estate  was  conveyed  to  trus- 
tees, M.  bemg  one  of  them}  on  trust  to  apply  the 


S3S3 


[BANKRUPT] 


proceeds  to  certain  purposes,  one  of  which  was  to 
pay  off  the  debt  doe  to  M.  d:  A.  M.  A  A. 
assigned  their  debto  to  S.  &  Co.  M.  dt  A.  be- 
came bankrupt ;  but,  prior  thereto,  they  received 
ten  hogsheads  of  sugar,  which  remained  in  the 
docks,  each  marked  in  their  name,  at  the  time  of 
the  bankruptcy.  ^Shortly  after  the  bankruptcy, 
74  hogsheads  arrived,  consigned  by  the  bill  of 
lading  to  the  bankrupts,  which  were  received  by 
the  assignees,  who  also  took  out  the  other  ten 
hogsheads: — Held,  that  the  sugar  came  to  the 
hands  of  M.  db  A.,  clothed  with  a  trust  to  pay  the 
proceeds  to  M.,  as  trustee,  and  was  not  in  the  re- 
puted ownership  of  M.  &  A.,  but  must  be  ap- 
plied to  pav  on  the  debt  assigned  to  S.  &  Co., 
and  in  discharge  of  the  other  trusts  of  the  deed, 
M.,  as  trustee,  being  affected  with  notice  to  M. 
&  A.  of  the  assignment  of  their  debt.  £z  parte 
Smith,  4  Deac.  &  Chit.  579.  359 

Held,  also,  a  case  within  the  principle  of  Ex 
parte  Waring,  14  Vesey.    Id. 

The  furniture  of  a  coal  mine  is  property  of 
which  the  party  who  works  the  mine  is  the  re- 
puted owner,  and  which  upon  his  bankruptcy, 
will  vest  in  his  assignees  under  6  Geo.  4,  c.  16, 
s.  72.  Coombs  v.  Beaumont,  2  Nev.  &  M.  235 ; 
5  B.  db  Adol.  72.  362 

A  steam-engine  erected  for  the  purpose  of 
working  a  coUieijr,  to  be  used  by  the  lessee  of 
such  colliery  during  his  term,  bat  to  be  held  as 
the  property  of  the  landlord,  subject  to  such  use, 
will  not  pass  to  the  assignees  of  the  tenant  on  his 
bankruptcy,  for  it  does  not  come  within  the  de- 
scri]>tion  of  *^  goods  and  chattels"  in  6  Geo.  4, 
e.  16,  s.  72,  nor  had  the  bankrupt  the  actual  or 
apparent  ownership.  Id. 

A  bankrupt  becoming  the  owner,  as  well  as 
occupier,  of  a  freehold  cotton-mill,  gave  the  peti> 
tioners  an  equitable  mortgage  on  it,  *'  together 
with  the  steam-engines,  and  ^so  all  and  singular 
other  the  moveable  and  fiz*?d  machinery,  and 
steam-pipes  then  in,  upon,  about,  and  belonging 
to  the  said  steam-mill  and  premises,  or  occupied 
or  used  therewith ;"  and  the  bankrupt  continued 
in  possession  of  the  mill  and  fixtures  up  to  the 
period  of  his  bankruptcy : — Held,  that  all  parts 
of  the  machinery  and  fixtures,  which  were  so  at- 
tached to  the  premises  as  to  be  legally  affixed  to 
the  freehold,  were  not  to  be  considered  as  goods 
and  chattels  within  the  72nd  section  of  the  Bank- 
rupt Act,  and  that  the  assignees  had  no  right  to 
them,  as  against  the  equitable  mortgagee.  £x 
parte  Wilson,  4  Deac.  &  Chit.  143 ;  2  Mont.  & 
Ayr.  61.  352 

By  the  rules  of  a  joiat-stock  company,  only 
principals  could  become  subscribers.  The  peti- 
tioner purchased  forty  shares  in  the  name  of  the 
bankrupt,  who  verbally  declared  that  he  held 
them  as  a  trustee  for  the  petitioner,  and  the  certi- 
ficates of  the  shares  were  kept  in  the  possession 
of  the  petitioner,  but  no  notice  was  given  to  the 
company  of  the  trust,  nor  did  the  bankrupt  sign 
a  written  declaration  of  trust  until  seven  days  be- 
fore the  fiat  was  issued  .-—Held,  that  the  shares 
were  in  the  order  and  disposition  of  the  bankrupt 
as  reputed  owner,  and  passed  to  the  assignees. 
£x  parte  Orde,  1  Deacon,  166.  '  362 


A.,  in  consideration  of  money  advancsed  and 
to  be  advanced  by  B.  A  Co.,  assigned  all  the 
freight  to  arise  from  the  ship  N.,  under  any  ex- 
isting or  future  charter-party  or  other  contract, 
"for  or  in  respect  of  her  intended  voyage  to  India 
and  back  to  England.**  After  the  freight  had 
been  earned  and  ascertained,  A .  became  bankrupt : 
— Held,  that  such  assignment  was  good,  and  that 
the  assignees  of  the  bankrupt  were  not  entitled  to 
sue  for  the  freight  Leslie  v.  Guthrie,  1  Scott, 
683;  1  Bing.  N.  R.  697;  1  Hodges,  83.  362 

Notice  of  the  assignment  to  the  defendant  being 
averred : — Held,  that  the  freight  did  not  remain 
in  the  reputed  ownership  of  Uie  bankrupt  within 
the  cases  decided  on  21  Jac.  1,  c.  19,  ss.  10  &  11. 
Id. 

A  mortgage  was  made  of  premises  and  ma- 
chinery, which  included  a  steam-engine,  dtc. 
erected  for  trade  purposes,  and  fixed  to  the  free- 
hold ;  the  mortgagor  continued  in  possession : — 
Held,  first,  the  steam-engine  might  be  removed  ; 
second,  it  was  well  mortgaged,  and  not  in  the  re- 
puted ownership.  Ex  parte  Lloyd,  1  Mont.  &. 
Ayr.  494 ;  3  Deac.  &  Chit.  765.  362 

The  owner  of  the  freehold  gave  a  mortgage  for 
a  term  of  years,  but  remained  in  possession ; 
while  in  possession  he  added  fixtures : — Held,  the 
fixtures  were  not  in  his  reputed  ovmership.  Ex 
parte  Belcher,  2  Mont.  &.  Ayr.  160.  362 

If  the  mortgagee  be  himself  a  trustee,  to  whom 
notice  must  be  given ;  the  transaction  itself  is 
notice  enough  to  prevent  reputed  ownership.  Ex 
parte  Smar^  2  Mont.  &  Ayr.  60.  362 

Where  shares' of  a  company  stand  in  the  name 
of  the  bankrupt,  who  is  on  all  occasions  the  only 
apparent  owner,  and  has  possession  of  the  certi- 
ficates of  the  shares,  but  the  shares  belong  to  an- 
other person,  in  whose  favor  there  exists  a  secret 
declaration  of  trust,  the  shares  are  not  in  the  re* 
puted  ownership  of  the  bankrupt.  Ex  parte 
Watkins,  2  Mont,  and  Ayr.  349 ;  4  Deac.  A  Chit. 
87.  362 

That  one  of  the  directors  and  an  actuary  knew 
the  shares  not  to  be  the  bankrupt's,  is  not  suffi- 
cient to  prevent  reputed  ownership.  Id. 

Ex  parte  Watkins,  1  Mont.  &  Ayr.  685;  re- 
versed.   Id. 

Where  shares  of  an  insurance  company  are 
held  in  the  name  of  the  bankrupt  as  trustee,  they 
are  not  in  his  reputed  ownership.  Ex  parte  Wat- 
kins, 1  Mont.  &  Ayr.  689.  362 

What  is  notice  to  the  office.  Id. 

If  the  owner  of  shares  in  an  insurance  com- 
pany assign  them  by  way  of  mortgage,  and  give 
notice  to  the  company,  out  owing  to  an  informa- 
lity in  the  assignment  the  company  do  not  recog- 
nize the  mortgajgee's  tiUe,  and  the  shares  still 
stand  in  the  bankrupt's  name,  the  shares  are  not 
in  his  reputed  ownership.  Ex  parte  Masterman^ 
2  Mont.  &  Ayr.  209.  362 

In  deposits  of  shares  of  insurance  companies, 
where  the  parties  are  partners  thereof,  the  trans- 
action itself  is  sufficient  notice  to  present  reputed 
ownership.  Ex  parte  Waithman,  2  Mont.  &  Ayr. 
364 ;  4  Deac.  &  Chit.  412.  J62 


[BANKRUPT] 


2353 


A  bankinpt  deposits  with  the  petitioner,  by  W8  j 
of  eijattqble  mortgage,  an  assignment  which  had 
\teen  made  to  the  liankrupt,  of  a  reversionary  in- 
terest under  a  will ;  no  notice  of  the  assignment 
having  been  ^ven  to  the  executors,  either  by  the 
bankrupt  or  Dy  the  petitioner  : — Held,  that  the 
property  was  not  within  the  order  and  disposition 
of  the  bankrupt,  as  reputed  owner.  £x  parte  New- 
ton, 4  Deac.  &.  Chit.  138;  2  Mont.  &  Ayr.  52.  362 

On  a  deposit  of  a  policy  of  assurance,  by  way 
of  equitable  mortgage,  the  onus  does  not  lie  on 
the  mortgagee,  to  show  that  notice  of  the  deposit 
was  given  to  the  office  before  the  act  of  bank- 
ruptcy, but  witli  the  assignees,  to  show  that  it  was 
not.    Ex  parte  Stevens,  4  Deac.  dt  Chit.  117.   362 

A  puty,  to  whom  the  bankrupt  had  assigned  a 
policv  of  assurance,  sends  an  agent  to  the  office 
ibr  the  purpose  of  paying  the  annual  premium, 
who,  in  the  course  of  conversation  with  one  of  the 
clerks  in  the  office,  tells  him  of  the  policy  having 
been  so  assigned  : — Held,  that  this  was  not  suffi- 
cient notice  to  the  insurance  office.  £x  parte 
.Carbis,  4  Deac.  <&  Chit.  354.  362 

By  the  rules  of  an  insurance  company,  no  per- 
son, except  a  director,  was  permitted  to  hold  more 
than  two  shares  in  his  own  name  ;  but  no  rule 
prevented  a  person  from  being  beneficially  enti- 
tled to  more  than  two  shares  by  holding  them  in 
the  name  of  another  party.  A  proprietor,  who 
was  already  a  holder  of  two  shares,  naving  pur- 
chased two  others,  caused  them  to  be  entered  in 
the  name  of  tho  bankrupt,  in  the  company's 
books,  with  the  knowledge  of  one  of  the  directors 
and  the  actuary.  The  Irankrupt  signed  a  decla- 
ration of  trust,  that  he  held  the  shares  as  trustee 
for  the  proprietor ;  but  no  notice  of  the  trust  was 
taken  in  this  books  of  the  company,  and  the  bank- 
rupt held  the  certificates  of  tne  shares,  and  con- 
tintied  to  receive  the  dividends  thereon,  account- 
ing for  them  from  time  to  time  to  the  proprietor 
up  to  the  period  of  his  bankruptcy,  when  the 
sfaaies  were  still  standing  in  his  name,  during  all 
which  time  he  was  treated  as  owner  by  the  com- 
pany, had  notice  of  meetings  served  upon  him, 
attended  the  meetings  of  the  shareholders,  and 
voted  as  a  shareholder  : — Held,  on  appeal,  that 
this  was  such  a  secret  trust  as  was  not  within  the 
79th  section  of  the  Bankrupt  Act,  and  that  the 
shares  were  in  the  order  and  disposition  of  the 
bankrupt  as  reputed  owner.  £x  parte  Burbridge, 
1  Deac.  131 .  362 

A  debenture  for  a  tontine  annuity  was  depo- 
sited by  an  intestate  with  his  bankers,  one  of 
whom  received  the  dividends,  and  placed  them  to 
the  credit  of  the  intestate's  account.  The  intes- 
tate died  in  1801,  and  a  commission  issued 
against  the  bankers  in  1810;  notwithstanding 
which  the  same  partner  continued  to  receive  the 
^vidends,  and  pay  tliero  to  the  intestate's  widow 
up  to  the  period  of  his  own  death,  which  hap- 
pened in  16^  ;  some  time  afler  which  the  assig- 
nees of  the  bankers  claimed  a  lien  on  the  deben- 
ture, for '  a  debt  due  from  the  intestate  to  the 
bankimr-hoiise  : — Held,  that  afler  so  long  an 
abandonment  of  any  claim  of  lien,  the  assignees 
could  not  now  support  such  claim ;  and  the  de- 
bentme,  also,  could  not  be  considered  as  having 


been  left  in  the  order  and  disposition  of  the 
bankers,  having  been  deposited  in  the  nature  of 
a  trust.    Ex  parte  Douglas,  3  Deac.  ib.  Chit.  310. 

362 

A.,  on  behalf  of  the  owner  of  a  ship,  entered 
into  a  charter-party  with  B.^  by  which  B.  agreed 
to  pay  to  A.,  on  l>ehalf  of  the  owner,  a  certain 
sum  for  the  freight  of  the  ship,  by  two  instal- 
ments, one  to  be  paid  on  the  sailing  of  the  ship, 
and  the  other  on  the  completion  of  the  voyage. 
The  owner  being  indebted  to  C,  ordered,  in 
writing  A.  to  pay  to  C.  all  monies  he  might  re- 
ceive under  the  charter-party,  and  accordingly  A. 
paid  over  the  first  instalment  to  C.  The  owner 
then  asssigned  by  deed,  the  remainder  of  the 
freight  to  C.,  who  gave  fiotice  of  the  assignment 
to  A.  but  not  to  B.  The  vessel  completed  her 
voyage,  and  aflerwards  the  owner  became  bank- 
rupt : — Held,  that  the  remainder  of  the  freight 
was  not  in  his  order  and  disposition  at  his  bank- 
ruptcy.    Gardner  v.  Lachlan,  6  Sim.  417.       96S} 

By  a  clause  in  the  deed  of  settlement  of  a  bank- 
ing company,  it  was  stipulated  that  the  company 
should  have  a  lien  on  the  shares  of  such  pro- 
prietors as  were  customers,  and  indebted  to  Uie 
bank,  and  that  no  share  should  be  transferred 
without  the  consent  of  the  directors ;  and  an  ab- 
stract of  these  provisions  was  indorsed  on  the 
certificate  of  the  share  held  by  each  proprietor. 
The  bankrupt  at  the  time  of  his  bankruptcy,  was 
the  owner  of  thirty  of  these  shares,  and  had  in  his 
possession  the  certificates  of  ownership  thus  in- 
dorsed, being  then  largely  indebted  to  the  bank 
for  advances : — Held,  ui&i  these  shares  did  not 
pass  to  his  assignees  under  the  clause  of  re- 
puted ownership  in  the  Bankrupt  Act,  so  as  to 
defeat  the  lien  of  the  bank,  which  had  been 
provided  for  in  the  deed.  £x  parte  Plant,  4  Deac. 
<St  Chit.  160.  363 

Goods  sold  but  not  delivered.  Carvalho  v. 
Bum,  1  Nev.  <&  M.  700 ;  4  B.  &^  Adol.  382.     363 

The  assignees  of  a  bankrupt  do  not  take  under 
the  assignment,  property,  tne  equitable  title  to 
which  has  been  transferred  before  the  bankruptcy. 
Burn  V.  Carvalho,  (in  error),  4  Nev.  &  M.  ^9; 
1  Adol.  &  Ellis,  883.  363 

But  such  equitable  transfer  must  have  been 
complete  before  the  bankruptcy;  it  must  have 
been  a  transfer  of  the  whole,  or  an  ascertained 
part  of  specific  property,  and  absolute,  not  con- 
tingent.   Id. 

A.,  at  L.,  having  consigned  goods  to  B.,  at 
K.,  for  sale  on  his  (A.'s)  account,  draws  bills  on 

B.  to  be  paid  out  of  the  produce  of  the  consign- 
ment. A.  negotiates  the  bills  with  C.  in  M. 
UpqA  B.'s  refusing  to  pay  the  first  of  the  bills^ 

C.  writes  to  A.  as  follows : — "  I  request  you  to 
write  to  B.,  by  the  first  vessel,  with  orders  that, 
in  case  he  does  not  pay  your  drafts,  he  shall  im- 
mediately hand  over  such  property  as  he  may 
have  of  yours  of  an  equivalent  value  to  the  bills 
not  paid  by  him,  to  D.,  my  agent  at  K."  A. 
answered : — "  Agreeably  to  your  instructions,  1 
will  write  to  B.,  by  brig  W.,  directing  him  to 
hand  over  to  D.  property  of  mine  in  his  hands  to 
cover  the  amount  of^  the  bills  that  may  eventuallv 
not  be  paid."    A.  accordingly  wrote  to  B.  thiB 


3354 


[BANKRUPT] 


letter^  which  wis  not  commonieated  to  C. : — ^  I 
bare  ensved  to  C.  that  yoo  shall  pam  into  the 
iiands  of  D.,  his  agent,  all  the  property  which 
may  exiat  in  your  hands  for  my  account ;  you 
will  arranee  with  D.  the  mode,"  &c.  Before  this 
letter  reacned  K.,  A.  became  bankrupt;  D.  afler- 
wards  receiving  {roods  from  B.  to  an  amount 
aomewhat  less  uan  the  bills  unpaid,  sold  them, 
and  remitted  the  produce  to  C  : — Held,  that  C. 
had  not,  at  the  time  of  the  bankruptcy,  such  an 
equitable  interest  in  the  goods  as  would  prevent 
A.'a  assignees  from  recovering  in  trover.    Id. 

Dubitatur,  whether  the  last  of  the  above  letters 
was  admissible  in  evidence ;  but  held  that,  whe- 
ther admitted  or  not,  the  aiisignees  might  recover. 
Id. 

A  landlord  distrained  for  rent  arrere  before 
the  bankruptcy  of  his  tenant,  and  when  the  goods 
were  appraised,  lefl  them  on  the  premises  for 
the  use  of  the  bankrupt's  wife,  the  bankrupt  him- 
self being  in  prison.  Ailer  the  bankruptcy  the 
landlord  distramed  again  for  the  very  same  ar- 
rears of  rent : — Held,  that  the  second  distress 
was  void,  and  that  the  goods  passed  to  the  as- 
signees as  being  in  the  order  and  disposition  of 
the  bankrupt  at  the  time  of  his  bankruptcy.  Ex 
parte  Shuttleworth,  1  Deac.  &  Chit.  223.        365 

W.,  a  horse  contractor,  lets  outs  a  cart  horse  on 
hire  to  N.  dt  Co.,  who  have  it  in  their  possession 
more  than  twelve  months,  and  then  become  bank- 
rupt : — Held,  that  it  does  not  pass  to  their  assi^- 
«es,  as  being  in  their  reputed  ownership.  £x 
parte  Wiggins,  2  Deac.  &  Chit.  ^^69.  36ft 

On  a  petition  b^  the  owner  for  redelivery  of  the 
liorse,  and  a  viva  voce  examination  of  witnesses, 
the  bankrupt  is  an  incompetent  witness.    Id. 

The  court  of  Review  will  not  interfere,  by  or- 
•dering  the  messenger  to  withdraw  from  the  pos- 
session of  goods  which  he  has  seized  under  the 
imnkruptcy,  in  any  case  of  reputed  ownership. 
£x  parte  Harling,  2  Deac.  db  Chit.  389.  365 

F.  accepted  bills  to  enable  C.  to  make  ship- 
snents  to  S^  on  an  agreement  (known  at  S.)  to  ap- 
ply the  return  proceeds  in  payment  of  the  bills. 
On  the  last  shipment,  C.  sent  notice  to  S.  to 
mend  the  proceeds  direct  to  F.,  and  gave  the 
same  notice  to  a  partner  of  the  S.  house,  who 
happened  to  be  in  London.  Before  the  notice 
arrived  at  S.  the  return  proceeds  were  sent  off  to 
C,  who  became  bankrupt,  and  his  assignees  re- 
ceived them : — Held,  not  in  his  reputea  owner- 
ship, and  F.  entitled  thereto.  Sx  parte  Flower, 
it  Mont.  &  Ayr.  224 ;  4  Deac.  &  Chit.  449.     365 

Furniture,  settled  to  the  separate  use  of  a  wife, 
the  possession  being  consistent  with  the  settle- 
ment, is  not  in  the  reputed  ownership  of  the  hus- 
tiand.  Ex  parte  Massey,  2  Mont.  &  Ayr.  173;  4 
Deac.  dk  Chit.  405;  S.  P.  Ex  parte  Elliston,  2 
Mont  db  Ayr.  365.  365 

Benkrupt  a  Tnufae.]— Where  a  testator  be- 
cnieaths  the  whole  of  bis  property  to  trustees  for 
tne  payment  of  an  annuity  and  other  purposes, 
and  the  trustees  become  bankrupt,  the  trust  fund 
must  be  set  apart  for  the  payment  of  the  whole 


annuity,  without  regard  to  the  intoresis  of  the 
persons  entitled  to  the  reaidiie.  Ex  parte  Roth- 
well,  2  Deac.  A  Chit.  542. 


The  court  of  Review  will  order  a  bankrupt  trus- 
tee to  be  removed,  and  to  convey  the  trust  pro- 
perty to  a  new  trustee,  under  the  79th  section  of 
the  Bankrupt  Act ;  but  there  is  no  necessity  for 
the  assitrnees  to  join  in  the  conveyance,  as  the 
trust  estate  does  not  pass  to  the  assignees.  £x 
parte  Painter,  2  Deac  dt  Chit.  584. 


Where  a  trustee  becomes  bankrupt,  a  new  one 
may  be  appointed,  on  petition,  without  any  refer- 
ence to  the  master ;  although  the  bankrupt  had 
no  portion  of  the  trust  property  in  his  hands,  ^x 
parte  Buffery,  2  Deac.  &  Chit  576. 


Where  a  conveyance  by  way  of  mortgage  is 
made  to  a  trustee  for  the  mortgagee,  in  trust  to 
sell,  and  the  trustee  becomes  bankrupt,  the  mort- 
gagee should  join  in  the  application  for  the 
pointment  of  another  trustee.  Ex  parte  Ori 
2  Deac.  A  Chit.  413. 

The  surviving  trustee  under  a  marriage  settle- 
ment becomes  bankrupt,  and  is  outlawed.  On 
the  application  of  the  cestui  que  trusts,  the  eomrt 
of  Review  ordered  the  assignees  to  transfer  the 
trust  stock  to  new  trustees.  £x  parte  ^— ,  3 
Deac.  A  Chit  24. 


If  a  trustee  becomes  bankrupt  the  court  will 
appoint  a  new  trustee,  without  a  reference,  if 
there  be  an  affidavit  of  solvency,  fitness,  dkc.  Ex 
parte  Walton,  2  Mont.  A  Ayr.  242 :  8.  P.  Ex 
parte  Beveridge,  4  Deac.  &  Cfhit  455.         "  365 

Where  a  trustee  becomes  bankrupt,  the  general 
rule  is,  that  the  court  will  not  appoint  a  new 
trustee,  under  6  Geo.  4,  c.  16,  s.  79,  without  a  re- 
ference, unless  all  partiea  are  before  the  conrt 
The  smallness  of  the  estate  may  furnish  an  ex- 
ception.   Ex  parte  Whish,  2  Mont  A  Ayr.  214. 

965 

By  the  terms  of  a  devise,  (he  interest  of  a  sum 
was  payable  to  a  bankrupt  for  life,  remainder  te 
his  cnildren ;  the  trustees  (of  which  the  bankrupt 
was  one)  were  authorized  to  lend  the  principal  to 
the  banKrupt  firm,  which  they  did.  On  bank- 
ruptcy, and  proof  against  the  firm  :---Held,  the 
dividend  on  the  proof  should  be  invested  in 
stock,  the  interest  of  which  was  to  accumulate, 
in  the  first  instance,  till  the  principal  sum  was 
made  good  again.  Ex  parte  King,  2  Mont.  A 
Ayr.4la     ^  "^  *  366 

Other  Casef.}~Where  a  testator  directs  his 
trade  to  be  carried  on  afler  his  death,  that  part  of 
his  property  only  will  be  liable,  in  ease  of^ bank- 
ruptcy, which  he  has  directed  to  be  embarked  in 
the  trade.  Thompson  «.  Andrews,  1  Mylne  dk 
K.  116.  367 

A.  bequeathed  a  house  to  B.  for  the  residne  of 
a  term  of  yean,  if  B.  should  so  long  live,  and 
continue  to  inhabit  therein ;  and  after  B.'s  de- 
cease, or  giving  up  the  possession,  A.  beqneathed 
the  house  to  C,  the  wife  of  B.,  for  the  remainder 
of  the  term,  in  case  she  should  so  long  live 
therein  and  remain  the  widow  of  B.,  with  further 
limitations  to  the  issue  of  B.  B.  entered,  with 
the  assent  of  the  executors  of  A.    B.,  being  in 


[BANKRUPT] 


2355 


•BtolTent  eiicmiMUiieasi  went  to  sea  for  six 
months ;  C.  continued  to  occupy  the  house  and 
to  carry  on  B.*s  trade  therein.  During  the  ab- 
sence <M  fi»,a  commission  of  bankruptcy  issued 
against  him.  After  his  return,  B.  continued  the 
occupation  and  the  business  until  the  house  was 
sold  by  his  assignees,  when  B.  &  C.  were  turned 
out  oT  possession  by  the  Tendee.  B.  died.  C, 
remainm^awidow,  demanded  possession  : — Held, 
that  the  bequest  to  C.  did  not,  in  equity,  enure 
as  a  limitation  to  her  separate  benefit,  and  that 
her  executory  estate  passed  to  the  assignees  of 
B^  as  being  such  an  interest  as  B.  could  '*  law- 
ially  depai^ithal."  Doe  d.  Shaw  v.  Steward,  3 
NeT.&M.372;  1  AdoL  ^t  fillis,  300.  368 

B.*s  going  to  sea  on  account  of  insolvency  was 
not  a  ceasing  to  inhabit  or  a  giving  up  of  posses- 
sion so  as  to  defeat  his  life  estate.    Id. 

Nor  his  being  turned  out  of  possession,  semble. 
Id* 

A.  procnres  floods,  which  he  agrees  with  B. 
Sl  Q.  shall  be  shipped  on  the  joint  adventure  of 
ihe  three,  and  then  draws  bills  on  B.  &  C  for 
the  amoont  of  the  eoste  of  the  floods,  which  they 
accept,  A  engaging  to  renew  we  bills  until  the 
return  of  the  proce^  for  the  goods  are  received. 
B.  &  C.  manage  the  shipment,  and  direct  the 
consignee  to  forward  the  account  of  the  return 
sale  to  themselves.  A.  then  applies  to  D.  to 
discount  two  of  these  bills ;  and  to  induce  him  to 
ik  so,  undertakes  that  the  proceeds  of  the  goods 
shall  be  applied  in  liquidation  of  the  bills,  which 
undertaking,  D.,  afler  discounting  the  bills,  com- 
mmwratffs  to  B.  &  C.  All  the  parties  become 
boBkmpi;  and  part  of  the  return  proceeds  come 
ts  tise  hands  of  the  assignees  of  fi.  A.  O.  :-* 
field,  that  the  proceeds  were  clothed  with  a  trust 
fiv  the  payment  of  the  bills,  and  that  the  ossig- 
nees  of  B.  &  C.  were  bound  to  pay  over  sudi 
pneoeds  to  the  assignees  of  D.  Ex  parte  Ck>pe- 
load,  3  Dene.  A  Chit.  199;  2  Mont  &  Ayr.  177. 

363 

A.  supplies  goods  to  B.  &  C.  at  his  own  eoste, 
which  it  is  agreed  shall  be  shipped  on  the  joint 
account  of  the  three ;  and  that  A.  shall  draw  bills 
on  B.  &  C.^  on  account  of  the  return  proceeds, 
he  undertaking  to  renew  the  bilk  until  funds  come 
roond,  so  as  to  keep  B.  d^  C.  out  of  cash  ad- 
vances. B.  &  C.  accept  the  bills,  and  consign 
their  jgoods  to  their  correspondent  abroad,  with 
directions  to  transmit  the  account  of  sales  and 
the  proceeds  to  themselves.  A.  discounte  the 
bilk  with  parties  who  have  no  knowledge  of  the 
bilk  being  drawn  on  account  of  the  joint  ship- 
ment, and  are  not  made  acquainted  with  that  cir- 
cumstanee  until  after  the  respective  bankrupt* 
des  of  A.  and  of  B.  A  C. :— Held,  that  the  biU 
holdefB  have,  nevertheless,  a  lien  on  the  return 
of  the  proceeds  of  the  shipment,  which  came  to 
the  huukof  the  assignees  of  B.  &>  C.  subse- 
quently to  their  bankruptey— Sir  J.  Cross  du- 
hitanle.    Ex  parte  Presoott,  3  Deac.  &  Chit.  218. 

363 

A  London  banker,  having  a  branch  bank  at 
Edinburgh,  stoiis  payment  on  the  2nd  of  January, 
and  writes  to  his  sgent  at  Edinburgh,  apprising 
bim  of  the  fact,  and  directing  the  business  of  the 

Vol.  IV.  11 


branch  bank  to  be  discontinued.  On  the  4th  of 
January,  before  this  notice  reaches  the  agent, 
the  petitioner  pays  into  the  Edinburgh  bank 
3062.  15s.  in  notes  and  cash,  to  be  remitted  to 
the  house  in  London  ;  but  ailer  the  news  reaches 
Edinburgh,  and  whilst  the  notes  were  still  in  the 
a^rent's  possession,  gives  him  notice  not  to  part 
with  them ;  and  they  remained  in  his  hands  on 
the  26th  of  January,  when  a  fiat  issued  against 
the  banker  in  London.  The  agent  at  Edinburgh 
having  a  lien  on  the  funds  in  his  hands,  the  as- 
signees permitted  him  to  retein  the  305{.  l(>s.  in 
part  satisfaction  of  his  lien  : — Held,  that  the  as-> 
signees  were  bound  to  refund  this  sum  to  the  pe- 
tetioner.  Ex  parte  Cunningham,^  3  Deoc.  &  Chit. 
56.  Confirmed  on  appeal  to  the  Lord  Chanc^- 
lor.  Ez  parte  Belcher,  3  Deac.  A  Chit.  87.      365 

So  held,  also,  where  the  notes  delivered  to  the 
agent  were  not  identified.  Ez  parte  Solomans,  3 
Deac.  A  Chit  77.  365 

So,  also,  where  the  notes  were  paid  in  by  the 
customer  on  the  3rd  January,  to  a  sub-agent  of 
the  banker  at  Glasgow,  who  remitted  them  on 
the  4th  to  the  banker's  managing  agent  at  Edin- 
burgh.   Ez  parte  Wylie,  8  Deac.  Chit.  83.      365 

The  bankrupt  was  insolvent  in  1818,  and  a 
commission  issued  in  1832,  under  which  he  ob- 
tained his  certificate,  previous  to  6  Geo.  4,  o.  16 : 
— Held,  that  the  interest  in  an  agreement  en- 
tered into  by  the  bankrupt  subsequently  to  the 
certificate  did  not  pass  to  the  assignees  under  the 
commission.    Ez  parte  Hawley,  S  Mont  dk  Ayr. 


A  bankrupt  sequestrator  .will  be  restrained 
from  receiving  any  proceeds  adversely  to  the  as- 
signee. Ez  pute  Hall,  2  Mont  dk  Ayr.  393.    365 


XII.  ASSIOREXS. 

Official  Jtsstgnees.] — Although  the  court  of  Re- 
view has  a  controlling  power  m  the  appointment 
of  an  official  assignee  by  the  commissioner,  ^ret 
the  court  will  not  interfere,  unless  the  commis- 
sioner has  exercised  an  unsound  discretion  in  the 
appointment  Ez  parte  Bremston,  2  Deac.dk  Chit 

Action  against  official  assignee.  Munkv.  darke, 
3  M.  d^  Scott,  463 ;  10  Bing.  102.  369 

If  an  official  assignee  be  included  in  an  order 
for  payment  of  eoste,  the  order  may  be  enforced 
agamst  him  alone.  Ez  parte  Murray,  1  Mont  db 
Ayr.  475.  369 

The  court  of  Review  has  jurisdiction  to  revise 
the  allowance  made  by  a  commissioner  to  an  offi- 
cial assignee ;  but,  it  seems,  that  that  court  will 
only  ezercise  it  in  extreme  cases.  Ez  parte  Tv> 
lady,  1  Mont  &  Ayr.  162;  3  Deac.  dk  Chit  57b. 

371 

Where  an  official  assignee  made  default  in 
not  accounting  for  monies  received,  the  court 
permitted  the  creditor's  assignee  to  use  the  name 
of  the  chief  registrar  in  suing  the  sureties  upon 
the  bond.  Ez  parte  Topham,  1  Deac.  192;  2 
Mnt    dk  Ayr.  483.  369 


S356 


[BANKRUPT] 


An  official  amignee  ought  not,  except  under 
very  peculiar  circumstances,  to  present  a  petition 
to  the  court  in  his  own  name.  Anon.  1  Deac. 
106.  369 

Choice  of  Aasigrues.'} — A  person  authorized  by 
a  special  power  of  attorney  may  vote  for  the  Bank 
of  England  in  the  choice  of  assignees.  £x  parte 
England  (Bank),  1  Wils.  C.  C.  1^ ;  1  Swans.  10 ; 
1  Rose,  142.  372 

Where  the  interest  of  the  joint  creditors  ap- 
pears, prima  lacie,  adverse  to  the  separate  cre- 
ditors, the  court  will,  on  the  application  of  the 
latter,  appoint  an  inspector  to  take  care  of  their 
interests.  Ex  parte  Dawson,  3  Deac.  &  Chit.  12. 

373 

Where  two  assignees  were  elected,  one  of  whom 
was  chosen  without  his  own  consent,  and  refused 
to  serve,  the  court  directed  a  new  choice  alto- 
gether. Ex  parte  Cattaral,  1  Deacon,  193.       373 

Rejnoval  of  Aiisignees.] — Mere  poverty  is  not 
ground  for  removing  an  assignee.  Ex  parte  Cope- 
land,  1  Mont.  &  Ayr.  306;  5  Deac.  «fc  Chit.  561. 

373 

If  the  creditors  who  elect  an  assignee  be  rela- 
tions;, and  their  debts  prima  facia  of  a  doubtful 
nature,  the  assignee  may  be  removed  without 
serving  the  creditors.     Id. 

Assignees  are  not  removable  merely  because 
the  commissioners  improperly  reject  the  proofs 
of  creditors,  who  would  have  been  entitled  to  vote 
in  the  choice  of  assignees,  if  they  had  been  per- 
mitted to  prove  their  debts,  unless,  indeed,  their 
proofs  are  fraudulently  procured  to  be  rejected. 
Ex  parte  Milner,  3  Deac.  &  Chit.  235.  373 

On  a  petition  by  an  assignee  for  his  removal, 
admitting  misconduct,  he  cannot  be  ordered  to 
pay  costs  incurred  by  such  misconduct  without  a 
cross  petition.  Ex  parte  Angle,  2  Mont.  &  Ayr. 
28 ;  4  Deac.  &  Chit.  118.  373 

Where  an  assignee  purchases  part  of  the  estate 
without  leave,  the  general  rule  is  to  remove  him. 
Ex  parte  Alexander,  2  Mont.  &  Ayr.  492.        373 

If  an  assignee  purchase  part  of  the  bankrupt's 
estate,  and  improve,  the  estate  must  be  resold, 
and  put  up  at  the  price  griven  by  the  assignee, 
adding  the  sum  laid  out  in  improvements.  Ex 
parte  liewit,  2  Mont.  &  Ayr.  477.  See  Ex  parte 
Bennett,  10  Yes.  400.  373 

An  assignee,  who  was  also  a  mortgagee  of  the 
bankrupts  freehold  property,  having  purchased 
it  for  himself  when  it  was  put  up  nir  sale,  the 
estate  was  ordered  to  be  resold,  subject  to  any 
Claims  of  the  assignee  by  virtue  of  his  mortgage. 
Ex  parte  TurviU,  3  Deac.  &  Chit.  346 ;  1  Mont. 
&  Ayr.  686.  373 

The  examination  of  the  assignee  before  the 
commissioner,  as  to  the  sale  of  the  property,  was 
permitted  to  be  read,  as  evidence  of  the  assignee*'s 
misconduct — ^the  petition  praying  to  discharge 
him  for  misconduct — although  it  did  not  pray  a 
resale.    Id. 


Appointment  of  new   Assignees.] — Where  the 
assignees  refuse  to  bring  an  action  for  the  reco-  ( 


very  of  property,  which  a  creditor  alleges  to  have 
belonged  to  the  bankrupt,  the  court  will  not  order 
a  new  election  of  assignees,  but  will  permit  the 
creditor  to  bring  the  action  in  the  name  of  the 
assignees,  upon  entering  into  a  proper  indemnity. 
Ex  parte  Ryland,  2  Deac.  &  Chit.  392.  374 

If  a  sole  assignee  be  very  poor,  and  is  alleired 
to  be  in  insolvent  circumstances,  and  elected  by 
suspicious  votes,  a  co-assignee  may  be  appointed. 
Ex  parte  Copeland,  1  Mont.  A  Ayr.  305 ;  3  Deac. 
&  Chit.  561.  374 

Upon  a  new  choice  of  assignees,  there  is  no 
necessity  to  vacate  the  assignment  under  a  com- 
mission issued  prior  to  1  &.  2  Geo.  4,  c.  56.  Smith 
V.  De  Tastet,  1  Mont  &  Ayr.  370 ;  4  Deac.  & 
Chit.  360.  374 


RigJU  JhUhoriiy  and  Dviy."] — ^Assi^nees  are 
entitled  to  travelling  expenses,  bona  fi.&  incurred 
for  the  benefit  of  the  estate.  Ex  parte  Lovegrove, 
2  Mont.  6l  Ayr.  4 ;  3  Deac.  &  Chit.  763.        375 

Assignees  are  entitled  to  the  expenses  of  jour* 
neys  solely  and  properly  undertaken  for  the  Dene- 
fit  of  the  estate.  Ex  parte  Joyner,  2  Mont,  dk 
Ayr.  1 ;  over-ruling  Ex  parte  Elsee.  375 

The  assignees  can  never  ground  a  title  on  the 
fraud  of  the  bankrupt.  Ex  parte  Carlow  or  Carlon, 
2  Mont,  (k,  Ayr.  40 ;  4  Deac.  &  Chit.  120.      37S 

The  court  of  Review  will  not  interfere  to  di- 
rect assignees  how  to  sell  the  estate.  Ex  parte 
Belcher,  1  Mont.  &,  Ayr.  478;  4  Deac.  db  Chit. 
1.  376 

On  tlie  application  of  a  tenant  of  the  assignees^ 
a  reference  was  made  to  the  commissioner,  who 
reported  that  the  rent  should  be  reduced ;  which 
was  done.  On  the  application  of  some  creditors, 
one  of  whom  offered  higher  rent,  the  court  re- 
fused to  interfere.  Ex  parte  De  Begnis,  1  Mont. 
^  Ayr.  277 ;  4  Deac.  6l  Chit.  225.  376 

The  court  of  Review  will  not  order  a  sale  by 
private  contract,  the  commissioners  having  power 
so  to  do.  Ex  parte  Ladbroke,  1  Mont  ol  Ayr. 
384.  ^6 

The  court  will  make  no  order  on  a  petition  by 
assignees  to  s6ll  any  portion  of  the  oankrupt's 
property  by  private  contract,  it  being  a  matter  on 
which  they  must  use  their  own  discretion.  Ex 
parte  Huriy,  2  Deac.  dk  Chit  631.  376 

The  court  of  Review  will  not  confirm  a  pur- 
chase of  part  of  the  bankrupt's  estate  made  by 
an  assignee  without  leave,  because  a  meeting  of 
creditors  has  consented.  Ex  parte  Thwaites,  1 
Mont  <&  Ayr.  323.  376 

A.,  an  assignee,  purchases,  as  trustee  for  B., 
some  shares  which  the  bankrupt  had  in  certain 
mines,  and,  after  retaining  them  in  that  character 
a  twelvemonth,  re-purchases  them  from  B.  for  his 
own  use : — Held  tnat  tlie  transaction  was  void, 
on  tlie  general  principle  that  an  assignee  cannot 
purchase  anj  part  of  the  bankrupt  s  property, 
either  for  himself  or  for  another ;  ana  that  A. 
must  be  considered  a  trustee  of  the  shares  for  the 
benefit  of  the  general  creditors.  Ex  parte  Grylls, 
2  Deac.  6l  Chit.  290.  376 

One  S.  was  indebted  to  the  defendant,  an  at- 


[BANKRUPT] 


S3S7 


\ 


loniey,  who  had  a  lien  on  an  indenture  of  lease  1 
relating  to  premiaes  belonging  to  S.,  aa  a  security 
for  hia  debt.  A  comminion  <?  bankruptcy  issued 
against  S.,  and  an  assignee  being  appointed,  the 
defendant  acted  as  solicitor  to  the  commission  : 
a  netition  was  presented  to  supersede  the  com- 
mnaion,  on  the  ground  that  there  was  no  valid 
petitioning  creditor's  debt,  and  the  defendant, 
with  notice  of  that  fact,  joined  the  assignee  in 
an  asaignoient  of  the  said  lease  to  a  purchaser ; 
out  of  the  purchase  money  the  assignee  paid  the 
defendant  tne  debt  due  from  the  bankrupt,  and 
also  a  part  of  the  amount  of  his  bill  as  solicitor 
to  the  commission  ;  the  defendant  also  received, 
by  the  authority  of  the  assignee,  certain  sums  of 
money  accruing  from  the  rents  of  the  premises, 
in  part  liquidation  of  the  debts  due  to  him  ;  afler 
these  £ict8  occurred,  the  commission  was  super- 
seded, and  the  plaintiffs  were  appointed  assignees 
under  a  new  fiat  which  was  issued  : — Held,  that 
the  plaintiffs  could  recover  the  sums  received  by 
the  defendant  in  an  action  for  money  had  and  re- 
ceived ;  for  by  parting  with  the  lease  tlie  defen- 
dant was  guilty  of  a  conversion,  and  the  plaintiffs 
were  therefore  entitled  to  waive  the  tort  and  sue 
in  assumpsit ;  and  that  as  to  the  rents  received  by 
the  defendant,  it  was  money  received  to  the  use 
cMfthe  plaintiffs  afler  notice  of  an  act  of  bank- 
mptcy  ;  and  as  the  ftrst  assignee  was  not  assignee 
de  jure,  his  assent  to  the  payments  made  no  dif- 
ference. Clark  V,  Gilbert,  2  Scott,  520;  2 
Bing.  ri.  R.  343 ;  1  Hodges,  347.  376 

The  assignees  having  made  an  arrangement 
Goooeming  the  payment  of  the  creditors,  a  re- 
ference wasordered  to  the  commissioners  whether 
it  were  beneficial.  In  re  Hyslop,  2  Mont.  &  Ayr. 
289.  377 

T)ue  sanction  of  the  court  was  given  to  a  pecu- 
niary arrangement  by  the  assignees  affecting  the 
estaSe.  £z  parte  Prater,  2  Mont.  &  Ayr.  364  ;  4 
Orac.  Sl  Chit.  214.  377 

A  reference  was  ordered  to  the  commissioner, 
to  inquire  whether  an  arrangement,  in  regard  to  a 
portion  of  the  bankrupt's  property,  which  was  ap- 

rvedoffat  a  meetmg  of  the  creditors,  would 
beneficial  to  the  estate.    Ez  parte  Kirby,  6 
Deac.  A  Chit.  400 ;  2  Mont.  &  Ayr.  142.        377 

A  reference  was  made  to  the  commissioner,  to 
report  whether  a  pecuniar^r  arrangement  by  the 
assignees  would  be  beneficial  to  ibe  estate.  Ez 
parte  Bndstock,  2  Mont  A,  Ayr.  490.  377 

The  eoort  will  not  interfere,  on  the  application 
of  the  asngnees  to  sanction  an  arrangement 
made  by  them  for  the  satisfaction  of  a  claim  of 
the  bankmnt's  wife.  The  assignees  must  use 
their  own  aiscretion.  Ez  parte  James,  3  Deac. 
4k  Chit.  290.  377 

A  bankmpt  did  not  disclose  a  life-interest 
which  he  pospessed  in  certain  property,  when  he 
paared  his  last  ezamination  ;  and  ailer  the  lapse 
of  more  than  twenty  years,  when  four  of  the 
eommissiooers  were  dead,  he  petitioned  for  a 
fiat  to  be  iflsoed  to  fresh  commissionen,  and  that 
the  assignee  might  be  ordered  to  account.  The 
court,  onder  these  cirenmstances,  allowed  the 
kanknipt  to  i«Hie  a  new  fiat  in  the  name  of  a  cre- 


ditor, but  thought  that,  afler  this  eoneealment, 
he  was  not  entitled  to  an  inquiry  against  his  as- 
signee.   Ex  parte  Holder,  3  Deae.  6l  Chit.  276. 

377 

The  court  of  Review  will  not  take  a  trust  deed 
out  of  the  posses-'T  of  the  bankrupt*s  assignees, 
id. 

Order  refused  for  an  assignee  to  bid  for  the 
bankrupt's  properly,  although  the  assignee  ob- 
tained the  consent  of  a  meeting  of  the  creditors, 
such  meeting  having  been  only  attended  by  half 
in  value  of  the  creditors.  Ez  parte  Beaumont, 
3  Deac.  ^  Chit.  549.  377 

Where  a  sole  assignee  wishes  to  bid,  for  the 
benefit  of  the  estate,  he  must  be  removed,  or  a 
quasi  co-assignee  appointed  to  protect  the  estate. 
Ez  parte  Molineuz,  2  Mont,  di  Ayr.  245 ;  4  Deac. 
6l  Chit.  460.  376 

Before  an  assignee  applies  for  leave  to  bid  at 
the  sale  of  the  bankrupt's  property,  he  must  call 
a  meeting  of  the  creditors  for  the  purpose  of  as- 
senting to  or  dissenting  from  such  proposed  bid- 
ding.   Id. 

Udfnlity  of  Assignees."] — One  of  the  assignees, 
having  the  sole  cham  of  paying  the  dividends, 
pays  me  dividend  oi  a  creditor  to  a  person  who 
IS  not  duly  authorised  to  receive  it.  The  two 
other  assignees  are  equally  responsible  to  the 
creditor  for  the  amount  of  the  dividend.  Ez  parte 
Winnall,  3  Deac.  &.  Chit.  22.  376 

Although  a  commissioner  has  no  power,  under 
the  106th  sect,  of  the  6  Greo.  4,  c.  16,  to  charge 
the  assignees  with  monies,  which,  but  for  their 
wilful  uefoult,  they  might  have  received,  yet, 
where  he  charged  them  with  certain  sums  as  re- 
ceived "  by  themselves  or  their  solicitors,"  the 
court  of  Review  referred  it  back  to  him  to  ascer- 
tain the  amount  which  the  assignees,  or  any  per- 
son for  them,  had  received,  or  which,  but  for  tneir 
default,  might  have  been  received.  Ez  parte 
Keys,  2  Deac.  &  Chit.  633.  378 

After  there  has  been  a  change  of  assignees, 
and  a  long  period  of  time  has  elapsed,  the  court 
will  not  refer  the  accounts  of  the  assignees  for 
ezamination,  for  the  purpose  of  charging  the  new 
assignees  with  the  default  of  the  former  assignees. 
Ez  parte  Richards,  4  Deac.  &  Chit.  183 ;  2  Mont. 
&,  Ayr.  75.  378 

An  uncertificated  bankrupt  cannot  petition 
that  his  assignees  may  be  ordered  to  account, 
without  alleging  thatnis  estate  will  produce  a 
surplus  afler  paying  2Qs.  in  the  pound.  Ez 
parte  Ryley,  4  Deao.  &  Chit  50.  378 

An  order  of  dividend,  stating  tnat  a  certain 
balance  was  in  the  hands  of  one  of  the  assignees, 
was  made  to  divide  the  same  among  the  credi- 
tors:— Held,  that  the  other  assijpiee,  having 
never  interfered  with  the  trust  fund,  was  not 
liable  to  the  crediton  for  the  payment  of  the 
dividend.  Ez  parte  Dawson,  4  Deac.  Sl  Chit. 
130.  376 

Quere  whether  the  76th  section  of  6  €reo.  4. 
c.  16,  apphes  to  a  contract  relating  to  land  and 


33S6 


[BANKRUPT] 


petsooalty  ?    £x  pvte  Ifawley,  3  Moat  &  Ayr.  | 

Commianonen  cannot  open  tbe  andited  ac- 
coanta  of  aaaignees,  without jpreTioDs  pennission 
Irom  the  coort  of  Review.  £x  parte  Benham,  2 
Mont  &  Ayr.  272;  1  Deacon, 26.  378 

Tbe  commiflBioner  cannot  charge  both  a«g- 
oeea  with  20  per  cent  where  only  one  bad  the 
money,  vnlesa  he  finda  that  the  other  ^  knowingly 
peimittfld"  it    Id. 

Actions  by  and  agahut  JUngnees.'l — ^Partiea  in 
actiona  by  aaaigneea.  Baker  v.  Neave,  1  C.  d& 
M.  112;  I  DowL  P.  C.  616 ;  3  Tyr.  233.        381 

The  aaajgneea  of  a  bankrupt  partner  and  a 
floWent  parSier  opened  an  account  at  their  bank- 
era,  and  paid  in  90(M.  to  discharge  a  debt  on  an 
old  account,  which  carried  interest  The  solyent 
partner  then  became  bankrupt : — Held,  that  the 
aaaigneea  of  the  two  could  not  recover  this  sum. 
Woodbridge  r.  Swann,  4  B.  6l  Adol.  633 ;  1  Ney . 
&  M.  725.  381 

Where  one  member  of  a  partnership  becomes 
bankrupt,  the  solvent  partner  may  use  the  names 
of  the  anignees  of  the  bankmpt  in  bringing  ac- 
tioiia  against  the  debtors  of  the  firm.  Whitieoead 
V.  Hu^ea, 2  C.  &  M.  318;  4  Tyr.  92.  381 

The  aaaignees  are  entitled  to  an  inden\nity 
against  the  coats,  when  they  apply  for  it    Id. 


^  5S  under  a  joint  commission  against  A. 
amd  B.  may,  as  such,  maintain  an  action  for  the 
nae  and  occupation  of  premiaes  which  belonged 
to  A>,  without  describing  themselves  aa  the  as- 
signees of  the  separate  estate  of  A.,  where  the 
rent  becomes  doe  for  occupation  subsequent  to 
the  bankruptcy,  the  assignment  paasmg  the  rever- 
sion to  the  assignees  by  virtue  of  the  joint  com- 
mission. Pepper  v.  Molony,  1  Alcock  &  Napier, 
63.   (WdL)  381 

In  an  action  by  the  assignees  of  a  bankrui>t, 
the  court  will  allow  the  bankruptcy  to  be  put  in 
issue  if  the  fact  be  doubtful,  along  with  a  plea  of 
mutual  credit  and  payment  into  court  Atkin- 
son V.  Duckham,  4  Dowl.  P.  C.  327.  381 

The  rule  is  absolute  in  the  first  instance.    Id. 

Tbe  sheriff  seized  goods  belonging  to  a  bank- 
rupt, and,  afler  keepmg  them  for  a  considerable 
period,  and  after  an  action  of  trover  in  the  usual 
ibrm  had  been  brought  against  him  by  the  as- 
signees, he  delivered  up  the  goods  to  them : — 
Held,  that  the  assignees  were  not  entitled  to  pro- 
ceed in  an  action,  and  to  recover  as  damages  a 
duarter's  rent  which  had  been  paid  for  the  house 
where  the  goods  were  kept  whilst  in  the  posses- 
sion of  the  sherilT,  or  the  costs  of  keeping  their 
messenger  on  the  premises  during  the  same 
period.  Moon  v.  Raphael,  2  Scott,  &9 ;  2  Bing. 
N.  R.  310;  7  C.  &.  P.  115 ;  1  Hodges,  289.     381 

In  debt  bv  assignees  of  an  insolvent  or  bank- 
rupt, it  need  not  oe  stated  that  the  plaintiffs  sue 
*'as  assignees;"  it  is  enough  if  it  sufficiently 
appears  uiat  they  are  assignees.  Ferguson  v. 
MitcbeU,  2  C.  M.  &  R.  687;  4  Dowl.  P.  C.  513. 

381 


Assignees  may  dedtiit  in  the  debet  and  dsti- 
net,  and  tbe  omission  of  the  queritur  is  immate- 
rial. Id. 


To  a  declaratioa  in  trover  by  the  assignees  of  a 
bankrupt,  to  recover  damages  for  goods,  chattels, 
and  fixtures  alleced  to  be  in  the  possession  of 
the  bankrupt  at  the  time  of  his  bankruptcy,  and 
to  have  been  since  converted  by  the  defendants, 
they  pleaded,  that  before  the  bankruptcy  the  bank- 
mpt assigned  the  goods  to  them  by  deed,  and  that 
before  aSe  bankruptcy,  they  took  possession  of 
them,  and  kept  ana  retained  such  possession  af- 
terwards ;  the  plaintifi  replied  that  the  defend- 
ants did  not  take  possession  ^  the  goods  befiire 
the  bankruptcy  :  issos  was  joined  thereon,  and  a 
verdict  found  for  the  plaintiffii  upon  it : — ^Held, 
that  the  issue  was  immaterial,  because  the  assign- 
ment by  deed  conveyed  the  property  in  goods 
to  the  uefendants,  and  the  continued  possession 
of  the  assignor  only  amounted  to  evidence  of 
fraud.  Carr  o.  Burdiss,  1  C.  M.  &  R.  782 ;  5 
Tyr.  309.  381 

Bemble,  that  the  **  possession"  of  the  assignees 
was  not  sufficiently  averred  to  be  an  exclusive 
Id. 


An  injunction  will  be  granted  to  restrain 
aignees  from  proceeding  in  an  action,  where  they 
have  not  an  c^fuitable  as  well  as  a  legal  rig^ht. 
Ex  parte  Booth,  4  Deac.  dk  Chit  211;  2  Mont. 
&  Ayr.  93.  318 

Suits  by  Assignees^] — ^An  assignee  can  h&ve 
leave  to  file  a  bill  under  very  special  cireum- 
stances  only.  £x  parte  Beaumont,  1  Mont  dk. 
Ayr.  304.  383 

The  consent  of  a  meeting  of  some  of  the  cie- 
ditors  is  not  sufficient    IdT 

The  court  of  Review  will  not  compel  the  official 
assignee  to  join  the  other  assignees  in  a  suit  £x 
parte  £vans,  1  Mont  &  Ayr.  335 ;  3  Deac.  & 
Chit  470.  383 

If  he  improperly  refuse  to  join,  and  is  made 
defendant,  he  may  have  tp  pay  his  own  costs.  Id. 

If  the  assignees  continue  to  defend  a  suit  in- 
stituted against  the  bankrupt,  which  is  decided 
in  &vor  of  the  plaintiff  with  costs,  and  they 
have  no  assets,  they  are  not  personally  liable, 
unless  they  vexationsly  continued  the  defence. 
In  re  Kindersley  Castle,  1  Mont  db  Ayr.  ^T^vB- 

If  a  bill  in  equity  by  assignees  be  dismissed 
with  costs,  they  must  i^ply  to  the  comnussioner 
in  the  first  instance  to  aUow  them  out  of  the 
estate.    £x  parte  Gibson,  1  Mont  &,  Ayr.  479. 

383 

If  a  bill  filed  by  assignees  be  dismissed  with 
costs,  the  Lord  Chancellor  has  no  jurisdiction  to 
order  costs  to  be  retained  by  the  assignees  out  of 
the  bankrupt's  estate.  Turner  v.  Hib&rt,  1  Mont 
&,  Ayr.  243.  Bat  see  Ex  parte  Keys,  1  Mont  Sc 
Ayr.  236.  383 

The  court  of  Review  will  not  lend  its  sanctioii 
to  a  compromise  of  a  suit  by  the  assigneea, 
though  the  master  reporto  it  wooltd  be  for  the  be- 


[BANKRUPT] 


34fi» 


iiefit  of  all  partieB.    Ex  parte  WiUiams,  1  Mont. 
A  Ayr.  689.  338 

The  consent  of  the  creditors  of  a  bankrupt  to 
the  inetitntion  of  a  suit  by  his  assigneees,  thoogh 
filed  amongst  the  proceedings  in  the  bankruptcy, 
most  be  proved.     Smith  v.  Biggs,  5  Sim.  391. 

XIII.  Protected  Transactions. 

Prtferenecl — ^A  preference  by  an  insolvent 
trader  to  a  particular  creditor  is  not  fraudulent,  if 
originating  bona  fide  in  the  urgency  of  the  cre- 
ditor ;  as  it  is  necessary,  in  order  to  avoid  it,  to 
show  a  contemplation  clt  bankruptcy  as  well  as 
insolveiicy.  Morgan  «.  firundrett,  2  f^ev.  &  M. 
dB0;5B.  &Ador  289.  385 

Personal  property  may  be  transferred  for  a 
•afflcient  consideration  without  writing,  if  the 
poaeasion  be  also  transferred  -,  and  a  debtor  may 
ptefer  one  creditor  to  another,  if  the  debtor  be  not 
a  trader ;  but  if  he  be  a  trader,  he  cannot  prefer 
one  creditor  to  another,  unless  he  be  pressed. 
8eott  9.  Thomas,  6  C.  A  P.  611— Parke.  385 

Wheie  a  bankrupt,  in  contemplation  of  bank- 
nmtcy,  pays  money  to  A.,  his  banker,  to  redeem 
biUa  of  exchange  in  his  hands,  for  the  payment  of 
which  B.  is  ultimately  responsible,  with  a  vie^ 
to  make  a  fraudulent  preference  of  B.,  the  as- 
sigaeea  cannot  recover  back  the  ainount  from  A. 
Abbott  o.  Pomiret,  1  Scott,  470 ;  1  Bing.  N.  R. 
462;  1  Hodges,  24.  385 

The  defendants,  bankers,  discouiited  for  B.,  a 
eoatomer,  two  bills,  one  of  which  was  accepted  by 
lb  lor  B.*B  accommodation,  and  the  payment  of 
the  other  guaranteed  by  L.,  due  respectively  the 
8th  and  lOth  of  January.  On  the  3rd  of  Janu- 
aiy,  B.,  who  was  in  a  state  of  insolvency,  went  to 
the  defendant's  banking-house,  accompanied  by 
I*.,  and  paid  in  to  his  account  with  them  a  sum 
sufficient  to  cover  the  two  bills,  and  iLen  drew 
and  gave  to  L.  two  cheques  for  tne  amount  of  the 
bilb,  which  cheques  L.  handed  over  to  the  de- 
fendants in  satisfaction  of  the  bilb.  B.  commit- 
ted an  act  of  bankruptcy  on  the  9th  of  January : — 
field,  that  this  was  not  a  fraudulent  preference 
of  the  defendants,  so  as  to  entitle  the  assignees 
of  B.  to  maintain  an  action  against  them  for  mo- 
ney had  and  received ;  the  preference,  if  any, 
being  given  to  L.    Id. 

In  order  to  constitute  a  firaudulent  preference, 
aa  as  to  avoid  a  payment  made  by  a  trader,  it 
must  be  a  voluntary  preference,  and  made  in 
actoal  contemplation  of  bankruptcy  ;  it  is  not 
enough  to  show  that  the  party  was  in  such  a  state 
of  insolvency  and  embarrassment  as  to  render 
bankruptcy  a  probable  event.  Atkinson  v.  Brin- 
daD,  2  Scott,  3^ ;  2  Bing.  N.  R.  225 ;  1  Hodges, 


The  court  of  Review  has  not  jurisdiction  to 
order  property  alleged  to  have  been  given  as  a 
haadoJent  preference  to  be  delivered  up,  because 
the  party  haa  claimed.  £z  parte  Dobeon,  1  Mont 
dtAyr.eeS.  385 

Mifrtgages.'] — ^M.,a  trader  engaged  in  ezten- 
■Te  concema,  was  in  perilous  circumstances,  and 


likely  to  beeotne  bankrupt,  althoogh  not  muh 
peeted,  from  January,  1831,  to  January,  1832, 
when  he  actually  k>ecaine  bankrupt.  Among 
others,  he  owed  his  son  12,000Z.,  which  debt, 
upon  his  son's  marriage,  was  settled  on  the  son's 
wife.  In  May,  1831 ,  some  of  M.'a  property  in 
Middlesex  was  released  from  mortgage,  and  M., 
at  the  request  of  his  son,  on  the  1st  of  July,  1831, 
conveyed  it  to  the  trustees  under  his  son's  mar- 
riage settlement,  as  a  security  for  or  in  discharge 
of  the  debt  due  from  him  to  his  son.  The  trans* 
fer  was  not  registered  or  otherwise  made  public 
till  after  M.'s  iMinkruptcy.  A  jury  having  found 
that  it  was  not  made  voluntarily  by  way  of  fraud- 
ulent preference,  or  in  contemplation  of  bank- 
ruptcy, the  court  refused  to  grant  a  new  trial. 
Belcher  V.  Prittie,  4  M.  &.  Scott,  295;  10  Bing. 
408.  2St 


Tranrfer  of  Goods.] — R.,  having  committed  a 
secret  act  of^ bankruptcy,  assigned  chattels  to  the 
defendant,  as  a  security  for  money  lent  him  by 
the  defendant,  in  trust  to  permit  K.  to  use  them 
till  March,  1833,  and  then  to  sell  them  in  dis- 
charge of  the  debt,  if  unpaid.  In  October,  1832, 
withm  two  months  of  this  assignment,  a  commis- 
sion of  bankruptcy  was  issued  against  R. : — Held, 
that  the  Assignment  was  not  protected  by  the 
82nd  sect,  of  6  Geo.  4,  c.  16.  Cannan  v.  Denew, 
3  M.  &  Scott,  761 ;  10  Bing.  292.  389 

A  case  that  is  within  the  71st  sect  of  6  Geo.  4, 
c.  16,  is  excluded  from  the  operation  of  the  ^nd 
— Per  Alderson.    Id. 


Payments  by  Bankrupts,'] — A.,  after  a  secret 
act  of  bankruptcy,  boys  goods  of  B.,  to  be  paid 
for  at  a  future  day.  On  that  day  A.  delivera  to 
C.  undue  bills  for  the  amount,  requestinff  C  to 
pay  B.  C.  discounts  the  bills,  and  pays  B*  by  a 
check  on  bis  bankers.  This  payment  is  pro- 
tected by  6  Geo.  4,  c.  16,  s.  32,  against  the  as- 
signees under  a  commission  issued  subsequently 
to  such  payment,  on  the  antecedent  act  or  buik- 
ruptcy.  Shaw  «.  Batley,  1  Mev.  &  M.  751 }  4 
B.  A  Adol.  801.  392^ 

A.,  after  the  bankruptcy  of  his  partner  B.,  be-t 
lieving  the  firm  to  be  solvent,  pays  in  partner^ 
ship  money  to  C,  their  banker,  to  meet  current 
engagements,  and  the  money  is  so  applied.  A< 
afterwards  becomes  bankrupt  also.  This  pay^ 
ment  is  valid,  and  C.  is  not  liable  for  the  amount 
to  the  assignees  of  B.  and  of  A.  Woodbridge  v. 
Swan,  1  Nev.  &.  M.  725 ;  4  B.  <&  Adol.  633.    394 

One  of  two  partners,  after  committing  an  act 
of  bankruptcy,  handed  over  a  bank  post  oill  and 
some  silver  to  the  agent  of  the  drawer  of  a  bill  of 
exchange,  accepted  by  the  partners,  and  which 
was  just  about  to  become  due,  for  the  purpose  of 
protecting  such  bill.  Such  handing  over  was 
found  a  fraudulent  preference,  and  to  have  been 
in  contemplation  of  bankruptcy.  On  the  same 
day,  but  a  few  houra  later  than  the  time  of  hand- 
ing over  the  note  and  the  money,  the  other  part- 
ner committed  an  act  of  bankruptcy : — Held,  that 
the  act  of  the  partner  who  had  committed  the  act 
of  bankruptcy  befere  he  handed  over  the  property 


9300 


[BANKRUPT] 


was  not  binding,  aad  that  the  amigneea  of  the  two 
partners  mieht  recoTer  the  valoe  of  the  property. 
Bart V.  Moult,  1  C.  &  M.  525;  3  Tyr.  564.     394 

One  of  two  partners,  on  the  4th  of  Januair, 
committed  a  secret  act  of  bankruptcy.  On  the 
5th  of  January,  the  other  partner  accepted  bills 
in  the  name  of  the  partnership  firm,  in  fiiYour  of 
one  of  the  creditors  of  the  partnership,  all  of 
which  bills  were  ante-dated  before  the  4th  of  Ja- 
nuary. These  bills  were  afterwards  indorsed  for 
a  Tamable  consideration  to  R.,  who  had  no  notice 
of  the  bankruptcy.  On  the  10th  of  January  a 
joint  commission  issued  against  both  partners : — 
Held,  that  the  holder  of  the  bills  could  not  prove 
them  a^inst  the  joint  estate,  as  the  solvent 
partner  could  not  bind  the  joint  property  by  ac- 
cepting bills  after  the  act  of  bankruptcy  of  his 
co-partner.  £z  parte  Wynn  Ellis,  2  iJeac.  Sc 
Chit  555.  394 

A.  on  beinff  arrested  gave  a  bail-bond  to  the 
sheriff,  but  did  not  perfect  bail,  by  which  the 
sheriff  became  fixed.  Proceedings  naving  been 
taken  on  the  bail  bond,  a  judge  at  chambers 
made  an  order,  on  an  application  by  the  bail, 
that  proceedings  should  be  stayed  on  payment  of 
debt  and  costs,  which  were  accordingly  paid  by 
A.*s  attornies  on  the  27th  of  October.  A.  had 
supplied  his  attornies  with  a  sum  of  money  to- 
wards the  payment  of  the  debt  and  costs  on  the 
10th  of  Oclaber,  and  on  the  14th  he  became 
bankrupt : — Held,  that  this  was  a  payment  under 
process  of  law,  and  that  the  assignees  of  A.  had 
no  right  to  recover  the  money  back  from  the 
party  to  whom  it  was  paid.  Belcher  v.  Mills,  2 
C.  M.  &  R.  150;  1  Gale,  142.  394 

A.  and  B.,  creditors  of  a  trader,  who  had  com- 
mitted a  secret  act  of  bankruptcy,  pressed  him 
for  payment,  when  he  offisred  goods,  if  a  cus- 
tomer could  be  found.  The  creditors  procured 
the  defendant  to  whom  they  were  indebted,  to 
purchase  the  goods,  who  with  the  assent  of  the 
trader,  credited  A.  and  B.  in  account.  In  as- 
sumpsit by  the  assignees  of  the  trader  for  the 
price  of  these  goods,  it  was  held,  that  if  the  ap- 
propriation of  money  to  A.  and  B.  was  merely  m 
consequence  of  the  direction,  it  was  revocable, 
and  the  plaintiffs  might  recover ;  but  if  it  was 
part  of  the  contract  that  the  payment  should  not 
be  revocable,  it  was  then  a  question  whether 
this  was  a  pajrment  within  the  6  Geo.  4,  o.  16, 
fl.  82,  which,  semble,  it  was  not.  Bradbury  v. 
Anderton,  1  C  M.  dt  R.  486 ;  5  Tyr.  152.       394 

In  trover  by  the  assignees  of  S.  against  the 
London  Dock  Company,  to  recover  certain  en- 

S'nes,  machinery,  implements,  and  materials, 
e  cause  having  been  referred  by  order  of  I^isi 
Prius,  the  arbitrator  found  that  a  contract  had 
been  entered  into  between  S.  the  bankrupt,  and 
the  London  Dock  Company,  to  execute  certain 
works  required  for  the  formation  of  an  entrance 
to  the  docks,  and  to  provide  the  materials  for  that 
purpose,  in  consideration  of  52,000^.,  and  of  beinjg 
allowed  to  appropriate  certain  materials  to  his 
own  use.  The  engineer  of  the  company  was  to 
be  the  sole  judge  of  the  works,  and  to  have  the 


power  of  rejecting  any  materials  or  work  not  in 
nis  opinion  confbrmabfe  to  the  plans  and  specifi- 
cations, and  to  provide  other  materials  in  lieu  of 
those  rejected,  and  to  employ  competent  persons 
to  perform  the  work,  if  S.  failed  to  do  so ;  in 
which  case  the  costi  or  amount  thereof  was  to  be 
deducted  from  the  sum  to  become  due  to  him 
under  that  contract.  The  directors  were  to  be 
at  liberty  to  alter  the  plans,  and  thereby  add  to 
or  diminish  any  part  of  the  works,  in  which  case 
a  proportionate  addition  or  deduction  was  to  be 
made  to  or  from  the  sum  ti>  be  paid  to  S.,  ac- 
cording to  the  schedule  of  prices  contained  in  the 
specification.  S.  commenced  the  works,  and 
placed  on  the  premises  steam-engines,  railroads, 
materials,  and  implements,  necessary  for  carry- 
ing on  the  works.  The  company's  engineer  su- 
perintended the  works,  and  examined  the  mate- 
rials brought  upon  the  premises  by  S.,  and 
rejected  such  as  he  thought  were  not  proper  for 
the  purpose.  The  whole  of  the  premises  where 
the  works  were  carried  on,  and  upon  which  the 
machinery  and  materials  were  placed,  belonged 
to  the  company.  During  the  progress  of  the 
works,  advances  were  made  by  tne  company  to 
S.,  on  application,  beyond  the  sums  he  was  enti- 
tled to  receive :  he  referring  them  by  letter  to 
the  engines,  rail  roads,  implements  and  materials 
lying  on  the  premises,  and  stating  the  particulars 
of  which  they  consisted,  as  their  security  for 
those  advances,  and  agreeing  that  all  the  engines, 
implements,  and  materials  upon  the  preuAses 
should  be  as  security  for  such  advances.  S.  be- 
came bankrupt  before  the  works  were  completed, 
upon  which  toe  dock  company  erased  S.'s  name 
from  the  implements,  &c,,  ana  took  possession  of 
the  engines,  materials,  implements,  Ac.  then  on 
their  premises.  The  company  were  always  in 
advance  to  S.  to  an  amount  exceeding  the  value 
of  the  property  on  the  premises : — Held,  first, 
the  arbitrator  having  awarded  that  the  dock  com- 
pany were  entitleu  to  prove  against  the  estate  of 
S.  for  the  sum  advanced  to  him  beyond  what  he 
was  entitled  to  for  the  work  done,  and  materials 
furnished  by  him,  and  the  value  of  the  engines, 
&c.,  that  the  arbitrator  had  no  authority  to 
award  on  that  matter,  and  that  the  award  as  to 
that  ought  to  be  set  aside  : — Held,  secondly,  that 
the  plaintifis  were  not  entitled  to  recover  for 
the  extra  work  done  by  the  bankrupt,  that  being 
still  work  done  under  tne  contract,  and  the  work 
done  under  the  contract  having  been  overpaid : — 
Held,  thirdly,  that  the  defencbnts  were  entitled 
to  insist  on  the  lien  given  to  them  on  the  en- 
gines, materials,  &c.  as  a  security  for  their  ad- 
vances, and  that  there  was  a  sufficient  posses 
sion  by  the  defendants  to  support  the  lien  ;  and 
that  the  plaintiffs  were  not  entitled  to  recover 
such  engines,  materials,  dx.,  but  that  they  were 
entitled  to  recover  for  such  of  the  materials  as 
were  brought  upon  the  defendant's  premises 
after  the  bankruptcy : — Held,  fourthly,  that  pay- 
ments made  to  the  bankrupt  by  the  defendants, 
subsequent  to  the  time  when  the  latter  materials 
were  brought  on  the  premises,  could  not  be  con- 
sidered as  payments  for  those  particular  goods  in 
the  course  of  business,  but  merely  as  general 
advances  only,  and  that  the  defendants  were  not 
entitled  to  the  protection  of  the  6  Geo.  4,  c.  16, 


[BANKRUPT] 


2361 


•.  88.  Crowfoot  9.  London  Dock  Componv.  2  C 
&M.637;4Tjr.  967.  ^ 

A  euslom  of  exchanging  acceptances  existed 
between  the  bankrupt  and  other  houses,  through 
the  agency  of  B. ;  notes  were  sent  by  the  peti- 
tiooer  to  B.,  but  never  exchanged,  as  bank- 
ruptcy intervened,  and  they  were  stolen  from  B. 
and  never  formed  any  item  in  any  settlement  of 

the  accounts  between  B.  and  the  assignees: 

Held,  the  petitioner  could  not  recover  the 
value  of  the  notes  from  the  assignees.  £x  parte 
WatsoD,  1  Mont.  &  Ayr.  685 ;  4  Deac.  &  Chit. 
^^  .    396 

M.  and  the  Scotch  bank  mutually  exchanged 
their  notes  at  stated  times.  M.  became  bankrupt, 
hia  agent  B.  having  notes  of  the  Scotch  bank  in 
hia  hands.  The  assignees  subsequently  allowed 
B.  to  retain  these  notes  in  his  account  with  them, 
he  having  claims  against  M. : — Held,  that  the 
Scotch  bank  could  recover  these  notes  against  the 
aangnees.  In  re  Scotland  (Bank),  1  Mont.  <fc 
Ayr.  644 ;  4  Deac.  &  Chit.  32.  395 

On  the  3rd  of  January,  the  petitioner  paid  a 
sum  of  money  to  the  bankrupt's  agent  at  Edin- 
burgh,  for  the  purpose  of  bcmg  remitted  to  Lon- 
don to  retire  a  bill ;  on  the  4th  of  January,  the 
agent  received  notice  that  his  principal  had 
stopped  payment  on  the  2d  of  January  :  and  he 
did  not  therefore  remit  the  money  to  London. 
On  the  6th  of  January  the  petitioner  required 
the  agent  to  return  the  money,  which  he  de- 
clined. On  the  Sd6th  of  January  a  fiat  was  issued 
against  the  principal,  and  the  assignees  in  stating 
an  account  with  the  agent,  allowed  2000^  to  re- 
main in  his  hands  on  account  of  a  counter 
claim  he  had  against  the  bankrupt,  and  received 
a  balance  from  the  agent :— Held,  (Erskine,  C.  J. 
diasent),  that  under  these  circumstances,  the  pre- 
sumption was,  that  the  assignees  had  received 
the  money  so  paid  to  the  bankrupt's  agent, 
which  having  been  paid  on  a  trust,  and  tor' a 
particular  purpose,  which  had  failed,  the  assign- 
ees were  bound  to  restore  to  the  petitioner, 
unlen  they  could  prove  that  the  money  never 
actually  came  to  their  hands.  Ex  parte  Simpson, 
1  Deac.  47 ;  2  Mont.  &  Ayr.  295.  395 


^f  "^    A,*^®  vendee.    Johnson  v.  HamiU,  1 
Alcock  &  Napier,  «6.  (Irish).  398 

A  sheriff 'who  seizes  and  sells  the  goods  of  a 
bankrupt  under  a  fi.  fa.  before  commission,  but 
after  an  act  of  bankruptcy,  without  notice  of  the 
act  of  bankruptcy,  is  liable  in  trover— Dissen- 
tientibus,  Denraan,  C.  J.,  Bayley,  B.,  Vaughan, 
B.,  and  Bolland,  B.  Garland  v.  Carlisle  rin 
^^oO.  2  C.  &  M.  31 ;  4  M.  &  Scott,  24;  3  Tyr. 

A  bankrupt  is  discharged  by  his  certificate  from 
raterlocutory  costs,  ordered  by  the  court  at  Nisi 
rnus  to  be  paid  by  him,  on  a  trial  in  a  cause  in 
which  he  was  defendant,  being  postponed  at  his 
instance  on  account  of  the  absence  of  a  material 
witness,  if  such  costs  have  been  taxed  before  the 
bMkruptey.  Jacobs  v.  Phillips,  1  C.  M.  &  R. 
196 ;  2  Dowl.  P.  C.  716 ;  4  fyi.  652.  40a 

An  execution  haviuj^  issued  against  a  tra- 
S^'  goods  were  seized  and  sold  under  it, 
after  he  had  committed  an  act  of  bankruptcy. 
The  assignees  brought  trover :— Held,  that  the 
jury  m  assessing  tbe  damages  might  deduct  the 
expenses  of  the  sale  from  the  proceeds  of  the 
fr^'  f^"^  ^'  ^*°^^^°'*'  ^  ^-   M.  &  R.  724  ; 

An  order  was  made  to  prevent  the  bankrupt  from 
ayailmg  himself  of  a  sequestration  obtained  by 
him  before  his  bankruptcy  of  the  rents  and  pro- 
fits of  a  rectory.    Ex  parte  Hull,  1  Deacon,  87. 

400 


XV.  SsT-ovF  AND  Mutual  Debts. 

Where  tliere  are  cross  acceptances,  and  the 
right  of  set  off  clear,  the  court  will  restrain  the 
assignees  from  bringing  an  action.  Ex  parte 
Clegg,  1  Mont.  &  Ayr.  91 ;  3  Deac.  &  Chit. 


XIV.  Ofxratiok  of  Executions. 

Judgment  on  warrant  of  attorney,    Crossfield 
V.  Stanley,  1  Nev.  &  M.  668 ;  4  B.  &  Adol.  87. 

396 

Where  a  defendant  gives  a  cognovit  for  debt 
and  costs,  as  between  attorney  and  client,  and 
before  judgment  signed  he  becomes  bankrupt, 
his  eerU'ficate  is  a  bar  to  tiie   plaintiffs  claim 
Metcalf  V.  Watling,  2  Dowl.  P.  C.  552.  398 

A.  A  B.,  being  partners  in  trade,  fraudu- 
tentjy  concurred  in  the  issuing  of  an  execution 
■gainst  A.,  under  which  the  goods  of  both  were 
»Id  by  the  aherifi;  to  C. ;  B.  subsequently  to  the 
Mle  committed  an  act  of  bankruptcy.  In  an 
action  by  the  assi^ees  of  A.  &  B.,  under  a 
joint  oonunittuoD  :— ^Held,  that  nothing  passed  by 


505. 


402. 


Plaintiff,  being  liable  to  defendant  for  the  costs, 
of  a  nonsuit,  issued  a  fiat  of  bankruptcy  against 
the  defendant :  the  court  refused  to  stay  defen- 
dant's proceedings  in  the  action.    Eicke  v.  Nokes. 

i  ^^"^  ^-  ^'  ^J  4  M.  &  Scott,  586;  1  Bing! 
W.  R.  69.  4^ 

The  defendants  were  the  holders  of  a  bill  of 
exchange,  accepted  by  one  M.,  for  760/.,  which 
was  indorsed  to  them  by  the  commercial  bank  of 
bcotland,  and  they  were  also  the  acceptors  of  a 
bill  drawn  by  the  commercial  bank  in  favor  of 
M.    The  former  bill  became  due  on  the  6th  of 
January,  and  was  dishonored,  M.   having  stop- 
ped payment.    On  the  7th  the  defendants  debited 
the  commercial   bank  in  their  account  with  the 
760/.,  and  wrote  a  receipt  on  the  back  of  the  bilL 
and  returned  it  protested  to  the  commercial  bank. 
The  latter,  hearing  of  the  failure  of  M.,  on  the 
6th  wrote  to  the  defendants,  requesting  them  to 
keep  the  760/  bill,  and  set  off  the  amount  against 
Uie  1000/.,  their  acceptance,  which  would  become 
due  on  the  12th.    In  an  action  by  the  assignees 
of  M.  (who  afterwards  became  bankrupt)  against 
the  defendants,  as  acceptors  of  the  1000/.  bill  r 
—Held,  that  they  were  not  entitled  to  set  off 


2362 


[BANKRUPT] 


the  76W.    Belcher  v,  Lloyd,  3  M.  &  Scott,  828. 

Payments  improperly  made,  as  the  conaidera- 
tton  for  signinff  a  composition  deed,  may  be  de- 
dacted  or  set  on  from  a  proof  made  under  a  sub- 
sequent  fiat  for  a  subsequent  debt  Ex.  parte 
Minton,  1  Mont.  &  Ayr.  440.  407 

In  an  action  by  assignees  of  a  bankrupt,  the 
defendant  is  entitled  under  6  Geo.  4,  c.  16,  8.60, 
to  set  off  a  debt  due  to  him  from  the  bankrupt, 
if  when  he  gave  credit  to  the  bankrupt,  he  bad 
no  notice  of  a  prior  act  of  bankruptcy,  though 
he  had  notice  that  the  bankrupt  had  stopped 
payment.    Hawkins  v.  Whitten,  5  M.  <fc  R.  219. 

406 

Held  that  a  defendant  might  set  of  a  debt 
due  to  him  from  a  bankrupt  for  money  lent,  &c. 
against  a  claim  by  the  bankrupt's  assignees  on 
hun  for  not  accepting,  pursuant  to  agreement, 
a  bill  of  cxchan^  by  way  of  part  payment  for 

goods  sold  and  delivered  by  the   bankrupt  to 
imself    Gibson  v.  Bell,  1  Scott,  712;  1  Bing. 
N,  R.  743 ;  1  Hodges,  136.  406 

A  plea  of  set-off  to  an  action  ta^  the  aasi^ees 
of  a  bankrupt,  must  show  that  it  is  pleaded  to  a 
debt  to  which  it  is  strictly  applicable.  Ghroom  v. 
Mealey,  2  Scott,  171;  2  Bing.  N.  R.  138;  1 
Hodges.  212.  406 

To  a  count  in  debt  by  the  assignees  of  a 
•bankrupt  for  money  had  and  received  by  the 
.defendant  to  the  use  of  the  plaintiffs  as  assig- 
nees, (not  stating  whether  received  before  or 
since  the  bankruptcy;,  the  defendant  pleaded  a 
^set-off  for  money  due  to  him  on  an  account  stated 
with  the  bankrupt  before  the  bankruptcy: — 
Held,  that  the  plea  was  bad,  for  that  it  did  not 
«how  that  the  debts  were  mutual.  Id. 

!f.  apprenticed  his  son  to  the  bankrupt  two 
jears  before  the  bankruptcy,  and  agreed  to  pay  a 
premium  of  200Z.  J.  was  in  partnership  with 
T.,  and  the  bankrupt  owed  them  a  joint  cfebt  ex- 
ceeding the  amount  of  the  apprentice  fee  due 
from  J.  to  the  bankrupt : — Held,  that  J.  could  not 
set  off  the  apprentice  fee  against  the  joint  debt 
4lue  from  the  bankrupt  to  J.  &  T.— The  court, 
ftinder  these  circumstances,  ordered  100^  to  be 
paid  by  J.  to  the  assij^nees,  together  with  the 
costs  of  the  petition.  £x  parte  Soames,  3  Deac. 
Jk  Chit.  320.  407 


XVli.   DiVIOBMD. 

Quere  whether,  on  distributing  unclaimed  di- 
Tidends,  any  further  assets  should  at  the  same 
time  be  set  apart  on  account  of  the  same  proof? 
Ex  parte  Mowbray,  I  Mont.  &  Ayr.  300 ;  3  Deac. 
A  Chit.  552.  410 

After  an  order  was  made  for  the  distribution 
ofunclaimed  dividends,  fresh  assets  came  to  the 
hands  of  the  assignees,  which  enabled  them  to 
make  a  further  dividend  :^Held,  that  the  fur- 
ther dividend  ought  to  be  declared  on  the  debts 
of  all  the  creditors,  including  those  who  had  not 
claimed  the  former  divide&dS]  unless  in  the  tn- 


terun  any  of  the  mon-claimants  had  renewed 
their  proofs,  in  which  case  they  must  be  placed 
pari  passu  with  the  other  creditors.  But  the  comr 
missioners  ought  not,  out  of  the  further  assets, 
to  lay  aside  a  sum  equivalent  to  the  dividends 
already  unclaimed,  as  a  fund  in  reserve  to  meet 
any  future  renewal  of  the  proofii.    Id. 

If  the  solicitor  to  the  fiat  have  dividends  in 
his  hands  received  from  the  assignees  under  a 
pretended  authority  from  the  creditor,  the  oomt 
has  jurisdiction  to  order  him  to  pay  them  over 
to  the  creditor.  £z  parte  Story,  2  Mont,  db  Ayr. 
54 ;  4  Deac.  &  Chit.  504.  410 

On  a  dividend  being  withheld,the  assignees  were 
ordered  to  pay  it,  with  5  per  cent,  interest  from 
the  time  of  application  to  them  for  payment    Id. 

A  dividend  having  been  declared  twenty-ei^ht 
years  ago,  and  the  amount  invested,  the  creditor 
was  now  held  entitled  to  the  interest  which  had 
accumulated.  £x  parte  Halford,  2  Mont.  A  Ayr. 
269.  410 

Unclaimed  dividends  can  only  be  ordered  to 
be  divided  among  all  the  other  creditors  gene- 
rally, and  not  among  a  particular  class  of  credi- 
tors.  £x  parte  LAckington,  3  Deac.  d^  Chit  331. 

410 

When  the  omission  to  prove  a  debt  proceeds; 
from  a  creditor's  own  laches,  the  eourt  will  not 
order  a  dividend  to  be  stayed,  nntil  his  netition 
to  prove  can  be  heard.  £x  parte  Biees,  3  Deac. 
&  Chit.  283.  410 

Where  the  order  of  dividend  states  that  a  par- 
ticular assignee  is  not  liable,  he  will  not  be  in- 
cluded in  an  order  to  pay  the  dividend.  £x  parte 
Dawson,  2  Mont  &  Ayr.  94.  410 

Semble,  that  the  unclaimed  dividends  of  joint 
creditors  can  only  go  to  the  joint  creditors,  and 
those  of  separate  creditors  to  the  separate  cred- 
itors.   £x  parte  Fedden,  2  Deae.  &  Chit  379. 

410^ 

The  court  will  not  order  unclaimed  dividends 
to  be  distributed  among  the  creditors,  unless  the 
creditors,  on  whose  debts  thev  are  payable,  have 
ample  notice  that  they  have  been  oeclared ;  and 
more  especially  when  a  long  period  has  elapsed 
before  any  dividend  has  been  made.    Id. 

Where  bills  of  exchange  proved  under  a  fiat 
have  been  lost  by  the  creditor,  and  he  therefore 
cannot  produce  them  for  the  purpose  of  receiv- 
ing his  dividends,  and  an  application  to  this  eoort 
becomes  necessary  to  receive  them,  the  creditor 
must  pay  the  costs  of  the  application.  £x  parte 
Trust,  3  Deac.  &  Chit.  750.  410 

Where  a  p&r^  purchases  of  a  creditor  all  hie 
right  to  the  dividends  and  interests,  on  his  proof; 
semble,  that  such  party  cannot  proceed  againet 
the  assignees  by  petition  for  an  order  to  pay  to 
him  the  dividends  on  the  proof,  but  most  be  left 
to  the  ordinary  means  of  enforcing  the  contract 
by  action  at  law,  or  suit  in  equity.  £z  parte 
Richards,  4  Deac.  &  Chit  190.  410 

The  132nd  section  of  the  6  Geo.  4,  e.  16,  which 
directs  the  payment  of  interest  to  credlton  m 


[BANKRUPT] 


2363 


of  a  sorpliis,  hss  not  a  retrospective  opera- 

tioQ.    £xpviePhiUipe,4Deao.&Chit.81.    410 

* 

Where  the  holder  of  billi  which  were  deposited 
with  him  by  the  bankrupts  as  a  collateral  security 
for  a  debt,  prored  the  amount  of  the  balance  due, 
ezeepttng  tne  bills  as  a  security,  and  some  of  the 
bills  were  afterwards  paid  in  full :— Held,  that  the 
amount  of  the  bills  so  paid  must  be  deducted  from 
the  proof,  and  the  dividends  calculated  only  ud- 
OB  tiie  residue  of  the  debt.  Ex  parte  firunskill, 
4  Dea.  &;  Ch.  442 ;  2  Mont  A  Ayr.  220.        410 

The  interest  made  by  the  investment  of  un- 
claimed dividends,  does  not  belong  to  the  gene- 
ral estate,  but  is  divisible  among  the  creditors 
claiming  the  hitherto  unclaimed  dividends.  Ex 
parte  Rensbaw,  4  Deac.  &  Chit  483.  410 

H.  and  P.  drawers  of  a  bill  on  and  accepted  by 
P.  and  Co.  for  20001.  indorsed  it  to  A.  for  his  ac- 
coBunodation.  W.  and  Co.  discounted  it  for  A., 
together  with  another  bill  drawn  by  A.  for  2000^. 
upon  and  accepted  by  8.  and  Co.  A.,  and  H.  & 
P.  and  S.dtCo.  severally  became  bankrupts,  W. 
and  Co.  received  dividends  from  S.  and  Co.'s  ac- 
eeptance ;  also  7502.  from  H.  and  P.*s  estate  on  the 
bill  drawn  by  them.  They  also  proved  against 
A/s  esUte  for  33332.  6s.  Qd.  as  the  amount  of  H. 
and  P.'s  bill,  and  balance  of  A.*s  bill  on  S.  and 
Co.,  after  deducting  the  QSSl.  13$.  4d.  received 
firam  8.  and  Co.,  and  received  277/.  ISs.  6id.  divi- 
dend Ihereon,  1662. 13s.  4d.  beine  in  respect  of  the 
proportioBof  proof  onH.and  P.^bill.  P.  and  Co. 
siofiped  payment,  and  under  a  composition  deed 
W.  and  Co.  received  10002.  in  respect  of  H.  and  P.*s 
bill.  Total  in  respect  of  H.  and  P.'s  bill,  19162. 
13s.  4(2.,  leaving  a  balance  of  832. 6s.  8d.  Serable, 
(W.  and  Co.  claiming  to  have  a  right  to  retain  H. 
and  P.'s  bill,  in  order  to  work  out  remedies  against 
A.  in  respect  of  A.'s  bill),  that  the  assignees  of  H. 
and  P.,  ahhoagh  they  tendered  the  balance  832. 
€s.  Sd^  coold  not  compel  W.  and  Co.  to  deliver  up 
H.  and  P.*8  bill.  £z  parte  Dickson^  4  Deac.  A 
Ckct  614 ;  2  Mont  Sl  Ayr.  90.  410 

Qoare  whether  the  court  has  jurisdiction  on 
ambfect  of  litigated  title  such  as  this.'    Id. 

As  W.  and  Co.  were  not  bound  to  receive  the 
831.  6s.  Sd^  the  petition  was  premature  at  all 
events  till  the  bill  was  fully  paid  oiT.    Id. 


XIX.  Bahskoft. 

Smremder  amd  CammUnuntJ] — ^^  surrender  at 
a  prior  meeting  is  sufficient,  where  the  bankrupt 
beoomea  unable,  by  illness,  to  surrender  at  the 
last  meeting.  Ez  parte  Thomas,  3  Deac.  &  Chit 
234.  412 

If  a  bankrapt  be  examined  before  one  commis- 
r,  and  committed  to  the  custody  of  the  mes- 
r,  and  after  a  short  time  brought  before  two 
'  '  (,  who  ask  him  a  few  i|ae8tions  and 
commit  him,  the  committal  is  bad.  Ex 
paite  Lanpon,  1  Mont  A  Ayr.  245;  3  Deac  &> 
Clnt  751.  413 

The  snbdivision  court  cannot  commit  on  an 
adjourned  exaouiiation,  after  merely  asking,  "^  do 
yoo  abide  t^  your  fonner  answers ;"  the  party 

Vol.  IV.  12 


must  be  re-examined.     Ex  parte  BardweU,  1 
Mont.  &  Ayr.  193.  413 

The  application  to  commit  must  be  made  on 
the  same  day  the  certificate  is  made.  Ex  parte 
Myers,  2  Mont  db  Ayr.  87.  413 

Every  step  towards  commitment  must  be  men- 
tioned to  the  court    Id. 

The  order  of  committal,  after  the  fourth  day 
order,  must  boon  petition.    Id. 

To  justify  a  committal  of  a  bankrupt  for  not 
answering  eatisfactorily,  the  commissioners 
should  point  out  the  unsatisfactory  answers,  and 
piess  those  points.  Ex  parte  Lee,  2  Mont  Sl 
Ayr.  15.  413 

If  commissioners  of  bankrupt  issue  a  warrant 
to  apprehend  a  bankrupt,  and  direct  the  warrant 
^*To  J.  A.  and  W.  S.,  our  messengers  and  their 
assistants,"  &c. ;  this  warrant  does  not  justify  the 
apprehension  of  the  bankrupt  by  any  one  wno  is 
not  in  the  presence,  actual  or  constructive,  of  J. 
A.  or  W.  8.,  and  therefore  B.,  who  was  the  assis- 
tant of  W.  S.  in  his  business  of  a  sheriff's  officer, 
is  not  justified  in  apprehending  the  bankrupt,  in 
the  absience  of  W.  S.  and  J.  A.,  although  B.  nas 
the  warrant  in  his  possession.  Rex  «.  lYhalley, 
7  C.  &  P.  245-~WiUiams.  413 


Privilege  from  ,^rreat.l — Examination  adjourn- 
ed. Ex  parte  Simpson,  2  Wils.  C.  C.  127;  Buck, 
424.  417 

Where,  fh>m  unavoidable  accident,  the  com^ 
missioners  are  prevented  from  meeting  to  take 
the  bankrupt's  last  examination,  the  court  of  Re- 
view will  appoint  another  day  for  that  purpose. 
Ex  parte  Wilson,  2  Deac.  &  Chit  388.  417 

A  bankrupt  is  protected  from  arrest  on  an  at- 
tachment for  contempt  for  non-payment  of  mo- 
ney^ on  his  return  home  fh>m  passing  his  last 

examination.    Ex  parte  Jeyes,  3  Deac.  &  Chit. 
764.  t~.        /  ^^^ 

• 

Allowance.] — After  the  choice  of  assignees^ 
the  court  of  Review  will  not  make  an  order  as 
to  the  bankrupt's  allowance  for  maintenance.  Ex 
parte  Hall,  I  Mont  A  Ayr.  450.  419 

If  the  assignees  distribute  a  sum  without  an 
order  of  dividend,  and  the  bankrupt  subsequentiy 
obtain  his  certificate,  he  is  entitled  to  his  allow- 
ance, as  if  they  still  had  that  sum  in  their  hands. 
Ex  parte  Lomas,  1  Mont  &  Ayr.  437;  3  Deao. 
Hl  Chit  681.  419 

One  of  two  assignees  admits  in  the  audit 
paper,  previous  to  a  dividend,  that  a  certain  sum 
was  reserved  by  the  assignees,  applicable  to 
future  claims.  The  bankrupt,  on  a  petition  for 
his  allowance,  after  the  death  of  this  assignee,  is 
entitled  to  an  inquiry  whether  any  part  of  that 
sum  ever  came  into  the  hands  of  the  surviving 
assignee.  Ex  parte  Coombes,  2  Deao.  A  Chit. 
319?  419 

Under  a  joint  and  separate  fiat,  the  banlmxpt's 
allowance  is  to  be  calculated  on  the  amount  of 
his  separate  estate,  together  with  his  share  of  the 


2364 


[BANKRUPT] 


joint  estate,  not  on  the  gross  amoont  of  the  joint 
estate.  Ez  parte  Lomas,  1  Mont  A  Ayr.  625 ; 
4  Deac.  A  Chit.  240.  419 

Though  the  assiffnees  with  the  concurrence  of 
the  commissioners liave  ordered  an  allowance  for 
maintenance  (under  6  Greo.  4,  c.  16,  s.  114),  till 
the  bankrupt  has  passed  his  last  e.Tamination, 
which  order  remains  on  the  proceedinj^  jet  if 
the  assignees  afterwards  withhold  the  mamtenance 
on  the  ground  of  the  final  examination  being  ad- 
journea  sine  die,  the  court  has  no  power  to  inter- 
fere, either  as  to  the  maintenance  or  the  passing 
of  the  examination.  £x  parte  Thomas  Hall,  4 
Deac.  6l  Chit.  590.  410 

The  wife  a  bankrupt  has  a  right  to  a  rea- 
sonable provision  out  of  the  property  which  she 
brought  her  husband  on  her  marriage ;  and  the 
court  of  Review  has  jurisdiction,  on  petition  in 
bankruptcy,  to  order  the  assignees  to  make  such 
provision  for  her,  whether  the  propertv  consists 
of  real  or  personal  estate.  Ez  parte  lliompson, 
]  Deac.  90.  419 

An  allowance  of  2002.  out  of  a  net  income  of 
2252.  was  deemed  excessive,  and  reduced  to  1752. 
per  annum.    Id. 

Future  Property.'] — The  price  of  goods  sold  by 
an  uncertificated  bankrupt  may  be  recovered  by 
him  against  the  vendee,  bis  assignees  not  inter- 
fering.   Hayllar  v.  Sherwood,  2  Nev.  St  M.  401. 

After  the  bankruptcy  of  A.,  and  before  his  cer- 
tificate, B.,  one  of  his  creditors,  purchased  goods 
from  him.  In  an  action  brouffht  by  A.,  af&r  he 
.had  obtained  his  certificate,  for  the  price  of  the 
goods,  the  old  debt  cannot  be  set  off,  being  barred 
by  the  certificate.    Id. 


XX.  CzaTiricATK.  , 

A  joint  certificate  is,  upon  the  death  of  one  of 
the  oankropts,  a  separate  certificate.  Ex  parte 
Carter,  1  Mont.  &  Ayr.  115 ;  3  Deac.  Jk  Chit.  549. 

423 

It  seems  that  a  sole  executor  who  becomes 
bankrupt  may  sign  his  own  certificate.  In  re 
Lawrence,  1  Mont.  A  Ayr.  453.  423 

A  power  of  attorney  from  a  creditor  residing 
abroad  to  sign  the  bsnkrupt's  certificate,  is  suj- 
ficiently  auwenticated  by  the  attestation  of  a 
notary  public,  without  any  affidavit  to  verify  the 
signature.    Ex  parte  Myers,  2  Dea.  A  Chit.  406. 

424 

So,  if  attested  by  the  British  consul.  Ex  parte 
WUliamson,  2  Deac.  fii  Chit.  585.  424 

A  petition  to  stay  the  certificate,  charging  that 
the  bankrupt  admitted  that  he  had  lost  2dI.  in 
one  sitting,  is  demurrable  ;  it  ought  positively  to 
allege  the  fact,  and  that  the  money  was  lost  in 
one  day.    Ex  parte  Crouch,  2  Deac.  A  Chit.  17. 

427 

Fraud  in  obtaining  a  certificate.  Horn  «.  Ion, 
1  Nev.  &  M.  627 ;  4  B.  &  Adol.  78.  427 

A  certificated  bankrupt  cannot  be  discharged 


from  arrest  for  a  debt  covered  by  his  certificate 
till  it  has  been  inrolled  pursuant  to  6  Geo.  4,  c. 
16,  s.  96.  Jacobs  v.  Phillips,  1  C.  M.  ft  R.  195 ; 
2  Dowl.  P.  C.  716  J  4  Tyr.  652.  428 

Semble,  that  a  creditor  who  has  signed  the 
certificate  by  attornev,  cannot  stop  the  certificate 
by  subsequently  witnholding  an  affidavit  verify- 
ing his  signature  to  the  power.  Ex  parte  Dun- 
stan,  1  Mont.  A  Ayr.  6X9;  4  Deac.  A  Chit  30. 

423 

On  a  petition  to  stay  the  certificate,  by  a  eredi* 
tor  at  whose  suit  the  bankrupt  is  in  custody,  the 
bankrupt  must  be  diacharged  before  the  petition 
can  be  heard.  Ex  pti^  Green,  4  Deac.  at  Chit. 
112;  2Mont.  &  Ayr.31.  425 

The  rule  on  such  petitions  is,  that  the  partj 
objecting  to  the  certificate  must  himself  make 
out  a  case  to  stay  it ;  the  bankrupt  is  not  bound 
to  answer  mere  allegations  founded  on  inibrmft- 
tion  and  belief.    Id. 

The  non-payment  of  any  dividend  is  not  of 
itself  a  sufficient  reason  to  stay  the  certificate. 
Id.  ^ 

Tlie  certificate  cannot  be  stayed  for  miscon- 
duct before  the  fiat  issued.  Ez  parte  Gordon,  S 
Mont.  A  Ayr.  30.  425 

The  certificate  will  be  stayed  to  enable  a  cre- 
ditor to  prove,  when  the  reasons  for  his  not  prov- 
ing was  a  belief  that  no  dividend  would  be  paid. 
Ex  parte  Perring,  2  Mont.  A  Ayr.  486.  425 

The  certificate  will  not  be  stayed  on  a  petition 
alleging  information  and  belief,  though  supported 
by  an  affidavit  swearing  to  thje  fact  positively— 
oiT  J.  Cross,  diss.    Id. 

If  a  fiat  be  worked  before  one  commissioner, 
and  in  his  absence  from  London  in  vacation,  the 
certificate  be  signed  by  another  commissioner 
who  acts  for  the  absent  commissioner,  the  court 
will  refer  the  certificate  back  to  be  signed  by  the 
commissioner  who  had  been  absent  Ez  parte 
Bum,  2  Mont.  A  Ayr.  483 ;  1  Deac.  194.        434 

That  the  bankrupt  has  not  {^ven  up  some  of 
his  property  is  no  ground  to  stay  the  certificate. 
Id. 

An  allegation  that  the  bankrupt  has  not  fully 
disclosed  his  estate  is  not  sufficient,  in  ordinary 
cases,  to  stay  the  certificate.  In  eztreme  eases 
the  court  would  order  first  an  issue.    Id. 

The  omission  of  a  year  in  the  date  to  a  stgnatme 
of  certificate  by  a  creditor,  where  the  date  was 
properly  attached  to  the  praoeding  siffnatiue,  was 
rectified.    In  re  Buckley,  4  Dea.  A  Ch.  504.  423 

The  officer  was  ordered  to  pass  such  certificates 
in  future  without  putting  parties  to  the  ezpenss 
of  a  petition.    Id. 

On  petition  to  stay  a  certificate,  it  must  appear 
from  the  petition  itself  that  the  party  applying  is 
a  creditor ;  but  if  it  appear  merely  mferentially, 
that  is  sufficient.  Ez  parte  Robinson,  4  Deae.  tt 
Chit.  499 ;  1  Mont  A  Ayr.  705.  425 

If  it  merely  so  appear  from  the  affidavits  in 
support,  that  is  insufficient    Id. 

No  amendment  of  a  petition  to  stay  is  allowed. 
Id. 


[BANKRUPT] 


2365 


A  fonneT  partner,  there  being  partnenhip 
flebts  onpeid,  cannot  petition  to  pro?e  the  balance 
ofacooanti :  a  fortiori  not  to  stay  the  certificate. 
id. 

Under  the  Bankruptcy  Court  Act,  the  baok- 
rapt  is  not  bound  to  pay  the  fee  for  the  aignature 
of  the  commiflsioner  to  his  certificate,  but  the 
aaaigneea,  comme  semble,  are  now  liable  for  the 
payment  of  it.  In  re  Dawson,  3  Deac.  &  Chit. 
317.  424 

XXI.    SCPKRSEDKAS  AND  ANNtiLLIVS. 

lo  cases  of  sapersedeas  the  great  seal  has  a 
sabetantiTe  power,  independent  of  that  on  appeal. 
£z  parte  Keys,  1  Mont.  (k.  AyT.fiSi6i  3  Deac.  <& 
Chit.  263.  But  see  Ex  parte  Harwood,  3  Deac. 
A  Chit.  259.  430 

If,  on  a  petition  to  supersede,  the  Lord  Chan- 
cellor order  a  trial,  which  is  in  iavor  of  the 
oommission,  the  court  of  Reyiew  cannot  super- 
sede, on  a  petition  for  costs,  and  a  cross  petition 
ibr  anew  trial  brought  on  by  way  of  further  direc- 
tions.    Id. 

Where  a  petitioning  creditor  becomes  bank- 
rapt  befi>re  the  fourteen  days  for  openinsr  the  fiat 
have  elapsed,  the  court  will  not  supersede  on  the 
petition  of  another  creditor  who  is  prepared  to 
issue  a  new  fiat.  Ex  parte  Smith,  1  Mont.  A 
Ayr.  7«.  >  431 

After  a  fiat  had  issued,  the  bankrupt  makes 
certain  proposals  to  his  creditors  to  prevent  the 
proaeention  of  it,  to  which  proposals  the  solicitor 
ibr  one  of  the  creditors  promises  to  give  an  an- 
swer at  a  certain  time  on  the  following  day  (the 
sixteenth  afWr  the  date  of  the  fiat)  $  but  before 
that  day  arrives,  he  strikes  a  second  docket,  for 
noo-prosecation  of  the  first,  under  the  jreneral 
onler : — ^Held,  that  this  was  a  breach  of  faith,  juid 
a  petition  to  annul  the  first  fiat  was  dismissed 
with  coats.  £x  parte  Baker,  2  Deac.  &  Chit 
—  431 


.  After  a  lapse  of  twenty  years,  and  the  deaths 
cf  the  petitioning  creditor  and  the  bankrupt,  the 
eoort  of  Review  will  not  entertain  a  petition  for 
a  supersedeas,  on  the_ground  of  fraud.  Ex  parte 
Granger,  2  Deac.  ^t  Chit.  459.  432 

Where  the  banlurupt  is  ready  to  pay  all  his 
creditors  in  fuU,  and  the  only  creditor  whose  con- 
Knt  is  wanting  to  the  supersedeas  is  abroad,  the 
bsakrapt  may  apply  to  pay  the  amount  of  the 
cn^tors  debt  into  eoort,  in  order  to  prevent  any 
delay  in  obtaining  the  supersedeaa.  £z  parte 
fianilfeon,  2  Deac.  A,  Chit  519.  432 

All  the   creditors  assented  to    a  supersedeas 
bat  one.  for  9f.  14«.  2ri.,  who  was  abroad.    The 
of  Review  granted  the  supersedeas  on  that 
and  a  snflicient  sum  to  meet  the  expense  of 


tyung  it  out  of  court  being  deposited  with  the 
aagistrur.    In  n  Breoknell,!  Mont  Sl  Ayr.  80. 

432 

A  petitioD  to  inpersede  with  consent  of  credi- 
tors cannot  he  entertained  without  the  usual  cer- 
tificate of  the  eonunissioners,  nor  unless  it  is  set 
down  in  the  paper  for  hearing.    Ex  parte  Croker, 
3  Deae.  A  CbiU  9.  432 

Asupciaadf  by  consent  must  have  the  eon- 


sent  of  all  the  assignees  of  a  bankrupt  creditor. 
In  re  Leader,  1  Mont.  A  Ayr.  244.  432 

On  a  petition  to  supersede,  bv  consent  of  cre- 
ditors, the  official  assignee  need  not  sign  the  pe- 
tition. £x  parte  Parker,  3  I>eac.  &  Chit.  112.  433 

^.  petition  to  supersede  a  joint  commission,  on 
consent  of  creditors,  cannot  be  entertained  as  to 
any  one  of  the  bankrupts  who  has  not  surren- 
dered.   Ex  parte  Knowles,  3  Deac.  &Chit  191. 

433 

The  court  will  supersede  where  all  the  credi- 
tors consent,  and  the  bankrupt  has  paid  20«.  in 
the  pound,  though  his  examination  has  been  ad- 
journed sine  die.  Ex  parte  Gudge,  1  Mont.  & 
Ayr.  341 ;  4  Deac.  A  Chit  358.  433 

A  supersedeas  was  applied  for,  upon  consent 
of  all  the  creditors  but  one,  who  died  insolvent, 
and  no  administration  taken  out,  but  his  son 
signed  tlie  consent : — Held,  that  the  supersedeas 
could  not  issue  without  a  limited  administration 
for  this  purpose.  Ex  parte  Hall,  1  Mont.  &,  Ayr. 
54;  3  Deac.  &  Chit.  44.  432 

Any  party  who  can  show  that  he  sustains  a 
grievance  from  a  fiat,  may  petition  to  supersede 
it,  notwithstanding  he  claime  adversely  to  it. 
A  trustee,  therefore,  under  a  trust  deed,  which 
the  fiat  would  overreach,  may  petition  for  thirpur- 
pose.    Ex  parte  Jones,  3  Deac.  &  Chit.  697.    433 

A  person  whose  debt  is  alleged  to  be  usurious, 
cannot  petition  to  annul  the  fiat  for  fraud,  or  to, 
stay  the  certificate.    Ex  parte  Jarman,  2  Mont' 
f&  Ayr.  119 ;  4  Deac.  &  Chit.  393.  433 

The  court  will  not  annul  a  fiat  on  the  bank- 
rapt's  ])etition,  though  consented  to  by  the  peti 
tioning  creditor,  on  the  ground  that  the  bankrapt 
had  made  an  arrangement  for  payment  of  the 
petitioning  creditor's  debt  without  being  satisfied 
that  there  were  no  other  creditors  of  the  bank- 
rupts, or  that  if  there  were  any  such,  they  con- 
sented to  the  application.  Ex  parte  Parf,  1  Deac. 
77.  433 

A  petitioner  to  annul  a  fiat,  will  not  be  allowed 
copiesof  the  depositions,  before  there  is  an  office 
oopy  of  the  affidavit  in  support  of  the  petition. 
Ex  parte  Matthew,  2  Mont  &  Ayr.  73.  433 

Where  a  fiat  has  not  been  filed,  the  court,  on 
an  application  of  another  creditor,  will  not  order 
it  to  be  annulled,  but  merely  that  the  creditor 
may  issue  a  new  fiat.  Ex  parte  Gerothwohl,  2 
Deac.  &  Chit.  48.  433 

Wheie  a  creditor  gave  a  power  oi  attorney  in 
general  terms,  but  without  power  to  consent  to  a 
supersedeas,  and  the  signature  of  the  creditor 
himself  to  such  consent  was  easily  attainable : — 
Held,  that  his  own  signature  ought  to  be  pro- 
cured.  In  re  Sampson,  3  Deac.  &>  Chit.  196.  432 

A  petition  to  supersede  by  a  creditor,  pre- 
sentea  a  year  after  the  bankrupt  has  received  his 
certificate,  cannot  be  heard,  unless  the  delay  be 
accounted  for.  Ex  parte  Wyatt,  1  Mont  &  Ayr. 
400 ;  3  Deac.  &  Chit.  G65.  431 

Where  an  action  has  been  fairly  trt^d.  and  the 
verdict  is  against  the  commission,  and  the  bank- 
rapt  is  abroad,  the  fiat  may  be  superseded  on  Uie 


2366 


[BANKRUPT] 


petition  of  the  petitioning  eraditor,  though  the 
bankrupt  has  not  Borrendered.  Ex  parte  I^olger, 
1  MonL  &  Ayr.  457.  433 

If  an  order,  npon  a  petition  b^  aaiignees  to 
•uperaede  an  invalid  commission,  does  not, 
through  mistake,  include  the  assignees*  expenses 
of  prosecuting  the  commission,  tte  error  cannot 
be  rectified  by  a  petition  of  rehearing.  £x  parte 
Bnrnell,  1  Mont  A  Ayr.  38.  433 

Qusre,  whether  the  petitioning  creditor  is 
liable?    Id. 

Where  a  fiat  is  annulled  alter  adjudication,  for 
an  insufficient  act  of  bankruptcy,  it  is  always  at 
the  costs  of  the  petitioning  creditor.  £x  parte 
Fletcher,  2  Deac.  &.  Chit  374.  433 

Queie,  whether  simple  contract  creditors  be 
barred  by  the  statute  of  limitations  after  a  su- 
persedeas ?   £x  parte  Davy,  i  Mont.'&  Ayr.  3U0. 

434 

On  a  petition  for  a  supersedeas  with  consent  of 
creditors,  where  one  of  the  creditors  could  not  be 
found,  an  order  was  made  for  the  supersedeas, 
the  petitioner  undertaking  to  pay  into  court  the 
amount  of  the  debt  of  the  outstanding  creditor. 
£z  parte  Crowther,  4  Deac.  dt  Chit.  31.         432 

Semhle,  this  court  has  no  jurisdiction  to  order 
the  commissioner  to  oertifjr  the  consent  of  ciedi- 
tors  to  a  supersedeas,  especially  when  he  objects, 
because  fe^  payable  under  1  &•  2  Will.  4,  c.  56, 
ss.  45, 46,  are  not  paid.  In  xe  Hawker,  4  Deac. 
6l  Chit.  569.  432 

On  a  petition  to  annul  a  fiat,  on  consent,  un- 
der 6  Geo.  4,  c.  16,  ss.  133,  134,  the  assignees 
must  be  served.  £x  parte  Race,  2  Mont  &,  Ayr. 
242.  432 

When  the  commissioner  appoints  two  moet^ 
ings  under  1&2  Will.  4,  c.  56,  s.  20,  the  fiat 
cannot  be  annulled  with  consent  of  the  creditors 
under  6  Geo.  4,  c.  16,  ss.  113, 134.  till  after  the 
second  meeting.  £x  parte  Boaroman,  S  Mont 
A  Ayr.  2tK).  432 

Supersedeas  with  consent  of  nine-tenths  allow- 
ed, thoogh  the  commissioner's  certificate  did  not 
state  wnat  proportion  the  creditors  assenting 
bore  to  those  who  proved.  £x  parte  Hinton,  2 
Mont  &  Ayr.  361 ;  4  Deac.  A  Chit  351.       432 

FetfUon  for  supersedeas  with  consent  of  credi- 
tofs ;  one  dies  insolvent  after  proof,  and  his  exe* 
eutor  does  not  prove  his  will  r — Held,  that  his 
brother-in-law  might  sign  the  consent  £x  parte 
Leader,  3  Deac.  A  Chit.  468.  432 

Another  creditor  becomes  bankrupt,  and  one 
of  his  assignees  is  abroad : — Held,  that  the  sig- 
nature of  the  other  assignee  was  sufficient,  with 
an  affidavit  of  the  consent  of  the  absent  assignee. 
Id. 

Another  creditor,  who  had  proved  a  debt  as  the 
continuing  partner  of  a  firm  that  dissolved  their 
partnerslup,  died  before  his  retiring  partner : — 
Held,  that  his  executrix  might  sign  the  consent 
id. 


XXllL  COMMISIIOVK&S. 

TIm  eoQrt  of  Review  will  in  all 


nphold 


the  general  order  of  Lord  Looghbofoiiffh,  whieh 
directs  that  in  country  commissions  there  must 
be  inserted  the  names  of  two  barristers.  £x  parte 
Kilsby,  2  Deac.  ^l  Chit  19.  435 

Where  a  bankrupt  has  sold  goods  to  a  party 
for  a  price  considerably  lower  than  what  he  gaTe 
for  them,  the  purchaser,  when  summoned  before 
the  commissioner  for  examination,  is  bound  to 
answer  the  question,  "'  to  whom  did  you  sbbee- 
quently  sell  these  goods ;"  for  it  materially  con- 
cerns the  estate  of  the  bankrupt  to  ascertain 
whether  the  sale  by  him  were  bona  fide,  in  re 
Falk,  2  Deac.  dt  Chit  415.  -      437 

A  barrister  cannot  petition  to  have  his  nanae 
inserted  in  a  commission.  £x  parte  Ward,  8 
Mont  and  Ayr.  219,  n.  435 

The  quorum  commissioners  named  in  a  fiat, 
are  entitled  to  be  summoned.  If  not  summoned, 
the  court  of  Review  will  interfere.  £x  parte 
Dongkus  2  Mont  and  Ayr.  218.  435 

Where  the  last  examination  of  the  bankrupt 
has  been  adjourned  sine  die,  the  court  will  not 
order  the  commissioners  to  appoint  a  time,  unless 
misconduct  be  charged  against  them,  or  the  bank- 
rupt can  show  that  serious  iniury  will  accrue.  £x 
parte  Perkins,  1  Mont  and  Ayr.  624.  43i 

When  there  is  no  charge  against  commission- 
ers, they  need  not  appear.    Id 

If  more  than  the  statutable  fees  are  taken  by 
the  commissioners,  they  are  perpetually  disquali- 
fied from  acting  under  any  future  fiat  £x  parte 
Carter,  3  Deac.  St  Chit  (>78.  435 

Two  travelling  foes,  for  attending  two  meeting* 
on  the  same  day,  under  the  same  iMnkruptcy,  are 
beyond  the  foes  allowed  by  the  ttatnte.    Id. 

Where  both  the  quorum  commissioners  are 
unable  to  attend  to  open  a  fiat,  the  court  cannot 
make  an  order  that  tjie  other  three  commission- 
ers may  open  it ;  but  the  proper  course  is  to  an- 
nul the  fiat,  and  take  out  a  new  one.  In  re  Sut- 
ton, 1  Deac.  43.  435 

Where  unfounded  charges  of  corraptioii  were 
brought  against  commissioners  by  a  petitioDer^ 
who  appeared  to  be  the  to<^  of  other  parties,  the 
court  ordered  the  commissioners  their  ^'eoets, 
charges,  aud  expenses,"  and  suspended  the  order 
untilthe  attorney  for  the  petitioner  should  show 
cause  why  he  should  not  personally  pay  the  costs. 
£x  parte  Williams,  3  Deac.  dlt  Chit  103.         435 

Commissioners  of  bankrupt  have  no  autho- 
rity to  commit  an  examinant  for  refusing,  upon 
request,  to  read  an  entry  in  a  book,  laaae  v. 
Impey,5M  &R.  377.  438 

An  examinant  being  requested  by  the  dOmmie* 
sinners  to  read  an  entrjr  in  a  leger,  and  refosiBg 
to  do  so,  was  by  them  committed,  ^  for  refiunng 
to  answer  a  question :" — ^Held,  that  the  request  to 
read  was  neither  in  form  nor  substance  a  ques- 
tion ;  that  the  commitment  was  illegal ;  and  thai 
an  action  of  trespass  against  the  commissionen 
fiv  the  imprisonment  was  maintainable,    id. 

A  commissioner  of  bankruptcy  sitting  alone, 
under  1  & 2  Will. 4, c 56,  s.  7,  has  nopewer to 
fine  or  imprieoiifor  a  eonHuyt.  Rex  «.  Iwkaerf 


[BANKRUPT] 


S967 


1  Ottl0,SlO;l  C.  Bf.  AR.625;3Moiit&Ayr. 
311.    See  6  &  6  Will.  4,  c.  2»,  ■.  25.  436 

Semble,  that  he  is  not  liable  to  an  action  for 
any  thing  done  by  him  as  commissioner.  Id. 

The  court  has  a  general  jurisdiction  to  enters 
tain  questions  on  thelegaiit^f  of  a  comroitroent  by 
oommissioneis  npon  petition  without  habeas 
eorpns,  and  witnont  the  warrant  of  commit- 
ment 6einK  before  it :  especially  where  the  objec- 
tions to  the  committal  would  not  appear  on  tlie 
ftoeof  the  warrant — Dubit.  Sir  J.  Cross  as  to  the 
prodnction  of  the  warrant.  £x  parte  Jones,  4 
Deae.  A  Chit.  536 ;  2  Mont.  A  Ayr.  41.        428 

Qo»re.  whether  the  court  has  any  iurisdiction 
to  issue  the  writ  of  habeas  corpus  ?    Id. 

An  application  to  be  discharged  from  custody, 
on  the  ground  of  the  insufficiency  of  the  commis- 
sioner s  warrant,  must  be  by  petition.  Ex  parte 
Jones,  1  Moat.  &.  Ayr.  704.  438 

A  recital  on  a  warrant  that  the  party  was  ^*  sus- 
pected to  have  obtained  part  of  the  bankrupt's 
goods  by  means  of  fictitious  aales, "  is  not  ob- 
jectionable. £x  parte  Bardwell,  1  Mont  &  Ayr. 
200.  439 

The  warrant  need  not  set  out  the  precise  an- 
swers with  which  the  commissioners  were  dis- 
satisfied, id 

On  habeas  corpus,  the  party  may  object  that  a 
qnestton  was  illegal,  though  he  did  not  object 
when  before  the  commissioner.    Id. 

A  party  regularly  committed  by  a  commis- 
sioner to  the  messenger,  and  subsequently  irre- 
golarly  committed  by  the  nubdivision  court,  is 
not,  on  a  discharge  under  habeas  corpus,  re- 
onnded  to  the  custody  of  the  messenger.  i!lz  parte 
BardweB,  1  Mont  &  Ayr.  214.  439 


XXIV.   Solicitor. 

The  court  of  Review  will  not  depart  from  the 
general  mle,  that  the  solicitor  to  the  commission 
shall  not  be  allowed  to  purchase  any  part  of  the 
faMikmpt's  property.  £x  parte  Farley,  3  Deac. 
&  Chit.  110.  440 

The  solicitor  to  the  6at  cannot  have  leave  to 
bid  at  a  sale  of  the  bankrupt's  property  unless 
under  Tevy  peculiar  eircumstanoes.  Ex  parte 
Brown,  3  Mont  &  Ayr.  29 ;  S.  C.  nom.  £z 
parte  Towne,  4  Deac.  A  Chit  519.  440 

There  is  jurisdiction  in  the  court  of  Review  to 
laach  an/  part  of  the  estate  in  the  hands  of  the 
Botteitor  to  the  fiat.  Ex|iarte  Benham,  2  Mont.  & 
Ayr.SdO;  3  Deao  96.  440 

On  an  agieement  for  dissolution  of  partner- 
ship between  two  solicitors,  the  remaining  part- 
ner sgieed  to  pay  the  partnership  debti.  The 
aaagnees,  knowing  this  agreement,  continued  to 
employ  the  lemainmg  partner : — Held,  the  court 
would  not,  on  the  application  of  the  assignees, 
interfeie  to  charge  the  outgoing  partner.  A  pe- 
tition for  this  purpose  must  be  served  on  the 
eoDtinning  partner.  £x  partp  Gould,  2  Mont. 
k  Ayr.  4?;  4  Deac.  A  Chit.  547.  440 

The  s»lieit0r  to  the  fiat  mnst  bear  any  expense 
vttch  iuM  neglect  would  cause  the  estate.    Ex 


parte  Bennett,  2  Mont.  A  Ayr.  306;  1  Deaeon, 
70,  440 

In  1825,  an  assignment  from  the  provisional 
assignee  to  the  asiiignees  was  prepared,  but, 
through  neglect  of  the  solicitor,  never  execu- 
ted. The  provisional  assignment  was  ordered 
to  be  vacated,  and  a  new  assignment  executed  by 
the  commissioners.  It  seems,  the  25th  section 
of  1  &  2  Will.  4,  c.  56,  does  not  apply  to  such  a 
case.    Id. 

The  solicitor  having  been  paid  for  the  assign- 
ment must  refund.    Id. 

Independently  of  the  provisions  in  the  acts  of 
parliament,  the  court  of  Review  has  a  general 
jurisdiction  to  refer  the  bill  of  any  solicitor  of 
that  court  for  taxation.  Ex  parte  Copeland, 
A  Deac.  A  Chit  86.  440 

Where  the  petitioning  'creditor's  bill,  after 
being  taxed  by  commissioners,  had  been  paid, 
and  the  assignee's  accounts  had  been  audited  for 
the  space  of  six  years,  the  court  refused  to  order 
a  re-taxation  of  it  by  the  registrar.  Ex  parte 
Cristy,  4  Deac.  A  Chit  414.  440 

It  is  a  matter  of  course  for  any  creditor  who 
has  proved  to  the  amount  of  20L,  to  iy>ply  with- 
in a  reasonable  time,  under  the  14th  section  of 
6  Geo.  4,  e.  16.  for  a  re-taxation  of  any  bill  of 
the  solicitor  to  tne  commission,  but  not  where  a 
period  of  three  years  has  been  suffered  to  el^MO 
after  payment  of  such  bill.    Id. 

But  where  the  creditor  applies  to  the  general 
jurisdiction  of  the  court,  and  points  out  objec- 
tionable items,  the  court  will  then  refer  the  bill 
to  its  proper  officer  to  review  the  former  taxation. 
Id. 

Where,  however,  a  bill  baa  been  already  taxed 
by  the  proper  officer  of  the  court  in  which  the 
business  has  been  done,  the  court  of  Review  will 
not  in  such  case,  disturb  the  taxation.    Id. 

What  are  objectionable  items  in  the  solicitor's 
bill  for  business  connected  with  the  meetings  of 
the  commissioners.    See  Id. 

Where  an  assignee  applies  to  have  a  soficitor'a 
bill  taxed,  for  business  done  before  the  choice  of 
assignees,  which  is  not  included  in  the  bill  taxed 
by  the  commissioners,  the  petition  should  state 
the  nature  of  the  business,  and  when  it  was  done» 
and  the  proceeding  should  also  be  in  court  Ex 
parte  Cass,  4  Deac.  A  Chit.  273.  440 

The  costs  of  proceedings  in  the  court  of  Re- 
view, under  a  London  fiat,  are  to  be  deputed  to 
the  deputy  registrar  for  taxation ;  the  duty  of  the 
commissioner  being  merely  to  tax  the  petitioning 
creditor's  costs  and  the  costs  of  the  assignees. 
Ex  parte  Reay,  2  Deac.  A  Chit.  586.  440 

Where  an  order  has  been  made  for  the  taxation 
of  the  solicitor's  bill  of  costs,  semble,  that  a  sub^ 
sequent  petition  for  the  costs  of  the  taxation  can- 
not be  heard  until  the  master  has  made  his  certifi- 
cate, nor  unless  the  original  petition  is  also  set 
down  in  the  paper.  Ex  parte  Elsee,  2  Deac.  A 
Chit.  332.  440 

An  assignee  was  removed  and  ordered  to  ac- 
count; pending  that  order,  the  new  assignees 
petitioned  fbr  the  tazatkm  of  the  bill  of  the  loU- 


S368 


[BANKRUPT] 


oiton  employed  by  the  diaehftrged  tMipiee,  and 
that  they  mifrht  be  ordered  to  accoant  ror  money 
charged  to  have  been  improperly  received  by 
them  with  the  privity  of  the  former  assignee : — 
Held,  that  the  pietition  was  premature,  during  the 
pendency  of  the  former  order ;  but  the  court  of 
Aeview  retained  it,  under  the  circumstances, 
until  the  result  of  the  pending  account  was 
known.  £x  parte  Carter,  2  Dene.  &Chit.626.  440 

Although  the  solicitor's  bill  has  been  paid,  yet 
it  will  be  ordered  to  be  taxed  on  application  of 
the  assiflrnees,  without  any  special  reason  being 
assigned  for  the  taxation.  £x  parte  Pickering, 
2  Deac.  &  Chit  387.  440 

On  a  petition  by  creditors,  to  tax  the  bills  of 
several  solicitors  who  had  been  successively  em- 
ployed by  the  assignees,  the  court  made  the 
order  as  prayed,  notwithstanding  the  bills  had 
been  previously  taxed  by  the  commissioners,  and 
paid  by  the  assignees.  \£x  parte  Brown,  3  Deac. 
4k  Chit.  496.  440 

Solicitor's  bills,  though  allowed  by  the  com 
missioners  and  paid  by  the  assignees,  were  or> 
dered  to  be  taxed,  where  objectionable  items  were 
pointed  oat.    £x  parte  Jooraain,  3  Deac.  &.  Chit. 
637.  440 

Afler  a  solicitor's  bill  has  been  long  paid,  it 
cannot  be  taxed  without  special  reasons.  Ex 
parte  Hutchinson,  S  Mont.  &  Ayr.  35 ;  3  Deac. 
A  Chit.  829 ;  4  Deae.  dk  Chit.  530.  440 

A.  A  B.  sued  out  a  commission  as  solicitors  to 
the  petitioning  creditors,  and  the  assignees  after- 
wards appointed  C.  to  act  as  solicitor ;  but  it  was 
agreed  between  him  and  A.  A  B.,  with  the  pri- 
vity 4^  the  assignees,  that  all  three  should  jointly 
act  as  solicitors  and  share  the  profits,  and  the 
assignees  afterwards  recognised  the  acting  of  A. 
db  JS.  as  such  joint  solicitors : — Held,  Ist,  tnat  this 
amounted  to  a  retainer  by  the  assignees,  of  A.  &^ 
B.  as  joint  solicitors  with  C;  2ndly,  that  the 
court  o!  review  had  jurisdiction,  on  the  petition 
of  A.  &  B.  (C.  having  been  served  with  it,)  to 
enforce  the  pavment,  by  the  assignees,  of  the 
•olicitor's  bill  of  costs.  £x  parte  C^tes,  3  Deac. 
db  Chit  GSSS ;  1  Mont.  St  Ayr.  398.  440 

Where  the  solicitors  to  the  commission  re- 
oeived  the  amount  of  their  bill  of  costs,  which 
had  been  bona  fide  incurred  for  defending  a 
suit  in  Chancery  brought  against  the  assiffnees ; 
and  the  m^or  part  of  the  creditors,  and  the  offi- 
cial assignees  applied  for  an  order  on  the  soli- 
citors to  refund  tne  amount,  on  the  ground  that 
the  commissioner  had  certified  that  the  suit  was 
improvidenUy  defended,  and  that  he  had  dis- 
allowed the  amount  of  the  costs  in  the  assignee's 
accounts ;  the  petition  was  dismissed  with  costs, 
except  as  against  the  official  assignee.  £x  parte 
Benham,  1  Deac.  26;  2  Mont  A  Ayr.  280. 

440 

Where  the  amount  of  a  bill  appears  on  the 
ftee  of  it  to  be  exceasive,  objectionable  items  need 
not  be  pointed  out,  on  the  api^ieation  by  a  credi- 
tor to  have  it  taxed.  £x  pute  Copeland,  4  Deao. 
db  Chit  86.  440 

A  motion  may  be  made  that  the  registrar  may 
review  his  certificate  of  taxation  of  oosts.  Ex 
parte  Richardson,  1  Mont  db  Ayr.  377.  440 


A  petition  may  be  necessary  to  oppoee  or 
amend  it  Id. 

Non  payment  df  the  taxed  costs  into  court  is 
not  a  preliminary  objection  to  the  motion.  Id. 

It  is  not  necessary  to  obtain  leave  to  except  to 
the  registrar's  certificate  of  taxation.  Ex  parte 
Crockwell,  1  Mont  A  Ayr.  379,  n.  440 

Where  several  bills  are  taxed,  the  one-sixth  is 
calculated  on  the  aggregate  amount.  Ex  parte 
Barrett,  1  Mont  &  Ayr.  447.  440 

The  court  of  Review  can  order  the  bill  of  oosts 
subsequent  to  the  choice  of  assignees  to  be  paid, 
though  the  assignees  have  no  assets  in  their 
hands.  £x  parte  Coates,  1  Mont,  db  Ayr.  328  ;  3 
Deac.  &  Chit  626.  442 

Anon.  Buck,  475 ;  overruled,  semble.  Id. 

Creditors  ma^r  petition  to  tax  the  solicitor  s 
bill,  though  paid,  the  assignees  having  been 
guilty  of  dereliction  of  duty  in  not  filing  the  billa 
with  the  proceedings.  Ex  parte  CasUe,  1  Mont. 
&  Ayr.  665.  440 


XXV.  Mesbxvger. 

In  an  action  brought  by  a  messenger  against  a 
sole  assignee  of  a  commission  of  iwnkruptcy, 
under  6  Ueo.  4,  c.  16,  for  the  costi  of  advertisinur 
a  meeting  of  the  Creditors,  and  for  the  hire  of 
the  room  in  which  the  meeting^  was  held : — Held 
that  it  was  not  necessary  for  him  to  prove  an  em- 
ployment by  the  assignee,  nor  any  express  re- 
cognition of'^him  as  messenger,  as  the  fact  of  his 
having  acted  as  a  messenger  and  of  the  expensea 
incurred  must  have  been  known  to  the  assignee. 
Hamber  «.  Purser,  2  C.  d^  M.  209 ;  4  Tyr.  41.  443 

After  the  lapse  of  Ave  years  a  nieasenger's  bill 
cannot  be  taxed  without  a  charge  of  fraud  lately 
discovered.  Ex  parte  Willment,  1  Mont,  and 
Ayr.  45 ;  3  Deac.  db  Chit  364.  443 


XXVI.  Evidence  ih  BAirKRDPrcr. 

D^tUions.] — In  a  case  within  the  92nd  sec- 
tion of  the  Bankrupt  Act,  (6  Greo.  4,  c.  16),  where 
the  assignees  went  into  evidence  of  the  trading 
in  consequence  of  a  notice  to  dispute,  without 
adverting  to  the  section  or  relying  upon  the  de- 
positions, and,  having  failed  to  establirii  the 
trading,  were  nonsuited:  the  court  refused  to  set 
the  nonsuit  aside.  Johnson  v.  Piper,  8  Nev.  and 
M.672.  446 

Depositions  taken  before  commissioners  of 
bankruptcy,  and  inrolled  by  the  assignees  accord- 
ing to  6  dto.  4,  c.  16,  s.  96,  are  not  evidence 
against  them  in  an  action  brou^t  to  dispute  the 
commission,  by  disproving  the  act  of  bankruptcjr 
on  which  it  is  founded.  Chambers  v.  Bernasconi 
(in  error),  1  C.  M.  and  R.  347;  4  Tyr.  531.    446 

In  all  actions  by  assignees  of  a  bankrupt,  which 
the  bankrupt  himself  might  have  maintained,  if 
no  bankruptcy  had  occurred,  the  depooitkma 
taken  before  the  commissioners  are  conclusive 
evidence  of  the  trading,  &c.,  although  at  the  time 
of  bankruptcy  the  cause  of  action  may  not  have 
been  complete.  Kitchener  v.  Power,  4  Nev.  A  M. 
710 ;  3  Adol.  A  Ellis,  232;  1  Har.  db  WoU.  174. 

446 


[BANKRUPT] 


2869 


And  the  question,  whether  the  action  »  of  such 
a  nature,  mnst  he  decided  hj  a  reference  to  the 
ftets  of  the  case,  (which  the  judse  may  collect 
from  the  opening  of  the  plaintiff^  counsel),  and 
not  from  a  strict  reference  to  the  cause  of  action 
appearing  on  the-record.    Id. 

A  bankrupt  sold  goods  before  his  bankruptcj 
to  the  defendant  for  cash,  but  after  the j  were  de- 
livered, the  defendant  refused  to  pay  for  them, 
and  claimed  to  set  off  against  the  value  the 
amount  of  some  remaining  acceptances  of  the 
bankrupt  in  his  hands.  The  assignees .  treating 
the  purchase  as  a  fraud,  sued  the  defendant  in 
trover,  alleging  the  conversion  to  be  after  the 
bankruptcy.  Notice  to  dispute  the  act  of  bank- 
ruptcy, and  petitioning  creditor's  debt  having 
been  given: — Held,  that  the  depositions  were 
ooaclnsive  evidence  of  these  fiusts.    Id. 

In  an  action  by  the  assignees  of  A.,  where  the 
petitioning  creditors  are  the  assignees  of  B.,  the 
proceedings  under  B.'s  commission  are  not 
evidence,  under  6  €reo.  4,  c.  16,  s.  92,  of  the  bank- 
raptcy  of  B.  Muskett  e.  Drummond,  5  M.  &  R. 
210.  446 

Upon  a  bankrupt's  petition  to  supersede,  the 
of  the  trading  and  act  of  bankruptcy 


moat  be  read  in  court  so  as  to  give  him  an  op- 
poirtonity  of  answering  them.    £z  parte  Laven- 


fkr,  4  Deac.  &  Chit  m. 


446 


In  trespass,  the  defendant,  after  alleging  that 
M.  had  been  declared  a  bankrupt,  and  that  they 
had  been  appointed  his  assignees,  justified  taking 
goods  as  belonging  to  them  in  their  capacity  of 
aangiiees ;  the  plamtiff  replied  that  the  goods  be- 
looppd  to  him  and  not  to  defendants; — Held, 
that  npon  this  issue  it  was  not  incumbent  on  the 
Meadants  to  me  formal  proof  of  M.'s  bank- 
rttptry,  and  their  appointment  as  assignees. 
Jones  V.  Bowman,  1  Scoit,  453 :  1  Binir.  N.  R. 
484 ;  1  Hodges,  33.  446 

^  Semble,  that  an  objection  taken  by  the  plain- 
tiff^ aAer  the  judge  has  summed  up,  as  to  the 
want  of  evidence  of  the  title  of  the  assignees, 
came  loo  late.    Id. 


Other  t&uigs.] — If  in  trover  by  the  assignee  of 
a  bankrnpt,  the  plaintiff's  title  as  assignee  be 
pat  in  iasue;  the  fiat  of  bankruptcy  mrolled, 
the  oertifi<»te  of  the  appointment  of  the  plain- 
tiff as  assignee  inrolled,  and  the  appointment 
itself  (also  inrolled)  are  sufficient  proof  that  the 

flaintiff  is  assignee.    Scott  v.  Thomas,  6  C.  d^^ 
^  611— Parke.  445 

A  written  statement,  made  by  a  bankrupt  be- 
fan  hie  bankruptcy,  of  his  debts  and  <;redits,  is 
evidence  as  showing  that  he  knew  of  his  own 
insolvency.    Id. 

In  trover,  brought  b^  a  bankrupt  against  his 
sainiees,  to  try  the  validity  of  the  commission : 
— ^ffeld,  that  secondary  evidence  of  the  assign- 
■ent  might  be  given,  after  proving  that  it  was 
lost  befbie  it  was  entered  of  record,  as  directed 
fayfi  Geo.4,c.  16,  s.d6,  and  2  <&3  WiU.4,  c.  114, 
a7.  Gilesv.  Smith,  IC.  M.  «[.R.  462:  5Tyr. 
15.  •  445 

Semble,  proof  of  the  plaintiff's  acquiescence 


in  the  defendant's  acts  as  aasigAee,  and  dealing 
with  him  in  that  character  would  render  proofed 
the  assignment  unnecessary.    Id. 

On  a  petition  by^assignees  disputing  the  right 
of  a  creditor  to  a  lien  on  certain  property  of  the 
bankrupt,  the  examination  of  ttie  bankrupt's 
clerk,  taken  by  the  commissioners  behind  the 
creditor's  back,  is  not  receivable  in  evidence.  Ex 
parte  Dobson,  4  Deac.  &.  Chit.  69.  444 

On  petition  by  assignees,  to  expunge  a  proof, 
the' examination  of  the  bankrupt  ^fore  the  com- 
missioner, taken  at  the  time  the  proof  was  ad- 
mitted, is  receivable  in  evidence.  Ex  parte  Free- 
man, 4  Deac.  Sl  Chit.  404.  444 

In  a.suit,  by  the  assignees  of  an  uncertificated 
bankrupt,  for  the  recovery  of  property  fraudu- 
lently delivered  by  him  to  the  defendants,  the 
plaintifis  read  the  examination  of  one  of  the  de- 
fendants taken  before  the  commissioners  on  the 
first  day,  but  declined  to  read  the  examination 
taken  on  the  second  day  :~Ruled,  that  the  whole 
must  be  read.  Smith  v.  Biggs,  5  Sim.  391.       444 

If,  on  a  viva  voce  examination,  witnesses  aro 
ordered  out  of  court,  the  petitioner,  being  a  wit- 
ness,  has  a  right  to  remain  in  court.  &  parte 
Dugard,  2  Mont.  &  Ayr.  84.  444 

The  examinations  of  the  bankrupt  and  other 
persons  before  the  commisstonen  may  be  read 
m  evidence,  after  notice  has  been  given  to  the 
other  side  of  the  intention  to  read  Uiem,  and  may 
then  in  all  respects  be  treated  as  affidavits.  Ex 
parte  Crosley,  1  Deacon,  107 ;  S.  C.  nom.  Ex 
parte  Crosbie,  2  Mont.  &,  Ayr.  397.  444 

Jfotice  to  dispute  J—The  notice  of  disputing 
the  petitioning  creditor's  debt,  the  trading,  or 
the  act  of  bankruptcy,  as  required  in  certain 
cases  by  sec.  90  of  the  Bankrupt  Act,  6  Geo.  4, 
c.  16,  must  be  given,  although  under  the  new 
rules  of  pleading  the  denial  of  the  bankruptcy 
may  appear  upon  the  record.  Moon  v.  Raphael. 
2  Scott,  489 ;  2  Bing.  N.  R.  310;  7  C.  &  P:il5; 
1  Hodges,  289.  447 

In  an  action  bv  assignees  of  a  bankrupt* 
for  goods  sold  and  delivered  by  the  bankrupt 
before  his  bankruptcy,  the  plea  denied  their  title 
as  assignees,  and  a  notice  to  dispute  the  trading, 
&c.  was  given,  pursuant  to  6  Geo.  4,  c.  16,8. 
90.  Letters  from  the  defendant  to  one  of  the 
assignees,  and  to  the  solicitor  to  the  commission, 
deprecating  proceedings  against  him,  are  prima 
facie  evidence  of  the  admission  of  the  plain- 
tiff's title  to  sue  as  assignees,  without  tegular 
proof  of  the  bankruptcy.  Inglis  e.  Spence,  1 
C.  M.  &  R.  432  J  5  Tyrf 8.       *  447 

fFitnesses.^-^lf  a  creditor  of  a  bankrupt  agree 
to  release  the  estate  on  an  undertaking  by  one  of 
the  assignees  to  pay  him  what  should  appear  to 
be  justhr  due,  he  is  a  competent  witness  on  the 
part  of  the  assignees.  Sinclair  v.  Stevenson,  I 
C.  &  P.  582  ;  10  Mooie,  46 ;  2  Bing.  514.      449 

In  an  action  by  the  assignees  of  a  bankrupt,  in 
which  the  bankruptcv  is  in  dispute,  a  son  of  the 
bankrupt  who  was  held  out  as  a  partner  with  him, 
but  who  was  in  fiict  not  so,  is  not  a  eottpetoni 


!2370 


[BANKRUPT] 


witneM  lor  the  9migaee§.    Holland  v.  Rc^^es,  7 
C.  Sl  p.  96— Aldenon.  449 

A.  wai  examined  before  commiflaionen  of 
bankrupt,  and  on  his  re-ezamination  he  prodoced 
a  machine  copy  of  a  letter  he  had  sent  to  R. 
While  A.  waa  before  the  commiBsionera,  Mr.  E., 
the  solicitor  to  the  aasiffnees,  made  a  copy  of  the 
machine  copy  of  the  fetter  produced  by  A. : — 
Held,  that  in  an  action  by  the  aasignees  of  the 
bankrupt  against  A.,  the  copy  of  the  letter  made 
by  Mr.  E.  was  not  admissible  in  evidence  against 
A.,  without  reading  his  examination,  although 
notice  had  been  given  to  A.  to  produce  the  ma- 
chine copy.    id. 

A  party  made  a  composition  with  his  principal 
erediton,  paying  the  smalfer  ones  in  full.  He 
afterwards  became  bankrupt,  and  did  not  pay  lbs. 
in  the  pound  : — Held,  that  (having  obtained  his 
certificate,  and  released  bis  surplus)  he  was  a 
competent  witness  to  support  an  action  by  hia 
aasignees.  RoberU  v.  Harria,  2  C.  M.  &  R.  2SI2 ; 
i  Gale,  231.  449 

On  a  viva  voce  examination  on  a  petition  to 
anperaede.  a  creditor  ia  not  a  competent  witness. 
Ex  parte  Lavender,  1  Mont.  A  Ayr.  70S ;  4  Deac. 
db  Chit  487.  449 

The  drawer  of  a  bill  accepted  by  the  bankrupt, 
l>ttt  which  had  been  indorsee!  over,  and  which  was 
not  yet  proved  against  the  estate,  swore  to  a  de- 
position in  aunport  of  the  fiat,  stating  himself 
therein  not  to  oe  a  creditor .- — Held,  in  the  ftce  of 
that  statement,  that  hia  deposition  could  not  be 
lejected  on  the  ground  ofhia  being  a  creditor. 
But  being  subsequently  examined  viva  voce,  and 
admitting  the  facts  —Held,  that  aa  he  might  be 
called  on  to  pay  the  bill,  and  vrould  have  the 
option  to  prove  aeainst  the  eatate,  h%  was  an  in- 
terested party,  and  therefore  not  examinable.   Id. 

Where  a  petitioner  filed  no  affidavita  in  sup- 
port, but  two  days  before  the  hearing  served  no- 
tice to  examine  witneases  on  the  respondent 
twenty  miles  from  London,  the  court  retuaed  an 
npplioation  of  the  respondent  to  postpone  the 
hearing  till  aiVe'r  the  petitioner's  witnesses  were 
examined,  ao  aa  to  procure  witnesses  in  anawer. 
id. 

XXVHI.  Pbactick  in  Baitkrijptct. 

PrmeUee  m  Ctmrt  of  Aeeiew.]— The  eonrt  of 
Review  are  reloctant  to  grant  an  issue  on  the 
application  of  the  assignee.  Ex  parte  Patrick,  1 
Mont.  &  Ayr.  a91.  453 

Alter  an  order  to  pay  within  a  specified  time, 
the  next  order  is  to  pa^  within  lour  days  or  staAd 
committed:  this  is  of  course  at  the  office,  but 
if  cireumstancea  render  an  application  to  the 
court  necessary,  notice  must  be  given  to  the  other 
aide.  Ex  parte  Solomons,  1  Mont  and  Ay.  269,  n. 
And  aee  Ex  parte  Malachy,  1  Mont  and  Ayr. 
257.  453 

If  an  order  of  committal  be  aaked,  the  affida- 
vit must  state  that  the  money  is  still  due  and 
ewing,  and  that  the  party  has  not  paid,  nor  any 
peraon  on  hia  behalf;  but  the  same  strictness  is 
not  required  on  any  intermediate  order.  Ex  parte 
Mamj»  1  Mont  and  Ayr.  478.  453 


A  previous  order  of  the  Vioe-Chanoellor,  which 
had  been  omitted  to  be  drawn  up,  ordered  to  be 
entered  up  nunc  pro  tunc,  if  the  vice-Chanoellor 
ahould  think  fit  Ex  parte  Lewia,  3  Deac.  4k 
Chit  198.  453 

A  special  case  sent  from  a  commissioner  must 
be  brought  on  upon  petition.  Ex  parte  Johnston, 
1  Mont.  &  Ayr.  G22.  453 

A  formal  objection  to  a  motion  is  waived  by 
the  party  appearing,  and  requesting  further  time 
to  oppose.  Ex  paiie  Morland,  3  Ueac.  &  Chit 
248.  453 

In  bankruptcy,  the  objection  of  multifiu-ioua- 
neaa  ia  not  conaidered  aa  concluaive.  Ex  parte 
Brown,  3  Deac.  d&  Chit  496 :  S.  P.  Ex  parte  De- 
vaa,  4  Deac.  &  Chit  366.  453 

No  application  can  be  made  in  the  matter  of  a 
petition,  before  an  office  copy  ia  taken  to  the 'affi- 
davit filed  in  support  of  it  Anon.  4  Deac.  &. 
Chit  141.  453 

On  an  abandoned  notice  of  motion,  the  ap- 
plication for  coats  and  affidavit  of  service  may 
be  on  a  future  day.  Ex  parte  Stone,  2  Mont  A 
Ayr.  503.  453 

fiefore  a  motinn  ia  made  that  the  peUtioo  of 
the  bankrupt  ibr  a  auperaedeaa  shall  be  diamian- 
ed,  on  the  ground  of  hia  being  out  of  the  juris- 
diction of  the  court,  the  reapondent  ahould  aerve 
the  bankrupt's  agent  with  notice  of  the  motion, 
having  previously  obtained  an  order  that  aervioe 
on  the  agent  aliall  be  good  aervioe.  Ex  parte 
Drake,  3  Deac.  dt  Chit  284.  453 

A  party  objecting  to  the  maater'a  report  ahould 
either  present  a  petition  to  except  to  it,  or  |^e 
notice  to  the  other  aide  of  the  nature  of  the  obiec- 
tion.    Ex  parte  MiUard,  3  Deac.  A  Chit  213. 

453 

Where  a  warrant  is  issued  againat  a  bankrupt 
for  non  compliance  with  an  oraer  of  the  court, 
and  the  warrant  is  lost,  the  court  will  renew  the 
warrant  or  grant  a  copy  of  it,  aa  a  matter  of 
course.  Ex  jHurte  Giles,  3  Deac.  &  Chit  620.  453 

An  order  of  the  Lord  Chancellor,  made  in  a 
suit  brought  by  the  asaigneea,  waa,  on  their  ap- 
plication, ordered  to  be  registered  in  the  court  of 
Bankruptcy.  Ex  parte  WiUiama,  4  Deac.  A  Chit 
110.  453 

When  all  is  regular,  the  four  day  order  to  pay. 
Sic.  or  stand  committed,  is  bf  courae  at  the  omoe. 
Ex  parte  Smith,  2  Mont  &.  Ayr.  213.  453 

Order  for  four  daya'  order,  towards  commit- 
ment, must  be  prayed  by  petition,  not  motion ; 
and  certificate  of  registrar  of  the  nonconformity 
should  be  dated  the  very  day  of  the  application 
for  the  abort  order.  Ex  parte  Myers,  4  Deac  & 
Chit.  579.  453 

Order  for  committal  for  diaobedience  to  order 
to  pay  into  court  will  not  be  stayed  under  any 
circumstances,  unless  party  haa  paid  the  ra<»iey 
in,  or  is  ready  to  do  so.  Ex  parte  Birkett,  4 
Deac.  A  Chit.  503.  453 

Application  for  warrant  of  commitment  for 
diaobedience  of  a  four-day  order  is  ex  parte,  and 
quite  of  course.  Ex  parte  Hunt  4  Deac.  A  Chit. 
500.  453 


[BANKRUPT] 


2371 


The  court  will  not  irnie  an  attachment  in  the 
long  Tacation.  unleaa  there  is  fear  of  the  partj 
abaconding.    Jd. 

Where  an  application  is  made  to  reecind  an 
order,  on  the  ground  of  irreffularitj,  the  party 
ought  to  state  in  his  notice  of  motion  what  the 
irregularity  is.  In  re  Walker,  1  Deac.  88;  2 
Mont.  &  Ajr.  267.  453 

Qn»re,  whether  such  an  application  should 
not  be  made  by  petition  ?   Id. 

Signahare  and  JHtesUUion  of  Petition.] — An  ob- 
jection to  the  attestation  of  a  petition  is  not 
raatainable  after  an  order  has  been  already 
made  upon  it.  £z  parte  Tanner,  2  Deac.  & 
Chit.  563.  454 

Where  such  an  objection  is  taken  to  the  attest- 
ation of  a  petition  for  a  supersedeas,  it  mar  be 
amended  instanter  ;  but  not  if  the  petition  is  to 
stay  a  certificate.    Id. 

Wlieie  an  attestation  was  in  the  following 
form,  »*  Signed  by  the  petitioners,  A.  B.and  C. 
D.,  in  the  presence  of  T.  S.,  actloj^  as  solicitor 
for  A.  T.,  solicitor  for  the  petitioners  in  this 
matter,'*  and  it  appeared  that  A.  T.  was  not  a 
a<dicitor  of  the  court :  semble,  nevertheless,  that 
the  attestation  was  good,  the  petitioners  haying 
appeared  by  counsel.    Id. 

It  is  no  objection  to  a  petition,  that  the  official 
Bssiraee  has  signed  it,  his  signature  being  merely 
sur^usage.  £x  parte  Belcher,  2  Deac.  dtChit. 
507.  454 

A  special  order  had  been  obtained  for  an  agent 
of  the  petitioner,  who  was  abroad,  to  sign  the  pe- 
tition on  her  behalf :— Held,  that  this  might  be 
done  under  the  general  order  of  the  12th  August, 
1809;  and  the  special  order  was  therefore  dis- 
charged with  coats.  Ex  parte  Moore,  2  Deac.  <& 
Chit.  369.  454 

A  petition  of  assignees  is  informal,  if  signed 
by  only  one.  Ex  parte  White,  3  Deac.  &  Chit. 
366.  454 

Semble,  that  such  strictness  is  not  now  re- 
quired as  formerly,  with  respect  to  the  attestation 
of  a  petition  by  toe  solicitor.    Id. 

A  li  bellous  handbill,  published  by  the  bank- 
rupt, against  the  assignees  and  the  solicitor  to 
the  conimission,  is  not  a  sufficient  ground  for 
discharging  an  order  which  allowed  the  bankrupt 
to  netition  m  forma  pauperis.  £z  barte  Morland, 
3  Deac.  &  Chit.  248.  454 

If  there  be  four  assignees,  and  a  petition  to 
stay  the  certificate  be  presented  by  three,  stating 
themselyes  to  be  '*  three  of  the  assignees,"  but 
the  attestation  is  bad  as  to  two,  the  petition  may 
be  heard  as  the  petition  of  the  one.  £z  parte 
Bum,  2MQnt  &  Ayr. 483 ;  3  Deac.  194.        454 

The  signature  of  one  of  three  assignees  to  a 
petition  was  attested  by  the  solicitor,  who  pre- 
sented the  petition  under  the  word  *'  witness," 
without  stating  him  to  be  solicitor  in  the  matter  of 
the  petition : — Held  a  sufficient  attestation.    Id. 

AguUml,1 — ^Tbe  office  of  affidavits  is  to  explain 
allegations  of  the  petition,  and  cannot  supply  the 

Vol. 'IV.  13 


want  thereof.    Ex  parte  Wyatt,  1  Mont  db  Ayr. 
408.  456 

Where  affidavits  in  support  of  a  petition  aita 
yery  yoluminous,  the  court  of  Review  will  give 
the  respondent  time  to  answer  them,  upon  pay- 
ment of  costs,  although  the  petition  is  in  the 
paper  for  hearing,  and  twelve  days  have  elapsed 
since  the  affidavits  were  filed.  £z  parte  Wil- 
liamson, 2  Deac.  &  Chit.  317.  455 

On  a  petition  by  creditors  to  supersede,  on  the 
ground  of  firaudment  collusion  between  the  pe- 
titioning creditor  and  the  bankrupt,  the  bank- 
rupt's affidavit  detailing  the  particulars,  of  fraud 
is  admissible  in  evidence.  £z  parte  Amsby,  3 
Deac.  (t  Chit  10.  456 

Where  affidavits  are  referred  to  the  registrar 
for  scandal,  and  one  of  the  parties  means  to  ex- 
cept to'  his  report,  the  exceptions  must  be  taken 
immediately  the  registrar  certifies.  £x  parte 
Williams,  2  Deac  &  Chit.  382.  455 

An  affidavit,  though  not  filed,  may  be  read, 
upon  an  undertaking  to  file  it  Ex  parte  Bakerj 
2  Deac.  Sl  Chit  36U  455 

All  affidavits  filed  are  considered  as  read,  on 
the  question  of  costs.  Ex  parte  tiucas,  1  Mont. 
d&  Ayr.  405.  455 

An  affidavit,  after  being  filed,  cannot  be  with- 
drawn so  as  to  prevent  the  other  side  from  mak* 
ing  use  of  it,  on  the  hearing  of  the  petition.  Ex 
pute  t|abrey,  3  Deac.  Sl  Chit  232.  455 

On  the  hearing  of  exceptions  to  the  Master's 
report,  those  affidavits  only  in  support  of  or 
against  the  original  petition  can  be  read  which 
were  used  in  evidence  before  the  Master.  Ex 
parte  Orylls,  2  Deac.  A  Chit.  290.  456 

An  affidavit  sworn  before  the  petition  is  filed 
cannot  be  read,  but  the  petition  will  stand  over 
to  have  it  resworn.  Ex  parte  Taylor,  2  Mont  & 
Ayr.  36.    «  455 

It  is  an  objection  to  the  hearing  of  a  petition, 
that  the  affidavits  in  support  of  it  were  sworn 
before  the  petition  was  presented )  but  the  court 
will  sometimes  discountenance  such  an  objection 
by  allowing  the  petitioner  to  reswear  his  affidavits, 
and  ordering  the  petition  to  stand  over  for  that 

Surpose,  and  also  by  refusing  the  costs  of  the 
ay  to  the  respondent    £x  parte  Brown,  3  Deac. 
6l  Chit  496.  455 

The  motion  to  confirm  a  report  as  to  scandal  in 
affidavits,  is  a  motion  of  course.  Ex  parte  Hethe- 
rington,  4  Deac.  &,  Chit.  223.  455 

It  is  no  dejection  that  an  affidavit  is  sworn 
before  a  Master  in  Chancery.    Id. 

Contrary  to  Ex  parte  Pelham,  (Mont.  211), 
held,  that  any  party  may  apply  to  refer  affidavits 
for  scandal,  and  that  the  application  need  not  be 
by  the  party  scandalized,    id. 

Affidavits  are  referred  for  scandal  on  a  motion 
of  course.    Id.* 

Fonn.l — A  petition  to  stay  the  certificate,  and 
to  prove,  was  presented  : — Held,  1st,  that  it  need 
not  state  that  the  petitioner  is  a  creditor ;  2ndy 
that  it  need  not  state  when  the  debt  was  reacted ; 
3rd,  that  it  need  not  state  what  debt  was  rejected. 


2372 


[BANKRUPT] 


Ez  jMTte  Rabinion,  1  Mont  Sl  Ayr.  705 ;  4  0eac. 
A  Chit.  499.  454 

In  order  to  fix  the  executor  of  the  petitioning 
creditor  with  covts,  the  petitioner  must  pray  costs 
against  him  in  his  character  of  executor.  Ex 
parte  Harwood,  3  Deac.  and  Chit.  261.  454 

Multifariousness  is  not  a  sufficient  cause  for  the 
absolute  dismissal  of  a  petition :  aliter  where  the 
defect  is  want  of  proper  parties.  Ex  parte  Devas, 
4  Deac.  and  Chit.  366 :  ^.  F.  Ex  parte  Brown,  3 
Deac.  and  Chit.  496.  454 

It  is  no  objection  to  a  petition  to  tax  a  solici- 
tor's  bill,  that  it  contains  allegations  reflecting 
on  the  conduct  of  the  solicitor :  for  if  such  alle- 
gations are  improper,  they  may  be  referred  for 
scandal.    Ex  parte  Wells,  1  Deac.  69.  454 

Who  may  Petition.'] — Assignees  did  not  prove 
a  debt,  owing  to  their  becoming  bankrupt,  under 
another  commission.  The  bankrupt  is  a  creditor, 
who  may  petition  to  supersede  the  other  commis- 
sion if  his  assignees  do  not  interfere.  Ex  parte 
Taylor,  2  Mont.  &  Ayr.  36.  454 

In  cases  of  fraudulent  fiats  the  court  will  not 
dismiss  a  petition  to  supersede,  on  a  preliminary 
objection  that  the  petitioner  is  not  a  creditor. 
Ex  parte  Taylor,  2  Mont,  and  Ayr.  37.  But  see 
Ex  parte  Jarman,  2  Mont,  and  Ayr.  119 ;  4  Deac. 
and  Chit.  393.  454 

Service  of  Petition.} — The  court  of  Review  re- 
fused to  make  an  order,  that  service  of  a  petition 
against  an  attorney,  for  an  order  to  pay  certain 
costs  for  which  he  had  been  declared  liable,  by 
leaving  a  copy  at  his  chambers,  should  be  deem- 
ed iFOod  service.  In  re  Sandys,  3  Deao.  and  Ch. 
34.  456 

The  petition  of  an  equitable  mortgagee  must 
be  served  upon  the  assignees ;  service  on  the  so- 
licitor is  irregular.  Ex  parte  Cooks,  3  Deac.  and 
Chit.  24.  456 

The  court  of  Review  directed  special  service  of 
a  petition  to  annul  a  fiat,  where  the  petitioning 
creditor  was  not  to  be  met  with.  Ex  parte  Pep- 
pin,  2  Deac.  and  Chit  361 :  S.  P.  In  re  Sell, 
2  Deac.  and  Chit.  333.  456 

Where  a  petition  is  permitted  to  stand  over  to 
enable  the  petitioner  to  be  prepared  with  an  affi- 
davit of  service,  the  respondent  must  have  notice 
of  the  day  when  the  petition  is  to  be  brought  on. 
Ex  parte  Mucklow,  3  Deao.  and  Chit  25.       456 

A  petition  to  be  heard  on  a  particular  day 
should  be  placed  at  the  head  of  the  paper  of  that 
day.    Id. 

It  seems  that  a  party  may  depose  viva  voce  to 
having  been  served.  Ex  parte  TuU,  1  Mont,  and 
Ayr.  225.  4b6 

The  court  of  Review  will  not  advance  a  neti- 
tion  not  yet  served.  Ex  parte  Harding,  1  Mont 
and  Ayr.  115.  456 

If  the  sole  assignee  be  a  creditor,  and  sign  the 
consent  to  a  supersedeas,  he  need  not  be  served 
with  the  petition.  Ez  parte  Ramsay,  1  Mont, 
and  Ayr.  708.  456 

Semble,  that  the  rule,  that  a  bankrupt  cannot 
waive  the  necessity  of  personal  service  of  a  peti- 


tion to  stay  his  oertificale,  does  not  apply  when 
a  professional  person  is  interposed.  Ex  parte 
Hetherington,  1  Mont  6l  Ayr.  607;  4  Deac.  A 
Chit2l£  456 

Where,  on  a  petition  to  stay  the  certificate,  the 
bankrupt's  solicitor  requests  delay,  and  under- 
takes to  serve  the  petition  on  the  bankrupt,  the 
latter  cannot  afterwards  have  the  petition  called 
on,  out  of  turn,  to  be  dismissed  for  want  of  per- 
sonal service,  according  to  Ex  parte  Moore,  1 61. 
A  J.  253;  and  Ex  parte  Brenchly,  1  Mont  A 
Gregg.  161.    Id. 

A  petition  cannot  be  advanced  before  it  is 
served.    Ex  parte  Matthew,  2  Mont  Sc  Ayr.  74. 

456 


The  affidavit,  on  a  motion  for  substituted 
vice,  must  state  that  the  party  wilfully  keeps  out 
of  the  way  to  avoid  service,  and  is  not  to  be  fi>npd. 
Ex  parte  Biandy,  2  Mont  A  Ayr.  24 ;  4  Deac.  A 
Chit  518.  456 

Semble,  that  service,  substituted  by  order,  is 
tantamount  to  personal  service  eo  nomme.    Id. 

If  a  fiat  is  impounded  on  the  application  of  A., 
a  petition  for  its  delivery  out,  presented  by  B^ 
must  be  served  on  A.  Ex  parte  Martin,  2  Mont. 
&  Ayr.  293.  456 

The  service  of  a  petition  to  dismiss  a  petitiom 
for  taxation  of  costs,  need  not  be  personal ;  seem 
the  order  for  payment  of  the  costs.  Ex  parte 
Stephens,  2  Mont  A  Ayr.  482.  456 

When  a  petition  stands  over  by  arrangement, 
an  affidavit  of  service  is  not  necessary.  Ex  parte 
Ward,  2  Mont  dt  Ayr.  391 ;  1  Deac.  86.       456 

A  petition  to  supersede  need  not  be  perwnally 
served  on  assignees.  Ex  parte  Hanks,  2  Mont. 
&  Ayr.  383.  456 

When  a  petition  is  not  served  within  the  pro- 
per time,  it  must  be  reanswered.    Id. 

If  the  time  has  not  elapsed,  it  may  be  enlarged. 
Id. 

When  a  petition  has  been  half  heard,  it  cannot 
be  amended,  on  payment  merely  of  the  commoa 
costs  of  the  day.  £x  parte  Tunrile,  3  Deae.  ik 
Chit  346.  466 

The  respondent  not  appearing  when  a  petition 
was  called  on  for  hearing,  the  petitioner  took  such 
order  as  he  could  abide  by.  The  cburt  refused 
the  application  of  the  respondent,  on  a  subse* 
quent  day,  to  restore  the  petition  to  the  paper, 
where  the  only  cause  assigned  for  the  respon- 
dent's non-appearance  was,  that  his  agent  had 
overlooked  the  entry  of  the  petition  on  the  fi>rmer 
occasion.    InreWilks,  3Deac.&ChK.338.    456 

Thfe  court  will  not  reanswer  a  petition  for  a 
more  distant  day,  because  the  respondent  has  not 
been  served  four  days  before  his  attendance  on  it 
is  required.  Ex  parte  Bicknell,  3  Deac.  and  Ch. 
551.  456 

A  party  is  not  entitled  to  an  order  on  his  peti- 
tion, on  the  default  of  the  respondent's  appear- 
ance, if  he  is  not  prepa^ed  with  an  affidavit  of 
the  service  of  the  petition,  notwithstanding  the 
respondent  has  given  an  undertaking  to  appear. 
Ex  parte  Kirkaldy,  4  Deac.  A  Chit  52.         456 


[BANKRUPT] 


2373 


A  petitioiier,  claiming  a  portion  of  the  bank- 
rapt's  property,  has  no  right  to  call  for  the  pro- 
dnetton  of  a  caae  atated  by  the  assignees  for 
coonaera  opinion,  for  the  purpose  of  showing  that 
the  bankrupt  has  prevaricated  in  his  statements. 
Ex  parte  CoUier,  4  Deac  A  Chit.  364.  456 


Hmmg  of  Peeitum.]— The  objection  that  the 
petitioner  is  not  a  creditor  is  not  strictly  prelimi- 
nary. Ex  parte  Wyatt,  1  Mont.  &  Ayr.  406 ;  3 
Deae.  A  Chit.  665.  456 

A  petition  to  except  a  report  is  heard  beibre 
a  petition  to  confirm  it,  notwithstanding  the  lat- 
ter petition  stands  first  in  the  paper.  £x  parte 
Cox,  3  I>eac.  &  Chit.  1 1.  457 

The  petition  must  specify  the  exceptions.  Id. 

The  master  should  not  draw  conclusions  of  law, 
but  leave  the  legal  result  to  the  court  of  Review. 
Id. 

Qusare  whether  the  court  of  Review  has  power 
tD  hear  a  case  in  private,  if  they  think  a  public 
hearing  will  be  detrimental  to  the  interests  of  jus- 
tioe  .>ln  re  Chamben,  2  Deac.  &  Chit  395.     457 

Where  a  petition  stands  over  to  have  a  viva 
voce  examination,  that  side  begins  with  whom 
the  affirmative  hes.  Ex  parte  Daly,  1  Mont.  ^ 
Ayr.  304.  457 

A  petition  will  not  be  answered  nunc  pro  tunc 
where  affidavits  have  been  sworn.  £x  parte  Feake, 
1  MonL  db  Ayr.  309.  457 

The  court  of  Review  will  allow  a  petition  to  be 
restored  to  the  paper,  when  it  appears  that  throuffh 
mistake,  &c.  the  parties  were  ignorant  that  the 
petition  was  coming  on.  Ex  parte  Thompson, 
1  Mont  &  Ayr.  326.  457 

Where  a  petition  is  in  the  paper  for  hearing  on 
Moaday,  and  the  respondent  only  files  his  amda- 
tiIb  on  the  previous  Saturday,  the  petitioner  is 
entitled  to  an  order  for  time  to  answer  them.  Ex 
pvte  Gkkddiah,  2  Deac.  &  Chit  331.  457 

Nctioe  must  be  given  of  a  motion  for  time  to 
anawer  an  affidavit  unless  the  motion  is  made 
vfaes  the  petition  is  called  on.  Ex  parte  Binns, 
3  Deae.  db  Chit.  189 :  S.  P.  Ex  parte  Grazebrook, 
3  Deac.  dk  Chit  199.  457 

On  an  application  to  adjourn  the  hearing  of  a 
petition,  lor  the  purpose  of  answering  affioavits 
bed  in  opposition,  tne  court  will  first  hear  the 
petition  and  affidavits  read.  Ex  parte  Crouch,  3 
beac.  dk  Chit  17.  457 

The  eonrt  of  Review  will  not  order  a  petition 
to  aland  over,  to  enable  a  respondent  to  file  affida- 
Tita  in  rejoinder,  without  first  hearing  the  affida- 
Tits  in  reply  read,  to  see  whether  they  require  an 
r.  Ex  parte  Todd,  3  Deac.  db  Chit  57.     457 


Wheie  a  pvty  on  the  hearing  of  a  petition, 
ikfi  use  or  an  affidavit  to  prove  his  case,  the 
eoort  of  Review  will  not, because  the  affidavit  does 
not  go  tur  enough  for  his  purpose,  adjourn  the 
hearing  oi  the  petition  to  a  future  day,  to  enable 
him  to  exaokine  the  deponent  viva  voce,  unless 
the  other  pnrtj  consents  to  such  adjournment; 
ftr  the  deponent  ought  to  have  been  in  attend- 
ance  if  it  w**  likely  that  his  personal  examina- 


tion would  be  necessary.    Ex  parte  Dickenson,  2 
Deac.  &  Chit.  520.  457 

Semble,  that  when  a  petitioner  obtains  a  con- 
ditional order  of  the  court  of  Review,  he  is  bound 
to  prosecute  such  order,  under  peril  of  paying 
costs  to  the  other  party.  Ex  parte  Austin,  2  Deac. 
&  Chit.  384.  457 

Where  a  petitioner,  the  respondent  not  appear- 
ing, takes  such  order  as  he  can  abide  by,  the  other 
side  may  open  the  order  at  any  time  within  six 
months.  Ex  parte  Thompson,  1  Mont.  &  Ayr.  325. 

457 

An  official  assignee  not  served  appeared: — 
Held,  if  the  commissioner  actually  directed  him 
to  appear,  he  might  take  his  costs  out  of  the  es- 
tate ;  secus,  if  only  leave  were  given.  Ex  parte 
Patrick,  1  Mont.  &.  Ayr.  393.  457 

Where  a  petition  stands  over  to  serve  a  neces- 
sary party,  costs  of  the  day  are  not  of  course.  Ex 
parte  Thompson,  1  Mont  &>  Ayr.  312.  457 

If  a  petition,  to  confirm  a  report,  stands  in  the 
paper  before  a  petition  excepting  to  it,  the  coun- 
sel for  the  first  petition  has  a  right  to  begin  by 
stating  the  facts  of  his  petition,  before  the  coun- 
sel for  the  second  petition  proceeds  to  state  and 
argue  the  exceptions.  Ex  parte  Morley,  2  Deac. 
&  Chit  506.  457 

To  support  an  objection  to  the  hearing  of  a  pe- 
I  tition,  on  the  ground  of  the  costs  not  having  been 
paid  by  the  petitioner,  as  directed  by  a  former 
order,  there  must  have  been  a  personal  demand 
of  the  costs.  Ex  parte  Wyatt,  3  Deac.  &  Chit 
665.  457 

The  bankrupt's  petition  to  supersede,  for  want 
of  the  requisites,  cannot  be  heard  till  he  has  sur- 
rendered, though  he  be  living  in  America.  Ex 
parte  Kirknian,  1  Mont  6l  Ayr.  709.       •        457 

If  affidavits  have  been  filed  on  both  sides,  the 
court  will  read  them  in  the  first  instance.  Ex 
parte  Dugard,  2  Mont.  Sl  Ayr.  26 ;  4  Deac.  Hi  Chit. 
524.  457 

A  petition  is  not  to  stand  over  to  answer  affida- 
vits when  there  is  laches.  Ex  parte  Sidebottom, 
2  Mont.  &  Ayr.  79.  457. 

An  application  for  a  petition  to  stand  over 
should  be  made  the  day  before  the  petition  ap- 
pears in  the  paper.  Ex  parte  Telfourd,  2  Mont, 
and  Ayr.  389.  457 

Where  no  sufficient  advantage  will  be  gained 
by  a  viva  voce  examination,  the  court  wiu  not, 
alter  a  petition  has  been  opened,  and  the  peti- 
tioner has  filed  affidavits  in  reply,  order  the  peti- 
tion to  stand  over,  on  his  application  for  that  pur- 
pose. Ex  parte  Jarman,  4  i)eac.  6i  Chit.  393;  2 
Mont  &,  Aji,  119.  457 

Viva  voce  ExamauOifm^'^Axi  application  to 
examine  viva  voce,  should  be  made  before  the 
petition  is  heard  on  affidavit.  Ex  parte  Baldwin, 
1  Mont,  db  Ayr.  617«  Ex  parte  Armsby,  2  Deac. 
d^  Chit  120  y  and  Anon.  2  Deac.  &  Chit.  140,  cor- 
rected.  457 

Upon  a  prima  facie  case,  a  viva  voce  examina- 
tion was  ordered,  and  the  advertisement  of  adju- 
dication postponed.  Ez  parte  Lavender,  4  Deac. 
&,  Chit  486.  457 


2374 


[BANKRUPT] 


In  ipraera],  the  court  will  not  ^nt  a  TivaVoce 
eximination  after  heariii|r  a  petition  on  affidaTits ; 
bat  this  rale  is  not  inflexible.  The  partj  is  not 
estopped  bj  not  applying  before  the  hearing.  Ex 
parte  Thompson,  U  Mont.  &  Ayr.  40 ;  4  Deac.  4b. 
Chit.  534 ;  Ex  parte  Baldwin,  corrected.      475 

If  both  parties  aeree,  a  yiya  voce  examina- 
tion is  of  coarse ;  if  Uiey  do  not,  the  pytv  asking 
must  show  cause.  £z  parte  Dugard,  f  Mont  &. 
Ayr.  27 ;  4  Deac.  &.  Chit.  524.  457 

If  a  vivia  voce  examination  be  desired  by  the 
petitioner,  he  should  state  facts  on  his  petition  to 
show  the  necessity,  and  make  a  preliminary  ap- 
plication. Id. 


Appeal  and  Rehearing.'] — The  court  of  Review 
has  no  jurisdiction  to  dispense  with  the  signature 
of  the  petitioner  to  a  petition  of  appeal  under  the 
1  &  2  Will.  4,  c.  56,  s.  32,  the  Lord  Chancellor 
being  the  proper  authority  to  apply  to  for  that 
parpose.  £x  parte  Robinson,  2  Deiao.  &  Chit.  583. 

458 

Semble,  that  the  period  of  a  month,  limited  by 
the  statute  for  presenting  the  petition  of  appeal, 
cannot  be  extended.  Id. 

The  court  vill  i^ot  vary  the  minutes  of  an  or- 
der, on  the  application  of  persons  not  parties  to  or 
bound  by  it.  Ex  parte  De  Begnis,  1  Mont  A  Ayr. 
879.  468 

An  appeal  to  the  Lord  Chancellor  from  the 
court  of  Keyiew  does  not  lie  where  the  point  de- 
termined is  a  mere  matter  of  fact ;  but  only  where 
it  involves  a  matter  of  law  or  equity,  or  is  con- 
nected with  the  refusal  or  admission  of  eyidence. 
Ez  parte  Hinton,  2  Deac.  db  Chit  407.  458 

Therefore,  where  the  question  is  merely  whe- 
ther a  party  is  or  is  not  a  trader,  this  is  not  the 
■abject  of  an  appeal.  Id. 

It  is  not  discretionary  in  the  court  of  Review 
to  gnmt  a  special  case,  where  a  party  is  entitled 
to  an  appeal ;  but  he  has  a  right  to  it  if  his  facts 
are  properly  stated.  Id. 

An  appeal  pending  is  not  a  sufficient  ground 
for  staying  ''proceeding,  more  especialy  when  it 
18  plain  that  the  appeal  is  brought  for  the  purpose 
of  delay.  Id. 

•  The  Lord  Chancellor  has  still  a  substantiye 
control  in  cases  of  supersedeas,  or  annulling  a 
fiat,  although  the  question  may  not  come  before 
him  by  way  of  appeal.  £x  parte  Keys,  3  Deac. 
A  Cfalt  2ra ;  1  Mont.  &  Ayr.  226.  458 

Whether  the  matter  appealed  against  be  one  of 
law  or  foct,  the  Lord  I'hanceUor  will  not  deter- 
mine before  he  hears  the  petition  through.  Id. 

The  order  to  hear  an  appeal  on  petition  is  ex 
parte.  Id. 

Quere,  if  the  court  of  Review  can  entertain  a 
pe^itioB  o£  appeal  from  the  rejection  by  the  com- 
missioner of  a  proof  of  debt  db  a  question  offset  ? 
£z  parte  Turner,  1  Mont.  A  Ayr.  357,  confirming 
£x  parte  Turner,  1  Mont.  &,  Ayr.  54.  45S 

An  objection  that  the  court  of  Reyiew  had  no 
jurisdiction  cannet  be  taken  on  apptil,  if  not 
taken  below.  Id.  I 


An  application  for  a  rehearing  most  be  by  pe- 
tition, and  not  by  motion.  Ez  parts  Canninff- 
ham,  3  Deac.  &  Chit  70.  4& 

Where  a  petition  for  rehearing  states  new  facts, 
it  should  be  in  the  nature  of  a  supplemental  peti- 
tion ;  and  the  original  petition  should  be  set  down 
for  hearing  at  the  same  time.    Id. 

On  a  petition  for  a  rehearing,  the  party  who 
presents  such  petition  opens  the  case.     Id. 

On  an  appeal  in  bankruptcy,  the  appellant's 
counsel  are  entitled  to  open  tlie  case.  Ex  parte 
Belcher,  3  Deac.  &  Chit  87.  458 

A  petition  cannot  be  heard  to  varf  a  former 
order  merely  as  to  costs ;  more  especially  when 
that  order  was  made  a  twelvemonth  ago,  and  was 
drawn  up  by  the  very  parties  who  apply  to  vary 
it.  Ez  parte  Burnell,  2  Deac.  &  Chit.  640.     458 

Although  six  months  is  the  time  limited  by  the 
court  of  Review  for  presenting  a  petition  for  re- 
bearing,  semble,  that  under  special  circumstan- 
ces, it  may  be  dispensed  with,  Ez  parte  White, 
2  Deac.  A  Chit  334.  458 

The  rule  that  no  petition  for  rehearing  is  al- 
lowed for  costs  only,  does  not  apply  (come  sem- 
ble) to  a  petition  for  a  rehearing  on  the  ground  of 
an  erroneous  decision  on  the  merits,  although  the 
material  defect  of  such  decision  may  be  to  render 
the  party  liable  for  costs.    Id. 

Where  an  order  made  in  bankruptcy  reserves 
further  directions  and  costs,  a  subsequent  appli- 
cation to  the  court  of  Review  as  to  the  costa 
merely  may  be  entertained  by  motion ',  but  if  it 
is  by  way  of  further  direction,  it  must  be  by  peti- 
tion. Ez  parte  Bhadbolt,  2  Deac.  &  Chit  2B6, 

458 

The  solicitor  for  the  respondents  ought  to  haye 
notice  »f  such  an  application,  as  weU  as  the  re- 
spondents themselves.  Id. 

It  is  th^  practice  in  bankruptcy  for  the  petition 
for  a  rehearing  and  the  petition  itself  to  eome  en 
at  the  same  time.  Ez  parte  Thompson,  1  Mont 
A  Ayr.  326.  458 

A  petition  of  rehearing  in  bankruptcy  is  not 
limited  to  siz  months.  Ez  parte  Greenwood,  1 
Mont.  &  Ayr.  65 ;  3  Deac.  A  Chit.  398.         458 

A  petition  for  rehearing  need  not  state  the 
ground  upon  which  the  rehearing  is  sought  Id. 

The  court  will  not  order  a  petitioner  residing 
out  of  its  jurisdiction  to  give  security  for,  or  pay 
into  court,  a  sum  of  money  which  ne  had  been 
declared  enti^d  to  by  a  previous  order,  merely 
because  the  respondent  intends  to  appeal  against 
the  order,  if  there  is  no  probability  or  a  di&rent 
decision  on  the  appeal.  Ez  parte  Davidson,  3 
Deac.  &  Chit  447.  458 

The  rehearing  of  a  former  petition  may  be 
broc^t  on,  on  a  petition  for  rehearing  it,  with- 
out m>taining  a  preyious  order  for  the  rebeariiur 
Ex  parte  Thompson,  3  Deac.  &  Chit  612.      458 

The  court  will  not  vary  the  minutes  of  a  former 
order,  which  has  been  pronounced  maie  than 
three  months,  ezcept  on  a  petition  fiw  lehearii^. 
Ez  parte  Wilson,  4  Deac.  dt  Chit  157. ,         458 


[BANKRUPT] 


S87fi 


Wbsre  ft  party  wmbes  an  eaieiitial  alteration 
to  be  made  in  the  jadgmentof  the  court,  as  pro- 
nounced on  a  former  hearing,.he  must  not  apply 
to  amend  the  minutes  of  the  order,  but  must  pe- 
tition for  a  rehearing.  £x  parte  Soper,  3  Deac. 
&  Chit.  275, 569 ;  2  Mont.  &  Ayr.  58.  458 

The  general  rule  is,  that  a  petition  may  be 
reheard  on  newly  discovered  facts.  £z  parte 
Lavender,  2  Mont.  &  Ayr.  117 ;  4  Deac.  &  Chit. 
497.  358 

But  a  petition  for  a  supersedeas,  or  to  stay  the 
certificate,  cannot  be  reheard  on  new  evidence. 
Id. 


Snedal  Cage.] — It  is  imperative  on  the  judges 
nit  tne  conrt  of  Keview  to  sign  a  special  case.  Ex 
parte  Turner,  1  Mont,  ik,  Ayr.  368.  And  see  Ex 
parte  Hawley,  3  Deac.  &  Chit.  234.  458 

Every  special  case  of  appeal  from  the  court  uf 
Review,  tendered  for  the  approval  of  the  judges, 
rittll  be  left  for  that  purpose  at  the  office  of  the 
registFar,  signed  by  counsel  for  the  respective 
parties,  or  accompanied  with  a  certificate  from 
the  oonnoel  for  the  appellant,  that  there  is,  in 
their  Jodgment,  good  cause  for  such  appeal,  and 
an  affidavit  that  a  copy  of  such  case  has  been  de- 
livered to  the  solicitor  for  the  otiier  party  eight 
dajs  prior  to  such  tender  thereof  General  Oroer, 
Court  of  Review,  May  22, 1833, 2  Deac.  &  Chit. 
€32 ;  1  Mont  &,  Ayr.  749.  458 

On  an  appeal  from  the  court  of  Review,  on  a 
special  case,  the  Chancellor  will  not  at  the  hear- 
ing permit  the  appellant  to  present  a  petition  for 
Ul^rty  to  proceed  **  otherwise,"  for  the  purpose 
of  rectifying  an  error  in  the  settlement  of  the 
special  case.    Ex  parte  Low,  1   Mont.  &.  Ayr. 

i».  ik 

The  determination  of  the  judge  is  final  as  to 
the  settlement  of  it.    Id. 

The  Great  Seal  will  not  make  an  order,  that  an 
appeal  from  the  court  of  Review  shall  be  brought 
OB  by  petition,  instead  of  a  special  case,  merely  on 
the  ground  that  the  matters  of  law  and  fiict  are 
of  a  complicated  nature,  or  that   the   affidavits 

are   Tolaminous.    £x  parte ,  1    Deac.    75. 

458 

Where  a  party  obtains  an  order  of  the  Lord 
ClnxioeJlor  to  haur  an  appeal  on  petition,  instead 
ef  en  a  special  case,  and  the  order  is  improperly 
-"-^--ed,  the  respondent  must  move  to  set  it 
and  not  wait  to  make  his  objection  to  the 
of  the  proceeding  until  the  petition  is  called 
on  for  hearing.  £x  parte  Keys,  3  Deac.  &,  Chit. 
963  ;  1  Mont.  &.  Ajt.  22&  458 

After  a  special  case  has  once  been  certified  by 
the  chief  judge,  the  court  has  no  jurisdiction  to 
ffiaallev  it    Ex  parte  Hawley,  3  Deac.  &  Chit. 

458 


Gorff .7*-Cb8t8  of  preparing  a  special  case  form 

Crt  of  the  costs  of  appeal  to  the  Lord  Chancel- 
,  and  should  be  taxed  by  the  officer  in  Chan- 
tery.  The  eovrt  intimated  its  opinion  to  that 
dmtt  aeeoffdingir  to  rach  officer.  £z  parte  Haw- 
ley, 4  0Me.  db  Ckit  57SJ ;  S.  P.  Ez  parte  Rich- 
iidi,  2  Mont.  4t  Ayr.  59.  456 


Costs  ordered  against  bankrupt  may  be  set 
off  against  those  ordered  in  his  favor.  Id. 

Where  the  commisioners  expunged  a  proof, 
on  the  application  of  the  assignees,  and  the  cre- 
ditor aflerwards  succeeded  on  a  petition  to  have 
it  restored,  the  court  save  him  the  costs  of  the 
petition,  as  well  as  of  me  proceedings  before  the 
commissioners;  making  it  an  exception  to  the 
general  rule,  that  costs  are  not  given  against  the 
decision  of  the  commissioners.  £z  parte  Brooks, 
4  Deac.  &.  Chit  209 ;  2  Mont  i&  Ayr.  78.       45d 

On  a  petition  to  surrender,  where  there  is  no 
wilful  default,  costs  come  out  of  the  estate.  £z 
paite  Smith,  2  Mont.  &.  Ayr.  302.  458 

Where  a  party  petitions  against  the  decision 
of  the  commissioners,  and  an  action  is  directed  to 
be  brought,  the  result  of  which  is  in  his  favor, 
he  is  not  entitled  to  the  costs  of  the  petition,  but 
only  to  the  costs  of  the  action.  £x  parte  Mil- 
lington,  3  Deac.  &  Chit  307.  458 

An  attachment  for  nonpayment  of  costs  is  of 
course,  after  disregard  of  ie  four-day  order,  but, 
unless  ex  necessitate,  will  not  be  issued  in  vaca- 
tion.   Ex  parte  Hunt,  2  Mont  &  Ayr.  18.      458 

An  order  of  committal  lor  non-payment  of 
costs,  under  which  the  party  is  committed,  will 
not  be  suspended  on  the  ^ound  of  an  appeal, 
unless  the  costs  are  paid  into  court.    £x   parte 
Fox,  2  Mont  <&  Ayr.  18.  453 

In  oases  of  scandal,  the  costs  are  as  between 
solicitor  and  client.  £x  parte  Porter,  2  Mont 
&  Ayr.  220.  453 

The  rule,  of  not  allowing  costs  to  a  party  ap- 
pealing against  the  judgment  of  the  commis- 
sioners, will  be  relaxed  in  fiivor  of  a  petitioner, 
establishing  a  clear  and  indisputable  right  of 
proof  which  the  commissioners  have  i^ected. 
£x  parte  Hooper,  3  Deac.  &  Chit  b55.  458 

Though  an  affidavit,  alleged  to  be  impertinent,, 
is  not  read,  it  will  be  included  in  the  order  for 
costs  by  the  registrar,  unless  ordered  to  be  ex- 
cluded at  the  hearing.  £x  parte  Barrinirton  2 
Mont  &  Ayr.  72.   ^  *^  4^ 

All  affidavits  are  considered  as  read  on  the 
subject  of  costs.     Id. 

In  cases  of  frand,  ooets  may  be  rranted,  though 
not  preyed.  £z  parte  Taylor,  8  Mont.  A  Ayr. 
^'  4Q8i 

When  a  petition  is  dismissed  with  costs,  the 
court  will  not  limit  the  payment  of  the  costs 
merely  as  to  the  affidavits  that  were  read  on  the 
hearing  of  the  petition  ;  for,  in  general,  all  affi- 
davits filed  are  entered  as  read.    £x  parte  Lucas 
3  Deac.  <fe  Chit.  664.  45^ 

Where  the  respondent  takes  a  formal  objection 
to  a  petition,  for  want  of  parties,  and  the  petition 
is  for  this  cause  ordered  to  stand  over ;  the  costs 
of  the  day  are  in  the  discretion  of  the  court.  Ex 
parte  Thompson,  3  Deao.  A  Chit  612.  458 

When  an  order  is  made  on  the  hearing  of  a 
petition  that  the  party  shall  pay  the  costs,  this  in- 
cludes the  costs  of  an  affidavit  filed  by  the  other 
party,  although  it  was  not  read  on  the  hearing  of 
the  petition.  Ez  parte  Sidebotham,  4  Deac.  A 
iChitl4L  453 


2376 


[BANKRUPT— BASTARD] 


Where  petitionen  come  Tohmtaiilj  before  the 
court,  to  enforce  an  illegal  order  nuule  by  a  com* 
miasioner,  they  will  not  be  protected  by  auch 
order  from  having  their  petition  diamiaaed  with 
coata.  Ez  parte  benham,  1  Deac.  96 ;  2  Mont. 
&  Ayr.  272.  458 


XXIX.  Progkedihgs. 

The  aolicitor  ia  bound  to  deliver  up  the  pro- 
eeedinga  to  a  fireah  aolicitor  appointed  by  the  aur- 
yiving  aaaignee,  without  waiting  until  a  fresh 
aaaignee  is  chosen  in  the  room  of  the  one  who  is 
dead.    Ex  parte  Ackroyd,  3  Deac.  dit  Chit.  21 .  460 

The  court  of  ReFiew  made  an  order  on  the 
aolicitor  to  the  commisaion  to  deliver  up  the  pro- 
ceedinga,  and  pay  over  the  monies  to  the  aaaignees. 
Ez  parte  Hudson,  2  Deac.  Hl  Chit.  507.  460 

The  aolicitor  was  allowed  to  take  affidavits  off 
the  file  to  attend  the  trial  of  an  action  therewith, 
undertaking  to  return  them  in  the  aame  atate. 
£z  parte  Whalley,  1  Mont.  6c  Ayr.  634.  460 

If  the  two  aaaignees  sign  a  joint  order  on  the 
solicitor  to  deliver  up  the  proceedinga,  the  court 
will  enforce  it,  though  one  aubseqnently  virtually 
countermand  the  order.'  Ez  parte  Grazebrook,  2 
Mont.  &,  Ayr.  53,  n.  459 

Where  the  majority  of  the  aaignees  wiah  the 
proceedinga  to  be  in  the  hands  of  a  particular 
aolicitor,  me  order  ia  of  courae  for  their  delivery 
accordingly,  unless  groaa  misconduct  be  charged, 
and  a  cross  petition  for  removal,  or  an  injunction. 
Ex  parte  Halford,  2  Mont.  ^  Ayr.  52;  4  Deac. 
4&  Chit  271.  459 

Under  the  6  Geo.  4,  c.  16,  s.  96,  the  court  have 
a  general  povrer  upon  petition,  to  direct  the  pro- 
ceedinga to  be  entered  of  record.  Ex  parte  Thomas, 
3  Deac.  6l  Chit.  292.  458 

A  notice  to  produce  the  procedinga  must  be 
served  on  the  asaigneea,  not  on  the  bankrupt. 
Ex  parte  Daly,  4  Deac.  &  Chit.  364.  459 


BARRISTER. 

The  right  of  practising,  pleading,  and  audience, 
in  the  court  of  Common  Pleaa,  during  term  time, 
upon  and  ftomthe  first  day  of  Trinity  term,  1834, 
ceased  to  be  exerciaed  excluaively  by  the  Ser- 
jeants at  law,  and  from  that  day  Kmg'a  counsel 
and  all  other  barriaters  at  law,  according  to 
their  respective  ranka  and  seniority,  have  and 
exeroisea  equal  right  and  privilege  of  practis- 
ing, pleading,  and  audience,  in  8ie  saia  court 
of  Common  Pleaa  at  Weatminster,  with  the  ser- 
jeanta  at  htw.    King's  warrant,  25th  April,  1634. 

460 

A  mandamus  doea  not  lie  to  compel  a  party 
who  has  been  elected  principal  of  an  inn  of 
Chancery  to  attend  before  the  benchera  of  the 
inn  of  court  to  which  such  inn  of  Chancery  is 
attached,  for  the  purpose  of  enabling  such  bench- 
ers  to  decide  upon  the  validity  or  his  election, 
unless  it  be  shown  that  the  benchers  of  such  inn 
of  court  have  on  some  former  occasion  exercised 
such  jurisdiction  in  invitum.  Rex  v.  AUen.  3 
Nev.  A  M.  184 ;  4  B.  &;  Adol.  964.  m 


It  was  agreed  that  the  trial  of  an  indietment 
at  the  sessions  should  be  postponed,  the  defen- 
dant agreeing  to  pay  the  coeta  of  the  day.  The 
costs  were  taxed ;  and  at  the  subsequent  sessions, 
the  counsel  for  the  prosecution  asked  if  there 
was  any  objection  to  the  amount  The  defen- 
dants counsel  said  there  was  not,  except  as  to 
\l.  95.  The  attorney  for  the  prosecution  said  be 
would  give  up  that  sum,  and  the  defendant's  atr 
torney  said  he  would  five  a  check  for  the  reaidoe. 
Afler  this,  the  defendant  was  applied  to  for  pay- 
ment, and  he  said  his  attorney,  who  reoeivea  his 
rents,  would  arrange  it : — Held,  that  the  indone- 
ment  on  the  brief  was  an  agreement,  and,  also, 
that  on  this  evidence  the  pUintiff  could  recover 
the  amount  of  the  taxed  costs,  minus  \l.  9s.  on 
the  count  upon  the  account  stated.  Porter  v. 
Cooper,  IC.  M.  ^  R.387;  6  C.  &.?.  354;  4 
Tyr.  456.  461 

Barristers,  under  the  degree  of  the  coif,  are,  as 
well  as  Serjeants,  competent  to  sign  pleas  in  the 
court  of  C.  P.    Powers.  Ixod,  1  Ring.  N.  R.  304. 

461 

Whether,  in  a  civil  case,  if  a  party  conduct  his 
own  cause  and  examine  the  witneases,  he  can  be 
allowed  to  have  assistance  of  counsel  to  argoe 
points  of  law : — Quaare,  but  semble  that  he  can- 
not Moscati  V.  Lawson,  7  C.  &  P.  32— Alder- 
son.  461 

The  court  will  not  interfere  in  questions  arising 
upon  the  practice  of  retainer,  fiaylis  v.  Grout,  3 
Myhie  &  K.  316.  461 

A  motion  for  an  injunction  to  restrain  a  parti- 
cular counsel,  who  had  acted  for  the  defendants, 
from  acting,  at  a  subsequent  atajra  of  the  pro- 
ceedinjgs,  on  behalf  of  the  plaintiffs,  from  whom 
he  haa  received  a  retainer,  was  refused.  Id. 

Semble,  no  affidavit  is  necessary  to  substantiate 
between  counsel  what  terms  were  offered  or  ac- 
cepted by  them  on  the  hearing  of  a  cause.  Ig- 
gulden  v.  Terson,  2  Dowl.  P.  C.  277 ;  4  Tyr.  309. 

461 


BASTARD. 

Access  is  such  access  as  affords  an  opportunity 
of  sexual  intercourse ;  and  where  there  is  evidenoe 
of  sjich  acceas  between  a  husband  and  wife  within 
a  period  capable  of  raising  the  legal  presumption 
aa  to  the  legitimacy  of  an  afVer  bom  child,  the 
court  will  not  direct  an  issue  upon  evidenoe 
showinjg[  the  continued  adulterous  intercourse  of 
the  wife  with  another  man,  and  the  improbability 
of  the  husband  being  the  father,  but  will  declare 
the  legitimacy  of  the  child.  Bury  v,  PhiUpot,  2 
Mylne  &  K*.  349.  461 

At  the  trial  of  an  issue  on  a  queation  of  legiti- 
macy, a  witness  was  called  to  prove  a  fact,  show* 
ing  that  there  might  have  been  access  between  a 
husband  and  wife  at  a  particular  place  and  time. 
This  witness  had  not  been  examined  in  a  suit  in 
the  Ecclesiastical  Court,  to  which  the  mother  of 
the  child  whose  legitimacy  was  disputed  wma 
a  party,  and  in  which  his  evidence  would  have 
been  material  to  her ;  nor  was  any  attempt  made 
by  her  in  that  suit  to  establish  the  case  or  access, 
which  his  testimony  went  to  make  out    The 


[BASTARD— BILLS  AND  NOTES] 


3377 


Intiinony  of  this  witness  was  a  surprise  upon  the 
party  against  whom  it  was  produced,  and  its  ac- 
curacy being  impeached  by  affidaviUi,  the  court 
directed  a  new  trial  of  the  issue.  Gibbs  v.  Hooper, 
2Myliie&.K.353.  461 

To  giye  jurisdiction  to  magistrates  to  make  an 
ofder  of  affiliation,  under  18  Kliz.  c.  3,  s.  2,  it  is 
necessary  that  it  should  be  for  the  relief  of  a 
pariah  in  which  the  illegitimate  child  was  born, 
mmd  to  which  it  is  chargeable.  Rex  v.  Wilson,  4 
Ney.  &  M.  343 ;  2  Adol.  &  £Ilis,  230.  462 

Where  an  order  of  affiliation,  in  which  the 
birth  of  an  illegitimate  child  is  alleged  to  have 
taken  place  in  A.,  is  confirmed  by  an  order  of 
sessions,  subject  to  a  case  in  which  the  birth  is 
stated  to  have  occurred  in  B.,  to  which  the  puta- 
trre  ftiher  had  firaudulentlv  removed  the  mother, 
who  was  settled  in  A.: — Held  that  Uie  order  is 
bad  on  the  ffround  (inter  alia)  that  it  contains  a 
recital  of  a  raise  fact    Id. 

By  the  4  & 5  Will.  4,  c.  76,  s.  57,  the  putative 
frtberof  a  bastard  child  born  before  the  passing  of 
the  act,  whose  mother  is  married  to  another  person, 
is  no  longer  liable  to  an  order  of  justices  for  the 
mainlenanee  of  such  child,  at  least  while  the 
hmkand  is  of  ability  to  nuuntain  it.  Lang  v. 
Sftoetj  1  Mees.  4k  Wels.  129.  462 

Semble,  that  the  4  &  5  Will.  4,  c.  76,  s.  57, 

r crated  as  a  repeal  of  the  18  Eliz.  c.  3,  s.  2, 
49  Geo.  3»  c.  68.    Id. 

At  the  time  of  making  an  order  of  bastardy, 
the  msffistratps'  clerk  delivered  an  order  in  a 
ect  form  to 


the  parish  officers,  but  delivered 
to  the  reputed  father  an  order  in  which  the  mo- 
ther was  ordered  to  pay  l^.  6d.  weekly,  instead 
of  the  father;  but,  at  the  same  time,  the  magis- 
trate told  the  reputed  father  that  he  must  pay  Is. 
6d.  per  week,  and  the  parish  officers  afterwards 
served  him  with  a  copy  of  the  order  in  their 
possession; — Held,  that  as  the  parish  officers 
were  the  proper  [Mirties  to  have  the  custody  of 
the  tirder  of  bastardy,  the  one  delivered  to  them 
amst  be  deemed  the  original,  and  the  defective 
order  to  the  fkther  onlv  a  **  notice  thereof,"  under 
18  Eliz.  c.  3,  s.  12,  the  defect  in  which  might 
be  cored  by  the  statement  of  the  magistrate  at 
the  tiaoe  of  making  the  order,  or  by  a  subsequent 
SSI  w  ice  of  a  correct  copy  of  the  valid  order ;  and 
that  tbe  father  was  not  justified  in  refusing  to 
pay  the  arrears  of  the  mamtenance.  Wilkins  v. 
Wright,  3  C.  &  M.  191 ;  3  Tjt.  824.  463 

A  warrant  of  commitment  for  neglecting  and 
refusing  to  pay  a  sum  awarded  by  an  order  of 
maintenance,  under  43  Geo.  3,  c.  68,  s.  3,  must 
show  clearly  all  that  is  required  by  the  statute  to 
give  the  magistrate  authority  to  commit;  and 
therelbre  such  commitment  is  bad  where  it  omits 
to  stale  that  there  was  a  complaint  on  oath  by 
one  of  the  overseers  of  the  parish  liable  to  main- 
tain the  ehild^  an  adjudication  by  tbe  magistrate, 
that  al  the  time  of  the  commitment  a  sum  was 
due  and  unpaid,  that  the  party  charged  was 
called  upon  ror  his  defence,  and  that  he  did  not 
show  any  reasonable  or  sufficient  cause  for  not 
jnying.    Id. 


filiation  was  unappealed  against,  or  that  it  was 
appealed  against  and  confirmed.    Id. 

A  notice  of  an  intended  application  to  the  ses- 
sions, under  4  &  5  Will.  4,  c.  76,  s.  73,  for  an 
order  on  the  putative  father  of  a  bastard  child, 
must  be  given  under  the  hands  of  the  overseers 
or  guardians ;  it  lies  upon  them  to  show  that  pro- 
per notice  was  given,  and  the  objection  is  not 
waived,  though  the  father  appears  at  the  sessions, 
and  takes  an  objection  to  its  being  the  next  ses- 
sions, and  does  not  produce  the  original  notice 
served  upon  him.  Rex  v.  Carnarvonshire  (Jus- 
tices), 5  Nev.  &  M.  361 ;  1  Har.  &  Wol.  324. 

464 

When  a  bastard  child  becomes  chargeable  a 
month  before  the  Epiphany  sessions,  an  applica- 
tion for  an  order  to  charge  the  putative  father  is 
not  too  late  at  the  Easter  sessions,  semble.    Id. 

A  bastardy  bond  conditioned  for  the  payment  of 
the  charges  incurred  "by  reason  of  the  birth,  edu- 
cation, and  maintenance  of  a  bastard  child," 
cannot  be  enforced  after  the  bastard  has  attained 
21  and  ceased  to  be  chargeable,  though  he  may 
afterwards  become  chargeable  again.  Wandley 
0.  Smith,  2  C.  M.  &.  R.  716.  4^ 


BILLS    OF    EXCHANGE    AND   PROMIS- 
SORY NOTES. 

Parties. ]r— A,  and  B.  sign  a  formal  promissory 
note,  by  which  they  promise,  "  as  churchwardens 
and  overseers,"  to  pay  to  C.  or  order  a  sum  of 
money,  with  interest ;  which  sum  was  in  fact  the 
amount  of  a  loan  made  by  C.  for  the  use  of  the 
parish.  A.  and  B.  are  personally  liable  upon 
such  note.  Crew  v.  Petit,  3  Nev.  &.  M.  456 ; 
S.  C.  nom.  Rew  v.  Pettet,  1  Adol.  &  Ellis,  196. 

469 

The  cases  enumerated  by  3  &  4  Anne,  c.  9,  s. 
1 ,  in  which  promissory  notes  signed  by  an  agent 
cannot  be  assigned,  are  instauoes  only .  Dicken- 
son V.  Teague,  4  Tyr.  450.  469 

A  bill  was  drawn  on  the  consignees  of  a  cargo 
of  cools  shipped  to  R.  by  a  broker  at  N.,  who 
had  effected  the  purchase  there.  That  bill  was 
returned  to  the  payee,  the  coal-owner,  unac- 
cepted, on  acciiunt  of  the  date  being  too  short. 
The  broker  having  directed  the  payees  to  piepaie 
another  bill  at  a  longer  date,  they  did  so,  and 
sent  it  to  his  counting-house  in  N.  for  his  signap* 
ture.  The  broker  had,  in  the  mean  time,  len  N. 
in  pecuniarv  embarrassment ;  and  his  brother,  the 
defendant,  had  come  to  the  counting-house  to  in- 
vestigate bis  affairs.  The  defendant,  in  the  ab- 
sence of  his  brother,  and  at  the  request  and  for 
the  convenience  of  the  plaintiffs,  signed  the  bill 
they  had  prepared,  without  qualification  of  his  , 
liability  :~-Hetd,  that  he  was  personally  liable. 
Sowerby  v.  Butcher,  2  C.  ds  M.  368 ;  4  Tyr.  320. 

469 

Where,  in  an  action  on  a  bill  of  exchange  by 
an  indorsee,  it  is  pleaded  by  the  acceptor  that  tfaie 
drawer  is  a  married  woman,  the  plaintiflT  may 
show  in  his  replication  that  she  drew  and  indorsed 


the  bill  with  the  authority  of  her  husband,  with- 
Semble,  it  shonld  abo  show  that  the  order  of  ^  out  its  being  deemed  a  departure.    Prinos  v. 


9am 


[BILLS  OF  EXCHANGE] 


Brvnatte,  3Dowl.  P.  C.38S;  1  Scott,  342;  1 
fiing.  N.  R.  465.  470 

A  promiuorj  note^  made  payable  to  a  woman 

who  is    married    at  the    time    of  the   making, 

paaaea  by  the  indorsement  of  the  husband  alone 

Jmxmg  the  coverture.    Mason  v,  Morgan,  2  Adol. 

4k  £Uis,  30 ;  4  Nev.  &  M.  46.  470 


Form  and  Operatwn.] — A  note  whereby  a  party 
promises  *'  to  pay  or  cause  to  be  paid  13(tf.'  is  a 
promiesory  note,  and  may  be  declared  on  as  such, 
•ad  does  not  require  an  agreement  stamp.  Lovell 
V.  HUl,  6  C.  &  P.  238— Gumey.  471 

**I  promise  to  pay  to  M.  A.  D.  or  bearer,  on 
demand,  162.  at  sight,  by  giving  up  clothes  and 
papers,  Ac  •,'*  was  sued  on  as  a  promissory  note  : 
— Held,  that  if  the  jury  thought  that  the  clothes 
Ac,  had  been  previously  given  up  by  the  payee 
to  the  maker,  it  was  a  good  promissory  note,  as 
the  words  in  that  case  would  only  import  the 
▼alue  received.  Dixon  v,  Nuttall,  I  C  M.  k  R. 
307 ;  6  C.  &  P.  320 ;  4  Tyr.  1013.    .  471 

Held,  also,  that  no  action  was  maintainable 
without  a  presentment  at  sight  Id. 

When  a  note  is  payable  fourteen  days  afler 
•date,  and  is  not  deposited  as  a  collateral  security, 
nor  is  the  consideration  disputed,  no  parol  testi- 
mony is  admissible  to  prove  any  agreement  that 
it  was  not  to  be  paid  if  a  verdict  was  obtained  in 
an  action  thetk  pending  between  other  parties ;  for 
that  would  be  to  contradict  a  written  contract  by 
parol  evidence.  Foster  v.  Jolly,  1  C.  M.  &  R. 
703  'y  5  Tyr.  239 :  S.  C.  nom.  Foster  v.  Sibley,  1 
Oale,  10.  471 

An  instrument  was  made,  wherebjr  the  de- 
fendants promised  to  pay  to  the  plaintiffs,  or 
order,  a  sum  certain  by  instalments ;  but  it  was 
thereby  declared,  **  that  it  was  thereby  considered 
and  fully  intended  by  the  receiver,  as  well  as  the 
giver  of  that  note  of'^hand,  that  all  installed  pay- 
ments thereupon  whatsoever,  from  and  tmme- 
<]iately  after  tne  decease  of  the  plaintiff,  should 
ceasd  and  become  null  and  void  to  all  intents  and 
purposes,  against  the  executors,  &c."  A  declara- 
tion described  the  instrument  as  an  agreement 
or  instrument  in  writing: — Held,  that  a  plea  that 
the  defendants  did  not  make  the  said  supposed  pro- 
missory note  in  the  declaration  mentioned,  was 
bad  on  special  demurrer.  Worley  v.  Harrison,  5 
Ncv.  &  M.  173;  1  Har.  &  Wol.  426.  472 

Such  an  instrument  is  not  a  promissory  note, 
being  payable  only  on  a  contingency.    Id. 

Form  of  Bote.  Bolton  v.  Dogdale,  4  B.  &  Adol. 
619;  1  Nev.  ek  M.  412.  473 

The  court  refused  to  set  aside  a  demurrer  un- 
der the  late  rule,  as  being  frivolous,  the  cause  of 
demurrer  being,  that,  in  debt  on  a  promissory 
note,  it  did  not  appear  that  the  words  **  value 
teoeived*'  were  in  the  note.  Creswell  e.  Crisp,  2 
0owl.  P.C.635;  2C.M.&R.634;  4Tyr.991. 

474 


him  into  the  handa  of  B.,  his  sc^citor,  who  hid 
it  put  on  mortgage,  and  the  deeds  were  deposited 
with  A,  Interest  being  in  arrear,  and  A.  pressing 
for  payment,  B.  gave  a  promissory  note,  payable 
three  months  afler  date,  to  A.  for  the  amount  of 
principal  and  interest ;  and  it  was  agreed,  at  the 
time  of  giving  the  note,  that  A.  should  deliver  up 
the  dee(U  to  B.,  and  should  hold  the  note  till  tlie 
sale  of  the  mortgaged  premises  should  be  com- 
pleted. When  the  note  became  due,  A.  sued  B. 
upon  it,  though  the  deeds  had  not  been  delivered 
up,  or  the  sale  of  the  mort^ged  premises  been 
completed.  The  judge  left  it  to  the  jury  to  aay 
whether  the  note  was  given  on  a  condition  prece- 
dent, that  the  deeds  imould  be  delivered  up: — 
Held,  that  it  ought  to  have  been  left  to  them  to 
sav  what  the  consideration  of  the  note  waa,  and 
wnether  it  had  wholly  failed  or  not  Richanla  «. 
Thomas,  1  C.  M.  &  R.  772.  473 


A  Sam  of  4002.  belonging  to  A.  waa  put  by 


On  an  action  coming  on  to  be  tried  at  the 
sizes,  an  agreement  in  writing  was  entered  into, 
that  the  trial  should  be  postponed  to  the  next 
assizes,  on  the  defendant  in  that  action,  and  the 
now  defendant,  undertaking  to  give  the  plaintiff 
a  promissory  note  payable  on  demand,  by  way  of 
security,  in  case  the  plaintiff  should  recover  a 
verdict  against  the  then  defendant,  to  be  given 
up  if  the  plaintiff,  the  payee,  should  fail  in  that 
action.  Tlie  note  was  accordingly  given,  but, 
afler  it  was  signed,  a  memorandum  was  indorsed 
upon  it,  stating  that  the  note  was  given  upon  the 
condition  mentioned  in  the  agreement: — Held, 
thitt  this  indorsement  was  to  be  considered  as 
merely  a  marking  of  the  note  for  the  purpose  of 
identification,  and  not  as  an  incorporating  of  the 
agreement,  so  as  to  render  the  note  an  agreement 
or  a  conditional  promise.  Brill  v.  Cock,  1  Mees. 
<&  Wels.  232.  473 

Declaration  on  a  bill  of  exchange,  drawn  by 
N.  on  the  defendant,  requiring  the  defendant  to 
pay  *^  to  his  order"  the  sum  tnerein  mentioned, 
accepted  by  the  defendant,  and  indorsed  by  N.  to 
the  plaintiff: — Held,  that  the  court  conld  see 
that  the  word  **  his"  referred  to  the  drawer ;  and 
therefore  there  was  no  fatal  ambiguity.  Spyer  v. 
ThelweU,  2  C.  M.  &  R.  692;  4  Dowl.  P.  C.  509. 

474 

Held,  no  objection  to  the  validity  of  a  bill  of 
exchange,  that  the  acceptance  and  indorsement 
were  written  before  the  bill  was  drawn,  notwith- 
standing the  indorsement  was  made  by  a  stranger 
to  the  acceptor : — Held  also,  that  the  drawer 
having  subscribed  himself  as  Tho.  Wilson,  when 
his  name  was  Thos.  Wilson  Richardson,  was  not 
to  be  esteemed  to  have'  committed  a  forgery, 
unless  it  were  proved  that  the  omission  of  his 
surname  was  for  purposes  of  fraud.  Schults  v. 
AsUey,  2  Ring.  N.  R.  544 ;  7  C.  &  P.  99.       474 

StampJ] — A.  joint  and  several  promissory  note 
waa  made  b^r  several  parties  concerned  in  a  joint 
undertaking,'  for  the  purpose  of  securing  the  re- 
payment of  a  loan  of  money  ;  and  one  of  the 
parties  signed  it  some  days  afler  the  party  who 
borrowed  the  monej : — Held,  that  the  note  did 
not  require  an  additional  stamp,  if  the  last  aig- 
natuie  waa  put  before  the  money  waa  advanoea. 


[AND  PROMISSORY  NOTES] 


2379 


or  if  the  party  lut  sirning  had  promiBed  to  tlign 
the  note  before  the  aavancement  of  the  money, 
notwithstanding  it  might  not  have  been  signed 
till  afterwards.  £z  parte  White,  2  Deac.  <&  Chit. 
834,  475 

A  promissory  note  payable  to  A.  B.  generally, 
is  not  one  payable  to  Dearer  on  demand,  and  re- 
issaable,  within  the  first  class  of  notes  described 
in  55  Geo.  3,  c  184,  ached,  part  1,  but  a  note  pay- 
able otherwise  than  to  bearer  on  demand,  (not 
reissuable)  within  class  2,  and  therefore  such  a 
note  for  1001.  requires  a  stamp  of  3s.  6d.  only. 
Clicetam  v.  Butler,  5  B.  &  Adol.  837;  2  Ney.  &. 
M.  453.  475 

A  note  for  2002.  with  a  lawful  interest  reserved 
from  a  day  prior  to  the  date,  requires  a  stamp  ap- 
plicable to  a  note  for  2001.  only.  Wills  v.  Noott, 
4  Tyr.  726.  475 

In  an  action  on  a  bill  of  ezchanffe,  a  plea  that 
the  consideration  was  cash  paid  by  the  plaintiffs 
as  bankers  on  drafts  made  more  than  15  miles 
from  their  place  of  business,  &c.  was  held  bad 
after  pleading  over,  it  f containing  no  allegation 
that  the  drafSs  were  payable  on  demand,  or  that 
the  amoont  of  any  of  them  was  40s.  Greene  v. 
Ailday,  1  Gdle,  218.  475 

A  promissory  note  was  made  for  payment  of 
SOf.  to  B.  on  demand,  with  lawful  mterest  till 
payment,  for  value  received: — Held,  that  this 
was  a  note  of  the  second  class  mentioned  in  55 
Geo.  3,  c.  184,  viz.  payable  otherwise  than  to 
bearer  within  two  montns  afler  date,  and  there- 
fiyre  rvqoired  only  a  Is.  6d.  stamp.  Dixon  v. 
Chambers,  1  C.  M.  &.  R.  845;  5  Tyr.  502;  1 
Gale,  14.  475 

Stanop  on  bills  post  dated.  Williams  r.  Jar- 
lett,  5  B.  &  Adol.  32  :  S.  C.  nom.  Williamson  v. 
GanvU,  2  Nev.  &,  M.  49.  475 

Made  abroad.l — A  bill  of  exchange  drawn  in 
England  upon  a  person  abroad,  but  accepted 
by  liim,  payable  in  England,  is  an  inland  bill, 
and  requires  a  stamp  as  such.  Ammer  v.  Clark, 
2  C.  M.  &  R.  468;  1  Gale,  191.  477 

A  set  of  foreign  bills,  drawn  abroad,  was  sent 
to  the  drawee,  (who  was  also  the  payee),  the  de- 
fendant, who  accepted  two  parts,  and  indorsed 
eae  to  the  plaintiff  for  value,  prior  to  which  the 
other  had  been  indorsed  by  the  defendant  to  his 
father  conditionally,  but  who  had  never  insisted 
oi  payment,  but  gave  it  up  on  the  substitution 
of  other  securities : — Held,  that  the  plaintiff  was 
entitled  to  recover,  and  that  the  bill  did  not  re- 
qniie  a  stamp ;  held,  also,  by  Lord  Tenterden, 
C.  i.,  and  Parke,  J.,  (dubitante  Littledale,  J.), 
that  it  would  have  been  the  same  if  the  first  part 
had  been  indorsed  and  delivered  unconditionally. 
Holdsworth  «.  Hunter,  5  M.  &  R.  393.  477 

Mteraium.1 — In  an  action  by  the  pa^ee  against 
the  acceptor  of  a  bill  of  exchange,  it  appeared 
that  the  bill  had  originally  been  accepted  by  the 
defendant,  payable  at  his  own  house  in  King's 
Rosd,  Chelsea;  but  six  weeks  after  the  delivery 
of  the  bill  to  the  plaintiff,  the  defendant,  at  the 
leooett  of  the  plaintiff,  altered  the  description, 

Vol.  IV.  14 


by  makng  it  payable  "  at  Bland's,  Great  Surrey 
Street,  Blackfnars :" — Held,  that  this  alteration 
was  immaterial.  Walter  v.  Cubley,  2  C.  &  M. 
151 ;  4  Tyr.  87.  479 

In  an  action  by  the  indorsee  against  the  ac- 
ceptor of  a  bill  of  exchange,  the  bill  appeared,  on 
inspection,  to  have  been  altered  in  amount,  and 
after  the  acceptance  were  the  words  ''  at  Cock- 
burn's,"  which  were  not  in  the  defendant's  hand- 
writing. Neither  the  plaintiff  nor  defendant 
gave  evidence  as  to  when  or  by  whom  the  alter- 
ations were  made: — Held,  that  it  was  for  the 
jury  to  say,  under  the  circumstances,  whether 
the  bill  had  been  altered  after  acceptance,  and 
that,  if  they  thought  it  had,  the  plaintiff  could  not 
recover.  Taylor  v.  Mosely,  6  C.  ^  P.  273 — 
Lyndhurst.  479 

Where  the  plaintiff  declares  on  an  altered  bill 
of  exchange,  the  defendant,  on  a  plea  denying 
the  acceptance,  may  show  a  material  alteration 
since  he  accepted  it.  Cock  v.  Coxwell,  2  C.  M.  & 
R.  291 ;  4  Dowl.  P.  C.  187  ;  1  Gale,  177.        479 

Where  the  buyer  of  floods  paid  for  them  by 
his  own  acceptance,  ana  after  the  bill  had  been 
sccepted,  the  seller  altered  the  date  of  it,  and 
thereby  vitiated  it : — Held,  that  by  so  doing  ha 
did  not  preclude  himself  from  suing  for  the  ori- 
ginal debt ;  and  consequently  that  ke  might  re- 
cover for  the  goods  sold.  Atkinson  v.  Hawdon, 
4  JVev.  4&  M.  409  ;  2  Adol.  &  Ellis,  626 ;  1  Har. 
A.  Wol.  77.  479 

The  holder  of  a  bill  for  182.,  which  had  been 
dishonored,  agreed  to  take  8^  in  cash  and  an- 
other bill  for  10/.  from  the  drawer.  The  drawer 
accordingly  drew  ^nother  bill  upon  the  same 
acceptor  for  that  ainount ;  while  in  the  hand  of 
the  drawer,  the  acceptor,  without  the  knowledge 
of  the  drawer,  altered  the  date  and  vitiated  the 
bill :— Held,  that  the  latter  bill  being  a  nullity, 
the  first  was  not  discharoed,  and  that  the  drawer 
was  liable  upon  it.  Sloman  v.  Cox,  1  G.  M.  &  R. 
471  ;  5  Tyr.  174.  479 

Transfer. 1 — A.,  the  drawer  of  a  bill,  gaye  it  to 
B.,  unindorsed,  to  present  it  for  payment.  B. 
did  so,  and  got  it  noted.  Afterwards  A.  indorsed 
the  bill,  and  gave  it  to  B.  to  obtain  payment : — 
Held,  thatv  wis  indorsement  was  sumcient  to 
enable  B.  to  recover  in  an  action  against  the  ac- 
ceptor, notwithstanding  A.  said,  upon  the  trial, 
that  B.  was  indebted  to  him,  and  that  he  did  not 
give  him  any  authority  to  bring  the  action. 
Adams  v.  Oakes,  6  C.  £i  P.  70— Gumey.         480 

The  right  of  action  upon  a  bill  of  exchange, 
accepted  for  value,  may  be  transferred  by  m- 
dorsement  without  value,  as  by  way  of  gift.  Hey- 
don  V.  Thompson,  3  Nev.  &,  M.  319;  1  Adol.  &, 
£lli8, 210.  480 

In  an  action  by  B.,  indorsee,  against  C,  ac- 
ceptor, C.  pleads  that  the  acceptance  was  obtain- 
ed firom  him  without  consideration  by  the  fraud  of 
A.,  the  drawer,  and  the  bill  was  indorsed  to  B. 
without  consideration  and  with  notice  of  the  fraud, 
and  of  the  want  of  consideration,  as  between  A. 
and  C.  Semble,  that  B.  may  reply,  merely  tra- 
versing the  firaud.    Id. 


[BILLS  OF  EXCHANGE] 


I^  however,  B.  Mwly  uri^g  a  difl^rtnt  bill, 
leoepted  generally,  and  tlie  defendant  pleads  as 
befoie,  omitting  the  statement  of  the  original 
want  of  consideration,  a  replication  to  such  plea, 
merely  traversing  the  fraud,  is  sufficient.  Id. 

The  defendant,  the  indorsee  of  a  promissory 
note,  which  was  not  negotiable  by  reason  of  its  not 
being  payable  to  order,  indorsed  it  to  the  plaintiff 
in  payment  for  goods ;  the  plaintiff  neglected  to 
present  the  note  when  it  became  due,  and  it  re- 
mained unpaid:— Held,that  the  plaintiff  could,not- 
withstanding,  recover  the  price  of  the  goods  sold 
from  the  derendant,  as  the  note  not  being  origin- 
ally negotiable,  the  plaintiff  had  not  been  gmlty 
of  laches  in  not  pre8entin|[  it,  and  the  transfer  did 
not  amount  to  a  new  makmg,  for  want  of  a  stamp. 
Plimley  v.  Westlcy,  2  Bing.  N.  R.  249;  2  Scott, 
433;  1  Hodges.^.  ^  480 

The  payee  of  a  bill  of  exchange  indorsed  it 
specially  to  the  plaintiffs,  and  immediately  afVer 
the  special  indorsement  the  defendant  indorsed 
the  bill,  and  then  the  plaintiffs  indorsed  it :— Held, 
that  the  defendant's  mdorsement  was  an  equiva- 
lent to  a  new  drawing  by  the  defendant,  and  that 
be  was  liable  to  be  sued  upon  the  bill  by  the 
plamtiffs :— Held,  also,  that  a  fresh  stamp  was  not 
necessary.  Penny  t>.  Innes,  1  C.  M.  &  R.  439 ; 
6Tyr.  107.  460 

As  by  the  law  of  France  an  indofMment  in 
blank  does  not  transfer  any  property  in  a  bill, 
the  holder  of  a  bill  drawn  in  that  country,  and 
indorsed  there  in  blank,  cannot  lecover  against 
the  acceptor  in  the  courts  of  this  counttr.  Trim- 
bey  V.  Vighier,  1  Bing.  N.  R.  151 ;  4  M.  &  Scott, 
695;6C.AP.25.  481 

The  indorsee  of  an  over-due  bill  or  note,  is 
aiRcted  by  all  equities  attaching  to  the  bill  or 
note ;  but  not  by  a  set-ofi;  which  would  have  been 
available  against  the  indorsor.  Borough  v.  Moss, 
5M.&R.296.  .     481 

To  assumpsit  on  a  bill  of  exchange  by  indorsee 
against  drawers,  it  was  pleaded  that  the  bill  was 
drawn  by  a  partner,  but  not  for  partnership  pur- 
poses, and  was  indorsed  to  the  plaintiff  afler  it 
became  due.  The  replication  was,  that  it  was 
not  indorsed  afler  it  became  due,  but  was  indorsed 
to  and  taken  and  received  by  the  plaintiff  before 
it  became  due  .—Held,  that  it  was  sufficient  for 
the  plaintiff  to  put  in  the  bill,  and  not  necessary 
that  he  should  give  any  evidence  to  show  that  the 
bill  was  indorsed  to  him  before  it  became  due. 
Parkin  v.  Moon,  7  C  &  P.  408— Aldereon.     481 

Semble,  that  the  old  estalished  rule  of  law, 
*^  that  the  holder  of  bills  of  exohan^  indorsed 
in  blank,  or  other  negc^able  securities  transfer- 
rable  by  delivery,  can  give  a  title  which  he  does 
not  himself  possess  to  a  person  taking  them  bona 
fide  for  value,'*  is  not  to  be  qualified  by  treating 
it  as  essential  that  the  person  should  take  «ihem 
with  due  care  and  caution,  but  that  the  person 
taking  them  bona  fide  for  value,  has  a  good  title, 
though  he  take  theoi  without  care  or  caution,  ex- 
cept so  far  as  the  want  of  such  care  and  caution 
may  affect  the  bona  fides  and  honesty  of  the 
transaction.  Foster  v,  Pearson,  1  C.  M.  &  R. 
849;  6Tyr.255.  481 


The  pkiBtiff  being  drawer  and  pty«e  of  a  M 
of  exchange,  handed  it  to  H.  to  get  it  disooiinied. 
H.  offered  it  ton  that  purpose  to  the  defenduit, 
stating  that  it  was  not  his,  but  plaintifT's  bUl. 
Defendant  refused  to  discount  it  unless  indorsed 
by  H.  H.  said  that  he  had  no  interest  in  it,  but 
to  facilitate  its  being  cashed  he  would  indorse  it. 
He  did  indorse  it,  upon  which  defendant  took  the 
bill,  paid  H.  only  &  P^rt  of  its  amount,  and  got  it 
discounted  by  one  G.  The  plaintiff  was  obliged 
to  take  it  up  at  its  maturity,  and  sued  the  deftn- 
dant  on  it  for  the  balance  unpaid  to  H.  A  ver- 
dict for  defendant  was  set  aside  as  against  the 
evidence,  and  a  new  trial  was  awarded  to  try  the 
question^  whether  the  plaintiff  was  the  real  owner 
of  the  bill  at  the  time  it  was  indorsed,  and  not 
whether  or  not  he  had  at  that  time  been  repre- 
sented to  be  so  by  H.  fiastable  9.  Pools,  1  C. 
M.  &  R.  411 ;  5  Tyr.  111.  483 

A  bill  of  exchange  was  indorsed  by  the  ptyeo 
to  the  Manchester  and  Liverpool  District  Bank* 
ing  Company,  who  indorsed  it,  and  added  to  their 
indorsement  the  following  memorandum, — **  In 
need,  S.  P.  &  Co."  After  several  other  indorse- 
ments, the  bill  was  indorsed  in  blank  to  the  bank 
of  Liverpool,  who  indorsed  it  in  blank  to  the 
plaintiff,  who  indorsed  it  specially—^  Pay  Mesna. 
Temey  &  Farley  or  order,"  who  indoned  it  in 
blank  by  writing  thereon-*^  Thomas  Temey  db 
Faielly."  Afber  passing  throogb  several  other 
hands;  the  bill  when  due  was  <raiy  presented  al 
S.  A.  dk  Co.,  London,  bankers,  woers  it  waa 
made  payable  by  the  acceptance,  and  was  die* 
honored,  the  answer  being  '^  no  advioe."  Oa 
the  same  day  it  was  presented  at  8.  P.  A  Go.'a| 
London,  bankers,  where  it  Was  by  the  said  mem* 
orandum  to  be  paid  in  case  of  need.  S.  P.  A  Co. 
refused  to  pay  it  solely  on  the  ground  of  the 
irregularity  of  Terney  Ik.  Parley's  indorsement 
The  custom  of  London  bankers  was  admitted  to 
be  to  refuse  all  bills,  even  their  own  acoeptanoes, 
where  there  is  a  letter  wrong  in  any  indorsement. 
The  bill  was  returned  wiu  due  notice  to  the 
plaintiff,  who  gave  due  notice  of  dishonor  to 
the  Liverpool  bank.  At  the  Liverpool  bank  the 
irregularity  was  pointed  out  to  the  plainti^  who^ 
by  ueir  recommendation  sent  the  bill  to  Temey 
&  Farley,  who  lived  in  Ireland,  to  reetifV  tlie 
mistake,  and  the  bill,  with  the  proper  inootse- 
ment  on  it,  was  then  sent  up  to  London,  and 
again  presented  at  8.  P.  &  Od.'s,  who  then  re- 
fused to  pay  it  as  being  out  of  time : — Held,  that 
the  bank  of  Liverpool  were  liable  to  the  plain* 
tiff  on  the  bill.  Leonard  e.  Wilson,  3  C.  dk  M. 
589;  41^.415.  488 

Where  a  bill  of  exchange  has  been  negotiated 
by  means  of  a  forgery  of  the  name  of  m  poyco 
as  indorsor,  a  court  of  equity  will  restrain  eveo 
a  bona  fide  holder  of  the  bill  from  suing  the  ai>> 
ceptor,  and  will  direct  the  forged  instrument  to 
be  delivered  up  to  be  cancelled.  Esdailev;  La 
Nauze,  1  T.  &  Col.  394.  483 

Where  the  original  indorsement  of  the  payee'* 
name  on  a  bill  of  exchange  is  a  fbrvery,  a  real 
indorsement  by  the  payee  afler  the  bill  has  ar- 
rived at  maturity,  will  not  give  the  holder  ai^ 
tiUe.  Id. 


[AND  PROMISSORY  NOTES] 


3881 


I.]— It  m  tbe  legolar  uid  usiial  ooarte 
of  botuBCM  in  eonuneroial  tnuisactiooB  to  deliver 
o«i  a  bill  of  emhan^,  kft  for  acoepUnce  to  any 
pcfMia  who  mentions  Uie  amount,  and  deicnbes 
lay  private  mark  npon  it ;  and  if  tlw  clerk  of  the 
party  leaving  it,  bv  hia  conduct  enables  a  stran- 
ger to  discover  the  mark  or  number,  in  oonae- 
QQence  of  which  the  bill  is  delivered  out  to  him, 
the  party  leaving  it  cannot  maintain  trover  for 
the  biU  against  the  part^  who  so  delivered  it  out. 
Bloffriaon  «.  Buchanan,  b  C.  &  P.  18 — Littl.    466 

The  eirenmstanees  of  fraud  stated  in  the  plea 
being,  that  the  defendant  wrote  his  name  and  a 
qoaliSed  acceptance  on  a  blank  piece  of  stamped 
paper,  and  delivered  it  to  the  drawer  for  the  pur- 
pose of  his  drawing  thereon  a  bill  payable  at 
nine  months;  but  that  the  drawer  mrew  upon 
SDch  paper  a  bill  payable  at  six  months:  the 
court  held,  that'  a  replication,  merely  denying 
that  the  defendant  wrote  his  name  or  a  qualified 
aeeeptaaoe  on  a  blank  piece  of  stamped  paper,  in 
manner  and  form,  &c.,  sufficiently  put  in  issue 
the  whole  fraud.  Ueydon  v.  Thompson,  3  Nev. 
&  M.  319.  487 

In  aseampait  bv  the  indorsee  against  the 
aoeepCor  of  a  bill  of  exchange,  if  it  appear, 
thsfeaie  words  not  in  the  acceptor's  handwrit^ 
ing,  makiBig  the  bill  payable  at  a  particular  place, 
it  m  incomoent  on  the  plaintiff  to  show  that  the 
written  by  the  acceptor's  authority ; 
it  seams  that  the  addition  of  such  words  is 
srial  alteration  of  a  bill  since,  and  notwith- 
slaadiBg  the  passing  of  the  stot  1  &3  Geo.  4, 
e.  7&  l>esbraw  v.  Weatherley,  6  C.  &  P.  75&— 
TndaL  489 

In  an  action  by  the  inddrsee  against  the  ac- 
ceptor of  a  bill  of  exchange,  it  is  competent  to 
the  aeceptor  to  show  that  the  acceptance  was  for 
the  accommodation  of  the  plaintiff,  and  that  he 
has  feeeivcd  no  consideration  from  tbe  drawer, 
aad  tlMLt  It  was  agreed  that  the  bill,  when  due, 
sheold  be  taken  up  by  the  plaintiff.  Thompson 
9.  CWbky,  1  Mees.  A  Wels.  818.  489 

On  the  presentment  for  acceptance  of  certain 
biHa  of  exchange,  the  drawee  said  that  he  would 
have  accepted  them  if  he  had  funds,  (meaning 
the  fnad  on  account  of  which  the  bills  were 
drawn);  that  he  had  not  been  able  to  obtain 
tiiose  nuids  from  France ;  but  that  when  he  did 
sbtaia  them  he  would  pajr  the  bills : — ^Held,  that 
this  aaKMmted  to  a  conditional  acceptance  of  the 
biOs;  and  that  the  defrndant,  having  snbse- 
^penlly  become  possessed  of  the  fhnd  in  ques- 
bsa,  was  bonnd  to  pay  the  bills.  Mendixabal  v. 
Maehadcs  ZU,&  Scott,  841;  6  C.  &  P.  818.  490 

Bj  accepting  a  bill  payable  to  the  drawer's  or- 
der, drawn  and  indorsed  in  a  fictitious  name,  the 
diawee  nndertakes  to  pay  to  the  signature  of  the 
same  person  as  indorser,  who  signed  as  drawer. 
The  indorsee  of  such  a  bill  suing  the  acceptor, 
may  by  ctmiparison  of  the  signatures  show  that 
the  drawing  and  the  indorsement  are  in  the  same 
hudwriting.  Ceoper  v.  Meyer,  5  M.  and  R.  387. 

490 

A'as0nfaMn£.1— Presentment  of  checks.  Bod- 
dbston  e.  Schkncker,  4  B.  A  Adol.  758 ;  1  Nev. 
luEl.641.  493 


A  hanker  is  not  bonnd  to  pay  after  bankin|^ 
hours  a  bill  which  is  accepted  payable  at  his 
house.  The  ptreaentment  in  the  evening  by  the 
notary 's  clerk  is  not  a  presentment  for  payment. 
Whitaker  e.  £ngUnd  (Bank),  6  C.  &  P.  700 ;  1 
C.  M.  4&  R.  744  i  5  Tyr.  268 ;  1  Gale,  54.       493 

Allegation  of  presentment.  Parkes  e.  Edge, 
1  C.  &  M.  429;  1  Dowl.  P.  C.  643;  3  Tyr.  364. 

495 

In  an  action  by  an  indorsee  against  the  drawer 
of  a  bill  accepted  by  T.  ^  G.  at  a  London  bank- 
er's, the  declaration  did  not  state  the  acceptance 
at  all,  but  sUted  that  it  was  presented  to  T.  d& 
G.  (the  drawees)  for  pavment,  and  that  they  re- 
fused to  pay.  The  proof  was,  presentment  of  the 
bill  at  maturity  at  the  clearing  house  to  the 
clerk  of  the  London  bankers  named  in  the  ac-  ^ 
ceptance: — Held,  that  as  the  declaration  did* 
not  sUte  the  acceptance,  the  place  fixed  by  the 
acceptors  was  sufficiently  proved,  and  that  the 
London  bankers  were  agente  for  that  purpose  to 
the  acceptors.    Harris  v.  Packer,  3  Tyr.  370,  n. 

495 

In  assumpsit  on  a  bill  of  exchange,  drawn 
upon  **  P.  P.,  No.  6,  Budge  Row,"  and  accepted 
by  him,  an  averment  that  the  bill,  when  due, 
was  presented  and  shown  to  P.  P.  for  payment,  is 
supported  by  proof  that  the  holder  went  to  6, 
Budge  Row,  to  present  it,  but  found  the  house 
shut  up,  and  no  one  there.  Hine  v»  AllelV,  4  B. 
&.  Adol.  624.  495 

A.  draws  a  bill  on  B.  in  the  country,  making 
it  payable  at  the  house  of  C.  in  London,  with- 
out authority  from  C,  and  B.  acoepte  the  bill  in 
this  form,  without  giving  notice  to  C,  or  provid- 
ing for  the  payment  of  the  bill  at  C.'s  house.  A. 
negotiates  the  bill,  which,  upon  becoming  due, 
is  presented  b^  the  holder  to  C,  who  paid  it  un- 
der a  supposition  that  the  bill  so  presented  was 
another  Dill  of  a  different  amount  and  date, 
drawn  by  B.  on  and  accepted  by  himself,  and 
did  not  discover  his  mistake  until  a  fortnight 
afterwards,  when  the  other  bill  was  presented. 
B.  becomes  bankrupt : — Held,  that  C.  could  not 
reoowr  against  A.  in  an  action  for  money  had 
and  received.  Davies  v.  Watson,  2  Nev.  Sc  M. 
709.  496 

But  semble,  that  if  A.  himself  had  received 
payment  as  holder  of  the  bill,  for  his  misconduct 
m  making  the  bill  payable  at  C.'s  house,  he 
would  have  been  liable.    Id. 

Jfodu  qf  JHghonor.'] — ^Notice  of  dishonor  by 
letter.  Solarte  v.  Palmer,  1  Bing.  N.  R.  194 ;  1 
Scott,  1.  499 

The  holder  of  a  bill  of  exchange,  falling  due, 
and  being  dishonored  after  the  oankruptoy  of 
the  drawer,  is  bound  to  use  due  diligence  in  giv- 
ing notice  to  the  bankrupt  or  his  assignees  of 
the  dishonor  of  the  bill.  Therefore,  where  the 
banksupt's  house  continued  open  in  his  absence 
after  his  bankruptey,  the  messenger  being  in 
possession  during  part  of  the  time,  and  the 
iMmkrupt's  wife,  or  clerk,  during  the  other  pe- 
riod of  nis  absence : — Held,  that  tbe  holder  was 
at  least  bonnd  to  leave  notice  at  the  bankrupt's 
house.  £x  parte  Johnson,^  Deae.  A  Chit  433; 
1  Mont  eb  Ayr.  628.  486 


2383 


[BILLS  OF  EXCHANGE] 


Quere  whether  he  was  bound  also  to  seek  out 
the  bankrupt's  assigneea,  for  the  purpoee  of  giv- 
ing them  notice  ?    Id. 

No  such  notice,  however,  is  necessary,  where 
there  are  no  effects  of  the  drawer  in  the  hands  of 
the  acceptor,  during  the  currency  of  the  bill.    Id. 

The  holder  of  a  bill  is  entitled  to  avail  himself 
of  notice  of  dishonor  given  bj  anj  party  to  the 
bill.  Therefore,  an  indorsee  who  has  indorsed 
over,  and  is  not  the  holder  at  the  time  of  the 
maturity  and  dishonor,  may  give  notice  at  such 
time  to  an  earlier  party,  and  upon  afterwards 
taking  up  the  bill  and  suing,  such  party  may 
avail  himself  of  such  notice.  Uhapman  v.  keane, 
3  Adol.  4&  Ellis,  193 ;  4  Nev.  dc  M.  ti07 ;  1  Har. 
A  Woll.  165.  498 

•  If  a  notice  of  dishonor  is  sent  by  post  on  the 
day  on  which  the  party  is  to  receive  it,  the  onus 
is  on  the  vendor  to  prove  affirmatively  that  the 
letter  was  put  in  in  time  to  reach  the  party  that 
day  accordmgto  the  course  of  the  post.  ix)wler 
V.  liendon,  4  Tyr.  1002.  500 

Semble,  that  the  delivery  of  a  letter  to  the 
bellman  is  a  delivery  to  the  post-office.  Pack  v. 
Alexander,  ^M.^SL  Scott,  789.  hOO 

Where  the  house  was  shut  up,  notice  of  dis- 
honor may  be  given  to  the  drawers  on  the  day 
of  such  dishonor,  as  in  the  case  of  an  actual 
refusal  to  pay.  Hine  v.  AUely,  4  B.  &  Adol.  624. 

501 

The  holder  of  a  bill  received  due  notice  of  dis- 
honor, and  wrote  a  letter  the  same  day  to  the 
indorser,  stating  the  fact,  but  the  letter  was  not 
received,  till  the  following  day : — Held,  a  suffi- 
cient notice  to  the  indorser.  Poole  v.  Dicas,  1 
Scott,  600 ;  1  Hodges,  162.  501 

It  is  no  defence  to  an  action  against  an  in- 
dorser, that  it  was  commenced  before  a  reason- 
able time  had  elapsed  afler  notice  of  the  dishon- 
or; the  only  remedy  the  defendant  has  is  to 
apply  to  the  court  to  stay  proceedings  on  pay- 
ment of  costs.  Siggers  v.  L«wis,  2  JJowl.  P.  C. 
681;  1  C.  M.  &  R.  370;  4  Tyr.  847.  501 

In  an  action  on  a  bill  of  exchange  by  indorsee 
igainat  drawer,  the  only  evidence  or  notice  of 
dishonor  was  a  statement  made  by  the  defen- 
lant  in  conversation  with  a  witness,  in  which  he 
laid — **  1  have  several  good  defences  to  the  action ; 
01  the  first  place,  the  letter  (containing  notice  of 
lishonor)  was  not  sent  to  me  in  time."  This 
statement  was  lefl  tQ  the  jury  as  evidence  of  due 
QOtiee  of  dishonor: — Held,  by  Littledale,  J., 
Patteson,  J.,  and  Coleridge,  J.,  (Lord  Denman, 
C.  J.,  diss.),  that  the  jury  were  not  warranted  in 
presuming  that  due  notice  had  been  given. 
Braithwaite  v.  Coleman,  4  Nev.  &  M.654 ;  1  Har. 
A  Woll.  229.  502 

The  day  after  a  bill  of  exchange  had  been  dis- 
honored at  L.,  and  before  the  fact  of  the  dis- 
honor could  be  known  at  T.,  the  drawer's  "clerk 
called  at  Y.  upon  the  indorser  prior  to  the  holder. 
A  conversation  took  place  as  to  the  bill  being 
likely  to  come  back,  and  the  clerk  said,  **  I  sup- 
pose there  will  be  no  alternative  but  my  taking 
up  the  bill,  and  if  you  will  bring  it  to  S.  on  Tues- 
day, I  will  pay  the  money."    The  indorser  did 


not  receive  either  the  bill  or  notice  untif  soiiie 
days  afler  the  Tuesday,  and  notice  of  dishonor 
was  not  given  to  the  drawer  in  due  time  : — Held, 
that  the  promise  did  not  dispense  with  giving  doe 
notice  of  the  dishonor  to  the  drawer.  Pickin  r. 
Graham,  1  C.  d&  M.  725 ;  3  Tyr.  923.  503 

A  letter  written  by  the  drawer  to  the  holder  of 
a  bill,  six  days  afler  the  day  on  which  the  drawer 
should  have  received  notice  of  dishonor,  and 
containing  ambiguous  expressions  respecting  the 
nonpayment  of  the  bill,  was  held  to  be  properly 
left  to  the  jury  as  evidence  from  which  they  might 
or  might  not  infer  that  notice  had  been  given  on 
the  proper  day.  Booth  v.  Jacobs,  3  Nev.  dc  M. 
351.  •  503 


Actums  on  Bills  and  J^otes.] — It  is  no  ground 
for  discharging  a  defendant  out  of  custody,  that 
the  plaintiff  was  not  at  the  time  of  the  arrest  in 
possession  of  the  bill  of  exchange  on  which  the 
defendant  was  arrested,  and  that  it  was  in  the 
possession  of  persons  to  whom  the  plaintiff"  was 
indebted,  and  to  whom  he  had  indorsed  it  over, 
if  it  appears  that  those  persons  only^hold  the  bill 
as  trustees  for  the  plaintiff,  and  are  willing  to 

give  up  the  bill  for  the  purposes  of  the   suit, 
tone  V.  Butt,2  Dowl.  P.  C.  335 ;  2  C.  &  M.  416. 

513 

In  an  action  on  a  bill  of  exchange  (by  drawer 
s^inst  acceptor),  in  order  to  rebut  the  presump- 
tion arising  from  the  plaintiff's  possession  of  the 
bill,  that  he  was  tlie  holder,  the  defendant  offered 
in  evidence  a  drafl  of  a  declaration  delivered  in 
the  year  1820,  in  an  action  on  a  bill  of  exchange 
of  the  same  date  and  amount,  and  drawn  and  ac- 
cepted by  the  same  parties,  in  which  action  the 
plaintiff  and  another  sued  as  assignees  of  a  bank- 
rupt : — Held,  insufficient  to  call  upon  the  plain- 
tiff to  show  bow  he  became  possessed  of  the  biU 
in  his  individual  character.  Dabbs  v.  Humphrey, 
4  M.  <&  Scott,  285 ;  10  Bing.  446.  513 

To  a  declaration  on  certain  bills  of  exchange  by 
the  indorsees  against  the  acceptors,  the  &fen- 
danlB,  pleaded,  first,  that  the  bills  were  accepted 
for  the  accommodation  of  the  indorsor,  and  with- 
out any  consideration  for  the  acceptance ;  and 
that  they  were  indorsed  to  the  plaintiffs  afler 
they  became  doe  :  secondly,  that  the  bills  were 
indorse  afler  they  became  due ;  and,  that  before 
the  indorsement,  the  indorsor  was  indebted  to  the 
defendants  in  a  sum  of  money  exceeding  the 
amount  of  the  bills : — Held,  that  the  pleas  were 
ill,  but  the  court  gave  the  defendants  leave  to 
amend.  Stein  e.  Yglesias,  1  C.  M.  Jk.  R.  565 ;  3 
Dowl.  P.  C.  252 ;  5  Tyr.  173 ;  1  Gale,  98.       513 

In  an  action  by  an  indorsee  of  a  bill  or  note, 
if  the  declaration  states  the  indorsement  to  have 
been  made  by  the  first  indorser  directly  to  the 

Elaintiff,  semble,  that  the  plaintiff  cannot  avail 
imself  of  the  title  of  any  immediate  indorsee : 
— Held,  issue  being  joined  on  the  fact  that  the 
bill  was  indorsed  after  it  was  due,  that  this  f«ct 
was  proved  by  the  showing  that  the  plaintiff  did 
not  become  indorsee  until  afler  the  bill  was  due, 
though  the  first  indorsement  was  before  that  pe- 
riod. Id. 

A  court  of  equity  will  decree  the  payment  of  a 


[AND  PROMISSORY  NOTES] 


2383 


lost  bin  of  exchange  on  a  sufficient  indemnity  be- 
ing giyen,  though  there  may  be  a  remedy  at  law 
by  action  on  the  bill.  DaYiea  v.  Dodd,  1  Wils. 
Rzcb.  110.  513 

To  a  suit  by  the  indorsee  against  the  acceptor 
of  a  lost  bill  of  exchange,  accepted  for  the  ac- 
commodation of  the  drawer,  and  without  conside- 
xmtion,  the  drawer  need  not  be  a  party.  Id. 

In  an  action  on  a  promissory  note  payable  on 
demand,  the  jury  cannot  give  interest,  except 
from  the  time  a  demand  of  payment  is  made. 
The  iasoing  of  a  writ  of  summons  is  a  sufficient 
demand.  Pierce  v.  Fothergill,  2  Bing.  N.  R.  167 ; 
S  Soott,  394  ;  1  Hodges,  251.  513 

In  assumpsit  against  the  acceptor  of  a  bill 
of  exchange,  part  payment  may  be  given  in  evi- 
dence,  nnder  a  plea  denying  the  acceptance,  in 
reduction  of  the  damages.  Shirley  v.  Jacobs,  4 
Dowl.  P.  C.  136;  2  Scott,  157;  1  Hodges,  214. 

513 

Proceedings  were  commenced  on  a  bill  of  ex- 
change against  the  drawer,  and  also  against  the 
defendant,  as  accepter ;  the  former  paid  the  bill 
and  costs,  and  it  was  delivered  up  to  him,  and  no- 
tice was  given  to  the  defendant  that  proceedings 
against  him  were  abandoned.  His  costs,  how- 
ever* were  not  paid,  and  as  he  disputed  his 
liability  as  acceptor,  he  ruled  the  plaintiff  to  de- 
clare, who  then  applied  to  a  judge  to  stay  pro- 
ceedings, and  obtained  an  order  for  that  purpose  : 
the  court  set  the  order  aside.  Lewis  v.  Dairy  m- 
ple,  3  Dowl.  P.  C.  433.  515 


Dedarationa  on  BUls  and  J^otes.] — In  an  action 
by  the  indorsee  against  the  acceptor  of  a  bill  of 
exchangtQ,  the  declaration  alleged  that  one  P.  N 
diew  the  bill,  and  required  the  defendant  to  pay 
to  his  order,  &c.,  and  that  the  defendant  accepted 
the  bill,  and  P.  N.  indorsed  it  to  the  plaintiff. 
On  special  demurrer,  alleging  that  ^^his"  was 
ambiguous,  Ac.: — Held,  that  "his"  could  not 
oeoessarily  be  referred  to  the  last  antecedent,  and 
that  it  sufficiently  appeared  that  it  had  reference 
to  the  drawer,  and  the  count  was  therefore  suffi- 
cient. Spyer  v.  Thelwell,  4  Dowl.  P.  C.  509 ;  2 
C.  M.  d^  R.  692.  517 

A  demurrer  to  a  count  on  a  bill  of  exchange 
(which  was  in  the  exact  from  given  by  the  rules 
of  T.  T.  1  Will.  4),  that  the  words  "  now  elapsed" 
did  not  show  that  Uie  bill  was  due  before  the  ac- 
tion was  commenced  : — Held,  not  to  be  *^  frivol- 
ous." Abbott  V.  Arlett  or  Aslett,  4  Dowl.  P.  C. 
759;  1  Mees.  &.  Wels.  209.  517 

Semble,  that  it  is  necessary  to  show  on  the 
iaoe  of  the  count  that  the  bill  became  due  before 
the  action  was  commenced.  Id. 


FUoB  OT  Jtetums.} — In  an  action  by  an  indorsee 
against  the  acceptor  of  a  bill  of  exchange,  the 
court  refused  to  allow  a  plea  denying  the  draw- 
ing as  well  as  a  plea  denying  the  acceptance. 
GUmoie  «.  Hague,  4  Dowl.  P.  C.  303 ;  1  Har.  6l 
Woll.  S23.  517 

Indorsee  against  drawer  of  a  bill  of  exchan^^. 
p]ea^.th8t  tSe  defendant's  indorsement  was  m 
blank;    that  the  defendant  delivered  the  bill  to 
A«  (not  a  party  ^  ^®  biU)i  ^^^Y  ^  8^^  ^^  ^^ 


I  counted  for  him ;  that  A.  fraudulently,  and  in 
violation  of  that  special  purpose,  delivered  it  to 
B. ;  of  all  which  Uie  plaintiff  had  notice  : — Held, 
on  general  demurrer,  that  the  plea  was  bad,  for 
not  showing  distinctly  that  the  defendant  never 
had  value  for  the  bill.  Noel  v.  Rich,  2  C.  M.  ^k 
R.  360 ;  4  Dowl.  P.  C.  228 ;  1  Gale,  225.  And 
see  Noel  v.  Boyd,  4  Dowl.  P.  C.  415.  517 

To  an  action  against  the  defendant  as  drawer 
and  indorser  of  two  bills  of  exchange,  the  de- 
fendant pleaded  that  the  plaintiff  wa^  applied  to 
for  a  loan  of  money  to  T.  P.  B.,  but  agreed  to 
give  two-thirds  of  the  amount  in  money  and 
one-third  in  wine,  upon  having  the  two  bills  given 
to  him  as  a  security  for  the  wme  ;  tlie  plea  then 
averred,  that  the  contract  for  the  sale  and  deli- 
vering of  the  wine  was  a  gross  fraud,  and  that 
the  defendant  had  not  had  any  value,  &  c.  The 
plaintiff  replied,  that  there  was  a  good  considerai- 
tion  for  the  drawing,  and  concluded  to  the  coun- 
try : — Held,  that  the  plea  was  bad,  as  being  only 
an  answer  to  a  part,  and  that  the  allegation  of 
fraud  was  too  general.  Connop  v.  Holmes,  4 
Dowl.  P.  U.  451 ;  2  C.  M.  &  R.  719 ;  X  Tyr.  &  G. 
85.  517 

A  defence  that  A.  paid  part  of  the  bill  sued 
on,  and  B.  the  residue,  is  the  subject  of  separate 
pleas.  Easton  r.  Pratchett,  1  C.  M.  &  R.  798 ;  3 
Dowl.  P.  C.  549;  4  Tyr.  472;  IGale,  30.       517 

Declaration  in  debt  on  a  promissory  note. 
Plea — that,  afler  the  making  of  the  note  and  ac- 
cruing of  the  debt  in  respect  thereof,  the  plaintiff 
drew  a  bill  of  exchange  upon  the  derendant, 
which  he  accepted  and  delivered  to  the  plaintiff 
who  took  it  for  and  on  account  of  the  note,  ana 
afterwards  endorsed  it  to  a  person  not  known  to 
the  defendant,  and  who,  at  the  time  of  the  com- 
mencement of  the  suit,  was  the  holder  thereof, 
and  entitled  to  sue  the  defendant  thereon.  Re- 
plication, de  injuria : — Held,  on  demurrer  to  the 
replication,  that  the  plea  was  bad,  insomuch  as 
it  did  not  aver  that  the  bill  was  given  as  well 
as  taken  in  satisfaction  of  the  note.  Crisp  v. 
Griffiths,  2  C.  M.  &  R.  159;  3  Dowl.  P.  C,  752 ; 
1  Gale,  60.  517 

The  Reer.  Gen.  Hilary  Term,  4  Will.  4,  do  not 
enable  a  defendant  in  an  action  on  a  bill  of  ex- 
change at  the  suit  of  an  indorsee,  to  plead  that 
he  received  no  consideration  from  the  drawer, 
without  showing  circumstances  of  fraud  and 
knowledge  of  them  on  the  part  of  the  plaintiff. 
French  v.  Archer,  3  Dowl.  P.  C.  130.  517 

Where  an  acceptor  to  an  action  on  a  bill  of 
exchange  by  an  indorsee,  pleads  want  of  consid- 
eration, it  IS  sufficient  for  the  plaintiff,  in  his  re- 
plication, simply  to  aver  that  there  was  consid- 
eration. Prescott  17.  Levi,  3  Dowl.  P.  C.  403 ;  1 
Scott,  726.  517 

To  a  declaration  on  a  bill  of  exchange,  (by  in- 
dorsee against  acceptor),  the  defendant  pleaded 
that  no  value  or  consideration  had  been  given  for 
the  successive  indorsements;  the  plaintiffii  re- 
plied, that  their  immediate  indorsor  did  not  in- 
dorse the  bill  without  value  or  consideration  for 
so  doing,  but  that  they  took  it  for  a  ffood  and 
valuable  consideration,  concluding  to  Uie  coun- 
try : — Held  good  on  special  demurrer.  Id. 


[BILLS  OF  EXCHANGE] 


To  ft  dMiaratioii  on  a  promiMOry  note  afaizut  the 
maker,  he  pleaded  no  consideration  ;  the  plaintiff 
leplied  that  the  note  was  indorsed  to  her  in  part 
pajrment  of  a  debt,  and  that  she  had  no  notice 
of  the  premises  in  the  plea.  The  defendant  re* 
joined,  that  she  had  notice.  On  demnrrer,  held, 
that  tlie  plaintiff  was  entitled  to  judgment. 
Pearce  «.  Champneye,  3  Dowl.  P.  C.  276.       517 

To  a  declaration  by  indorse^  against  acceptor, 
defendant  pleaded  that  the  bill  Was  accepted 
without  consideration  firom  the  drawer: — Held 
ill,  and  that  under  the  rule  of  H.  T.  4  Will.  4, 
plaintiff  might  demur.  Low  v*  Chifney,  1  Bing. 
K.R.967;l8coU,96.  517 

In  an  action  by  the  second  indorsee  against 
the  payee  and  indorsor  of  a  note,  a  plea,  that 
the  defendant  never  had  any  consideration  for 
indorsing  the  note,  and  that  the  first  indorser  in- 
dorsed  it  to  the  plaintiff  without  any  considera- 
tion, and  that  the  plaintiff  always  held  it  without 
any  consideration,  is  bad  on  demurrer.  Trinder 
«.  Smedley,  5  Nev.  &  M,  138;  1  Har.  &  WoU 
309.  517 

4a  ftn  action  by  the  payee  against  the  maker 
of  a  promissory  note,  a  plea  tnat  it  was  made 
**  without  any  value  or  consideration  for  so  doing, 
or  for  naying  the  amount  thereof,"  is  bad  on 
special  oemurrer.  Stoughton  v.  Kilmorey  (Earl), 
2C.  M.  dk  R.  01;  3Dowl.  P.C.  705;  5  Tyr.568; 
1  Gftk,  91.  517 

In  an  action  on  a  bill  of  exchange,  by  an  in- 
dorsee against  his  immediate  indorsor,  a  plea, 
that  fiir  the  indorsement  the  defendant  neither 
had  nor  received  any  value  or  consideration,  is 
good  after  verdict,  but  it  would  be  bad  on  special 
demuRer.  Easton  v.  Pratehett,  1  C.  M.  &  R.  796 ; 

3  Dowl.  P.C.  549;   6C.  (kP.736;  4Tyr.47a; 
1  Gafe,  30 :  8.  P.  (in  error),  3  C.  M.  &  R.  543; 

4  Dowl.  P.  C.  473 ;  1  Gale,  350.  517 

In  an  action  by  the  drawer  and  payee  of  a  bill 
of  exchange  agamst  the  acceptor,  a  plea,  that  the 
^fendant  received  no  consideration  from  the 
plaintiff  for  accepting  the  bill,  is  insufficient. 
Graham  o.  Pitman,  1  Har.  &  Well.  133 ;  5  Nev. 


dk  M.  37. 


517 


la  an  aetioB  by  an  indorsee  against  the  ae- 
aeptor  of  a  bill  of  exchange,  a  plea,  that  there 
was  not  at  any  time  any  consideration  for  his 
(■aid  defendant's)  aoceptanee  or  paying  the  said 
pill  of  exchange,  was  held  bad  on  special  de- 
mnner.    Reynolds  e.  Ivemey,  3  Dowl.  P.  C.  453. 

517 

In  an  action  against  the  acceptor  of  a  bill  of 
exchange,  a  plea  is  repugnant  which  shows  a 
consideration  for  the  acceptance  of  the  bill  by 
the  defendant,  and  concludes  "  that  he  has  not  re- 
ceived any  value  or  consideration  for  the  payment 
thereof."  Byass  v.  Wylie  or  White,  1  C.  M.  & 
R.  686;  3  Dowl.  P.  C.  524 ;  5  Tyr.  377;  1  Gale, 
50.  517 

After  a  bad  plea  of  '*  no  consideration"  to  a 
declaration  on  a  bill  of  exchange,  by  which  the 
fdaintiff  has  been  delayed  during  the  long  vaca- 
tioiiy  tha  oonrt  will|  under  epeciai  circumfltancea, 


I  allow  the  defendant  to  withdimw  his  plea  and  plead 
de  novo,  and  have  an  inspection  of^the  bill  with* 
out  an  affidavit  of  merits.  Paplief  a.  Codring- 
too,  4  Dowl.  P.  C.  497.  517 

To  a  plea  by  the  acceptor  of  a  bill  of  exchange, 
that  it  was,  to  the  knowledge  of  the  holder,  nego- 
tiated by  fraud,  and  that  no  considerati<m  was 
given  for  the  indorsement  to  the  holder,  it  ia 
sufficient  tor  the  holder  to  reply  generally,  that 
he  had  no  notice  of  the  fraud,  and  that  the  bill 
was  indorsed  to  him  far  a  good  consideration. 
Bramah  v  Roberts  or  Baker,  1  Bing.  N.  R.  469 ; 
1  Scott,  350;  3  Dowl  P.  C.  393;  1  Hodges,  66. 

517 

And  where  npon  demurrer  judgment  was 
given  fbr  plaintiff  on  such  a  replicatioa,  the 
court  refused  to  allow  defendant  to  withdraw 
the  demurrer  on  payment  of  costs.  Id. 

In  an  action  on  a  bill  of  exchange  by  indorsee 
against  acceptor,  a  plea  alleging  only  that  the 
acceptance  was  obtained  by  fraud,  is  bad.  Id, 

In  trover  fbr  a  bill  of  exchange,  defendaol 
pleaded,  that  befbre  the  conversion  A.  was  law- 
fully possessed  of  the  bill,  and  that  he  indorsed 
it  to  B.f  and  that  B.,  for  a  valuable  considera- 
tion, indorsed  it  to  the  defendant.  The  replica- 
tion took  issue  upon  the  averment  of  considera- 
tion, which  was  found  for  the  plaintiff :— Held, 
that  by  this  plea  the  title  of  the  plaintiff  was  ad- 
mitted, and  that  the  def<>ndant  was  not  entitled 
to  arrest  the  iudgment  upon  the  mund  that  the 
title  appeared  to  be  in  A. :  held,  also,  that  the 
defendant  was  not  entitled  to  a  repleader.  Ftn- 
court  V,  BuU,  1  Ring.  N.  R.  581 ;  1  Scott,  645; 
1  Hodges,  98.  517 

In  an  action  on  a  bill  of  exchange,  the  defen- 
dant pleaded  a  plea  of  want  ofoonsideraiion,  cod- 
eluding  with  a  verification :  the  olaihtif^  instead 
of  replying  by  taking  issue  ontneplea,  merely 
added  a  similiter.  After  verdict  for  the  pUintiir, 
the  oonrt  held,  that  the  record  was  impernet,  and 
that  there  must  be  a  re|rfeader ;  but  to  save  ejr- 
pense,  the  plaintiff  was  allowed  to  amend  on 
payment  of  costs.  Wordsworth  v.  Brown,  3  Dowl. 
P.  C.  698.  517 

Where  to  a  plea  of  no  consideration,  in  an  ac- 
tion on  a  bill  of  exchan^pe,  there  is  a  replication 
that  consideration  was  given,  setting  it  out  under 
a  scilicit,  and  concluding  to  the  countxy,  no  new 
mattter  is  alleged,  so  as  to  make  it  necMsaiy  fbr 
the  plaintiff  to  prove  the  particular  consideration 
set  out.  Low  V.  Burrows,  4  Nev.  A  M.  366 ;  9 
Adol.  dk  Ellis,  483;  1  Har.  A,  WoU.  13.        517 

But  if  the  replication  had  concluded  with  a 
verification,  the  consideration  alleged  would 
have  been  part  of  the  issue,  and  toe  plaintiff* 
must  have  proved  it  Id. 

A  defendant,  who  was  under  terms  to  plead 
issuably  in  an  action  against  him  as  acceptor  of 
a  bill  of  exchange  by  an  indorsee,  pleaded  that 
he  had  received  no  consideration  from  the  plain* 
tiff,  and  the  plea  was  delivered  so  late  in  IViniiy 
term  that  there  was  not  sufficient  time  to  get  tlip 
demurrer  argued  that  term.  The  court  ordered 
the  plea  to  be  set  aside,  and  that  the  olaintiff 
should  be  at  liberty  to  sign  judgmenty  naieai  tiM 


[AND  PROMISSORY  NOTES] 


288S 


defendant  ooMmted  to  anend,  upon  payment  of 
all  ooaU,  and  goinr  to  trial  at  the  next  uttings. 
BrowB  •.  AuaUn,  4  Dowl.  P.  C.  161.  517 

Eadaus.'l-'AJ pon  a  plea  of  no  consideration  to 
an  action  on  a  promiasory  note,  to  which  the  plain* 
tiff  leplied  that  there  waa  a  consideration,  the 
oniM  of  provinff  that  there  was  no  consideration 
lies  npon  the  defendant.  Lacey  v.  Forrester,  3 
Bowl.  P.  C.  668  J  2  C.  M.  &  R.  59;  5  Tyr.  567; 
1  Qafe,  ld9.    X  580 

Proof  of  consideration.  Bassett  v.  Dodgin,  3 
M.  A  Scott.  417;  10  fiing.  40.  521 

A  promnsory  note  in  the  common  form,  but 
ezprMsed  to  be  pajfable  on  demand,  was  given  to 
the  traatee  of  a  building  club,  in  order  to  secure 
the  payment,  by  the  maker  or  his  sureties,  of  cer- 
tain quarterly  contributions,  payments  of  interest 
OB  money  lent,  and  fines  dormg  a  certain  period. 
Anoars haying  become  dae,  an  action  was  brought 
on  the  note,  and  a  cognovit  was  given  for  the 
amount  then  due  and  coats,  being  together  less  in 
amount  than  the  sum  mentioned  m  the  note. 
That  amount  was  paid  with  costs,  and  a  receipt 
given  eJcpreased  as  being  **  in  discharge  of  the  debt 
andooeta  in  that  action.  Another  action  having 
been  brought  on  the  same  note  for  similar  arrears 
Bubflequently  becoming  due : — Held,  that  it  could 
not  be  maintained,  siddall  v.  Rawcliflfe,  3  Tyr. 
441.  521 

Semble,  whete  a  note  b  regularly  indorsed  with 
acknowledgments  of  receipt  of  interest  up  to  a 
giyea  time,  it  is  prima  facie  evidence  of  interest 
being  due  nom  that  time.  Braley  v,  Greenslade, 
1  Price's  P.  C.  144.  521 

Aeaanpait  by  an  indorsee  against  the  acceptor 
of  a  bill  of  ezchanse.  Ptea^— that  the  defendant 
■eeepCed  the  bill  for  the  accommodation  of  the 
drawer,  and  that  the  drawer  did  not  give«  nor  did 
the  defendant  receive,  any  consideration,  for  his 
accepting  <a  f^j'^^i  ^  l^ill  f  ^^  ^  drawer  in- 
doieed  toe  bill  to  tne  plaintiff  without  any  con- 
sideratioo ;  and  that  the  plaintiff  held  the  bill 
without  consideration.  Replication — that  the 
drawer  indorsed  the  bill  to  the  plaintiff  for  a 
good  and  valuable  consideration  : — Held,  that 
it  was  not  incumbent  on  the  pl^ntiff  to  begin, 
and  proye,  in  the  first  instance,  that  he  gave  value 
lor  the  bill ;  but  that  the  rule  is  otherwise,  where 
the  title  of  the  holder  is  impeached  on  the  ground 
of  finuad,  daresB,  or  that  the  bill  has  been  lost  or 
■iDleB.    MUk  a.  Barber,  1  Mees.  A  Wels.  425. 

521 

Where  the  acceptor  of  a  bill  of  exchange 
pleads  that  it  was  accepted  without  any  consider. 
ation,  and  the  plaintiff  replies  that  it  was  accept- 
ed for  a  good  consideration,  the  onus  of  proof  lies 
on  the  defendant  to  show  the  want  of  considera- 
tion. Secoa,  where  the  plaintiff  in  the  replica- 
tion specifies  the  particular  sort  of  consideration 
for  whidk  be  alleys  the  bill  was  accepted,  fiat- 
ley  V.  Catterall,  1  M.  &  Rob.  379— Alderson.  521 

On  an  issue,  whether  consideration  was  given 
W  the  plaintiff  for  a  note,  the  letters  of  the  plain- 
tdE,  shewing  thai  he  was  pressed  for  monev,  are 
eridsnce  &  the  defendant.  Homan  r.  Taomp- 
m.  6  C  dk  P.  717— Pafkt.  521 


In  an  action  by  an  indorsee  against  the  aeeept* 
or  of  a  bill  of  exchange,  the  mere  absence  of  con- 
sideration for  the  acceptance  and  prior  indorse- 
ments, does  not  throw  the  onus  on  the  plaintiff 
of  proving  the  consideration  for  the  indorsement 
to  htm,  where  no  circamstances  of  fraud  or  ille* 
gality  appear.  Whittaker  v.  Edmunds^  1  M.  A 
Rob.  36&-Patteson:  1  Adol.  ^k,  Ellis,  638. 

Witnesses.y-yVhtre  the  drawer  of  an  aecom* 
modation  bill  misapplied  the  bill,  and  the  accept* 
or  brought  trover  to  recover  it  from  a  third  party, 
to  whom  the  drawer  had  improperly  paid  it  away : 
— Held,  that  the  drawer  was  a  competent  witness 
to  support  the  plaintiff's  case.  Fancourt  v.  Bull, 
1  Bing.  N.  R  6U1 ;  1  Scott,  646 ;  1  Hodges,  98. 

5S1 

Defence  to  Actum.\-~Defetce  fbr  want  of  con- 
sideration. Reid  V,  Fumival,  1  C.  &  M.  538 ;  5 
C.  A  P.  499.  524 

A.,  having  appointed  B.  his  executor,  gave  him 
a  promissory  note,  payable  on  demand,  Tor  1002., 
in  consideration  of  the  trouble  he  would  have  in 
the  office  of  executor  afier  his  death.  B.  died  in 
A.'s  lifetime,  not  having  put  the  note  in  suit:— • 
Held,  in  an  action  upon  it  by  fi.'s  executors,  that 
the  consideration  had  totally  failed,  and  the  action, 
therefore,  was  not  maintainable.  Solly  e.  Bird* 
6  C.  &  P.  316— Bolland :  8.  C.  nom.  Solly  v. 
Hinde,  2  C.  ^k  M.  516 ;  4  Tyr.  305.  SM 

Where  a  person  takes  an  indorsement  of  a  pro-> 
mtssory  note  from  the  payee,  with  notice  that  the 
payee  was  indebted  to  the  maker  in  a  greater 
amount  than  in  the  note,  on  separate  transactions : 
<^Held,  that  the  indorsee  could  not  recover  on 
the  note,  except  to  the  amount  of  some  advaneee 
he  had  made  on  the  security  of  the  note  before  he 
had  the  notice.  Ooodall  v.  Ray,  4  Dowl.  P.  C. 
76;  1  Har.  A  WoU.  333.  52$ 

Indorsee  against  acceptor  of  a  bill  of  exchange. 
Plea — that  the  drawer  indorsed  it  to  C,  in  whose 
hands  it  remained  when  due ;  that  C.  being  un- 
able to  obtain  payment  of  it,  returned  it  to  B.y 
who  continued  the  holder  of  it  until  the  defen- 
dant, before  the  indorsement  to  the  plaintifi,  de- 
livered to  B.  another  bill  drawn  by  the  same 
party,  and  accepted  by  the  defendant  for  a  greater 
amount,  which  B.  accepted  in  full  discharge  and 
satisfaction  of  the  forme^  bill : — Held,  on  &mur- 
rer,  that  this  was  a  sufficient  answer  to  the  action, 
although  it  did  not  appear  that  the  second  bill 
was  payable  to  order.  Le  wis  v.  Lyster,  2  C.  M. 
&  R.  704  ;  4  Dowl.  P.  C.377;  1  Gale, 320.    52a 

The  plea  went  on  to  aver,  that  the  latter  bill 
was  indorsed  by  B.  to  A.,  and  that  after  it  be- 
came due,  the  defendant  paid  the  amount  of  it  to 
A.,  in  satisfaction  and  discharge  of  that  bill,  and 
of  all  damages  sustained  by  the  plaintiff  by  leason 
of  non-payment  thereof  when  due  : — Held,  that 
all  this  might  be  rejected  as  surplussage,  and  did 
not  vitiate  the  plea.    Id. 

Declaration  on  a  bill  of  exchange,  indorsed  bj 
J.  S.  to  the  defendant,  and  by  the  defendant  to 
the  said  J.  S.,  and  by  tjhe  said  J.  S.  to  the  plain- 
tiff. Plea, — that  after  the  dishonor  of  the  bill, 
the  plaintiff  took  a  cognovit  &om  the  said  J.  S.» 


2886 


[BILLS  OF  EXCHANGE— BOND] 


in  an  action  on  the  bill,  by  which  lonsrer  time  was 
^ven  than  would  have  l>een  required  for  obtain- 
ing judgment  in  that  action.  Upon  general  de- 
murrer to  the  plea,  it  was  held,  that  it  sufficiently 
appeared  that  J.  S.,  who  indorsed  to  the  plaintin, 
was  identical  with  the  5.  S.  who  was  the  first  in- 
dorser,  and  that  the  plaintiff  was  cognizant  of  that 
fiict  at  the  time  of  taking  the  cognovit,  and  that 
therefore  the  plea  bet  up  a  good  defence,  by 
showing  that  the  plaintiff  haa  ffiv.en  time  to  a 
party  prior  to  the  defendant.  HaJl  v.  Cole,  6 
Nev.  i  M.  124.  522 

Semble,  that  if  the  plaintiff  had  not  known  that 
J.  S.  was  also  first  indorsee,  the  giving  time  to 
him  would  not  have  affected  his  right  of  action 
against  the  defendant,    id. 

Held,  also,  that  an  objection  to  the  plea  for 
bein^  pleaded  in  bar  of  the  action  generally,  and 
not  in  bar  of  its  further  maintenance,  it  not  being 
stated  that  the  cognovit  was  given  before  action 
brought,  could  only  be  taken  advantage  of  by 
special  demurrer,    id.^ 

Action  by  the  indorsees  against  the  indorser  of 
a  promissory  note  for  5002.  Plea,  except  as  to 
the  sum  of  200^,  that  the  note  was  made  and  de- 
livered to  the  defendant  in  order  that  he  might 
indorse  it  for  the  accommodation  of  the  maker, 
to  enable  him  to  obtain  advances  of  money  there- 
on ;  that  the  plaintiffii  had  only  advanced  to  the 
amount  of  200^,  and  that  there  was  no  consider- 
ation for  the  residue.  Replication,  that  the  plain- 
tifis  were  the  holders  of  the  note  for  good  and 
valuable  consideration,  given  to  the  maker  in 
respect  of  their  being  the  holders  of  the  note  to 
the  full  amount  thereof: — Held,  first,  on  this 
issue,  that  it  was  not  incumbent  upon  the  plain- 
tifis,  in  the  first  instance,  to  prove  the  considera- 
tion given  for  the  note ;  but  that  it  was  necessa- 
ry for  the  defendant  to  begin,  and  impeach  the 
plaintiff's  title : — Held,  secondly,  it  having  been 
proved  that  more  than  5002.  being  due  from  the 
maker  to  the  plaintiffs  at  the  time  the  note  was 

Said  in  to  them,  they  entered  the  note  as  a  bill 
iscounted  to  his  credit,  but  that  1982.  only  were 
paid  to  him,  that  that  was  equivalent  to  their  hav- 
mg  advanced  the  amount  mentioned  in  the  note, 
and  was  a  giving  of  a  valuable  consideration 
within  the  meaning  of  the  issue : — Held,  thirdly, 
that  if  the  note  were  given  to  them  as  a  security 
for  a  previous  debt,  Uie  plaintifis  miffht  be  pro- 
perly stated  to  be  the  holders  for  a  vuuable  con- 
aideration.  Percival  v.  Frampton,  2  C  M.  &. 
R.  180 ;  3  Dowl.  P.  C.  748;  5  T^r.  579.         523 

In  assumpsit,  on  a  bill  of  exchange  by  a  second 
indorsee,  to  a  plea  that  it  was  accepted  for  the 
accommodation  of  the  drawer,  and  indorsed  by 
him  without  consideration  to  the  second  indorser, 
who  indorsed  to  the  plaintiff:  the  plaintiff  replied, 
that  his  immediate  indorser  had  a  good  consider- 
ation for  indorsing,  and  that  he  (the  plaintiff) 
was  not  at  any  time  a  holder  without  value  : — 
Held,  that  the  replication  admitted  the  accept* 
ance  and  first  indorsement  to  be  as  stated  in  the 
plea,  and  that  the  plaintiff  was  entitled  to  recover 
only  to  the  extent  of  the  value  that  passed  be- 
tween himself  and  his  indorser.  Simpson  v. 
Clark,  2  C.  M.  &  R.  342 ;  1  Gale,  237.  523 


Diet,  per  Lord  Abinger,  C.  B.^  and  Holland,  B., 
that  proof  that  a  bill  was  in  its  inception  without 
consideration,  raises  a  presumption  that  a  subse- 
quent indorsee  did  not  give  value  for  it,  which  he 
must  rebut  by  proving  his  title ;  but  if  so,  semble, 
that  proof  that  it  was  accepted  for  the  accomo- 
dation of  a  party,  that  he  should  raise  money 
upon  it,  is  evidence  to  go  to  the  jury  that  that 
purpose  was  carried  into  efiect,  and  that  therefore 
the  plaintiff  was  a  holder  for  value.    Id. 

In  an  action  on  a  banker's  check,  if  issue  is 
joined  on  a  plea  of  no  consideration  for  drawing 
the  check,  it  is  an  admissible  and  valid  defence 
that  the  contract,  in  consideration  of  which  the 
check  was  given,  has  been  rescinded.  Mills  v. 
Oddy,  1  Oak,  92.  583 

Credit  given  to  the  holder  of  a  bill,  by  the 
party  ultimately  liable,  is  tantamount  to  payment. 
Atkins  V.  Owen,  4  Nev.  &M.  123.  623 

Secus,  as  to  credit  given  by  a  party  not  ulti- 
mately liable,  as  where  th^  credit  was  given  bj 
the  banker  of  the  holder,  such  banker  not  being 
the  party  to  the  bill. — Per  Patteson,  J.    Id. 

In  an  action  on  a  bill  by  a  third  indorsee 
against  the  acceptor,  the  defendant  cannot  put 
the  plaintiff  to  prove  consideration,  by  giving 
prima  facie  evidence  to  show  the  want  of  it, 
merely  as  between  the  drawer  and  his  indorsee, 
and  each  subsequent  indorser  and  indorsee ;  but 
he  must  also  show  the  want  of  consideration  aa 
between  himself  and  the  drawer.  And  for  this 
purpose,  it  is  not  enough  to  prove  that  the  drawer 
on  the  day  before  the  maturity  of  the  bill,  pro- 
cured all  the  indorsements  to  be  made  without 
consideration,  in  order  that  the  action  might  be 
brought  by  an  indorsee,  on  the  understanding 
that  the  money,  when  recovered,  should  be  di- 
vided between  one  of  the  indorsees  and  the 
drawer.  Whittaker  v.  Edmunds,  1  Adol.  &  Ellis. 
638;  IM.  <&Rob.366.  523 

Afler  giving  a  cognovit,  it  is  too  late  to  object, 
that,  at  the  time  of  Oie  arrest,  part  of  the  note  had 
been  paid,  and  that  the  note  was  given  for  an  ille- 
gal consideration,  filigh  v.  Brewer,  3  DowL  P. 
C.  266;  1  U.  M.  &  R.  651;  5  Tyr.  222.  &26 


BOND. 

Construction  and  Operation.'] — ^The  condition 
of  a  bond,  executed  oy  the  principal  and  two 
sureties  in  the  penal  sum  of  10002.,  contained  a 
recital  that  the  obligor  had  taken  a  farm  of  the 
plaintiff  (the  obligee),  subject  to  the  payment  of 
rent  reserved  in  a  fease  of  even  date  with  the  bond, 
and  that  it  also  had  been  agreed  by  the  obligor 
and  the  plaintiff,  that  the  obligor  should  enter 
into  a  bond  with  two  sureties  in  the  penalty  of 
5002.  for  the  due  payment  of  tiie  rent.  Rent 
having  been  found  by  a  jury  to  be  due  to  the 
plaintiff  to  the  amount  of  7402.,  the  court  refused 
to  reduce  tiie  verdict  to  5002.,  to  which  only  it 
was  contended  the  sureties  could  be  liable  by 
virtue  of  the  recital  in  the  condition.  Ingleby 
17.  Mousley,  3  M.  &  Scott,  488.  527 

The  obligor  of  a  bond  conditioned  for  the  pay- 
ment of  rent,  at  the  rate  of  1702.  a  year,  ^  acoerd- 
ing  to  an  indenture  of  leaie,*'  is  estopped,  in  an 


[BOND] 


3387 


«ctx>B  on  the  bond,  from  wyiug  that  the  rent  re- 
aerred  by  the  iDdenture  was  14^2.  a  year.  Lain- 
•on  V.  Tremere,  3  Ney.  &  M.  603 ;  1  Adol.  &  £U. 
792.  527 

A  person  conveyed  estates  to  trustees  upon 
trost  to  sell  and  apply  the  produce  of  the  sale  in 
discharging  all  his  bond  debts,  together  with  the 
interest  then  due  and  to  grow  doe  for  the  same 
to  the  day  of  paynjent.  A  bond  creditor  claim- 
ing under  this  deed,  is  not  entitled  to  principal 
and  interest  beyond  the  amount  of  the  penalty  of 
the  bond.    Hughes  r.  Wynne,  1  Mylne  &  K.  20. 

529 

A  bond,  conditioned  for  the  payment  of  a  cer- 
tain sum  with  interest,  may  be  put  in  suit  with- 
out a  previous  demand  of  payment.  Gibbs  v. 
Sontham,  3  Nev.  &  M.  155 ;  5  fi.  <fc  Adol.  911. 

530 

Stamp  on  bonds.  •  Lloyd  v.  Heathcote,  3  Tyr. 
309;  6C.&M.336.  532 

A  bond,  conditioned  for  payment  of  a  sum  of 
money  to  the  obli^ree  on  a  day  named,  according 
to  a  proviso  contained  in  a  conditional  surrender 
of  even  date,  whereby  A.  (not  the  obligor  in  the 
bond),  surrendered  to  the  obligee  certain  copy- 
hold lands  for  securing  payment  of  the  same  sum 
— was  held  to  require  a  II.  stamp,  although  it 
bore  no  stamp  denoting  the  payment  of  the  ad- 
valoiem  dnty  on  the  surrender,  and  the  latter  was 
not  produced.  Qnin  r.  King,  1  Mees.  &,  Wels.  42 ; 
4  Dowl.  P.  C.  T36.  532 

On  non  est  factum  pleaded  to  such  a  bond, 
where  breaches  are  assigned  in  the  declaration,  the 
jury  may  assess  the  damages  without  a  special 
award  of  a  venire  for  that  purpose.  Id. 

Where  the  condition  of  a  bond  is  orieriDally 
impossible,  the  bond  is  absolute.  Where  the  con- 
dition is  originally  illegal,  the  bond  is  void.  Where 
the  condition  subsequently  becomes  impossible  by 
the  act  of  the  obligor,  or  of  a  stranger,  the  bond 
is  forfeited.  Where  it  becomes  impossible  by  the 
actjif  the  obligee,  the  bond  is  saved.  Anon,  (cited 
V.  Swindells,  in  error),  5  Nev.  &  M. 

530 


ui 


378. 


UMNtu  of  OUigor.']  —  Collector's  bonds. 
WUks  V.  Ueefy,  1  C.  A  M.  249 ;  3  T^r.  91.     533 

The  subordinate  officers  appointed  under  the 
St  Pancru  Vestry  Act,  59  Geo.  3,  c.  39,  s.  19, 
by  the  seclect  vestry,  are  not  annual  officers,  but 
bold  their  offices  during  the  pleasure  of  the  ves- 
try. Therefore,  the  bonds  given  by  them  to  the 
directors  of  the  poor,  (who  are  annual  officers), 
under  s.  57,  continue  in  force  after  the  directors, 
to  whom  thiey  were  given,  have  gone  out  of  office. 
H'Gahey  v.  Abton,  1  Mees.  &  Wels.  386.      532 

A  bond  given  to  secure  the  faithful  perform- 
aaoe  of  the  office  of  a  collector  of  parochial  rates, 
(who  was  by  act  of  Parliament  to  be  appointed 
by  trustees  for  a  year,  and  then  to  be  capable  of 
re-election),  was  conditioned,  tliat,  "  from  time  to 
time,  and  at  all  times  thereafler,  during  such  time 
as  he  should  continue  in  his  said  office,  whether 
by  virtue  of  his  said  appointment,  or  of  any  re- 
appointment thereto,  or  of  any  such  retainer  or 
eiiq>loynient  by  or  under  the  authority  of  the  said 
trustees,  or  their  socoessors,  lo  be  eleeted  in  the 

Vol.  IV.  15 


manner  directed  by  the  said  act,  he  should  use 
his  best  endeavors  to  collect  the  monies  received 
by  means  of  the  rates,  in  the  then,  or  in  any  sub- 
sequent year,"  &.c.  ^c  : — Held  that  the  obliga- 
tion of  the  bond  was  not  confined  to  the  year  for 
which  he  was  originally  appointed,  but  extended 
also  to  all  subsequent  years  in  which  he  was  con- 
tinuously reappointed.  Augero  v.  Keen,  1  Mees. 
<&  Wels.  390.  532 

A  chief  constable  appointed  for  one  of  the  di- 
visions of  a  riding,  gave  a  bond  to  the  clerk  of 
ihe  peace,  with  condition,  that  he  should  well 
and  faithfully  execute  his  office,  should  pay,  ap- 
ply, and  account  for  all  sums  of  money  coming 
to  his  hands  as  chief  constable  of  his  division, 
and  should  in  all  other  respects  perform  and  ob- 
serve all  such  orders  and  directions  as  should  be 
made  or  ^iven  to  him  in  respect  of  his  said  office. 
The  justices  of  the  riding  having  ordered  a  rate 
to  be  levied  on  the  inhabitants  according  to  a 
certain  valuation,  the  constable  collected  from  his 
division,  and  paid  over  to  the  treasurer,  an  undue 
proportion  of  rate.  The  justices  in  sessions  re- 
solved that  the  bond  was  forfeited,  but  that  no 
proceedings  should  be  taken  upon  it.  Applica- 
tion being  made  to  the  court  of  K.  B.  on  benalf  of 
some  of  the  parties  aggrieved,  for  a  mandamus  to 
the  justices  or  clerk  of^e  peace  to  put  the  bond  in 
suit,  the  court  refused  a  rule  to  show  cause.  Sem- 
ble,  that  the  taking  of  a  bond  with  the  above  con- 
dition, is  not  warranted  by  stat.  55  Geo.  3,  c.  51, 
s.  J  9.    In  re  Lodge,  2  Adol.  &  Ellis,  123.       532 

Upon  the  marriage  of  A.  with  B.^  the  widow 
and  successor  of  C,  a  trader.  A.,  in  consideration 
of  the  stock  in  trade,  which  he  receives  with  B., 
gives  a  bond  to  D.,  conditioned  to  pay  to  the 
children  of  B.  by  C.,  within  twelve  months  after 
her  death,  3001.,  if,  upon  an  account  taken,  the 
stock  in  trade  and  effects  of  the  business,  if  then 
carried  on  by  A.,  shall  amount  to  4002. ;  but,  in 
case  upon  such  account  the  stock  in  trade  shall 
amount  to  lesH  than  400^,  then  A.  shall  pay  to 
such  children  120Z.  A.,  during  the  lifetime  of  B., 
discontinues  the  trade,  and  ceases  to  have  any 
stook  : — Held,  that  this  obligation  was  then  dis- 
charged. Beswick  v.  Swindells,  3  Nev.  &  M.  159 ; 
5  B.  2b  Adol.  914  :  S.  C.  (affirmed  in  error),  5  Nev. 
6l  M.  378.  534 

A.  was  a  clerk  to  B.  from  the  year  1829.  In 
1832,  C.  gave  a  bond  for  the  fiiithful  conduct  of 
A.  as  such  clerk.  Afler  that,  B.  dismissed  A., 
and,  afler  his  dismissal,  A.  made  an  admission  of 
various  sums  that  he  had  not  accounted  for : — 
Held,  that,  in  an  action  on  the  bond,  this  admis- 
sion was  not  evidence  aj^ainst  C,  as  A.  was  living 
at  the  time  of  the  trial,  and  might  have  been 
called  as  a  witness : — Held  also,  that,  it  appear- 
ing that  one  item  in  the  admission  was  of  a  sum 
received  by  A.  before  the  date  of  the  bond,  C. 
would  not  be  liable  to  the  amount  of  the  admis* 
sion,  although  it  had  been  shown  to  him,  and  he 
had  said  that  B.  must  get  what  he  oould  of  A.< 
and  he,  G.,  would  pay  3ie  rest.  Smith  v.  Whit- 
tingham,  6  C  &  P.  78— Gumey.  535 

Presumption  of  paympnt.    Gleadow  v.  Atkin, 
1  C.  &  M.  410 ;  3  Tyr.  289.  528 


[BOND— BUILDING  ACT] 


j«.]— A  bond  conditioned  for  thepAj- 
ment  ef  a  soni  of  money  at  the  end  of  five  yean, 
with  half-yearly  intereet  in  the  meantime,  with  a 
proviio  that,  npon  default  in  payment  of  inter- 
est, the  principal  shall  be  payable,  was  held  not 
to  be  within  8  &  9  Will.  3,  c.  11.  s.  8,  as  to  as- 
sessment of  damages.  James  v.  Thomas,  2  Nev. 
AM,  663 ;  5  B.  &  Adol.  40.  538 

Held,  that  breaches  need  not  be  assigned  in  an 
action  brought  after  March  I7tb,  1829,  on  a  bond 
executed  in  1827,  and  conditioned  for  payment  of 
600(M.  on  the  17th  of  March,  1829,  with  interest 
in  the  meantime,  pursuant  to  the  stipulations  of 
an  indenture  bearing  even  date  with  the  bond. 
Smith  V.  Bond,  3  M.  &  Scott,  528  ;  10  Bing.  125. 

538 

Where,  in  a  debt  on  bond,  a  plaintiff  has  sug- 
gested breaches  on  the  roll,  pursuant  to  8  &  9 
Will.  3,  c.  11,  S.8,  the  court,  after  plea  of  non  est 
factum  pleaded,  refused  a  rule  to  show  cause  why 
some  or  them  should  not  be  stniclc  out,  or  judi;- 
ment  by  default  suffered  on  them,  with  entry  of 
nominal  damages ;  for,  by  that  statute,  the  plain- 
tiff may  suggest  breaches  on  every  part  of  the 
condition,  and  tb^  iury  are  to  inquire  of  the  truth 
of  them;  and  the  defendant  had  another  course, 
viz.  by  pleading  performance  of  the  condition, 
and  suffering  judgment  by  default  on  the  replica- 
tion. Canterbury  (Archbishop)  v,  Robertson,  3 
Tyr.  419;  1  C.  and  M.  181.  643 

Where  a  bond  creditor,  by  agreement  with  a 
debtor,  takes  nterest  on  his  debt  by  antitipation, 
a  court  of  equity  will  restrain  an  action  on  the 
bond,  whether  brought  against  the  principal  or 
ike  V.  White,  1  Y.  &  Col.  420. 

544 


his  surety.    Blake 


In  debt  on  bond,  (with  non  est  facum  inter- 
alia  pleaded),  to  secure  the  payment  by  instal- 
ments of  the  consideration  for  the  purchase  of  a 
business,  the  plaintiff  ought  to  ruggest  breaches, 
and  if  he  has  not  done  so,  and  a  verdict  be  found 
for  him  on  the  plea  of  non  est  factum,  he  is  not 
entitled  to  a  certificate  for  speedy  execution  under 
the  statute.  D'Aranda  v.  Houstoun,  6  C.  &  P 
511— Alderson.  538 

Also,  in  such  a  case,  to  support  a  plea  that  the 
bond  was  obtaSbed  by  fraud,  covin,  and  misrepre- 
sentation, it  is  not  enough  to  show  that  the  busi- 
ness did  not  produce  to  the  purchaser  the  sum 
represented  by  the  seller ;  but  if  it  be  shown  that 
it  did  not  produce  the  sum  to  the  seller  himself, 
it  will  be  enough,  as  in  such  case  it  may  be  as- 
sumed Uiat  the  representation  was  untrue  to  the 
knowledge  ot*  the  party  making  it.  Id. 

Debt  on  bond  for  the  penal  sum  of  12,0002. 
The  declaration  set  forth  the  condition  which  was 
for  the  payment  of  6000^.,  with  interest,  and  as- 
signed as  a  breach  the  non-payment  of  the  €00M. 
(omitting  interest).  Plea,  tnat  the  defendant 
paid  the  60002.  with  interest,  according  to  the 
form  and  effect  of  the  condition : — Held  ill  on 
special  demurrer.  Bishton  r.  £vans,  2  C.  M.  ^ 
R.  12  ;  3  Dowl.  P.  C.  735 ;  1  Gale,  76.  539 

A  bond  was  condition  to  pay  1652.  by  cer- 
tain instalments,  until  the  whole  should  be  paid. 
But  if  default  was  made  in  paying  any  one,  the 


obligation  was  to  remain  in  fbree.  An  aetioa 
having  been  brought  upon  the  bond,  in  conse- 
quence of  a  de&uft  in  payment  «»f  the  second  in* 
stalment,  a  judge  ordered  that,  on  payment  of  tfa* 
152.  and  costs,  proceedings  should  be  stayed : — 
Held,  that  the  judse  had  no  power  to  make  soob 
order.  Naylor  v.  Mopsey,  4  Dowl.  P.  C.  669.  544 

The  sale  of  a  tax-collettor's  lands  and  goods 
is  not  a  condition  precedent  to  putting  in  suit  a 
bond  given  by  a  surety  under  43  Geo.  3,  c.  99, 
for  the  due  perfomance  of  the  collector's  duties. 
At  all  events,  not  unless  the  obligee  have  notice 
where  to  find  the  collector's  property.  Gwynne 
V.  Bomell,  2  Scott,  16 ;  2  Bing.  N.  K.  7.         633 

Payment  to  the  accountant  of  a  |^iven  year,  of 
sums  collected  for  a  different  year,  is  no  discharge 
of  the  demand  against  the  collector  in  respect  of 
those  sums.    Id. 

It  is  no  objection  that  the  sureties'  bond  is  eon 
ditioned  for  payment  by  the  collector  to  the  re- 
ceiver-general, and  to  the  commissioners,  or  that 
it  is  eonditioned  for  payment  at  the  times  by  the 
act  appointed.    Id. 


BOUNDARIES. 

Upon  a  question  of  boundary,  ancient  ordeni 
of  sessions  containing  statements  respecting  the 
extent  of  a  district  within  the  jurisdiction  of  the 
court  of  quarter  sessions,  made  when  no  dispute 
as  to  boundary  appears  to  have  existed,  are  ad- 
missible in  evidence.  Newcastle  (Duke)  v.  Brox- 
towe,  1  Nev.  &  M.  598 ;  4  B.  d&  Adol.  273.    544 

In  trespass  brought  by  the  lord  of  a  manor  for 
the  carrying  away  dollars  claimed  by  him  as 
wreck,  two  instruments  dated  in  1639  and  1657, 
and  purporting  to  be  presentments  or  answers  of 
a  jury,  partly  consisting  of  the  tenants  of  the 
manor,  to  questions  by  commissioners  of  survej 
appointed  by  the  then  lord,  were  put  in  to  prove 
the  boundaries  of  the  manor,  and  also  the  lord's 
title  to  wreck,  which  was  affirmed  in  particular 
passages  : — Held,  that  they  were  only  evidence  of 
the  boundaries,  and  could  not  be  admitted  as  de- 
clarations by  the  tenants  of  the  manor,  of  the 
title  of  the  lord  to  wreck,  that  being  a  matter  of 
private  right  derived  from  the  crown,  respecting 
which  they  could  not  be  taken  to  have  any  pecu- 
liar knowledge,  as  they  had  no  concern  with  it. 
Talbot  V.  Lewis,  5  Tyr.  1 .  544 

/  Where  two  parishes  are  separated  by  a  river^ 
the  medium  filum  is  the  presumptive  lxmnd|Li7 
between  them.  Rex  v.  Landulph,  1  M.  dt  Rob.  3^ 
^Patteson.  544 

The  5  Geo.  4,  c.  79,  (the  Clifton  Watching  and 
Lighting  Act),  does  not  extend  to  those  parts  of 
the  parish  of  Clifton  which,  by  the  16  Geo.  3,  c.  33, 
and  43  Geo.  3,  c.  140,  were  made  part  of  the  city 
of  Bath.  Bartlett  v.  Watkins,  1  Mees.  &  Web. 
223.  544 


BUILDING  ACT. 

Where  a  statute  authorizes  a  company  to  re- 
move and  erect  buildings,  and  provides  a  specific 
remedy  ibr  parties  injured  by  such  removal  and 
erection,  the  occupier  of  a  house  adjoining  ooa 


[BUILDING  ACT— CASE] 


9S89 


which  bttt  be^ii  polled  down  and  rebuilt  by  the 
eookpuij  is  not  entitled  to  such  remedy  in  re- 
spect of  an  injury  sustained  by  reason  of  the  re- 
moral  of  a  party- wall  between  the  two  houses, 
after  a  notice  griyen  under  the  Building  Act,  al- 
thouffh  the  conipanj  may  not  have  strictly  com- 
plied with  the  requisitions  of  the  Building  Act  in 
respect  of  such  party- wall.  Rex  p.  Hungerford 
Market  Company,  2  Nev.  A  M.  340.  545 

An  ezecntor  or  administrator  may  be  liable  as 
the  owner  of  the  improved  rent,  for  the  expenses 
of  pulling  down  and  rebuilding  a  party-wall  un- 
der the  authority  of  the  Building  Act,  (14  Geo.  3, 
c.  7dy  s.  41),  even  through  he  has  no  other  assets 
than  the  improved  rent.  Thackar  v.  Wilson,  4 
Nev.  &  M.  (w9 ;  3  Adol.  &  £Uis,  142;  1  Har.  & 
Woll.  131.  545 

The  expenses  of  polling  down  and  rebuilding 
a  party-wall  are  a  charge  upon  the  land  in  the 
inmds  of  the  owner  of  the  improved  rent.     Id. 

Where  an  administrator  was  sued  upon  the 
statnle,  and  pleaded  that  he  was  only  the  owner 
in  his  character  of  administrator  in  right  of  his  in- 
testate, and  after  setting  out  an  unsatisfied  judg- 
ment amnst  himself  also  as  administator,  i3- 
leged  that  he  had  fully  administered  all  the  estate 
but  a  sum  which  was  not  sufficient  to  satis^  the 
Judgment: — Held,  on  demurrer,  that  the  plea 
no  answer  to  the  action.    Id. 


If  an  act  of  trespass  complained  of  was  done 
with  a  bona  fide  intention  to  pursue  the  direc- 
tions of  the  Building  Act,  though  it  be  not  justi- 
fied by  it.  the  defendant  is  entitled  to  notice  of 
action.  Wells  v.  Ody,  2  C.  M.  &  K.  1^23, 184 ; 
7  C.  dt  r.  22^  1  Gale,  137.  545 

On  a  plea  of  not  guilty,  he  may  object  to  the 
abaenoe  of  such  a  notice.    Id. 

In  an  action  of  trespass,  for  laying  bricks  on 
the  plaintiff's  wall,  the  defendant,  under  the  plea 
of  not  guilty,  mav  show  that  the  wall  was  a  party 
£race  wall,  and  that  he  was  acting  under  the  pro- 
vinooa  of  the  Building  Act.  Semble,  that  to  en- 
title a  party  to  raise  such  a  wall,  it  is  necessary 
that  be  should  give  notice  to  the  district  survevor, 
and  that  such  notice  applies  only  to  cases  wneie 
a  party  intends  to  take  down  any  buildin^r ;  but 
even  if  such  a  notice  be  required,  the  district  sur- 
veyor may  waive  it.  If  a  defendant  intended  to 
proceed  under  the  Building  Act,  he  would  be  en- 
titled to  notice  of  action,  %c.,  although  he  may 
not  have  acted  exactly  according  to  its  provisions. 
Id. 

Th0  Bnilding  Act,  14  Geo.  3,  c.  78,  s.  43, 
which  authoriies  the  building  or  raising  of  a  partv- 
waQ,  does  not  protect  a  puty  from  liability  lor 
any  eoUateral  damage  resulting  from  the  building 
00  eiceted ;  and  an  ac^n  on  the  case  is  maintain- 
able by  the  occnpier  of  an  adjoining  house,  for 
heightening  and  building  on  a  party  fence  wall, 
wheiehy  lua  windows  were  darkened.  Wells  v. 
Ody,  llleef.  dlt  Wels.  452;  7  C.  &  P.  410.    545 

By  the  Bnildiiur  Act,  14  Geo.  3,  c.78,  s.  100,  it 
is  enacted,  thai  ir  the  plaintiff  be  nonsuited,  the 
dsfrndant  shall  have  judgment  to  recover  treble 
Semble,  that  in  rach  a  case  it  ia  not  ne- 


cesvarv  for  the  defendant  to  enters  suggestion  on 
the  roll  to  entitle  himself  to  treble  costs.  Wells 
i;.  Ody,  2  C.  M.  &  R.  1^4.  545 


CARRIER. 

The  act  11  Geo.  4  &  1  Will.  4,  c.  68,  extends 
to  all  the  articles  enumerated  in  the  1st  section, 
although  not  within  the  words  of  the  preamble, 
*'  an  article  of  great  value  in  small  compass." 
Owen  V.  Burnett,  2  C.  ^  M.  353 ;  4  Tyr.  133.  551 

To  entitle  a  party  to  recover  for  loss  or  injury 
to  any  article  of  such  description,  he  must  five 
express  notice  to  the  carrier  of  the  value  ancTna- 
ture  of  the  article.     Id. 

A  looking-glass  exceeding  the  value  of  102., 
was  packed  up  in  a  case,  and  sent  to  the  carrier  s 
office,  to  be  conveyed  from  A.  to  the  house  of  S., 
near  L.  A  notice  was  fixed  up  in  the  office, 
pursuant  to  the  2nd  section  of  the  recent  statute. 
The  words,  "  plate  glass,"  **  looking-glass,*' 
"  keep  this  edge  upwards,"  were  written  on  the 
case,  but  no  declaration  was  made  of  the  nature 
and  value  of  the  article,  and  no  increased  rate  of 
carriage  paid.  The  parcel  was  conveyed  from  L. 
to  the  place  of  its  ultimate  destination  on  a  brew- 
er's truck,  that  beingr  the  usual  mode  in  which 
parcels  were  conveyed  in  that  part  of  the  country. 
When  the  glass  was  unpacked  it  was  found  to  be 
broken : — field,  that  the  carrier  was  not  liable 
for  the  damage  occasioned  by  the  breaking  of  the 
glass.    Id. 

Semble,  that  the  carrier  would  have  been  liable 
if  he  had  been  guilty  of  gross  negligence.    Id. 

Bodies,  which  are  made  partly  of  the  soft  sub- 
stance which  is  taken  from  the  skins  of  rabbits, 
and  partly  fix>m  the  wool  of  sheep,  do  not  come 
under  the  description  of  furs  in  the  Carriers'  Act, 
11  Geo.  4  &  1  Will.  4,  c.  68.  Mayhew  v.  Nelson, 
6  C.  &  F.  58— Tindal.  551 

By  11  Geo.  4  &  1  Will.  4,  c.  68,  s.  8,  carriers 
are  responsible  for  losses  arising  from  the  felo- 
nious acts  of  their  servants.  Tne  defendant,  a 
carrier,  was  sued  to  recover  the  value  of  a  parcel 
lost,  and  slight  evidence  was  given  to  raise  a  sus- 
picion that  his  servant,  who  was  still  in  his  em- 
ploy, had  stolen  the  parcel :  on  a  verdict  found 
for  the  plaintiff,  a  new  trial  was  refused,  on  the 
ground  that  the  defendant  ought  to  have  called 
Die  servant  as  a  witness.  Boyce  v.  Chapman,  2 
Bing.  N.  a.  222;  2 Scott,  3^;  1  Hodges,  338. 

549 


CASE. 

Malieunts  Jhrest.] — ^In  an  action  for  a  malicious 
arrest,  the  jury  may  imply  malice  from  the  ab- 
sence of  reasonable  or  probable  cause.  But  this 
is  an  inference  not  of  law  but  of  Act,  which  the 
jury  are  not  bound  to  draw.  Mitchell  v.  Jenkins, 
2  Nev.  &  M.  301 ;  5  B.  &  Adol.  588.  660 

Presenting  to  the  jury  the  absence  of  such 
cause  as  conclusive  evidence  of  legal  malice  is  a 
misdirection.    Id. 

Quere,  whether  an  action  for  a  malicious  anesl 
will.Ue  when  the  anest  is  for  M»  due  on  a  pro- 


3890 


[CASE] 


miatorjr  note,  and  that  prominoiy  note  has  heen 
paid,  out  more  than  SCU.  is  due  upon  a  general 
account  between  the  parties  ?  Norrish  v.  Rich- 
ards, SNey.  &  M,  'Mi  y  1  Har.  &  WoU.  437. 
And  see  Beare  v.  Finkus,  4  Nev.  Sl  M.  846,  and 
Nicholas  v.  Hayter,  4  NeT.  dt  M.  8d2.  560 

Qnierp,  whether  in  an  action  for  a  malicious 
arrest,  the  mode  in  which  the  original  action  is 
determined  must  be  such  as  in  itself  shows  a  want 
of  reasonable  cause  ?    Id. 

Proof  that  a  plaintiff  had  not  declared  in  an  ac- 
tion removed  by  habeas  corpus  within  two  terms,  is 
not  sufficient  evidence  of  a  determination  of  the 
suit  to  support  an  action  for  malicious  arrest.    Id 

QusBre,  whether  an  action  for  a  malicious  arrest 
can  be  maintained,  when  the  cause  is  removed 
from  an  inferior  court  by  habeas  corpus  ?    Id. 

Where  in  case  for  a  malicious  arrest,  the  de- 
claration alleges  certain  facts  "  whereupon  and 
^hereby  the  suit  was  ended  and  determined,"  the 
plaintiff  cannot  show  any  other  determination  of 
the  suit  than  the  mode  stated.  The  acceptance 
of  the  debt  and  costs  in  satisfaction  of  the  action 
under  a  judge's  order  or  a  rule  of  reference  is  a 
sufficient  determination  of  the  suit  Combe  v. 
Capron,  1  M.  &  Rob.  39&— Patteson.  560 

In  an  action  on  the  case  against  a  party  for 
causing  the  arrest  of  a  person  privileged  from 
arrest,  (e.  g.  a  witness  attending  on  his  subpoena, 
or  a  practising  attorney),  thereby  putting  him  to 
the  expense  of  finding  bail  and  procuring  his 
discharge  by  order  of  a  judge,  the  plaintiff  must 
show  that  his  imprisonment  at  the  particular 
time  in  question  took  place  by  some  act  of  the 
defendant,  and  that  he  knew  or  recognized  the 
circumstances  accompanying  it,  and  also  knew 
that  the  party  arrested  was  privileged  at  that 
time.  Stokes  v.  White,  4  Tyr.  786  ;  1  C.  M.  & 
R.223.  560 

Quasre,  whether  such  an  action  is  maintaina- 
ble.'   Id. 

Negligence  in  navigating  ships.  Vennall  v. 
Garner,  1  C.  &  M.  21 ;  3  l^r.  85.  568 


MnUdous  Criminal  Proceedings.'] — In  an  action 
for  a  malicious  arrest  on  a  charge  of  felony,  it  is 
not  necessary  for  the  plaintiff  to  give  in  evidence 
the  whoAe  of  the  proceedings  |before  the  magis- 
trates.   Biggs  V.  Clay,  3  Nev,  &  M.  464.        5^ 

A  person  convicted  of  a  trespass  under  the 
Game  Act,  1  &  2  Will.  4,  c.  32,  underwent  the 
sentence  of  imprisonment  under  tbat  conviction, 
and  did  not  appeal  against  it : — Held,  that  that 
conviction  was  an  answer  to  an  action  against  the 
informer  for  a  malicious  nrosecution.  Mellor  v. 
Baddeley,- 2  C.  &  M.  675;  4  Tyr.  962;  6  C.  & 
P.  374.  563 

To  maintain  an  action  against  a  person  for 
having  made  a  false  charge  of  felony  before  a 
magistrate,  it  is  not  necessary  to  show  that  the 
charge  was  taken  down  in  writing  and  acted  upon 
by  tlvs  magistrate ;  but  it  is  necessary  that  the 
jory  should  be  satisfied  that  it  was  made  to  the 
migistrate  with  a  view  to  induce  him  to  entertain 


it  as  a  charge  of  felony.    Clarke  v.  Postao,  6  C. 
6l  p.  423— Bosanqnet.  563 

In  on  action  against  defendant  'for  taking 
plaintiff  to  a  police  office,  and  causing  him  to  be 
imprisoned  .without  reasonable  or  probable  cause, 
on  a  charge  that  he  uttered  menaces  against  the 
defendant  s  life ;  it  was  held,  that  it  was  not  for 
the  judge  alone  to  determine  whether  the  me- 
naces justified  the  charge,  but  that  it  should  have 
been  left  to  the  iury  to  determine  whether  the 
defendant  believed  the  menaces,  before  the  judge 
decided  whether  or  not  there  was  reasonable  and 
probable  cause  for  the  charge.  Venafra  v.  John- 
son, 3  M.  d&  Scott,  847 ;  10  Bing.  301 ;  6  C.  &  P. 
50.  563 

In  an  action  on  the  case  for  laying  a  com- 
plaint before  the  magistrate  of  threatening  lan- 
guage, in  consequence  of  which  the  plaintiff  was 
taken  into  custody  and  imprisoned  till  he  found 
bail ;  if  it  appear  tliat  the  threat  was  used  in  con- 
sequence of  a  private  dispute,  and  was  not  ut- 
tered to  the  defendant,  but  related  to  him  by  a 
servant,  who  gave  evidence  of  it  before  a  magis- 
trate, the  question  for  the  jury  will  be,  whether 
the  defendant  acted  bona  fide  upon  the  threat 
mentioned  to  him,  or  merely  used  it  as  a  pretext 
for  accomplishing  his  own  private  purposes.  Id. 

In  an  action  for  charging  plaintiff  with  a  felony 
maliciously,  and  without  reasonable  or  probable 
cause  : — lield,  that  the  judge  was  warranted  in 
leaving  to  the  jury,  instead  of  deciding  himself, 
the  existence  of  probable  cause,  upon  me  follow- 
ing state  of  facts : — Plaintiff,  a  servant,  being  dis- 
charged from  service  on  a  Friday,  took  away  with 
her  from  her  master's  house,  a  trunk  and  bag  thia 
property  of  her  master.  The  master  wrote  to  her 
the  next  day,  demanding  his  property,  and  threat- 
ening to  proceed  criminally  on  the  Monday  fol- 
lowing, if  it  were  not  restored :  the  plaintiff  beine^ 
absent  from  home  when  the  letter  was  delivered, 
no  answer  was  returned ;  whereupon  the  master, 
the  same  day,  Saturday,  had  her  taken  into  cus- 
tody, but  when  she  was  brought  before  the  magis- 
trates on  Monday,  declined  to  make  any  charge. 
M' Donald  or  M  Donnell  v.  Rooke  or  Brooke,  2 


Bing.   N.   R.  217 


2  Scott,  359;   Hodges,  314. 

563 


Other  mdUdous  Procedure.] — In  an  action  on 
the  case  for  maliciously,  and  without  reasonable 
or  probable  cause,  procuring  the  plaintiff  to  be 
outhiwed,  the  declaration  stated  that  the  plaintiff 
was  not  in  any  wise  subject  or  liable  to  be  out^ 
lawed  at  the  suit  of  the  defendant ;  that  the  de- 
fendant made  an  affidavit  of  debt,  whereby  he  de- 
posed that  the  plaintiff  was  indebted  to  him  ia 
35502.,  and  tbat  the  plaintiff,  upon  the  proaeco- 
tion  of  the  defendant,  under  color  and  pretence 
of  owing  the  said  sam  of  35502.,  was  declared  an 
outlaw ;  assigning  for  special  damage,  that  the 
plaintiff  was  put  to  costs  in  aVd  about  revers- 
ing the  outlawry.  The  existence  of  the  alleged 
debt  (the  non-existence  of  which  was  the  only 
gravamen  charged  in  the  declaration)  being  aff- 
mitted : — Held,  that  there  was  reasonable  and 
probable  cause  for  proceeding  to  outlawry,  not- 
withstanding the  defisndant  was  aware  at  the 
time  of  issuing  the  exigent  that  the  plaintiff  was 


[CASE] 


2001 


The  declaration  stated  that  the  defendant  had 
been  employed  by  the  plaintiff  to  edite  the  Court 
Jonmal  for  rewu^,  and  that  he  did  not  perform 
the  duties  of  editing  the  same  in  a  proper  man- 
ner ;  but,  without  the  knowledge,  leave,  autho- 
rity, or  consent  of  the  plaintiff,  '*  falsely,  malic- 
iously and  negligently  mserted  and  published  in 
the  same  a  false  and  malicious  libel,  HIlc.  ;  that 
sAerwards,  an  information  was  exhibited  against 
the  plaintiff  '^for  the  fiUsely  and  maliciously 
printing  and  publishing  of  the  said  libel,  and 
soch  proceedings  were  thereupon  had  that  the 
plaintiff  was  convicted  of  that  o^nce  and  fined 
JOOI.  Afler  verdict  for  the  plaintiff,  the  judg- 
ment was  arrested,  on  the  ground  that  the  injury 
sustained  was  not  connected  with  the  breach  of 
do^  averted,  it  not  appearing  that  the  printing 
and  publishing  of  which  the  plaintiff  was  con- 
victed was  the  same  act  as  that  with  which  the 
defendant  was  charged,  viz.  the  inserting  and 
pobl^hing.  Colburn  v.  Fatmore,  1  C.  M.  &  R. 
72;4Tyr.677.  666 

Semble,  the  proprietor  of  a  newspaper,  in 
which,  without  his  Knowledge  or  consent,  a  libel 
is  inserted  by  his  editor,  cannot  recover  against 
him  the  damages  sustained  by  his  own  convic- 
tion as  proprietor.  Id. 


XtoMmceJ] — ^A  person  who  lets  premises  with 


abroad,  and  had  an  agent  in  London: — ^Held,  { 
also,  that  under  not  guilty,  the  reversal  of  the 
outlawry  was  not  put  in  issue ;  and  semble,  that  if 
it  had  been,  the  rule  of  court,  and  entry  thereof  in 
the  officer's  book,  was  not  evidence  of  that  fact. 
Drummond  v.  Pigou,  7  C.  &  P.  228;  2  Bing.  N. 
R.  114  ;  1  Hodges,  190.  5G6 

A  declara^on  stated,  that  the  plaintiff  had 
boDgfat  of  C.  &  Son  certain  gooos  for  a  sum 
mentioned,  which  the  defendant  had  lent  the 
plaintiff  on  his  personal  credit,  without  agree- 
nw*nt  for  any  lien  on  them  in  respect  thereof, 
which  sum  the  plaintiff  paid  to  C  ^  Son,  who 
accepted  it  in  payment  for  the  foods;  yet  that 
defendant  falselv  and  wrongfully  pretending 
that  he  was  entitled  to  such  lien,  and  had  a  right 
of  preventing  their  delivery  to  the  plaintiff  till 
the  said  loan  should  be  repaid,  wrongfully  and 
nmliciouslv,  and  without  reasonable  or  probable 
cause  in  that  behalf,  but  under  the  color  of  the 
said  pretended  lien,  ordered  C.  &  Son,  not  to  de- 
liver the  said  goods  to  the  plaintiff,,  but  to 
keep  them  till  they  received  further  orders ;  in 
consequence  whereof  C.  &  Son  refused  to  deliver 
them  to  him.  Plea,  that  plaintiff  never  paid  C. 
&  Son  : — Held,  on  demurrer,  that  the  action  was 
maintainable ;  for  afler  putting  the  averment 
of  payment  which  bad  been  traversed  out  of 
consideration,  it  appeared  sufficiently  that  the  de- 
fieodant  knew  that  there  was  no  agreement  for  a 
lien  on  the  goods,  and  that  there  was  no  obligation 
on  C.  &>  Son  to  deliver  the  goods  to  the  plaintiff 
without  payment,  and  that  their  refusal  so  to 
deliver  up  the  goods  to  the  plaintiff  arose  from 
the  defendant's  statement,  and  the  damage  di- 
rectly resulted  from  that  ac^  of  his.  Green  v. 
Button,  2  C.  M.  &  R.  707 ;  1  Tyr.  &  G.  118. 

566 


a  nuisance  upon  them,  and  subsequently  receives 
rent,  is  liable  for  the  continuance  of  the  nuisance. 
Rex  V.  Peadley,  3  Nev.  <&  M.  627 ;  1  Adol.  <fc 
Ellis,  822.  576 

But  a  landlord  is  not  liable  in  respect  of  a  new 
nuisance  created  by  his  tenant  during  the  term. 
Id. 

Where  a  landlord  lets  premises,  the  natural 
consequence  of  the  regular  use  of  which  is,  that 
they  will  become  a  nuisance  unless  properly  ai^ 
tended  to,  he  is  liable  if  they  aflerwards  become 
a  nuisance  by  such  regular  use.  Id. 

The  landlord  ought,  in  ^  such  case,  either  to 
stipulate  with  his  tenants  that  they  will  do  that 
which  is  necessary  to  prevent  the  premises  from 
becoming  a  nuisance,  or  to  reserve  to  himself  the 
power  of  entering  for  the  purpose.  Id. 

An  action  lies  against  a  party,  who  by  careless- 
ness or  negligence  in  excavating  his  own  ground, 
either  causes  or  accelerates  the  fall  of  an  adjoin- 
ing house.  Dodd  v.  Holn^e,  3  Nev.  <l^  M.  7^; 
I  Adol.  &  Ellis,  493.  576 

Two  persons  having  adjacent  lands,  the  one 
built  a  house  at  the  extremity  of  his  land,  the 
other  afterwards  excavated  his  own  soil  near  to, 
but  without  touching  the  ground  so  built  upon  : — 
Quiere,  whether  the  party  making  such  excava- 
tion is  bound  to  see  that  his  neighbor's  founda- 
tions be  not  thereby  weakened,  and  whether,  if 
they  be  so,  he  is  guilty  of  an  actionable  negli- 
gence in  having  so  used  his  own  soil  without  pro- 
tecting-that  of  his  neighbor,  although  no  negli- 
gence be  shown  in  the  mode  of  carrying  on  the 
work?  Id. 


Supposing  him  not  liable  in  the  case  of  a  new- 
ly built  house : — Qusere,  whether  he  would  be  so 
if  the  house  had  stood  so  twenty  years  before  the 
excavation  was  made  ?  Id.  < 

But  where  it  is  alleged  and  proved,  that  the 
defendant  so  negligenuy,  unskilfully,   and  im- 

Kroperly  duff  his  own  soil,  that  the  plaintiff's 
ouse  was  thereby  injured,  an  action  lies :  and,, 
although  it  be  shown  that  the  house  was  infirm, 
and  could  at  aU  events  have  stood  only  a  few 
months,  still  the  plaintiff  may  recover,  in  propor- 
tion to  the  loss  actually  suffered,  if  the  jury  find 
that  the  injury  to  the  house  was  the  consequence 
of  the  defendant's  negligence  ;  and  in  determin- 
ing the  question  of  negligence,  the  jury  ought  to 
consider  the  state  of  the  plaintiff's  house.  Id. 

Where  a  public  company  has  the  right  bv  law 
of  taking  up  the  pavement  of  the  street,  for  the 
purpose  of  laying  down  pipes,  the  workmen  they 
employ  are  bound  to  use  such  care  and  caution 
in  doing  the  work  as  will  protect  the  king's  sub- 
jects, memselves  using  reasonable  care,  from 
injury  ;  and  if  they  so  lay  the  stones  as  to  give 
such  an  appearance  of  security  as  would  induce  a 
careful  person,  using  reasonable  caution,  to  tread 
upon  them  as  safe,  when,  in  fact,  they  are  not  so^ 
the  company  will  be  answerable  in  damages  for 
any  injury  such  person  may  sustain  in  conse- 
quence^  Drew  v.  New  River  Comp.  6  C.  &  P. 
754__Tindal. 


Pleadings.'] — ^In    case   for   injuries  done  by 
dogs  accustomed  to  bite,  dec. ;  the  plea  of  not 


3903 


[CASE-CERTIORARI] 


KiiltT  puts  the  scienter  in  ittue.    Thomas  «. 
organ,  2  C.  M.  &  R.  496;  4  Dowl.  P.  C.  22) ; 
1  Gale,  172.  576 

Proof  that  the  dogs  are  of  a  fiirious  disposi- 
tion, and  have  bitten  cattle,  is  no  evidence  of  the 
defendant's  scienter ;  but  a  promise  by  the  owner 
of  the  dogs,  on  beinff  informed  of  the  injury  they 
have  done,  to  miULe  compensation,  is  some 
evidence  of  it,  to  go  to  the  jury,  but  of  the 
slightest  degree.    Id. 

In  an  action  on  the  case,  the  defendant  cannot 
now,  under  the  plea  of  **  not  guilty,"  raise  any 
<»bjection  as  to  defective  proof  of  the  inducement 
in  the  declaration.  Dukes  v.  Gostling,  3  Dowl. 
P.C.6i9.     '  576 

In  an  action  for  a  malicious  prosecution,  the 
court  will  not  permit  the  defendant  to  plead 
that  he  had  probable  cause  to  indict  together 
with  a  plea  of  not  guilty.  Cotton  v.  Brown,  4 
Xfev.  A  M.  831 ;  3  Adol.  A.  Ellis,  312.  576 

The  plea  of  not  guilty  to  an  action  for  a 
malicious  prosecution,  pute  in  issue  (under  the 
new  rules  of  H.  T.  1834)  the  fact  of  prosecution, 
and  the  want  of  probable  cause.    Id. 

In  an  action  for  a  nuisance,  where  the  defen- 
dant pleads  not  guilty,  the  plaintiff  must  not 
only  prove  the  existence  of  the  nuisance,  but  that 
the  defendant  was  the  person  who  caused  it. 
Dawson  v.  Moor,  7  C.  dt  r.  25— Abinger.      576 

In  case  for  a  nuisance,  the  declaration  stated 
that  the  plaintiff  was  possessed  of  a  term  of  years 
in  a  messuage,  and  that  he  was  disturbed  in  ite 
enjoyment  by  the  alleged  nuisance.  The  defen- 
dante  pleaded  that  the^  were  possessed  of  tlieir 
worksnops  and  manufactory  (the  nuisance  com- 
plained  of)  for  ten  years  before  the  plaintiff 
oeeame  possessed  of  his  term.  The  plaintiff  re- 
plied that  the  term  he  held  the  residue  of,  was 
created  four  years  before  the  defendants  were  pos- 
sessed of  their  said  workshops  and  manufiu:tory : — 
Held,  on  demurrer,  that  the  plea  was  bad,*  the 
defendant  should  have  alleged  an  user  for  twenty 
▼ears.  Elliotson  v.  Feetham,  2  Scott  174;  2 
B'mg.  N.  R.  134 ;  1  Hodges,  259.  576 


CERTIOEIARI. 

CiffU  Coref.  ] — ^A  judgment  in  an  action  of 
ejectment,  •  in  an  inrerior  jurisdiction,  is  not 
within  the  meaning  of  the  19  Geo.  3,  c.  70,  s.  11 ; 
and,  therefore,  if  the  defendant  leaves  the  juris- 
diction, the  judgment  cannot  be  removed  into  a 
•uperior  court  Doe  d.  Stansfield  v.  Shipley,  2 
Dowl.  P.  C.  406.  577 

A  plaint  being  levied  in  an  inferior  court,  not  of 
neord  (the  Hull  court  of  Requeste)  having  cogni- 
•anoe  of  debte  not  exceeding  52.,  the  defendant 
flosd  out  a  writ,  in  the  form  of  a  certiorari,  com- 
manding C.  H.  F.  to  return  into  the  court  of  K. 
B.  the  plaint,  and  all  things  concerning  the 
same.  C,  H.  F.  was  not  a  commissioner,  but  only 
clerk  of  the  court  of  Requeste.  No  affidavit  was 
ffled,  or  order  of  K.  B.  or  of  a  judge  obtained 
for  iMiiittg  the  writ    The  court  on  motion  set ' 


it  aside.    £x  parte  Phillips,  3  Adol.  A  EUis,  586. 

577 

Per  LttUedale,  J.,  a  certiorari  does  not  go,  as 
of  coarse,  to  a  court  not  of  record.    Id. 

If  a  plaintiff,  without  improper  motives,  has 
removed  a  judgment  into  a  superior  court  by  an 
irregular  writ  of  certiorari,  issued  without  leave 
of  Uie  court,  such  amendmente  will  be  allowed, 
and  terms  imposed,  as  will  enable  him  to  avail 
himself  of  the  judgment,  without  prejudice  to* 
the  defendant  Rowell  v.  Breedon,  3  Dowl.  P. 
C.  324.  577 

A  return  to  a  writ  of  certiorari  to  remove  a 
cause,  directed  to  the  judge  of  an  inferior  court, 
certifying  the  cause  and  claiming  conusance  by 
charter,  is  sufficient  if  good  upon  the  face  of  it 
Perrin  v.  West  5  Nev.  &  M.  298;  3  Adol.  db 
Ellis,  405 ;  1  Har.  <&  Woll.  401.  577 

Having  no  day  in  court,  he  cannot  be  required 
to  produce  the  charter.  Id. 

Nor  can  any  traverse  be  token  upon  the  return. 
Id. 

A  partv  coming  to  a  court,  in  a  civil  suit,  is  not 
protected  from  arrest  at  the  king's  suit.  Id. 

Criminal  Ounr.]— By  5  &  6  Will.  4,c.  ^,  s.  1, 
no  certiorari  is  to  issue  to  rentove  any  indietmaU 
or  presentment  from  any  court  of  session^  assize, 
oyer  and  terminer,  or  gaol  ddivery,  or  any  ether 
court  to  the  court  of  1^.  B.  at  the  instance  of  the 
prosecutor  or  any  other  person  (except  the  attOT" 
ney  general)  undunU  fnotion  first  made  in  K,  B. 
or  before  some  judge  of  that  court  and  leave  oih- 
tained. 

By  s.  2,  defendants  are  to  enter  into  reeogi^ 
zanees  before  obtaining  a  certiorari.  578 

The  prosecutor  has  a  right  to  remove  his  in- 
dictment at  any  time  before  trial,  and  the  court 
has  no  jurisdiction  over  the  cosU  consequent  on 
exercising  that  righCT  Rex  o.  Pasman,  2  Dowl. 
P.  C.  629.  578 

The  court  will  remove  an  indictment  by  certi- 
orari, at  the  instance  of  the  defendant,  from  the 
Central  Criminal  Court,  on  the  suggestion  that 
it  involves  pointe  of  law  arising  out  of  proceed- 
ings in  Chancery,  relating  to  matters  of  account 
Rex  V.  Wartnaby,  2  Adol.  &  EUis,  435.  578 

The  mere  fact  of  a  defendant  on  an  indictment 
for  an  assault  being  a  member  of  the  bench  of 
magistrates  who  are  to  try  it,  is  not  a  sufficient 
ground  within  the  5  &  6  Will.  4,  c.  33,  s.  1,  for 
removing  the  indictment  by  certiorari.  Rex«. 
Fellowes,  4  Dowl.  P.  C.  607C  578 

Convictions.] — ^A  conviction  under  the  I  &  2 
Will.  4,  c.  32,  s.  30,  is  still  irremovable  under 
a.  45,  notwithstending  the  5  &  6  Will.  4,  c  20« 
s.  21.    Rex  V.  Hester,  4  Dowl.  P.  C.  589.      579 

iWhere  it  is  enacted,  generally,  that  no  sum- 
mary conviction  in  pursuance  of  an  act  shall  be 
removed  by  certiorari  into  a  superior  court,^  a 
certiorari  may,  nevertheless,  be  issued  at  the  in- 
stence  of  a  private  prosecutor,  although  the  ap- 
plication be  not  made  by  the  attomev-general, 
and  the  crown  is  not  directly  interested.  Rex  v, 
Bonltbee,  6  Nev.  d&  M.  26.  579 


[CERTIORARI— CHARITY] 


3393 


OrdtTM  •f  Seni&ms,"] — ^Wheie  an  appeal  aeainst 
an  order  of  remoyal  has  been  tried  with  the  ac- 
<(iueaoence  of  the  appellanti  and  the  respondents, 
and  the  order  qiiasoed,  a  certiorari  to  remove  the 
prooeediDga  for  the  purpose  of  quashing  the 
order  of  sessions  will  not  be  granted,  although 
the  respondents  receiyed  no  notice  of  trial,  as  re- 
quired by  a  rule  of  court  of  the  sessions,  and 
were  consequently  wholly  unprepared  for  the 
trial.  Rex  v.  Yorkshire,  £.  R.  (Justices),  3  Ney. 
A  M.  93.  580 

A  certiorari  remoying  an  order  of  sessions, 
which  order,  upon  being  sent  back  to  the  ses- 
Bons  for  restatement,  is  reversed  by  them,  does 
not  operate  to  remove  the  new  order  of  sessions. 
Rex  V.  Bloxam,  3  Nev.  &  M.  385:  1  Adol.  A 
Ellis,  386.  680 

The  party  complaining  of  the  second  order  i^ 
the  party  who  must  remove  it.  id. 

A  certiorari  does  not  lie  to  remove  an  order  of 
sessions  made  more  than  six  months  previously, 
althoii£b  the  delay  was  occasioned  by  causes 
over  which  the  prosecaior  had  no  control,    id. 

Notice  to  a  magistrate  (under  1 3  Geo.  2,  c.  18, 
s.  5,)  of  intention  to  move  for  a  certiorari  **  on 
the  6rst  day  of  next  term,  or  so  soon  afler  as  1 
can  be  heard :" — Held  irregular,  if  served  on  the 
first  day  of  that  term,  though  the  party  does  not, 
IB  fact,  move  till  after  the  expiration  of  six  days 
— Oenman,  C.  J.,  dubitante.  In  re  Flounders,  4 
B.  A  Adol.  865 ;  1  Nev.  &  M.  5U2:  58^ 

t 
The  notice  required  by  13  Geo.  2,  c.  18,  s.  5, 
of  intention  to  move  for  a  certiorari  to  remove  an 
order  of  justices,  must  be  made  six  days,  com- 
puted one  day  exclusive  and  one  day  inclusive, 
oefore  the  rule  nisi  is  applied  for:  therefore, 
where  notice  was  given  on  tne  20th  for  a  motion 
on  the  25th,  and  the  motion  was  made  on  that 
day,  it  was.  held  insufficient,  and  the  rule  was 
discharged,  but  without  costs.  Rex  v.  Cumber- 
land (Justices), 4  Nev.  A^  M.  378 ;  1  Har.  A  Woll. 
16:  8.  P.  Rex  V.  Goodenough,2  Adol.  &  Ellis, 
463.  560' 

Where  an  act  of  parliament,  enabling  a  com- 
paay  to  make  certain  canals,  Ac.^  directs  that  ques- 
tions of  compensation,  &c.  shall  be  tried  by  a 
jory,  before  the  justices  at  quarter  sessions,  and 
expressly  takes  away  the  certiorari,  and  a  sub- 
sequent act,  enabling  the  company  to  make  cer- 
tain other  canals,  directs  that  the  former  act, 
and  all  powers,  provisions,  exceptions,  rules, 
remediei^  regulations,  penalties,  forfeitures, 
articles,  matters,  and  thin^  therein  contained, 
shaD  be  in  full  force,  and  snail  extend  to  and  be 
naed,  executed,  applied,  enforced  and  put  in  ex- 
ecution, to  aU  intents  and  purposes,  as  to  that 
act  and  the  several  matters  ana  things  therein 
contained,  (or  making  and  maintaming  the 
canals,  dEcc.  to  be  made  by  virtue  of  that  act,  and 
for  carrying  the  several  purposes  of  that  act  into 
execution  in  as  ample  and  beneficial  a  manner, 
to  all  intents  and  purposes,  as  if  the  same  had 
been  respectively  re-enacted  in  the  body  to  that 
act: — Held,  that  the  clause  taking  away  the 
eertiorxii  must  be  considered  as  embodied  m  the 


latter  act.    Rex  v.  Yorkshire,  W.  R.  (Justices), 
3  Nev.  &M.  802.  580' 

And  in  such  case  the  court  will  not  grant » 
mandamus  to  the  justices  or  clerk  of  the  peace 
to  enter  up  judcnnent  upon  the  verdict  of  a 
jury,  otherwise  tnan  in  tne  terms  in  which  it 
is  given  by  the  jury,  even  though  it  appear  by 
affidavit,  that  in  considering  the  amount  of 
damages  to  be  assessed  by  them,  they  took  into 
consiaeration  matters  not  properly  within  their 
jurisdiction.     Id. 

So,  though  it  should  appear  upon  the  ftce  of 
the    proceedings    that   the   junr  have   assessed 
separate  damages,  in  respect  of  matters  foreign 
to  their  jurisdiction.    Id. 

But  such  a  finding  would  be  a  nullity,  and 
could  not  be  enforced.    Id. 

Proceedings. ] — A  rule  for  a  certiorari  to  remove- 
a  record  from  an  inferior  jurisdiction  is  absolnte- 
in  the  first  instance.  Pawsey  v.  Gooday,  3  Dowl. 
P.C.605.  582 

A  judge's  order  or  fiat  for  a  certiorari  to  issue- 
in  vacation  can  only  be  granted  nisi.  Rex  v. 
Chipping  Sodbury,  3  Nev.  A  M.  104.  583 

The  rule  for  a  certiorari,  under'  the  19  Geo.  3, 
c.  70,  s.  4,  is  absolute  in  the  first  instance,  and 
applies  to  all  cases  where  the  defendant  remove* 
himself  and  his  effects  out  of  the  inferior  juris- 
diction.   Knowles  v.  Lynch,  2  Dowl.  P.  C.  623. 

58a 

When  a  certiorari  was  directed  to  the  justicee- 
of  the  peace,  and  also  to  the  clerk  of  the  peace^ 
and  the  return  was  signed  by  the  clerk  of  the 
peace,  but  was  not  sealed,  the  court  sent  back 
the  return  to  be  amended.  Rex  v.  Macnamara^ 
1  Alcock  &  Napier,  61.    (Irish.)  68a 

An  indictment  for  a  nuisance  in  keeping  & 
common  gaming  house  was  preferred  by  a  pri- 
vate prosecutor,  who,  after  removing  it  by  cer- 
tioran,  proceeded  no  further.  Another  party  thei> 
caused  a  venire  to  be  issued,  and  other  steps- 
taken  for  bringing  the  case  to  trial,  though  de<^ 
sired  by  the  original  prosecutor  to  forbear.  On 
motion  by  the  Tatter  for  a  stay  of  proceedings,, 
(he  alleging  that  the  ofience  had  been  discon- 
tinued,) the  court  refused  to  interfere,  the  pro* 
secution  being  for  a  public  nuisance.  Rex  v. 
Wood,  3  B.  dt  Adol.  657.  583 

The  court  will  not  ^uash  a  writ  of  certiorari^ 
unless  thereis  an  admission,  or  something  tanta- 
mount to  it,  by  the  party  suihg  it  out,  that  he 
has  done  it  for  tho  purpose  of  delay.  Landen* 
V.  Sheil,  3  Dowl.  P.  C.  90.  582 


CHARITY. 

In  the    administration   of  charity   property^ 

given,  not  for  purposee  of  individual  benefit, 
ut  for  performance  of  duties,  if  the  revenues  in- 
crease so  as  to  exceed  a  reasonable  compensation 
for  the  duties,  the  surplus  must  be  applied  to 
other  charitable  purposes.  Att.  Gren.  v.  Bient^ 
wood  Schoolmaster,  1  Mylne  A  K.  376.  584 


3394 


[CHOSE  IN  ACTION— COMMON] 


CHOSE  IN  ACTION. 

A  chose  in  action,  not  coupled  with  any  partial 
interest  in  poBsession,  and  which  cannot  be  re- 
duced into  possession  without  a  suit,  is  not  as- 
signable in  equity.  Prosaer  v.  £dmonds,  1  Y.  & 
Col.  481.  586 

An  assignment  of  a  bare  right  to  file  a  bill  in 
«quity  for  a  firaud  committed  on  the  assignor,  is 
contrary  to  sound  policy,  and  void;  therefore, 
where  A.,  who  was  entitled  to  certain  property 
under  his  father's  will,  for  a  valuable  considera- 
tion, assigned  the  whole  of  that  property  ^zcept 
a  reversionary  interest  in  the  runds)  toB.,  his 
fiitber's  executor,  and  ailerwards  assigned  the 
whole  of  his  interest  under  his  father's  will  (in- 
cluding, therefore,  the  reversionary  interest)  to 
C  : — Held,  that  C.  could  not  maintain  a  bill  to 
set  aside  the  first  assignment,  on  the  ground  of 
fraud  committed  by  B.  agrainst  A.,  the  latter  re-/ 
fusing  to  join  as  plaintiff  m  the  suit.    Id. 

If  a  cestui  que  trust  assign  his  interest,  and 
the  assignee  do  not  give  notice  to  the  trustee,  but 
assign  over,  the  new  assignee  need  not  five  no- 
tice.   £z  parte  Newton,  2  Mont.  <&  Ayr.  Bl .   586 

The  court  will  not  grant  a  special  injunction 
against  the  assignees  of  a  bond,  to  restrain  an 
action  brought  by  them  in  the  name  of  Uie  as- 
signor. Portarlington  (Lord)  r.  Graham,  5  Si- 
mon, 417.  586 


COMMON. 

Declaration  for  trespasses  in  W. :  plea,  that 
W.  is  part  of  a  waste  called  D.,  over  which  the 
defendant  had  common  appurtenant  by  prescrip- 
tion: replication,  that  W.  had  been  inclosed  and 
severed  from  the  waste,  and  held  adversely  to 
the  commoners  for  twenty  years.  This  replica- 
tion is  maintained  by  evi(ience  that  part  of  W. 
had  been  inclosed  twenty  years,  and  part  not; 
and  that  the  alleged  trespasses  were  committed 
in  both  parts.  Tapley  v.  lYainwright,  2  Nev.  & 
M.  697 ;  5  B.  &  Adol.  395.  592 

If  a  tenant  makes  an  encroachment  adjoining 
to  the  farm  he  rents,  this  encroachment  will  be 
for  the  benefit  of  his  landlord,  unless  it  appear 
clearly  from  some  act  done  at  the  time,  that  the 
tenant  intended  to  make  the  encroachment  for 
his  own  benefit,  and  not  to  hold  it  as  he  held  the 
farm.  Doe  d.  Lewis  v.  Rees,  6  C.  &  P.  610— 
Parke.  591 

An  inclosuse  of  waste  lands  had  been  made  on 
a  manor  belonging  to  the  crown,  which  was  held 
for  23  years  without  payment  of  rent,  or  other 
acknowledgment.  The  manor  was  sold  in  fee  by 
certain  commissioners,  by  virtue  of  57  Geo.  3,  c. 
97,  to  the  lessor  of  the  plaintiff,  who  brought  an 
ejectment  to  recover  the  inclosure .- — Held,  that 
although  the  crown  might  have  ousted  the  party 
in  possession  of  the  inclosure,  the  lessor  of  the 
plamtiff  was  not  entitled  to  bring  an  ejectment. 
Doe  d.  Wall  or  Watt  v.  Morris,  2  Scott,  277 ;  1 

591 


Hodges,  215. 

The  commissioners  have  no  power  under  57 
Geo.  3,  c.  97,  to  sell  to  a  subject  the  right  to  re- 


cover property  to  which  the  crown  bad  only  a 
right  of  possession.    Id. 

Prima  facie,  the  lord  of  the  manor  is  entitled 
to  all  waste  lands  withm  the  manor ;  and  it  is  not 
essential  that  the  lord  should  show  acts  of  owner- 
ship of  such  lands ;  and  evidence  that  the  public 
have  been  used  to  throw  rubbish  on  waste  land  is 
rather  evidence  that  it  belongs  to  the  lord  than 
to  any  private  individual.  If  a  person,  w^ilhin 
twenty  ^ears,  inclose  a  portion  of  the  lord's  waste 
by  the  licence  of  the  lord,  such  person  cannot  be 
turned  out  of  the  possession  of  it  by  the  lord 
without  some  act  bemg  done,  from  which  a  legal 
revocation  of  the  licence  can  be  inferred.  Prima 
facie,  every  inclosure  made  by  a  tenant  adjoin- 
ing the  demised  premises  is  presumed  to  be  made 
by  him  for  the  benefit  of  the  landlord  ;  but  this 

{>resumption  may  be  rebutted  by  evidence.  If  a 
essee  mclose  land  which  is  near  the  demised 
premises,  as  being  part  of  the  premises  comprised 
m  his  lease,  this  is  not  an  adverse  possession 
a^nst  his  landlord  ;  and  a  twenty  years'  posses- 
sion by  him  will  not  enable  him  to  retain  posses- 
sion of  the  inclosed  land  against  his  landlord. 
Doe  d.  Dunraven  v.  Williams,  7  C.  &  P.  ^si — 
Coleridge.  591 

The  General  Inclosure  Act,  so  ^  as  it  enacts 
that  the  commissioners'  oath,  and  the  appoint- 
ment of  any  new  commissioner,  shall  be  annexed 
to  and  inrolled  with  the  award,  is  merely  diree- 
toiT*  Cassamajor  v.  Strode,  5  Sim.  87 ;  2Mylne 
&,  K.  706.  593 

An  inclosure  act  directed  allotments  to  be 
made  to  A.,  as  a  full  compensation  for  his  right 
to  the  soil  of  the  waste  as  lord  of  the  manor, 
for  his  right  to  the  tithes  as  rector,  and  for  his 
right  of  common.  Part  of  the  waste  had  been 
used  by  the  lord  as  a  rabbit-warren,  but  no 
mention  of  it  as  such  was  made  in  the  inclosunQ 
act,  nor  did  it  appear  that  the  lord  had  any  right 
of  warren  in  the  waste.  The  commissioners 
made  an  allotment  to  A.  as  a  full  compensation 
for  his  right  and  interest  in  the  warren,  and  also 
three  other  allotments  as  a  full  .compensation  for 
his  rights  above-mentioned  : — Held,  that  A.'s 
title  to  the  allotment  in  respect  to  the  warren 
could  not  be  objected  to,  as  that  allotment  was  a 
portion  of  the  lord's  compensation  for  his  right 
of  soil.    Id. 

Allotment  for  roads.  Thaekrah  v.  Seymour, 
IC.  &M.  18;  3Tyr.  97.  595 

A  modus  of  10s.  a  year  was  payable  to  an  im-  ' 
propriate  rector,  in  lieu  of  all  the  tithes  of  a  farm, 
to  which  farm  were  appurtenant  rights  of  com- 
mon in  two  several  townships,  B.  and  C.  Under 
an  inclosure  act,  to  which  the  impropriator  was  a 
party,  the  common  lands  in  the  township  of  B. 
were  inclosed,  and  allotments  made  to  the  im- 
propriator in  lieu  of  tithes,  moduses,  prescrip- 
tions, and  customary  payments.  The  act  cu- 
rected,  that,  when  tfaie  allotment  should  be  made 
to  the  impropriator,  all  tithes,  moduses,  pre- 
scriptions, and  customary  payments  should  cease, 
and  be  for  ever  extinguished,  hy  a  contempo- 
raneous act,  to  which  me  impropriator  was  not  a 
party,  the  common  lands  in  the  township  of  C. 
were  also  inclosed : — ^Held,  that  the  impropriator 


[COMMON] 


2395 


bein^  onhr  entitled  to  a  modus  in  reflect  of  the 
&nna  and  commonB  appurtenant,  and  the  modus 
haTJng  been  extinguished  under  the  provisions 
of  the  first-mentioned  act,  he  was  not  entitled  to 
tithes  of  the  allotments  made  in  respect  of  the 
Arm  under  the  other  act.  Jackson  0.  Douglas,  1 
Yoonge,  391.  598 

By  an  act  for  inclosing  lands  in  a  parish  and 
extinguishing  its  tithes,  the  commissioner  was 
directed  to  value  the  tithes,  as  being  equal  to  a 
filed  proportion  of  the  net  annual  value  of  the 
lands,  and  then  po  find  an  equivalent  corn-rent ; 
and  bj  his  award,  or  some  previous  writing  un- 
der his  hand,  to  be  annexeu  thereto,  to  set  forth 
the  same,  and  to  apportion  the  corn-rent  upon 
the  lands  of  the  respective  proprietors,  and  to  fix 
when  the  first  payment  of  the  Qorn-rent  should 
be  made,  and  when  the  tithes  should  be  extin- 
^ished ;  and  a  right  was  given  to  any  person  ag- 
grived  by  any  thing  done  in  pursuance  of  that  act, 
to  appeal  to  any  general  or  quarter  sessions  in  the 
county,  held  within  four  months  next  ailer  Uie 
cause  of  complaint  should  have  arisen.  The 
commissioners  having  determined  the  amount  of 
the  corn-rent,  and  fixed  the  day  for  the  first 
qoarterly  payment  of  it,  and  also  the  day  from 
which  the  tithes  should  cease  and  be  extinguiish- 
ed,  by  a  previous  writing,  which  aflerwards  was 
annexed  to  the  award  : — Held,  that  an  appeal  by 
the  rector  on  the  ground  of  the  corn-rent  being 
inadequate,  must  be  within  four  months  of  such 
prerious  writing,  and  that  an  appeal  within  four 
months  of  the  date  of  award  was  not  in  time. 
Rez  r.  Nockolds,  3  Nev.  &  M.  334 ;  1  Adol.  6l 
£nis,  345.  596 

Semble,  that  no  notice  of  the  corn-rents  hav- 
ing been  fixed,  and  the  tithes  extinguished  by 
the  previous  writing,  was  requisite,  though  the 
act  veqatied  that  all  notices  necessary  to  be  given 
by  the  commiBsioners  should  be  given  in  a  par- 
ticiilar  way,  eight  days  before  the  period  for  doing 
the  bosiness  to  which  such  notice  should  relate. 
R 

But  held,  that,  supposing  that  the  four  months 
could  not  l>e  allowed  to  run  until  the  party  in- 
tended had  notice  that  his  rights  had  been  af- 
fected, notice  given  by  the  commissioner  in  the 
manner  required  by  the  act  in  other  cases  was  suf- 
fioent,  although  the  notice,  which  stated  in  ge- 
neral terms  what  had  been  done,  referred  for  par- 
ticolara  to  a  schedule  deposited  at  a  distant 
place;  and  held,  also,  that  private  notice  was 
■officient.    Id. 

#  • 

la  trespass  for  breaking  and  entering  the  cl(^ 
of  the  corporation  of  6.,  the  defrndant's  pleas 
■etootsn  act  for  inclosing  common  lands  in  B., 
which  recited  that  the  corporation  as  lords  of 
tha  manor,  were  owners  of  the  soil,  and  other 
pnsons  were  proprietoa  of  lands  over  which 
rights,  of  common  were  exercised ;  the  commis- 
noners  were  directed  to  make  certain  allotihents 
to  iocb  lords  and  proprietors,  and  it  was  enacted 
that  they  should  set  out  as  a  common  pasture, 
out  of  certain  commons  in  G.,  called  the  £.,  and 
W.  commons,  such  plots  of  land  as  should  be  a 
fall  compensation  for  the  rights  of  common  of 
all  the  owners  and  proprietors  of  commonable' 

Vol.  IV.  16 


messuages  for  such  messuages  only ;  and  that 
such  plots  of  land  should  be  used,  stocked,  and 
enjoyed  by  such  owners  and  proprietors,  and 
their  respective  tenants  and  occupiers  of  the 
said  messuages  only,  as  a  common  pasture,  in 
such  manner  as  the  commissioners  should  .direct. 
Parties  dissatisfied  to  bring  actions  within  three 
months  against  persons  in  whose  favor  award 
made,  or  appeal  within  six  months  to  the  sessions 
against  the  award  ;  but  in  default  of  such  action 
or  appeal  the  award  to  be  final.  The  commis- 
sioners allotted  a  plot  of  ground  in  the  W.  com- 
mon, as  common  of  pasture,  to  be  used,  stocked, 
and  enjoyed  by  the  owners  and  proprietors  of 
commonable  messuages,  and  their  respective  ten- 
ants and  occupiers  of  th^said  messuages  only 
having  right  of  common  upon  the  said  common 
of  G.,  and  they  stinted  the  common  as  empow- 
ered bv  tlie  act.  The  commisioners  also  (mter 
alia)  allotted  lands  to  the  corporation  in  respect 
of  their  interest  as  lords  of  the  soil  in  G.  The 
right  of  common  had  always  been,  up  to  the 
passing  of  the  act,  in  the  occupiers  of  common- 
able messuages,  being  freeman  of  G.  After  the 
act,  a  party,  bein^  the  proprietor  and  occupier  of 
one  of  the  commonable  messuages,  but  not  be- 
ing a  freeman  of  the  borough,  put  his  beasts 
upon  the  common ;  whereupon  the  corporation 
brought  trespass  against  him  more  than  six 
months  aller  the  passing  of  the  act.  Upon  de- 
murrer, ibQ  court  held  that  the  act  did  not  change 
the  nature  of  the  rights  of  common,  by  giving 
them  to  the  owners  of  commonable  messuages, 
who  were  not  bursesses ;  and  that  therefore  the 
commissioners  had  no  power  to  create  such  new 
rights.  And  they  held  that  the  language  of  the 
award  had  no  other  efiTect  than  to  ascertain  the 
spot  on  which  the  right  was  to  be  exercised,  with- 
out altering  the  nature  of  the  right;  and  that 
the  action  was  therefore  well  brought,  though 
more  than  six  months  had  elapsed  since  the 
making  of  the  award.  Godmanchester  (Bailiffs, 
<&c.)  V.  Phillips,  2  Nev.  &  M.  713;  5  B.  &  Adol. 
Idd.  599 

By  a  local  act  all  rights  of  common  whatever 
in  B.  were  extinguished :  the  wastes  were  divided  3 
the  owners  of^ allotments  were  directed  to  in- 
close; and  authorized  to  distrain  the  cattle  of 
strangers  trespassing.  No  fence  having  been 
made : — Held,  that  the  owner  of  an  allotment 
in  B.  could  not  distrain  cattle  which  had  strayed 
into  his  allotment  from  a  common  in  W.,  in  pur- 
suance of  an  alleged  right  of  common  pur  cause 
de  vicinage  in  the  inhabitants  of  W.  Wells  v. 
Pearey,  1  Scott,  426  ;  1  Bing.  N.  R.  556.        599 

Semble,  that  the  cattle  would  be  liable  to  dis- 
tress, or  the  owner  to  an  action  of  trespass,  not- 
withstanding the  want  or  defect  offences,  if  the 
cattle  were  sufi^ered  to  remain  in  the  locus  in  quo 
after  notice  to  the  owner  that  Uiey  were  trespass- 
ing there.  Id. 

Quere,  whether  a  notice  in  fact  to  the  com- 
missioners of  W.,  (without  inclosure),  that  all  the 
rights  of  common  in  B.  were  extinguished,  would 
put  an  end  to  the  legal  excuse  ofuespasses  pur 
cause  de  vicinage  ?  Id. 


2906 


[CONTRACT] 


CONTRACT. 

Making.] — The  fint  count  of  a  declaration  in 
assumpsit  stated,  that  the  plaintiffs  were  possess- 
ed of  lands  for  the  remainder  of  three  terms  of 
years,  which  respectively  commenced  on  the  15th 
of  February,  17ti5 ;  that  they  put  them  up  to 
auction,  subject  to  a  condition  that  the  purchaser 
should  take  the  stock  in  trade  thereon  at  a 
valuation  to  be  made  by  two  persons ;  and  that 
the  amount  of  such  stock  was  valued  by  them  at 
b922.  6t.  4d.y  and  assijrned  for  breach  non-pay- 
ment of  the  same.  The  second  count  was  for  lands 
bargained  and  sold  for  the  remainder  of  the 
terms  then  unexpired,  as  well  as  for  ffoods  bar> 
gained  and  sold.  On  the  production  ofthe  leases 
under  which  the  plaintiffs  derived  title,  they  were 
dated  on  the  15th  of  February,  habendum,  from 
the  day  of  that  date ;  and  the  valuation  given  in 
evidence,  afler  setting  forth  the  prices  of  each 
article,  contained  a  condition  that  certain  pans 
then  in  use  were  valued  as  sound,  but  should  any 
of  them  prove  broken  the  first  time  of  using, 
the  valuers  agreed  to  estimate  an  allowance  to 
be  made  thereon  : — Held,  thatiit  was  immaterial 
to  set  out  in  the  declaration  the  precise  day  on 
which  the  leases  bore  date,  and,  that  the  valua- 
tion might  be  considered  ^s  absolute,  as  it  was 
not  proved  that  any  of  the  pans  were  broken  at 
the  time  specified,  and  consequently  that  there 
was  no  varian  ce.    Welsh  v.  Fisher,  2  Moore,  378. 

604 

A.  agreed  to  sell  to  B.  his  interest  in  a  public- 
house,  and  his  furniture,  &c.,  at  an  appraisement, 
to  be  made  by  two  appraisers,  the  same  to  be 
paid  for  on  B.  s  taking  possession,  which  was  to 
be  on  or  before  the  25th  March  then  next ;  and 
302.  was  paid  bv  B.  as  a  deposit ;  and  he  agreed 
that  if  he  should  not  complete  his  part  of  the 
ijgreement  the  sum  so  paid  should  be  forfrited. 
liie  buyer  and  seller  appointed  appraisers  re- 
spectively. On  the  25th  of  March  the  two  ap- 
praisers met,  and  the  seller's  appraiser  was  then 
informed  that  the  appraiser  of  the  buyer  could 
not  conveniently  on  that  day  complete  the  valu- 
ation, but  would  finish  the  business  the  next  day ; 
no  objection  was  made  to  the  proposed  delay. 
The  appraiser  of  the  buyer  went  to  the  seller's 
premises  the  following  day  to  make  the  valuation, 
but  the  seller  refused^  to  allow  him  so  to  do,  and 
said  he  would  not  complete  the  contract:  — 
Held,  that,  under  the  circumstances,  it  was  in- 
cumbent on  the  seller  if  he  intended  to  insist 
that  the  contract  should  be  compeleted  on  the 
day  mentioned  in  the  agreement,  to  have  noti- 
fied such  intention  to  the  buyer,  and  not  having 
so  done,  that  the  latter  was  entitled  to  recover 
back  the  deposit.  Carpenter  v.  Blandford,  8  B. 
&C.  575;  3  M.  &R.  93.  604 


Statutes  of  Frauds.]— A.,  on  the  20th  of  July, 
made  proposals  in  writing  (unsigned)  to  B.,  to 
enter  his  service  as  bailiff  for  a  year,  B.  took  the 
proposals  and  went  away,  and  entered  into  A.'s 
service  on  the  24th  of  July :— Held,  that  this 
was  a  contract  on  the  20th,  not  to  be  performed 
within  the  space  of  one  year  from  the  making,  I 
and  within  th^  fourth  section  of  the  statute  oft 


frauds.    Spelling  v.  HantiHgfield  (Lord),  1  C.  M. 
&R.20;  4Tyr.606.  604 

A  beneficed  clergyman  entered  into  an  agree- 
ment to  permit  the  profits  of  his  living  to  be  re- 
ceived by  a  third  person,  for  the  purpose  of  the 
surplus  (after  paymg  a  competent  stipend  to  & 
curate  to  serve  the  church)  being  applied  in 
liquidation  of  his  debts: — Held,  that  such  an 
agreement,  signed  by  the  creditors  only,  and  not 
by  the  debtor,  or  by  any  person  thereunto  by  him 
lawfully  authorized,  does  not  amount  to  such  a 
substitution  of  a  new  agreement  in  the  place  of 
an  old  contract  as  to  operate  as  a  bar  to  an  ac- 
tion at  the  suit  of  a  creditor  who  has  signed  it ; 
it  being  a  contract  ^  for  an  interest  in  or  con- 
cerning lands,  tenements,  or  hereditaments," 
within  the  statute  of  frauds.  Alchin  v.  Hopkins, 
4  M.  &  Scott.  615 ;  1  Bing.  N.  R.  99.  604 

Validity  generally.  ] — A  party  cannot  enforce 
a  contract  where  the  consideration  is  illegal, 
either  wholly  or  in  part.  Waite  v.  Jones,  1  Scott, 
730;  1  Bing.  N.  R.  656  ;  I  Hodges,  166.        605 

The  declaration  stated  that  the  defendant  sign- 
ed a  memorandum  in  writing,  whereby  he  agreed 
with  the  plaintiff  (amongst  other  things)  to  pay 
him  certain  specified  sums  towards  the  liqui- 
dation of  certain  debts,  in  consideration  of  the 
plaintiff's  executing  a  certain  deed  of  separation, 
and  agreeing  to  pay  the  said  debts  in  full ;  that 
the  puiintiff,  confiding  in  the  defendant's  agree- 
ment, executed  the  said  deed  of  separation  ;  that 
is  Uf  say,  a  certain  deed  of  separation  between  the 
plaintiff  and  his  wife,  and  agreed  to  pay  the  debts 
m  full,  &c.  The  defendant  pleaded,  that,  at  the 
time  of  making  the  agreement,  the  plaintiff  was 
solely  liable  to  make  the  several  payments,  the 
supposed  agreement  by  the  plaintiff  to  psy  which 
was  by  the  memorandum  stated  to  be  Uie  con- 
sideration for  the  defendant  agreeing,  as  was  al- 
leged to  be  in  the  said  memorandum  agreed  by 
him  : — Held,  that  the  plea  was  no  answer  to  the 
declaration,  inasmuch  as  it  disclosed  no  facts 
tending  to  show  that  any  part  of  the  considera- 
tion for  the  defendant's  promise  was  illegal.     Id. 

lllefirality  of  consideration  roust  be  pleaded 
specially  as  a  defence,  not  only  where  the  ex- 
press contract  on  which  a  plaintiff  sues  is  illegal, 
but  also  where  illegal  services  having  been  per- 
formed, no  contract  to  pay  for  them  can  be  im- 
plied. Potts  V,  Sparrow,  I  Bing.  N.  R.  594 ;  1 
Scott,  578;  3  Dowl.  P.  C.  630;  1  Hodgs,  135. 

605 

In  assumpsit  by  an  attorney  to  recover  his  bill 
of  costs  for  preparing  a  deed,  and  also  costs  of 
an  action  instituted  in  pursuance  of  that  deed,  in 
which  action  his  client  had  failed  in  consequence 
of  the  deed  having  been  held  void  on  the  ground 
of  maintenance : — Held,  that  the  defendant  could 
not  set  up  the  illegality  ofthe  contract  in  answer 
to  the  action  under  a  plea  of  non-assumpsit.    Id. 

A  contract  made  between  two  or  more  persons 
to  enter  into  a  partnership  in  contravention  of 
the  law  is  void,  and  confers  no  rights  upon  either 

garty.     Armstrong  v.  Lewis  (in  error),  4  M.  db 
cott,  1.  608 

Quiere,  whether  a  legal  partnership  could  exist 


[CONTRACT] 


2397 


in  the  profits  of  sworn  clerk  or  side  clerk  of  the 
court  of  £xcheqaer,  as  those  offices  were  formerly 
eoDstitnted  ?  or,  whether  such  a  partnership  can 
at  present  exist  in  the  profits  of  the  office  of  clerk 
of  the  rules  of  that  court  ?  Clark  v.  Richards, 
1  Y.  &  Col.  351.  616 


Legol  Proceedings.] — Where  an  action  has 
heen  commenced  tor  an  unliquidated  demand^ 
payment  by  the  defendant  of  an  agreed  sum  in 
discharge  of  such  demand  is  a  good  considera- 
tion for  a  promise  bj  the  plaintinT  to  stay  pro- 
ceedings, and  pay  his  own  costs.  And,  per  Lit- 
tledale,  eyen  in  the  case  of  a  liquidated  de- 
mand, the  same  promise  made  in  consideration 
of  the  payment  of  such  demand  may  be  enforced 
in  an  action  of  assumpsit,  where  the  agreement 
has  been  snch  that  the  court  would  stay  proceed- 
ings if  the  plaintiff  attempted  to  go  on.  Wil- 
kiuBon  V.  Byers,  1  Add.  &  Ellis,  1U6 ;  3  Nev.  A 
M.853.  606 

Money  paid  by  A.  to  fi.,  in  order  to  compro- 
mise a  qui  tam  action  of  usury  brought  by  B. 
against  A.,  on  the  ground  of  an  usurious  trans- 
action between  the  latter  and  one  £.  may  be  re- 
covered back  in  an  action  by  A.  for  money  had 
and  received ;  for  the  prohibition  and  penalties 
of  the  Stat.  18  £liz.  c.  5,  attach  only  on  the 
**  informer  or  plaintiff,  or  other  person  suing  out 
process  in  the  penal  action,  making  composi- 
tion," Ac,  contrary  to  the  statute ;  and  not  upon 
the  party  paying  the  composition ;  and  therefore 
the  latter  does  not  stand,  in  this  respect,  in  pari 
delicto,  nor  is  he  particeps  criminis  with  such 
compounding  informer  or  plaintiff.  Williams  v. 
Medley,  8  East,  378.  606 

And  such  recovery  may  be  had  although  E.'s 
assignees  had  before  recovered  from  B.  Uie  mo- 
ney so  received  |by  him  as  money  received  to 
their  use,  (the  money  paid  by  way  of  composi- 
tion being  at  the  time  suted  to  be  E.'s  money  :) 
there  being  no  evidence  at  the  trial  of  the  cause 
to  show  mat  A.,  the  plaintiff,  was  privy  to  that 
suit.  Id. 

In  consideration  that  plaintiff  had  published 
A  libel  at  defendant's  request,  and  had  at  the 
like  request  consented  to  defend  an  action 
brought  agunst  plaintiff  for  such  publication, 
defendant  promised  to  indemhify  plaintiff  from 
the  eosts  of  the  action: — Held,  that  the  pro- 
mise was  void.  Shaekell  v,  Roeier,  2  Bing.  N. 
R.634.  606 

TVadmg.] — In  construing  a  covenant  not  to 
carry  on  any  offensive  trade  or  business  on  pre- 
mises demised,  much  will  depend  on  the  situa- 
tion of  the  premises ;  and  in  construing  such  a 
covenant,  ft  is  particularly  Worthy  of  considera- 
tion, whether  such  trade  as  that  complained  of 
was  carried  on  there  at  the  time  of  the  demise ; 
and,  semble,  that  a  trade  carried  on  there  at  the 
lime  of  the  demise,  would  not  be  within  the 
covenant.  Gutteridge  v.  Munyard,  7  C.  &•  P. 
129;  1  M.  &  Rob.  33i— Tindal.  609 


for  twentjr-one  years  to  A.  B.,  his 
exeenton,  aidministnLtors,  and  assigrns.  Proviso, 
thai  if  A.  B.,  his  ezecuiors,  administrators,  and 


assigns  should  become  bankrupt  or  insolvent,  or 
suffer  any  judgment  to  be  entered  against  him, 
«&c.  by  confession  or  otherwise,  or  suner  any  ex- 
tent, process,  or  proceedings  to  be  had  or  taken 
against  him,  whereby  any  reasonable  probability 
might  arise  of  tlie  estate  being  extended,  &c.,  the 
estate  should  determine,  and  the  lessor  have 
power  to  re-enler.  A.  B.  died  durtngr  the  term, 
and  by  his  will  devised  the  premises  to  his 
executors  on  certain  trusts.  The  surviving  ex- 
ecutor having  become  bankrupt : — Held,  that  the 
lessor's  right  of  re-enlering  thereupon  accrued. 
Doe  d.  Bridgman  v.  David,  1  C.  M.  &  R.  405 ;  5 
Tyr.125  :  S.  C.  nom.  Doe  d.  Williams  v.  Davis, 
6C.&P.614.  609 

The  converting  of  a  demised  house  into  a  lu- 
natic asylum,  is  not  a  breach  of  a  covenant  not 
to  **U8e  or  exercise  any  trade  or  business  of 
butcher,  baker,  slaughtermi^n,  melter  of  tallow, 
tallow  chandler,  tobacco-pipe  maker,  soap  boiler, 
or  any  other  offensive  trade."  Doe  d.  Wetherell 
V.  Bird,  4  Nev.  dit  M.  285}  2  Adol.  A  Ellis,  161. 

609 

In  snch  a  covenant,  the  words  **  trades"  and 
*'  business,"  must  be  taken  to  be  used  in  differ- 
ent senses,  and  the  former  must  be  confined  to 
businesses  conducted  by  buying  and  selling.  Id. 

The  plaintiffii,  lessees  of  premises  under  a  de- 
mise, with  a  covenant  not  to  suffer  certain  trades 
to  be  carried  on  therein,  amongst  others,  those  of 
a  ^*  common  brewer"  or  *•  retailer  of  beer," 
without  the  licence  of  the  assignor,  underleased 
to  the  defendant  who  covenanted  in  like  manner 
not  to  carry  on  the  trades  prohibited  without  the 
licence  of  the  plaintiffs.  The  defendant  (under 
a  licence  from  the  plaintiffs)  carried  on  the  busi- 
ness of  a  **  retail  brewer"  on  the  demised  pre- 
mises ;  whereupon  the  superior  landlord  brought 
an  ejectment  lor  the  supposed  forfeiture,  which 
not  being  defended,  he  obtained  possession ', — 
Semble,  that  this  recovery  in  the  ejectment  by 
the  superior  landlord,  was  no  answer  on  the  part 
of  the  defendant  to  a  demand  for  rent  by  his 
lessors,  a  **  retail  brewer"  not  being  within  the 
proviso  in  the  original  lease.  Simons  v.  Farren, 
4  M.  &  Scott,  672 ',  I  Bing.  N.  R.  126.  609 

In  covenant  for  non-payment  of  rent  reserved 
by  a  lease  containing  a  clause  prohibiting  the 
carrying  on  of  certain  trades  upon  the  demised 
premises  without  the  licence  of  the  lessor,  the 
defendant  pleaded  that  his  immediate  lessor,  who 
held  under  one  A.  C,  subject  to  a  similar  cove- 
nant, gave  him  a  licence  to  carry  on  one  of  those 
trades,  and  that  by  reason,  and  on  the  ground 
that  the  defendant  so  carried  on  such  trade, 
R.  C  ^*  having  good  right  and  title  to  the  demised 
premises  as  heir  at  law  of  A.  C."  evicted  the  de- 
fendant:— Held,  that,  the  plea  not  negativing 
that  the  trade  was  carried  on  with  the  licence  m 
the  original  lessor,  did  not  disclose  such  right  in 
R.  C.  to  evict,  as  to  afford  an  answer  to  the  plain- 
tiff's  claim  for  rent  Simons  v.  Battley,  1  Scott, 
105.  609 

The  usual  covenants  between  landlord  and 
tenant  will  not  extend  to  covenants  in  restraint 
of  trade.  And  a  stipulation  that  the  nrerai- 
ges  should  not  be  converted  into  a  school  does 


2396 


[CONTRACT] 


not  implj,  and  cannot  be  extended  to,  a  restric- 
tion against  the  carrying  on  of  other  trades.  Van 
9.  Corpe,  3  Mylne  &  Keen,  269.  609 

Maintenarue.l — Agreement  to  lease  the  recto- 
rial tithes  of  a  parish,  including  the  tithes  of 
ninety  acres  supposed  to  be  wiUiin  the  parish, 
but  which  had  not  paid  tithes  to  the  lessor  during 
his  incumbency,  with  a  stipulation  that  the  in- 
tended lessee  would,  within  a  given  time,  take 
such  legal  proceedings  for  the  recovery  of  the 
tithes  of  the  ninety  acres  as  his  counsel  should 
advise: — Held,  not  to  be  within  the  statute  of 
maintenance.  White  r.  Gardner,  1  Y.  &  Col. 
385.  G13 

Courts 7>f  equity  will  give  no  encouragement  to 
contracts  which  savor  of  maintenance, or  cham- 
perty, though  such  contracts  may  not  be  within 
the  strict  legal  limits  assigned  to  those  offences. 
Prosser  v.  Edmonds,  1  Y.  &.  Col.  481.  613 

It  is  not  maintenance  to  purchase  an  interest 
which  is  the  subject  of  a  suit ;  but  if  the  pur- 
chaser give  an  indemnity  against  all  the  costs  that 
have  b^n  or  may  be  incurred  by  the  seller  in  the 
prosecution  of  the  suit,  the  transaction  amounts 
to  maintenance.  Harrington  v.  Long,  2  Mylne 
4d  K.  590.  613 

Where,  after  a  decree  in  a  creditor's  suit,  the 
plaintiff  sold  a  debt  which  he  had  proved  in  the 
cause,  and  took  from  the  purchaser  a  deed  of  in- 
demnity against  all  expenses  which  he  had  in- 
curred and  might  incur  in  the  suit,  and  his 
name  continued  to  be  used  as  plaintiff  in  the  suit, 
together  with  that  of  the  purchaser,  it  was  held, 
that  the  transaction  amounted  to  maintenance, 
and  the  bill  was,  upon  that  ground,  dismissed. 
Id. 

The  defendants  stated,  that  in  consideration 
that  the  plaintiff,  at  the  request  of  the  defendant, 
had  given  the  defendant  a  certain  letter,  by 
means  of  which  he  was  enabled  to  end  disputes 
and  differences  which  had  arisen  between  himself 
and  third  parties,  and  to  recover  certain  propertv, 
the  defendant  promised  to  give  the  plaintiff  lOOOe.: 
— Held,  that  this  declaration  disclosed  a  suffi- 
cient eonsideration  for  the  defendant's  promise. 
Wilkinson  v.  Oliveria,  1  Scott,  461 ;  1  £ing.  N. 
R.  490.  613 

T^e  court  will  not  order  an  attorney  to  repay  a 
sum  of  money  paid  to  him  voluntarily,  under  an 
agreement  to  give  him  one-third  of  what  was  re- 
covered in  an  action,  the  application  not  having 
been  made  until  thirteen  years  after  the  money 
was  paid.  Ex  parte  Yeatman,  4  Dowl.  P.  C.  304 ; 
1  Har.  &  WoU.  510.  613 

Where  an  attorney  agreed  to  save  a  party 
harmless  from  all  costs  of  some  suits,  on  his  being 
allowed  to  retain  half  of  whatever  sums  were  re- 
covered, the  court  nevertheless  ordered  him,  on 
application  of  the  partv  with  whom  the  agreement 
was  made,  to  deliver  his  bill  of  costs  for  the  pur- 
pose of  having  it  taxed.  In  re  Masters,  1  Har.  A 
WoU.  348.  613 

Such  an  agreement  amounts  to  maintenance, 
and  is  illegal.  Id. 

Quere  whether  a  conveyance  by  amignees  of 


a  bankrupt,  where  neither  bankrupt  nor  aasignees 
have  been  in  possession  within  a  year,  amounts 
to  embracery  P  Doe  d.  Oliver  v.  Powell,  3  Nev.  & 
M.  616.  613 


Bankrupts  and  Insolvents.'] — A  fiat  in  bank> 
ruptcy  issuedfagainst  the  defendant  on  the  peti- 
tion of  the  plaintiff.  After  the  fiat,  and  before  the 
choice  of  assignees,  the  plaintiff  obtained  from  the 
bankrupt  his  acceptance  for  part  of  his  debt. 
The  plaintiff  was  ailerwards  chosen  one  of  the 
assignees,  and  the  defendant  obtained  his  certi- 
ficate : — Held,  that  it  was  not  competent  to  the 
plaintiff  to  sue  upon  the  bill;  the  security  beings 
void,  both  as  being  contrary(to  the  policy  of  the 
bankrupt  law  generally,  and  contrary  to  the  spirit 
of  the  8th  sect,  of  the  6  Geo.  4,  c.  16.  Rose  v. 
Main,  1  Scott,  127  ;  1  Ring.  N.  R.  357.  618 

An  agreement  between  a  petitioning  creditor^ 
who  has  sued  out  a  fiat  in  bankruptcy,  and  the 
bankrupt,  that  the  former  shall  abandon  the  pro- 
secution of  the  fiat,  and  that  the  bankrupt  shall 
accept  a  bill  of  exchange  for  a  certain  amount,  is 
illegal,  even  as  between  the  bankrupt  and  the 
petitioning  creditor ;  and  the  bill  of  exchange  ac- 
cepted by  the  bankrupt,  in  pursuance  of  such  an 
agreement,  is  void,  and  no  action  can  be  main- 
tained upon  it.    Davis  v.  Holding,  1  Mees.   db 

Weis  159.  em 

Where  creditors  call  on  a  stranger  to  a  bank- 
rupt's estate  to  be  the  assignee,  and  he,  having 
declared  he  will  not  be  liable  to  costs,  assents  to 
their  appointment,  an  agreement  by  the  peti- 
tioning creditor,  who  was  also  solicitor  to  the 
commission,  to  indemnify  him  a^inst  costs,  is 
not  illegal.  Gilmour  v.  King,  3  fVr.  581 :  1  C. 
&  M.  612.  618 

Plaintiff,  an  attorney,  condnoting  a  commission 
of  bankruptc^r,  having  received  a  debt  due  to 
the  bankrupt,  in  order  to  effect  an  arrangement 
for  a  supersedeas,  undertook  to  pay  the  defendant, 
solicitor  of  the  bankrupt,  the  surplus  of  the  sum 
so  received,  should  any  remain,  after  defraying 
certain  charges  incurred  bpr  the  plaintiff,  if  de- 
fendant would  pay  plaintiff  his  costs  of  conduct- 
ing the  commission  : — Held,  not  a  sufficient  con- 
sideration to  support  an  action  against  Uie  defend- 
ant on  his  promise  to  pay  the  plaintiff's  costs, 
without  an  averment  and  proof  that  the  commis- 
sion had  been  superseded,  as  the  contract  without 
a  supersedeas  was  illegal.  Haslam  v.  Sherwood, 
4  M.  &  Scott,  434  ;  10  Ring.  541.  618 

Ry  5  &  6  Will.  4,  c.  41,  w  much  of  the  6  Geo. 
4,  c.  16,  as  enacts  that  any  note,  bUl,  or  mortgage 
shaU  be  void  by  reason  of  being  given  on  an  agrees 
ment  to  sign  a  bankrupts  certificaie  is  repealed^ 
and  it  is  enacted  instead,  that  suck  securities  skail 
be  deemed  and  taken  to  hare  been  made,  drawn^ 
accepted,  given,  or  executed  for  an  illegal  conside- 
ration on^.  618 

An  agreement  was  made  to  withdraw  the  op- 
position to  a  person's  discharge  under  the  Insol- 
vent Debtor's  Act  on  consideration  of  his  giving 
a  bill  for  the  debt,  and  his  son  guaranteeing  the 
payment  of  it,  and  the  opposition  waa  with- 


[CONTRACT] 


2399 


drawn,  and  ailer  the  discharge  the  bill  was  given : 
— Held,  that  such  bill  was  contrary  to  the  policy 
of  the  losoWent  Debtors  Act;  and  the  party 
having  been  arrested  on  it,  tlie  bail-bond  was 
ordered  to  be  delivered  up  to  be  cancelled. 
Gould  V.  Williams,  4  Dowl.  F.  C.  91 ;  1  Har.  & 
VVoU.  344.  618 

Other  Matters.^ — A  bond  is  good  with  a  con- 
dition to  be  forfeited  if  defendant  sheill  hire  one 
C,  so  as  to  give  him  a  settlement  in  S.,  <&c. 
Whiting  V.  Funchard,  3  Wils.  50.  618 

Where  a  statute  contains  regulations  for  the 
protection  of  buyers  against  the  iraud  of  sellers, 
a  seller  cannot  recover  for  tlie  price  of  goods  sold 
in  contravention  of  the  regulations,  although  the 
statute  does  not  in  terms  prohibit  such  a  sale, 
bat  imposes  a  penalty  upon  the  seller.  Where, 
therefore,  butter  was  sold  in  firkins  not  branded 
according  to  the  provision  of  acts  (36  Geo.  3,  c 
86,  and  38  Geo.  3,  c.  73)  **  to  prevent  abuses 
and  frauds  in  the  packing,  weight,  and  sale  of 
butter,*'  which  require  that  makers  of  vessels  for 
the  packing  of  butter  shall  brand  them  with  their 
names,  under  a  pecuniary  penalty,  and  that  sel- 
lers of  butter  shall,  under  a  further  penalty,  use 
vessels  so  branded,  and  brand  their  own  names : 
— It  was  held,  that  an  action  for  the  price  could 
not  be  maintained.  Foster  v*  Taylor,  3  Nev.  &. 
M.  244  ;  5  B.  &  Adol.  887.  619 

Secus,  in  the  case  of  a  breach  of  mere  revenue 
regulation,  which  is  enforced  by  a  penalty.     Id. 

A  &ctor  selling  a  parcel  of  prize  manufactured 
tobacco,  consigned  to  him  from  his  correspon- 
dent at  Guernsey,  of  which  a  regular  entry  was 
made  on  importation,  but  without  having  entered 
himself  with  the  excise  officer  as  a  dealer  in  to- 
bacco, nor  having  any  licence  as  such,  may  yet 
maintain  an  action  afirainst  the  vendee  for  the 
value  of  the  goods  sold  and  delivered :  and  this, 
though  the  totucco  were  sent  to  the  defendant 
without  a  permit,  at  his  desire :  there  being  no 
fraud  upon  the  revenue,  but  at  most  a  breach  of 
revenue  regulations  protected  by  penalties ;  even 
if  auch  factor  could,  upon  this  single  and  ac- 
cidental instance,  be  considered  as  a  dealer  in 
tobacco  within  the  meaning  of  the  stat.  29  Geo. 
3,  c.  68,  8.  70,  which  requires  every  person  who 
^all  deal  in  tobacco  first  to  take  out  a  license, 
nnder  a  penalty.  Johnson  v.  Hudson,  3 1  East, 
160.  619 

The  court  of  Chancerv  refused  to  carry  into 
effect  a  deed  between  relations,  dividing  the  pro- 
perty of  a  testator,  under  whose  will  they  took 
interests,  (one  of  the  parties  being  also  heir-at- 
law,  and  entitled  to  after-purchased  lands),  con- 
siderable benefits  being  given  up  by  the  heir 
without  consideration ',  it  appearing  on  the  deed 
that  the  parties  did  not  understand  the  extent  of 
their  rights;  and  there  being  evidence  of  the 
mental  imbecility,  habitual  intoxication,  and  ex- 
treme ignorance  of  the  heir-at-law ;  of  his  not 
understanding  the  nature  of  legal  instruments, 
and  of  his  having  no  professional  adviser  at  the 
time  be  executed  the  deed ;  although  no  direct 
fiaad  or  undue  influence  was  proved,  and  the 
partjr  acqnieaoed  for  five  yean.  Dannafe  v. 
White,  1  WU».  C.  C.  67,  ^  614 


Relief  against  a  disposition  of  property  by  the 
intended  wife,  pending  a  treaty  of  marriage,  can 
only  be  given  where  the  husband  has  been  kept 
in  ignorance  of  the  transaction ;  and  semble,  that, 
in  applying  the  principle  upon  which  convey- 
ances made  by  the  intended  wife,  pending  a 
treatyof  marriage,  are  avoided,  on  the  ground  of 
fraud  upon  the  marital  right,  the  court'  will  take 
into  consideration  the  meritorious  object  of  such 
conveyances,  and  the  situation  of  the  intended 
husband  in  point  of  pecuniary  means.  George 
V.  Wake,  1  Mylne  &  K.  610.  611 


Construction.'^ — If  an  agreement  is  in  the  al- 
ternative, and  one  branch  of  the  alternative  can- 
not by  law  be  performed,  the  party  is  bound  by 
law  to  perform  the  other.    Stevens  v.  Webb,  7  C. 


&  P.  60— Parke. 


621 


A.  was  in  custody  on  a  ca.  sa.,  and,  in  consi- 
deration of  the  plaintifiT  consenting  to  his  dis- 
charge, B.  agreed  to  pay  36^  or  to  surrender  A. 
to  the  sheriff;  A.  on  a  subsequent  day  ofiTered  to 
surrender  himself  to  the  sheriff,  who  would  not 
retake  him,  as  the  plaintiff  had  consented  to  his 
discharge  : — Held,  that  the  agreement  was  abso- 
lute for  the  payment  of  the  35/.,  and  that  the 
other  alternative  was  not  satisfied  by  the  offer  of 
the  surrender.    Id. 

A  previous  agreement  will  be  determined  by  a 
later  one,  which  is  necessarily  inconsistent  with 
it  in  effect,  though  not  containing  any  ex- 
press stipulation  in  terms  for  so  superseding  it. 
On  the  28th  of  May,  1831,  plaintiff"  agreed  with 
the  defendant  for  twelve  months  for  the  perform- 
ance of  various  literary  works  to  be  hereailer  in- 
dicted by  the  defendant,  the  plaintiff  to  receive 
from  the  defendant  for  the  same  six  guineas  a 
week,  and  not  to  be  at  liberty  during  Uie  above 
twelve  months  to  engage  in  any  publication  si- 
milar to  *'  The  Court  Journal"  mentioned  in  the 
agreement.  By  agreement  between  the  same 
parties,  dated  14th  of  October,  1831,  the  plain- 
tiff agreed  to  take  on  himself  the  various  duties 
of  editing  the  publication  called  '*  The  Court 
Journal,'  recited  to  be  then  the  entire  property 
of  the  defendant,  and  to  devote  all  his  time  and 
attention  to  the  same,  except  the  hours  he  had 
already  engaged  on  Saturdays  and  Mondays,  to 
superintend  a  paper  named.  The  defendant  f^as 
to  pay  the  plaintiff  10/.  a  week : — ^Held,  that  the 
first  agreement  was  superseded  by  the  second,  so 
that  the  plaintiff  could  not  recover  on  the  firat 
after  the  second  came  into  operation.  Patmoie 
V.  Colburn,  4  Tyr.  840.  621 


An  agreement  on  dissolution  of  partnership, 
to  assign  the  partnership  property  in  considera- 
tion of  50/.  paid,  and  five  bills  for  100/.  each  de- 
livered, is  not  executory,  but  executed.  Ex  parte 
Gibson,  2  Mont.  &,  Ayr.  4.  621 

A  contract  to  sell  mess  pork  of  Scott  &  Co., 
held  to  mean  mess  pork  manufactured  by  Scott 
d^  Co.;  also,  that  evidence  was  admissible  to  show 
the  meaning  that  language  bore  in  the  market. 
Powell  V.  Horton,  2  Bmg.  N.  R.  668.  G21 

I     Where  A.,  for  a  valuable  consideration,  con- 
tracted to  sell  and  plant  70,000  trees,  on  certain 


24001 


[CONTRACT— COPYHOLD] 


lands  of  the  defendant,  and  also  well  and  suffi- 
ciently to  keep  in  order  the  trees  aforesaid,  for 
two  years  next  after  the  plantings  thereof,  and 
that  such  of  them  as  should  die  during  such 
period,  except  from  injury  by  sheep,  game,  or 
cattle,  should  be  replanted  in  tne  autumns  of  the 
two  years  by  him  : — Held,  that  evidence  of  non- 
performance by  A.  of  any  part  of  his  contract, 
py  which  the  trees  had  Become  of  less  value  to 
the  defendant,  was  admissible  to  reduce  the  da- 
ooages  in  an  action  on  the  agreement  for  their 
price,  and  for  planting  them.  Allen  v.  Cameron, 
3  Tyr.  907.  621 

Semble,  that  this  agreement  meant  to  keep  in 
order,  not  by  pruning  only,  but  by  weeding  and 
clearing  the  ground  i£out  the  trees.    Id. 

Semble,  that  if  the  terms  of  an  agreement  are 
equivocal,  and  do  not  distinctly  explain  what  is 
to  be  done  by  either  party,  the  price  may  be 
taken  into  considerarion  in  ascertaining  the  right 
construction,    id. 

A  stipulation  that  judgment  shall  not  be  en- 
tered up  on  a  warrant  of  attorney,  unless  the 
conusor  or  insolvent,  does  not  oust  the  co- 
nusee  from  the  right  to  enter  up  judgment  be- 
fore the  day  specified,  if  the  conusor  be  in  in- 
solvent circumstances,  although  he  may  not  have 
become  bankrupt  or  taken  the  benefit  of  an  in- 
solvent debtors  act.  Biddlecomb  v.  Bond,  5 
Nev.  &M.621.  621 

In  a  contract  for  the  supply  of  goods,  ^  there 
was  a  condition  that  in  the  event  of  the  bank-' 
Tuptcy  or  insolvency  of  the  vendor,  the  contract 
should  be  terminated,  or  if  he  should  be  afHicted 
in  mind  or  body  so  as  to  be  unable  to  carry  on 
his  trade  : — Held,  that  there  was  nothing  in  the 
contract  to  show  that  the  word  ^^  insolvency"  was 
used  in  a  technical  sense,  and  therefore  it  must 
be  understood  in  its  ordinary  import  of  being 
unable  to  pay  his  just  debts.  Parker  v.  Gossage, 
2  C.  M.  &  R.  617;  1  Tyr.  &  G.  105;  1  Gale, 
288.  621 

Indebitatus  assumpsit  for  goods  sold  and  de- 
livered ;  it  is  no  plea  that  the  sale  and  delivery 
were  in  pursuance  of  a  contract,  which  it  was 
adteed  should  be  wholly  rescinded.  Edwards  v. 
Chapman,  4  Dowl.  P.  C.  7o2 ;  1  Mees.  <fc  Wels. 


Chapman, 
S31. 


621 


Proceedings  in  Equity,'] — A  portv  who,  under  a 
misapprehension  of  his  legal  rights,  parts  with 
his  property  for  a  bona  fide  and  valuable,  but  not 
an  adequate  consideration,  cannot  have  the  trans- 
action set  aside  on  the  mere  ground  of  mistake. 
MatshaU  v.  CoUett,  1  T.  &  Col.  232.  623 


COPYHOLD. 

The  heir  may,  without  admittance,  devise  co- 
pyhold estates  decended  upon  him.  King  v. 
Turner,  1  Mylne  &  K.  456.  GSS 

Where  lands  are  held  by  copy  of  court  roll, 
according  to  the  custom  of  the  manor,  they  are 
copyhold  within  the  55  Geo.  3,  c.  192,  although 
they  are  not  held  at  the  will  of  the  lord.    Doe  d 


Edmunds  v.  Llewellyn,  2  C.  M.  di  R.  503 ;  1 
Gale,  193.  624 

By  a  special  verdict  it  was  found,  that  pre- 
vious to  the  passing  of  the  55  Geo.  3,  c.  192, 
there  did  not  appear  upon  the  court  rolls  of  the 
manor,  any  entry  of  a  surrender  of  lands  parcel 
of  the  manor,  and  held  by  copy  of  court  roll 
thereof,  to  such  uses  as  should  be  declared  by 
the  last  will  of  the  person  mdiing  such  surren- 
der, had  ever  been  made  : — Held,  notwithstand- 
ing, that  they  were  within  the  above  statute.    Id. 

Quaere,  whether  a  negative  custom  that  copy- 
hold lands  surrendered  to  the  use  of  a  will, 
should  not  pass  thereby,  is  good  ^    Id. 

A .  surrenders  a  copyhold  to  such  uses  as  B. 
shall  appoint,  and  in  default  of  and  until  ap- 
pointment, to  B.  in  fee  ;  B.  appoints  to  C  The 
lord  is  bound  to  admit  C.  witnout  reouiring  the 
previous  admission  of  B.  Rex  v.  Ounole  (lord  of 
manor),  3  Nev.  «&  M.  484 ;  1  Nev.  &  M.586;  1 
Adol.  &  Ellis,  285.  628 

In  order  to  constitute  the  grantee  of  a  copy- 
hold a  perfect  customary  tenant,  where  the  grant 
is  made  out  of  court,  such  grant  must  be  notified 
at  the  next  customary  court,  or  at  such  other 
subsequent  court  as  the  custom  points  ojit,  and 
must  be  entered  on  the  rolls  of  the  court  Doe  o. 
Whitaker,  3  Nev.  dt  M.  225.  628 

But  it  is  sufficient  if,  having  been  entered  on 
the  court  rolls  at  a  void  court  as  at  a  good  court 
it  appears  on  the  court  rolls  at  a  subsequent 
good  court,  and  be  not  then  objected  to  by  the 
tenants.     Id. 

It  is  no  objection  to  a  copyhold  grant  that  it 
is  made  upon  the  surrender  of  a  former  grantee 
in  remainder,  whose  admittance  had  upon  such 
former  grant  been  expressly  respitea,  and  of 
whose  admittance  at  any  subsequent  time  there 
was  no  entry  in  the  court  rolls.    Id. 

Nor  is  it  an  objection  to  the  grsnt  of  several 
customary  tenements  by  one  copy  of  court  roll, 
that  several  rents  are  reserved,  without  specify- 
ing which  is  reserved  out  of  each  tenement,  it 
appearing  that  former  entire  grants  of  the  same 
several  tenements  have  contamed  similar  entire 
reservations.    Id. 

Nor  is  it  an  objection  that  two  heriots  are  ex- 
pressed to  be  reserved,  where  in  former  grants 
only  one  heriot  has  been  reserved.    Id. 

A  customary  court  cannot  be  held  out  of  the 
manor,  unless  there  be  a  custom  to  warrant  it ; 
and  if  a  court  be  so  held,  all  that  is  done  at  it  ia 
void.    Id. 

But  the  nullity  of  such  court  only  afilecte  such 
things  as  are  required  to  be  done  at  a  court.    Id. 

A  lord  may  grant  to  and  admit  a  copyhold 
tenant,  not  only  out  of  court  but  also  out  of  the 
manor.    Id  . 

A  grant  by  the  lord  in  person  is  good,  although 
it  purport  to  be  made  at  a  court  within  the  manor, 
which  in  fact  was  held  out  of  the  manor.    Id. 

The  steward  of  a  manor  may  take  a  surrendtt 
out  of  court.    Id. 

But  a  steward  cannot  admit  out  of  court    Id. 


[COPYHOLD— COPYRIGHT] 


2401 


Bot  a  rolantaxy  grant  of  a  copyhold,  made  hy 
the  steward  at  a  court  held  off  the  manor,  is 
sufficient  where  such  steward  is  also  clothed  with 
a  power  of  attorney,  which  expressly  authorizes 
him  to  make  voluntary  grants.    Id. 

So,  although  the  grant  purport  to  be  made  by 
sach  steward,  as  steward,  and  witliout  any  re> 
finenoe  being  made  in  the  grant  the  special 
aothority.  Id. 

A  copy  of  court  roll  admitting  a  surrenderee, 
in  trust  ior  the  grantee  of  an  annuity,  there  stated 
to  be  secured  by  the  bond  of  the  purchaser,  and, 
subject  thereto,  to  the  use  of  the  purchaser,-  his 
executors,  administiators,  and  assigns,  requires 
in  id  valorem  stamp  in  respect  of  Uie  purchase 
mouey  expressed  to  be  so  paid  by  the  purchaser 
to  the  surrenderor,  but  witnout  reference  to  the 
annuity — whether  the  statement  is  taken  to  refer 
to  an  annuity  already  granted,  or  to  an  annuity 
to  be  created  in  future.  Doe  d.  Chapeau  v.  Rey- 
nolds, 2  Nev.  &  M.  383.  628 

A  custom  in  a  manor  required  that  the  con- 
sent of  the  husband  to  a  surrender  by  his  wife 
ahonld  be  expressed  in  the  surrender  and  admis- 
Mon ;  a  surrrender  was  made  by  the  wife  at  a  ge- 
nenl  court,  and  the  husband  was  present  at  tnat 
court,  but  in  the  surrender  the  consent  was  not 
expressaed : — Held,  that  the  surrender  was  inope- 
ntire.  Doe  d.  Shelton  v.  Shelton,  4  Nev.  ^  M. 
857;  3  Adol.  &  Ellis,  265 ;  1  Har.  &  WoU.  287. 

Held,  also,  that  the  court  could  not  infer  from 
circumstances  that  the  husband's  consent  had 
been  given.     Id. 

Semble,  that  such  a  surrender  would  not  be 
good,  even  if  the  husband  were  divested  of  all 
property  at  tlie  time.    Id.  628 

A  copyhold  was  surrrendered  to  the  use  of  A.  for 
life;  remainder  to  such  person  or  persons,  and  for 
BQch  estate  or  eatates,  as  A .  should  appoint  by  will, 
executed  in  the  presence  of  and  attested  by  three 
witnesses ;  remainder,  in  default  of  such  appoint- 
ment, to  thft  use  of  A.  in  fee :  afler  &5  Geo.  3,  c. 
192,  A.  devised  to  B.  by  a  will  executed  in  the 
piesence  of*  two  witnesses  only  : — Held,  a  good 
devise  of  the  remainder  in  fee,  and  tliat  the  want 
of  a  surrender  to  the  use  of  this  will  was  aided 
bv  the  statute.  Doe  d.  Hickman  v.  Hickman,  1 
Nev.  &M.  780.  630 

A.,  being  the  owner  of  a  copyhold,  made  a 
etmditional  surrender  of  it,  in  the  year  1826,  to 
W.,  to  secure  money  lent.  In  1832,  A.  sold  the 
copyhold  to  G.,  and  made  a  surrender  of  it  to 
bim  absolutely.  In  1833,  G.  was  admitted  te- 
aant ;  and,  in  J 834,  W.  was  also  admitted  tenant : 
^Held,  that,  on  ejectment  brought  by  W.,  he 
was  entitled  to  recover.  Doe  d.  Wheeler  v.  Gib- 
bons, 7  C.  &  P.  161— Park.  630 

A.  dk  B.,  joint  tenants  of  a  copyhold,  make 
partition  by  parol  without  the  assent  of  the  lord, 
and  after  wards  occupy  in  severalty.  A.  surren- 
ders to  C.  by  general  words. — C.  is  not  entitled 
to  be  admitted  to  the  parcels  occupied  by  A.  in 
ieveralty.    Rex  v.  Southwood,  5  Al.  &  R.  414 

630 


Copyholds  which  have  been  surrendered  to  the 
use  of  the  will,  do  not  pass  by  a  general  devise  of 
the  real  estate,  where  the  will  was  made  before 
the  55  Geo.  3,  c.  192.  Doe  d.  Smith  v.  Bird,  5 
B.  &  Adol.  695 ;  2  Nev.  &  M.  679.  630 

If  in  ejectment  by  the  lord  a^inst  a  copyholder, 
for  a  forfeiture  by  waste,  the  jury  find  there  has 
been  no  damage,  there  is  no  wf^te  and  no  for- 
ieiture.  Doe  d.  Grubb  v.  Borlington  (£arl),  9 
Nev.  dk.  M.  534 ;  5  B.  dk  Adol.  507.  633 

If  a  copyholder  pull  down  a  barn  without  any 
intention  of  rebuilding,  the  lord  cannot  recover 
the  place  from  him  on  the  ground  of  a  forfeiture, 
if  the  jury  find  that  the  premises  are  not  damaged. 

•  A  copyholder  in  fee  surrendered  to  the  use  of 
another  person,  and  afterwards,  and  before  the  ad- 
mittance of  the  Bucrenderee,  committted  and  was 
convicted  of  simple  felony  :  there  being  a  custom 
in  the  manor  that  any  tenant  of  customary  tene- 
ments, who  should  commit  and  be  convicted  of 
felony,  should  forfeit  his  said  tenements  te  the 
lord: — Held,4hat  the  surrenderor,  before  admits 
tance,  was  still  tenant  for  the  purpose  of  forfeit- 
ure, and  that  his  estate  was  forfeited  to  the 
lord,  and  that  the  surrenderee  not  entitled  to  be  ad- 
mitted    Rex  V.  Mildmay,  5  B.   &.  Adol.  254. 

633 

Where  a  copyhold  was  surrendered  to  a  mort- 
gagee and  his  administrators,  and  no  condition 
was  expressed  in  the  surrender,  and  the  mort- 
gagee died  intestate  and  without  an  heir,  it  was 
neld  that  the  lord  of  the  manor  was  entitled  to 
enter  upon  the  copyhold  as  an  escheat.  Att.- 
Gen.  V.  Leeds  (Duke),  2  Mylne    dk   K.    343. 

63a 


COPYRIGHT. 

The  court  of  Chancery  cannot  specifically  per> 
form  an  agreement,  whereby  A.  agrees  to  com- 
pose and  write  reports  of  cases  determined  in  i^ 
court  of  justice,  to  be  printed  and  published  by 
a  particular  individual,  for  a  stipulated  remune« 
ration,  nor  interfere  by  injunction  to  restrain  the 
party  from  permitting  the  reports  written  by  hxm 
to  be  published  by  another  person ;  the  remedy^ 
if  any,  is  at  law.  Clarke  v.  Price.  2  Wils.  C.  6. 
167.  637 

Assumpsit  for  the  copyright  of  a  play.  Plea, 
non  assumpsit : — Held,  that  it  could  not  be  ob- 
jected that  the  assignment  was  not  in  writing,  but 
that  it  ought  to  have  been  specially  pleaded. 
Barnett  v.  Glossop,  1  Scott,  621 ;  1  Bing.  N.  R. 
633;  1  Hodges,  94.  638 

The  assignee  of  the  copyright  of  a  dramatic 
work,  printed  and  published  within  ten  years  of 
the  passing  of  3  dk  4  Will.  4,  c.  15,  and  not  the 
author,  who  has  assigned  such  copyright,  is  en- 
titled to  the  sole  right  of  representmg  the  piece 
or  causing  it  to  be  represented.  Cumberland  v. 
Planche,  3  Nev.  dk  M.  537 :  1  Adol.  6i  Ellis,  580. 

638 

So,  where  the  work  is  printed  and  published 
subsequently  to  the  act,  and  no  reservation  of  the 


M03 


[COPYRIGHT— CORPORATION] 


ri^t  to  the  ezeloaire  vepRaentatkn  m  ezprevl j 
nnde  bj  the  anthor.    id. 

No  action  can  be  maintained  far  pirating  a 
print,  where  the  date  of  the  first  pablicationhas 
not  been  enmred  on  the  plate,  according  to  the 
proriaiona  or  6  Geo.  2  c.  13,  a.  1 ;  the  perform- 
anoe  of  the  directions  of  the  statute  in  that  re- 
spect being  a  condition  precedent  to  the  right  of 
propeitjr  vesting  in  the  proprietor.  Brookes  v. 
Coek,4  Ne¥.  £.  M.  652;  3  AdoL  A  Ellis,  138; 
1  Har.  Jb  WoH.  129.  639 

A.  made  a  copj  of  a  print  invented  by  B.  in 
colors  and  of  larve  demensions,  and  exhibited  it 
as  a  diorama,  llie  coort  refased  to  restrain  the 
exhibition  ontil  the  right  had  been  established  by 
hiw.    Martin  v.  Wright,  6  Sim   297.  639 

Prints  engraved  and  struck   off  abroad,  bat 

foblished  here,  are   not  protected  fh>m  piracy, 
age  V.  Townsend,  5  Sim.  305.  639 

To  pablish  in  the  form  of  qoadrilles  and 
waltzes,  the  airs  of  an  opera  of  which  there  ex- 
ists an  exclosive  copyright,  is  an  act  of  piracy. 
D'Ahnaine  v.  Boosej,  1  f.  &  Col.  289.  cfe 

The  English  aasignee  of  the  copyright  of  a  fo- 
reign mosical  composer  is  within  the  protection 
43€  the  statntes  relating  to  copyright    Id. 

Semble,  that  a  foreigner,  who  resides  and  pub- 
lishes in  England,  is  within  the  like  protection. 
Id. 

By  the  5  ^b  6  Will.  4,  c.  65,  the  author  of  any 
Ueture,  or  person  to  whom  he  hath  sold  or  othenoise 
convent  the  eony  thereof^  in  order  to  dditer  the 
same  in  any  school^  seminary,  institution^  or  other 
fifux,  or  for  any  other  purpose,  is  to  have  the  sole 
right  and  liberty  of  prvnting  and  punishing  such 
Uetvre  ;  and  if  any  person  shall,  by  taking  doton  the 
same  in  short-hand,  or  otherwise  in  vrriting,  or  in 
any  other  way,  chtain  or  make  a  copy  cf  such  lec- 
ture, and  shaU  print,  lithograph,  or  otherwise  copy 
and  publish  the  same,  without  leave  of  the  author 
or  other  person,  ^.,  and  etery  person  who,  knotdng 
the  same  to  have  been  printed  or  copied  and  puS- 
lished  without  such  consent,  shall  sell,  publish,  or 
exffose  to  sale  any  such  lecture,  shall  forfeit  such 
printed  or  otherwise  copied  lecture  or  parts  there- 
of, together  with  one  penny  per  sheet,  to  be  reco- 
vered by  action  of  debt. 

By  H.  2,  the  penalty  is  imposed  for  publication 
in  newspapers. 

Bj  s.  3,  persons  having  leave  to  attend  lec- 
tures are  not  to  be  deemed  to  have  leave  to  publish 
them. 

By  s.  4,  nothing  is  to  prevent  persons  from 
printing  and  publishing  lectures  which  have  been 
prinledand  published  with  leave  of  the  authors  or 
their  assigns,  and  of  which  the  period  of  copyright 
has  expired. 

By  s.  b,  the  act  is  not  to  extend  to  lectures  de- 
livered in  unlicensed  places,  universities,  or  public 
schools  or  colleges,  or  on  anv  public  foundation,  or  by 
any  individual  in  virtue  of  or  accordingto  anygifi, 
endowment,  or  foundation. 


CORPORATIOII. 

Atts  of  CorportOiom,'] — A  member  of  an  in- 
corporate company,  entering  into  a  contract  with 
the  company,  most  be  deemed,  in  respect  of  that 
contract,  a  stranger.  Hill  v.  Waterworks  Co. 
(Manchaster),  2  Key.  &  M.  583;  o  B.  &  Adol. 
866.  642 

In  debt  on  bond  against  a  coporaie  company, 
where  it  is  shown  that  the  bond  has  been  sealed 
with  the  seal  of  the  company  by  the  proper  of- 
ficer, it  is  competent  to  the  defendants,  under  the 
plea  of  non  est  factum,  to  prove  that  several  of 
the  requisitions  of  the  act  necesnry  to  the  vali- 
dity of  the  execution  have  not  been  complied 
with.    Id. 

Quere  whether  a  corporation  can  borrow  mo- 
ney, except  under  seal.'  Wilmot  v.  Coventry 
(CJorp.),  1  Y.  &  Col.  516.  642 

By  5  Will.  4,  c.  39,  a.  13,  every  writ  of  «Km- 
moiw  issued  against  a  corporation  aggregate  may  be 
served  on  the  mayor  or  other  head  i^cer,  or  on  the 
town  derk,  derk,  treasurer ^  or  secretary  of  such 
corporation. 

Seethe^^e  WiU.  4,  c.  76,  the  Municipal  Cor- 
poration Reform  Act. 

A  custom  in  the  city  of  London,  that  a  freeman 
of  the  city  shall  not  set  on  work,  in  the  manual 
occupation  of  a  butcher,  one  who  is  a  foreigner 
to  the  liberties  of  the  city,  is  good.  Shaw  v. 
Poynter,  4  Nev.  <&  M.  290 ;  2  Adol.  A  EUia,  31?. 

658 

When,  in  a  bye-law  of  a  corporation,  making 
certain  regulations,  for  breach  of  which  parties 
are  to  be  liable  to  be  sued  for  a  penalty,  tnere  is 
a  separate  proviso,  making  certain  exceptions, 
a  part^  suing  for  breach  of  the  bye-law  need  not 
aver  m  the  declaration,  that  the  case  was  not 
within  the  exception  in  the  proviso;  but  such 
fact,  if  it  exist,  must  be  shown  by  the  defendant 
by  way  of  excuse.     Id. 


A  corporation  aggregate  may  maintain  _ 
Bumpsit  for  the  use  and  occupation  of  toUa,  al- 
though they  did  not  grant  the  tolls  to  the  occupier 
by  any  instrument  under  their  common  seal. 
Carmarthen  (Mayor,  &c.)r.  Lewis,  6  C.  i&  P.608 
—Parke.  642 

A  corporation  is  liable  in  tort  for  the  tortious 
act  of  its  agent,  though  not  appointed  by  seal, 
if  such  act  be  an  ordinary  service,  such  as  a  dis- 
tress, professedly  made  under  a  stetute,  for  a 
debt  due  to  the  corporation ;  and  a  jury  may  in- 
fer the  agency  from  an  adoption  of  the  act  by  the 
corporation,  as  from  their  liaving  received  the 
proceeds  of  the  seizure.  Smith  v.  Birmingham 
Gas  Comp.,  1  Adol.  &  Ellis,  526;  3  Nev.  &  M. 
771.  643 

By  charter  Edw.  1,  granted  to  the  burgesses  of 
C.,  that  the  constable  of  his  castle  of  C.  for  the 
time  being  should  be  mayor  of  that  borough, 
"  sworn  as  well  to  the  king  as  to  the  burgesses* 
who,  on  oath  for  preserving  the  king's  right 
being  first  taken,  should  swear  to  the  burgesses, 
that  ne  would  preserve  the  liberties  of  the  bur- 


[CORPORATION] 


2403 


maes,  l^tmnted  by  the  said  king,  and  faithfully 
3o  those  things  which  to  the  office  of  mayoralty 
belong,  in  the  said  borough."  By  letters  patent, 
his  present  Majesty  granted  the  office  of  the 
castle  of  C. : — Hela,  tiiat,  until  oath  taken,  ac- 
cording to  the  charter,  the  title  of  the  grantee  is 
incomplete.  Rex  v,  Roberts,  5  Nev.  ^  M.  130  ; 
1  Har.  &  WolL  444.  655 

The  grantee  of  an  office,  for  which  an  oath  is 
a  necessary  qualification,  but  which  may  be  exe- 
cuted by  deputy,  cannot  appoint  a  deputy  until 
be  has  been  sworn.    Id. 

A  party  is  appointed  during  pleasure,  by  Ict- 
feia  patent  of  Kin^  Geo.  3,  to  an  office  which 
cannot  be  executed  until  oath  taken.  He  takes 
the  oath,  and,  by  operation  of  57  Geo.  3,  c.  45, 
and  6  Anne,  c.  7,  s.  8,  is  continued  in  office 
until  six  months  afler  the  death  of  Geo.  4,  and, 
by  the  operation  of  1  Will.  4,  c.  6,  until  six 
months  after  the  passing  of  that  act.  Before  the 
expiration  of  the  last-mentioned  period,  he  is  by 
letters  patent  again  appointed  to  the  office : — 
He  cannot,  afler  this  second  appointment,  exe- 
cute the  office  until  the  oath  be  again  taken.    Id. 

Qusre,  whether  an  officer  in  the  situation  of 
the  constable  of  the  castle  of  Carnarvon  can  ap- 
point a  deputy  to  be  mayor  of  the  borough,  and, 
if  so,  whether  the  appointment  must  be  by  deed  ? 
Id. 

QjnalifiaUion  and  ElectUm  of  MenUfers.'] — Ac- 
ceptance of  incompatible  office.  Rex  s.  Patteson, 
1  Nev.  Sl  M.  612 ;  4  B.  &  Adol.U  649 

Where  a  statute  directs  an  election  by  poll, 
semble,  that  the  poll  may  be  taken  from  the 
faofding  up  of  electors'  bands  ;  but  if  the  tellers 
appointed  to  take  the  number  diffi?r,  and  a  poll  is 
demanded  and  refused,  the  court  will  grant  a 
mandamus  to  enter  an  adjournment  of  the  election 
meeting,  and  to  proceed  to  complete  the  election. 
Bex  v/BL  Lukc^,  2  Nev.  &,  M.  464.  115 

To  impeach  the  election  of  a  party  returned 
as  elected,  it  is  not  sufficient  to  allege  that  many 
▼Dies  were  bad  and  fictitious,  without  showing 
that  some  other    candidate  had  a  majority  of 
legal  Yotes.    Rex  v,  Jefferson,  2  Nev.  &  M.  487. 

651 

On  a  motion  for  a  quo  warranto  information, 
aa  affidavit  statinj^  the  relator's  information  and 
belief  that  the  officer  was  elected  at  a  court  held 
on  a  certain  day,  and  there  was  not  at  the  court 
where  he  was  elected  as  aforesaid  a  proper  num- 
ber of  electors  present,  is  answered  if  it  be  sworn 
that  there  was  a  proper  number  of  electors  at  the 
eoort  held  <ni  the  specified  day,  and  that  the  of- 
ficer was  not  elected  at  that  court.  Rex  v.  Rolfe, 
4  B.  &  Adol.  840;  1  Nev.  &  M.  773.  651 

The  officer  is  not  bound  to  answer  for  the  pro- 
eeedings  of  an  y  other  day  than  that  specified  by 
the  relator.     Ici. 

Where  it  is  granted  by  charter  that  a  corpora- 
tion shall  have  so  many  aldermen  and  so  many 
capital  burgesses,  and  that  when  one  of  the  latter 
shall  die,  depart,  or  be  removed,  another  shall  be 
elected  in  his  place  by  '*  the  mayor  and  aldermen 

Vol.  IV.  17 


and  other  capital  burgesses  then  surviving  or 
remaining,  or  the  greater  part  of  them  ;^'  the 
election  must  be  made  by  a  majority  of  the  full 
members,  of  aldermen  and  of  capital  burgesses;  a 
mere  majority  of  the  members  of  both  bodies  who 
happen  to  survive  is  not  sufficient.  Rex  v.  May, 
4  B.  ^&.  Adol.  843.  651 

By  charter  of  Car.  2,  there  were  to  be  in  the 
borough  of  S.  a  mayor,  aldermen,  and  twenty-four 
capital  burgesses ;  on  the  death  or  removal  of  an 
alaerman,  uie  mayor  and  aldermen,  or  the  greater 
part  of  them,  were  to  elect  a  capital  burgess  to 
supply  his  place  ;  when  a  capital  burgess  died, 
<&c.,  the  mayor,  aldermen  and  capital  burgesses, 
or  the  greater  part  of  them,  were  to  elect  a  suc- 
cessor from  among  the  inhabitants  and  burgesses ; 
and  the  mayor  was  to  be  annually  elected  on  a 
certain  day, "  by  the  burgesses  of  the  said  borough, 
or  the  greater  number  of  them,"  with  the  con- 
sent of  twenty -four  freeholders  and  inhabitants,  to 
\xi  chosen  as  directed  by  the  charter :  in  practice, 
the  mayor  had  always  been  elected  by  tbe  capital 
burgesses  only.  At  the  election  of  mayor  on  the 
charter- day  in  1832,  there  was  not  a  majority  of 
the  number  of  twenty-four  capital  burgesses  pre- 
sent, and  no  other  burgesses  attended : — Held, 
that  this  did  not  avoid  the  election,  for  that  the 
word  "  burgesses"  in  the  charter  (where  it  treat- 
ed of  the  election  of  mayor)  could  not  be  con- 
strued to  mean  only  capital  burgesses ;  that  the 
right  of  election  did  not  devolve  upon  the  body 
of  capital  burgesses  by  the  mere  forbearance  of 
the  other  burgesses  to  mterfere ;  and  that  the  ca- 
pital burgesses,  inflecting  the  mayor,  acted  in  the 
capacity  of  burgesses  merely.  Rex  v.  Goldsmith, 
4  B.  &  Adol.  b35.  651 

A  declaration  for  a  penalty  under  the  5  &  6 
Will.  4,  c.  76,  s.  54,  forbrioing  a  voter  in  the 
election  of  councillors,  "  by  corruptly  promising 
to  give  him  employment  m  hauling  stones  at 
certain  hire,  as  and  for  a  reward  to  give  his  vote 
for"  particular  candidates,  was  held  good  on  de- 
murrer ;  for  an  employment  is  a  reward  within  the 
latter  as  well  as  the  former  branch  of  that  section  ; 
and  whether  the  employment  in  the  particular 
case  was  given  by  way  of  corrupt  bargain,  was 
a  question  for  the  jury ;  but  the  court  must  assume 
that  such  was  the  case,  a  corrupt  agreement 
being  sufficiently  alleged  in  the  ueclaration  :^— 
Held  also,  that  an  allegation  that  an  election  of 
councillors  took  place  under  the  act,  and  that  the 
defendant,  not  rej^arding  the  statute,  corrupted 
the  party  to  vote  m  such  election,  was  a  suffi- 
cient statement  that  the  offence  was  committed 
after  the  passing  of  the  act.  Harding  17.  Stokes, 
1  Mces.  ^  Wek.  354.  655 

On  motion  for  a  mandamus  to  the  master  and 
wardens  of  an  incorporated  mercantile  company 
of  the  city  of  London,  to  call  a  meeting  of  the 
company  at  the  next  annual  day  of  election,  for 
the  purpose  of  electing  a  master  and  warden 
according  to  the  charters,  it  being  suggested  as 
the  ground  of  motion,  that  the  said  omcers  were 
at  present  improperly  elected  by  a  part  only  of 
the  company,  instead  of  the  whole  body — the 
court  refused  the  writ.  Rex  r.  Attwood,  i  B.  ik 
I  Adol.  481 ;  1  Nev.  &  M.  286.  651 


2404 


[CORPORATION— COSTS] 


On  motion  for  a  quo  warranto  affainst  the  mas- 
ter ^elected  in  the  manner  complamed  of,  it  ap- 
peared that  tlie  practice,  as  far  as  it  coald  be 
traced,  from  the  year  1488,  had  been  for  the 
master,  wardens,  and  a  body  called  the  court 
of  assistants  (which  had  varied  in  number  from 
twenty -four  to  forty),  to  elect  the  master,  and 
tliat  he  had  usually  bein  elected  out  of  the  court 
of  assistants,  and  not  out  of  the  general  body ; 
the  assistants,  besides  belonging  to  the  court,  had 
the  same  qualifications  for  being  elected  as  the 
other  members  of  the  company.  In  some  in- 
stances, but  it  was  not  stated  how  many  or  when, 
persons  had  been  elected  who  were  not  of  the 
court.  The  company  had  existed  from  time  im- 
memorial. By  a  charter  of  Ric.  2,  they  were 
empowered  to  elect  a  master  de  seipsis  when  and 
as  they  should  please ;  and  by  a  charter  of  18 
Hen.  7  (1502)  all  their  liberties,  franchises,  and 
customs  were  confirmed : — Held,  that  if  one  en- 
tire by-law  were  to  be  presumed,  for  the  master, 
wardens,  &c.  to  elect,  and  to  elect  out  of  a  restrict- 
ed body,  the  latter  part  of  such  by-law  would  be 
bad  and  vitiate  the  whole,  but  that  no  ground  was 
laid  for  presuming  such  by-law,  inasmuch  as  the 
election  from  the  particular  body  might  have  been 
in  every  instance  by  choice,  and  not  under  any 
particular  rule :  and  further,  it  appeared  that 
there  were  exceptions,  although  tliese  were  not 
specifically  stated ;  and  that  even  the  practice  of 
electing  by  a  limited  body  was  not  necessarily  to 
be  presumed  part  of  a  by-law,  as  it  might  have 
been  a  custom  incorporated  by  reference  in  the 
charter  of  Hen.  7.  Id. 

A  custom  in  a  borough  for  the  leet  jury  of  the 
borough,  beinff  also  the  leet  jury  of  a  manor,  to 
elect  the  members  of  the  corporation  in  whom 
the  government  of  the  borough  is  vested,  is  a 
reasonable  and  legal  custom,  although  the  manor 
and  borough  are  not  shown  to  be  co-extensive. 
Rex  V.  Beaufort  (Duke),  2  Nev.  &  M.  815 ;  5  B. 
&  Adol.  442.  655 

An  afiidavit,  stating  that  the  court  of  may  or  and 
aldermen  had  again  determined  that  A.  B.  was 
not  a  fit  and  proper  person  to  be  admitted,  is  no 
ground  for  refusing  a  mandamus,  because  the 
prosecutor  has  a  right  to  have  the  facts  stated  in 
the  return,  in  order  that  he  may  have  an  oppor- 
tunity of  controverting  the  trutii  of  them;  at  all 
events,  the  affidavits  in  answer  to  the  rule  ought 
to  show  that  the  court  of  mayor  and  aldermen 
had,  on  the  second  occasion,  come  to  the  conclu- 
sion tliat  A.  B.  was  not  a  fit  and  proper  person  to 
be  admitted  to  the  office,  on  a  fresh  investigation. 
A  mandamus  having  issued,  the  return  stated 
that  A.  B.  was  elected  by  a  majority  of  votes, 
and  returned  as  so  elected  to  the  court  of  mayor 
and  aldermen ;  that  a  petition  was  presented  to 
that  court  against  his  admission  to  the  office, 
whereupon  they  examined  the  merits  of  the  peti- 
tion according  to  custom,  and  determined  that  he 
was  not  a  fit  and  proper  person  to  be  admitted  to 
the  oflico,  nor  duly  elected  ;  and  further,  that  he 
was  not  in  fact  duly  elected  : — Held,  that  this 
return  was  not  inconsistent.  Rex  r.  London 
(Mayor),  5  B.  ^t  Adol.  233.  656 

Semble,  that  a  town  clerk  is  not  bound  to  allow 
inspection  of  the  voting  papers  delivered  at  the 


election  of  councillors,  under  5  &  6  Will.  4,  c.  76» 
to  more  than  one  burgess  at  a  time.  Rex  v. 
Arnold,  6  Nev.  &  M.  152.  655 

Nor  to  allow  any  burgess  to  have  more  than 
one  of  such  voting  papers  in  his  hand  at  the  same 
time.    Id. 

But  that  he  is  bound  to  allow  any  burgess,  who 
brings  with  him  a  list  of  the  bureesses,  to  make 
marks  upon  such  lists,  denoting  how  each  voter 
appears  by  the  voting  paper  to  have  given  his 
vote.     Id. 


COSTS. 

Generally.] — It  is  not  competent  to  an  attorney 
who  has  not  been  inrolled  to  sue  for  any  fees  or 
disbursements  ;  where,  therefore,  the  defendant's 
attorney  (duly  qualified  in  other  respects  to  act 
as  an  attorney)  had  omitted  to  cause  himself  to 
be  inrolled,  and  the  defendant  had  made  no  ad- 
vance on  account  of  the  suit — the  court  allowed 
the  plaintiff  to  discontinue  without  costs.  Hum- 
phreys V.  Harvey,  2  Dowl.  P.  C  827 ;  4  M.  A 
Scott,  500 ;  1  Bing.  N.  R.  62.  661 

A  pauper  plaintiff  in  an  action  of  trespass, 
who  gets  only  a  farthing  damages,  is  entitled  to 
full  costs,  and  not  merely  to  costs  out  of  pocket. 
Gougenheim  v.  Lane,  4  Dowl.  P.  C.  482 ;  1  Mees. 
&  Wels.  136.  661 

Qusre,  whether  the  officers  are  entitled  to  any 
fee  against  a  pauper  ?  Id. 

The  costs  of  a  motion  by  a  female  defendant  to 
be  discharged  out  of  custody  on  the  ground  of 
coverture,  or  that  she  has  been  arrested  by  a 
wronff  name,  are  not  costs  in  the  cause,  and 
therefore  not  taxable  on  a  discontinuance  of  the 
action.  Mummery  v.  Campbell,  4  M.  &  Scott,  379 ; 
2  Dowl.  P.  C.  798 ;  10  Bmg.  511.  663 

By  the  10  Geo.  4,  c.  44,  s.  41,  where  an  action 
is  brought  against  any  member  of  the  metropo- 
litan police,  for  any  thing  done  in  pursuance  of 
that  act,  and  the  defendant  recovers  a  verdict,  or 
the  plaintiff  is  nonsuited  or  discontinues,  the 
defendant  is  entitled  to  costs  as  between  attorney 
and  client: — Held,  that  this  provision  is  not 
affected  by  the  3  A  4  Will.  4,  c.  42,  s.  32}  and 
therefore,  that,  where  such  persons  are  made 
defendants  with  others,  the  judge  has  no  power 
to  certify  that  there  was  reasonable  cause  for 
making  them  defendants,  in  order  to  deprive 
them  of  costs.  Humphrey  v.  Woodhouse,  1  Scott, 
395;  1  Bing.  N.  R.  506;  3  Dowl.  P.  C.  416; 
1  Hodges,  64.  663 

The  form  provided  by  Reff.  Gen.  1  W.  4,  and 
entitled  "  Common  Counts,  constitutes  separate 
counts  as  well  for  the  purposes  of  pleading  as  of 
taxation  of  costs.  (See  Reg.  Gen  of  Pleading, 
Hil.  4  W.  4,  No.  5).  Jourdan  v.  Johnson,  5  Tyr. 
524 ;  4  Dowl.  P.  C.  534 ;  1  Gale,  312.  ()63 


Motions  and  Rul^s.l — Where  a  motion  was 
made  to  compel  a  defendant  to  produce  an  instru- 
ment to  have  it  stamped,  the  court,  on  making 
the  rule  absolute,  refused  to  allow  more  costs 
than  the  plaintiff  would  have  been  entitled  to  if 
the  application  had   been  made  to  a  judge  aft 


[COSTS] 


2405 


thambeiB.    Vaoffhan  v.  Trewent,  2  Dowl.  P.  C. 
299.  662 

Where  a  party  ahows  cause  succesafullj  in  the 
first  instance,  he  is  not  entitled  to  costs.  Fitch 
15.  Green,  2  Dowl.  P.  C.  439.  162 

The  Court  of  Exchequer  discharged  a  rule 
which  had  been  obtained  without  costs,  althou^ 
moved  with  costs.  Bleasdale  v.  Darby,  9  Price, 
606.  im 

If  a  cause  standing  in  the  paper  is  postponed 
on  payment  of  costs,  the  defendant  is  not  entitled 
to  more  costs  than  he  would  have  been  if  the 
record  had  been  withdrawn.  Walker  v.  Lane, 
3  Dowl.  P.  C.  504 ;  1  Gale,  52.  662 

If  a  rule  is  drawn  up  in  the  alternative,  the 
party  who  fails  on  the  substantial  question  is  not 
entitled  to  the  costs  of  the  rule,  although  he 
sooceeds  upon  the  alternative.  M 'Andrew  v. 
Adam,  1  Scott,  99 ',  1  Bing.  N.  R.  270 ;  3  Dowl. 
F.  C.  120.  662 

If  the  plaintiff  recover  a  verdict  in  an  action 
OB  the  case,  and  endeavor,  on  a  rule  nisi  being 
obtained  ibr  a  nonsuit  or  to  reduce  the  damages, 
to  support  his  verdict  to  the  extent,  although  he 
be  held  entitled  to  nominal  damaees,  he  is  not 
entitled  to  the  costs  of  the  rule,  he  having  in 
substance  failed  in  his  opposition  to  it.    Id. 

Unless  he  gives  notice  to  the  opposite  party  of 
his  intention  to  abandon  the  other.    Id. 

Where  a  rule  is  discharged  on  a  preliminary 
abjection  to  the  title  of  the  affidavit,  supporting 
the  rale  obtained  for  setting  aside  proceedings  on 
the  groand  of  irregolaiity,  the  court  has  discre- 
tioo  as  to  the  costs  of  the  application.  Harris  v. 
Mathews,  4  Dowl.  P.  C.  606.  662 

Where  a  rule  is  dischar^d  on  a  technical  ob- 
jection taken  to  an  affidavit,  without  going  into 
the  merits,  no  costs  are  allowed,  rreedy  v. 
iiovell,  4  Dowl.  P.  C.  671.  662 

The  role  of  1796  concerning  costs  on  rules 
discharged  without  any  restriction  as  to  costs,  is 
strictly  confined  to  applications  on  the  ground  of 
ineguiarity,  either  mentioned  in  the  rule  or  in 
the  affidavits.  In  all  other  cases  where  rules  are 
moved,  with  costs,  and  charged  generally  without 
saying  any  thinf  about  costs,  the  successful  party 
wiU  not  be  entiued  to  them.  A  special  direction 
mast  be  given  by  the  court  to  enable  him  to  ob- 
tein  them.    Drinker  v.  Pascoe,  4  Dowl.  P.  C. 

662 


The  costs  of  enlai^ng  a  peremptory  under- 
taking on  account  or  the  absence  of  a  material 
witness,  must  be  paid  by  the  defendant,  and  are 
not  coats  in  the  cause,  rercival  v.  Bird,  4  Dowl. 
P.  €.748.  662 

Stanumses  and  Orders,'] — A  judge  at  chambers 
1ms  power  to  give  costs  upon  a  summons ;  but 
this  power  will  only  be  in  extreme  cases.  Bridge 
T.  Wright,  4  Nev.  &  M.  5 :  S.  C.  nom.  In  re  Bridge, 
SAdoLdt  Ellis,  48.  632 

The  court  will  not,  unless  a  strong  case  be 
mde  oat,  review  the  decision  of  a  judge  at 
ehambers,  as  to  costs.  Sheriff  v»  Gresley,  5  rtev. 
&  M.  491 ;  1  Har.dk  Wol.  588.  662 

Where  a  judge  at  chambers  declines  to  give 


costs  on  a  summons,  the  court  will  not  ailern^ards 
entertain  an  application  on  the  subject  of  such 
costs.  Davy  v.  Brown,  1  Scott,  384 ;  1  Bing.  N. 
R  460;   1  Hodges,  22.  662 

Qusre,  whether  a  judge  at  chambers  has 
power,  during  term,  to  order  the  attorney  to  pay 
the  costs  of  irregular  proceedings  ?  Wilson  v.  Nor- 
thorp,  4  Dowl.  P.  C.  441.  662 

An  order  of  a  ludge  at  chambers  was  obtained 
in  term,  for  settmg  aside  an  irregular  judgment, 
with  costs ;  the  costs  were  taxed  upon  the  order, 
which  was  then  made  a  rule  of  court,  and  then  a 
personal  application  was  made  of  tiie  amount: — 
Held,  that  this  was  the  regular  mode  of  proceed- 
ing.   Id. 

Costs  of  the  Day.] — A  proposal  to  reier,  made 
after  the  commission  day,  held  not  to  warrant 
the  plaintiff  in  not  proceeding  to  trial,  and  that 
he  was  liable  to  pay  the  costs  of  the  day.  Eaton 
e.  Shuckburgh,  2  Dowl  P.  C.  624.  667 

If  a  pauper  withdraws  his  record  because  he  is 
not  prepared  with  a  certain  necessary  document 
at  the  assizes,  the  court  will  compel  nim  to  pay 
the  costs  of  the  day.  Doe  d.  Lindsey  v.  Edwards, 
2Dowl.  P.  C.  471.  667 

A  rule  requiring  a  pauper  to  'pajr  the  costs  of 
the  day,  for  not  proceeding  to  trial,  is  nisi  in  the 
first  instance.    Id. 

Costs  of  the  day  for  not  proceedingr  to  trial 
may  be  moved  for,  though  the  plaintiff  has  sub- 
sequently tried  his  cause,  ffot  a  verdict,  signed 
final  judgment,  and  taxed  his  costs.  Reditp. 
Lucock,  2  C.  dt  M.  337 ;  4  Tyr.  281.  667 

The  motion  for  costs  for  not  proceeding  to 
trial  is  for  a  rule  to  be  absolute  in  four  days,  un- 
less cause  is  shown  in  the  mean  time.  Robinson 
V.  Robinson,  3  Dowl.  P.  C.  177.  667 

In  order  to  ground  an  application  for  costs  of 
the  day,  upon  a  rule  for  judgment  as  in  case  of  a 
nonsuit  being  discharged  on  a  peremptory  under- 
taking, it  is  necessary  that  it  should  appear  by 
affidavit  that  costs  have  been  incurred.  Ray  v. 
Sharp,  4  Dowl.  P.  C.  354.  667 

In  discharging  a  rule  for  judgment  as  in  case 
of  a  nonsuit  on  a  peremptory  undertaking  the 
court  will  order  payment  or  costs  of  the  day, 
'Mfany,"  although  the  defendant's  affidavit  do 
not  show  that  any  costs  have  been  incurred.  Doe 
d.  Humphreys  v.  Owen,  1  Mees.  Jk,  Wels.  321. 

667 

But  not  where  his  affidavit  shows  that  none 
could  have  been  incurred ;  as  where  it  states  that 
notice  of  trial  was  duly  countermanded.    Id. 

CouHs  of  Requests  ^cts.] — Under  the  London 
Court  of  Requests  Act,  it  is  no  objection  to  the 
defendant's  claim  for  costs,  that  the  plaintiff  was 
unaware  that  the  defendant  resided  within  the 
jurisdiction.   Crowder  v.  Bell,  2  Dowl.  P.  C.  508. 

667 

Where  a  verdict  was  given  for  22.  8s.  6d.  for 
goods  sold,  afler  deducting  41. 19s.  6d.  for  tuition 
and  money  payments  : — Held,  that  the  claim  was 
a  balance  of  an  account  on  demand  originally 
exceeding  52.  within  47  Geo.  3,   sess.    1,  c.  4, 


S406 


[COSTS] 


(Blnckheath  Act)  ;  and  therefore  that  noauggev- 
tion  to  deprive  the  plaintiff  of  costs  could  Iw  en- 
tertained. Moreau  r.  Hicks,  2  Adol.  &  £lli(i,782; 
4  Nev.  ^(c  M.  563 ;  1  Har.  &  WoU.  87.  667 

Where  a  Court  of  Requests  Act  applies  to 
defendants  residing  yithin  the  jurisdiction,  the 
affidavit  of  a  defendant  applyinfir  to  enter  a  sug- 
gestion to  deprive  the  plaintin  of  costs,  ought  to 
show  that  the  defendant  was  residing  there  at  the 
time  of  action  brought,  as  well  as  merely  de- 
scribing him  as  resident  there  at  the  time  of  affi- 
davit sworn.    Id. 

If  a  defendant,  liable  to  be  sued  in  the  West- 
minster court  of  Requests,  omits  to  plead  the 
statute  (21)  Geo.  2,  c.  U7)  in  bar  of  a  suit  in  a  su- 
perior court,  or  to  apply  for  a  nonsuit  at  the  trial, 
on  the  ground  that  the  claim  is  less  than  40^-,  the 
court  will  not  afler  verdict  enter  a  suggestion  to 
deprive  the  plaintiff  of  his  costs.  Clarke.  Ham- 
let,! Har.  &  WoU.  177.  667 

The  4  Geo.  3,  c.  123,  repeals  the  previous 
Southwark  Court  of  Requests  Acts,  as  to  de- 
priving a  plaintiff  of  costs  where  he  recovers  lem 
than  AOs.  Claridge  v.  Smith,  4  Dowl.  P.  C. 
583.  667 

Where  it  appears  upon  the  record  that  the  debt 
sought  to  be  recovered  is  under  40s.,  and  that  the 
defendant  resides  within  the  operation  of  a  Court 
of  Requests  Act,  which  gives  costs  to  a  defen- 
dant if  the  plaintiff  proceeds  in  a  superior  court 
and  recovers  less  than  40^.,  a  suggestion  is  un- 
necessary.   Deiries  v,  Snell,  4  Dowl.  P.  C.  680. 

667 

The  defendant  pleaded  payment  of  II.  I8s.  into 
court  in  satisfaction  of  tne  cause  of  action,  and 
the  plaintiff  took  the  money  out  of  court: — Held, 
that  the  defendant  was  not  entitled  to  enter  a  sug- 
gestion on  the  roll  to  deprive  the  plaintiff  of  costs 
on  the  ground  that  the  action  was  brought  to  re- 
cover a  less  sum  than  40*.,  and  therefore  recover- 
able in  the  county  court.  Tarrant  v.  Morgan, 
2  C.  M.  &  R.  253 :  S.  C.  nom.  Ferrantv.  Morgan, 
1  Gale,  156.  666 

A  jdefendaiH  is  not  entitled  to  enter  a  sugges- 
tion for  double  costs  under  the  Middlesex  Countj 
court  Act,  23  Geo.  2,  c.  33,  where  the  debt  is 
reduced  below  the  sum  of  40*.  by  a  set  off. 
Jenkinson  v.  Morton,  1  Mees.  &  Wels.  300.    668 

Previous  to  making  an  application  with  respect 
to  costs  under  the  Xiondon  Court  of  Requests 
Act,  it  is  not  necessary  to  have  the  record  in 
court    Kidd  v.  Mason,  3  Dowl.  P.  C.  85.        669 

Since  the  Uniformity  of  Process  Act,  2  Will.  4, 
c.  39,  an  attorney  can  no  longer  sue  by  attach- 
ment of  privilege  ;  and  therefore,  though  he  sues 
in  his  own  court  as  a  common  person,  the  court 
will  not  enter  a  suggestion  on  the  roll  to  deprive 
him  of  costs  for  not  suing  in  the  Middlesex 
court  of  Requests.  Wright  v.  Skinner,  1  Mees. 
A  Wels.  144 ;  4  Dowl.  P.  C.  745.  669 

The  defendant  is  now  at  liberty  to  move  to 
have  a  suggestion  entered  under  the  Court  of 
Requests  Act,  to  deprive  the  plaintiff  pf  costs, 
notwitlistanding  final  judgment  may  have  been 
signed,  if  the  motion  is  made  as  early  as  can  be, 
and  particularly  if  it  appears  that  the  costs  have 


not  been  taxed.    Godson  v.  Lloyd,  4  Dowl.  P.  C 
157.  669 

A  defendant,  by  consenting  to  a  cause  being 
tried  before  the  undcr*sherin,  under  the  Writ  of 
Trial  Act,  knowing  at  the  time  that  he  was 
liable  to  be  sued  in  a  local  court  only,  does 
not  thereby  waive  his  right  to  claim  costs  from 
the  plaintiff  upon  his  recovering  less  than  bl, 
Shaw  V.  Gates,  4  Dowl.  P.  C.  720.  €69 

A  local  act  gives  treble  costs  to  a  defendant 
who  is  sued  for  less  than  52.  in  any  other  than 
the  local  court,  so  as  it  shall  appear  to  the  judge 
or  judges  of  the  court  where  the  action  is  tried 
that  the  debt  is  under  bl.,  and  the  defendant 
shall  give  evidence,  to  be  allowed  of  by  the  judge 
of  the  court  where  such  action  is  brought,  that 
the  defendant  is  resident  within  the  local  juris- 
diction. The  cause  is  tried  by  the  under-sheriff, 
under  the  Writ  of  Trial  Act,  and  the  defendant 

fives  evidence  of  his  residing  in  tlie  local  juris- 
iction,  and  the  plaintiff  recovers  less  than  bl. 
Quojrc,  whether  tne  court  above  can  give  costs 
to  tlic  defendant  under  the  act .'  Id. 

On  tlie  trial  of  an  action  upon  a  special  con- 
tract with  the  money  counts,  evidence  is  given  of 
a  special  contract,  but  the  jury  find  a  general 
verdict  for  31*.,  being  the  precise  amount  which 
the  plaintiff  would  have  been  entitled  to  recover 
under  the  count  for  money  had  and  received ;  the 
defendant  is  not  entitled  to  the  entry  of  the  sug. 
gestion  on  the  roll,  tliat  the  action  was  brought 
for  a  debt  not  amounting  to  40*.,  in  order  to  de- 
prive the  plaintiff  of  costs  under  the  provisions  of 
a  Court  of  Requests  AcL  The  court  are  bound 
by  the  record  as  returned  by  the  under-sheriff. 
Mansfield  v.  Brearey,  3  Nev.  &  M.  471 ;  1  Adol. 
&  Ellis,  347.  669 

In  an  affidavit  supporting  an  application  for 
double  costs  under  the  23  Geo.  2,  c.  33,  s.  19, 
(the  Middlesex  County  Court  Act^,  it  must  be 
stated  that  the  defendant  is  liable  to  be  summoned 
to  the  county  court.  Foster  v.  Godfrey,  2  Dowl. 
P.  C.  587 :  S.  P.  Unwin  v.  King,  2  Dowl.  P.  C. 
492.  669 

In  order  to  deprive  a  plaintiff  of  his  costs,  un- 
der the  Middlesex  County  Court  Act,  the  appli- 
cation must  be  made  before  final  judgment 
Unwin  r.  King,  2  Dowl.  P.  C.  593.  670 

On  an  application  to  enter  a  suggestion  under 
the  London  Court  of  Requests  Act,  it  was  sworn 
that  the  defendant  had  a  house  and  warehouse  in 
the  city,  in  which  his  partner  and  servants  re- 
sided, and  that  he  carried  on  business  on  his  own 
account,  in  partnership  with  his  brother  as  a  silk 
broker,  and  sought  his  livehhood : — Held,  that 
that  was  a  sufficient  seeking  a  livelihood  within 
the  statute.  Bond  v.  Bailey,  2  C.  M.  &  R.  246; 
3  Dowl.  P.  C.  808 ;  1  Gale,  162.  670 

It  is  not  necessary  to  state  when  the  action 
was  commenced,  if  it  appears  that  the  defendant 
was  then  within  the  jurisdiction.  Id. 

It  makes  no  difference  that  the  cause  was  tried 
before  the  sheriff.  Id. 

Where  the  verdict  was  obtained  in  vacation, 
application  may  be  made  to  enter  a  suggestion 


[COSTS] 


2407 


tfier  final  jadgment  si^ed  and  execution  issued. 


43  Eliz.  c.  6.] — In  ui  action  of  trespass  against 
several  defendants,  two  suffered  judgment  by  de- 
&ult;  and  the  jury  who  tried  the  cause  assessed 
the  images  ajgrainst  them  at  a  farthing  : — Held, 
that  the  judge  might  certify  to  deprive  tlie  plain- 
tiff of  costs,  as  against  these  parties,  under  43 
Elix.  c.  6,  B.  2.  Harris  v.  Duncan,  2  Adol.  & 
ElliB,  158 ;  4  Nev.  &  M.  63.  670 

*  A  abertfi'or  judge  of  an  inferior  court,  to  whom 
a  cauae  is  sent  by  writ  of  trial,  under  3  &  4  Will. 
4,  c.  42,  s.  17,  has  no  power  of  certifying  to 
deprive  of  costs  pursuant  to  43  Eliz.  c.  6,  s.  2. 
Wardroper  v.  Richardson,  1  Adol.  &  Ellis,  75 ; 
3  Ney.  &  M.  839.  670 

Where  a  jud^e  certified  at  the  trial  of  an  action 
of  trespass  to  deprive  the  plaintiff  of  costs,  the 
court  held  the  judge*s  opinion  final.  Twigg  v. 
Potts,  4  Dowl.  P.  C.  266.  670 

The  court  will  not  interfere  where  the  jud^e 
has  granted  a  certificate  under  the  stat.  43  Eliz. 
c.  6,  to  deprive  the  plaintiff  of  costs,  except  upon 
tiie  question,  whether  he  had  power  to  grant  the 
certificate  ?  Cann  v.  Facey,  5  Nev.  &  M.  405  ; 
1  Har.  &  WoU.  482.  670 

If  the  judge  give  his  reasons  for  granting  the 
certificate,  and  those  reasons  are  erroneous,  it  is 
no  ground  of  interference.  In  an  action  qu.  cl. 
&.,  the  plaintiff  obtaining  less  than  40^.  damages, 
the  plea  of  not  guilty,  since  the  new  rules  of 
pleadings,  being  a  special  plea,  takes  the  case  out 
of  the  22  &  &  Car.  2,  c.  93,  s.  136;  but  the 
judge  may,  notwithstanding,  grant  his  certificate 
under  the  43  Eliz.  c.  6,  s.  2,  to  deprive  the  plain- 
tiff of  costs,  the  whole  record  and  evidence  at 
the  trial  being  properly  taken  into  consideration- 
Smith  T.  Edwards,  4  Dowl.  P.  C.&H;  1  Har.  <& 
WoU.  497.  670 

The  43  Eliz.  c.  6,  s.  2,  only  empowers  the 
jud^  who  tries  the  cause  to  give  the  certificate 
under  that  act  to  deprive  the  plaintiff  of  costs  ; 
and  in  case  of  executing  a  writ  of  inquiry, 
whether  before  a  judge  or  a  sheriff,  the  certifi- 
cate cannot  be  granted.  Claridge  v.  Smith,  4 
Dowl.  P.  C.  583.  670 

In  trespass  for  assault,  and  false  imprisonment, 
and  tearing  the  plaintiff's  clothes,  there  was  issue 
upon  a  new  assiffument  to  a  plea  of  son  assault 
demesne. '  The  jury  found  a  verdict  for  the  plain- 
tiff, with  one  shilling  damages : — Held,  that  the 
jud^  had  no  power  to  certify  under  the  43  Eliz. 
c.  6,  to  deprive  plaintiff  of  costs.  Bone  v.  Dawe, 
5  Nev.  &  M.  230 ;  1  Har.  &  WoU.  311.  670 

Where,  in  such  a  case,  the  judge  had  certified, 
the  court  jpanted  a  rule  on  the  masters  to  tax 
the  plaintiff  his  costs,  notwithstanding  the  certi- 

*  "        Id. 


21  Jae.  1,  c.  16.] — Where,  in  an  action  for 
slander,  spoken  of  a  person  in  the  way  of  his 
trade,  the  plaintiff  recovered  less  than  40s.  dama- 
ges : — ^Held,  that  the  plaintiff  was  entitled  to  no 
more  costs  than  damages,  and  that  the  judge  had 
no  power  to  certify  to  enable  the  plaintiff  to  fldl 


costs.    Goodall  v,  EnseU,  2  C.  M.  &  R.  249 ;  3 
Dowl.  P.  C.  743  J  1  Gale,  147.  671 


22  ^  23  Car.  2.] — In  trespass  for  turning  the 
plaintiff  out  of  a  room  per  quod  he  was  prevent- 
ed from  exercising  his  business  as  an  attorney 
therein,  if  the  plamtiff  obtain  a  verdict  for  less 
than  40s.  he  is  not  entitled  to  full  costs  without 
a  judge's  certificate,  under  22  ^  23  Car.  2,  c.  9, 
S.136.     Daubneyr.  Cooper,  5  M.&R.  325.    672 

Where  a  plaintiff  recovered  13^.  damages  in  an 
action  of  trespass  qu.  cl.  fr.,  to  which  only  the 
general  issue  was  pleaded,  it  was  held  that  he 
was  entitled  to  his  full  costs  as  under  that  plea, 
as  restricted  by  the  ru^es  of  pleading  of  H.  T.,  4 
Will.  4,  and  freehold  could  not  come  in  auestion> 
so  that  the  judge  mi^ht  certify  under  tne  22  if& 
23  Car.  2,  c.  9,  s.  136,  m  order  to  ensure  the  plain- 
tiff his  costs.  Hughes  v.  Hughes,  4  Dowl.  P.  C. 
532;  2  C.  M.  &  BL.  663 ;  1  Tyr.  <&  G.  4 ;  I  Gale, 
302.  672 

Where  there  are  pleas  in  trespass  quare  clau- 
sum  frcgit  of  not  guilty,  and  that  the  close  is  not 
the  plaintiff's,  and  the  jury  find  a  verdict  for  plain- 
tiff with  nominal  damages,  the  plaintiff  will  be 
entitled  to  no  more  oosts  than  damages.  Howell 
V.  Thomas,  7  C.  &  P.  342— Coleridge.  672 

Operation  of  43  Geo.  3,  c.  46.] — Goods  were  sent 
by  the  plaintiff  to  the  defendants,  on  sale  or  re- 
turn. The  defendants  returned  part  to  the  plain- 
tiff's shopman.  The  plaintiff  demanded  payment 
for  the  whole,  and  was  not  informed  by  the  de- 
fendants that  part  had  been  returned.  He  afler- 
wards  arrested  them  for  the  higher  sum,  but 
failed  to  recover  the  item  charged  for  the  article 
returned : — Held,  that  there  was  reasonable  and 
probable  cause  for  the  arrest ;  and  the  court  re- 
fused  to  grant  the  defendant  bis  costs.  Roper  v. 
Sheasby,  3  Tyr.  486.  674 

A  defendant,  who  is  arrested  for  a  larger  sum 
than  is  recovered  against  him,  is  entitled  to  costs 
if  there  be  no  reasonable  or  probable  cause  for 
the  arrest,  though  the  arrest  is  not  shown  to  have 
been  malicious.  Erie  v.  Wynne,  1  C.  &  M.  532; 
3  Tyr.  586.  675 

The  statute  does  not  apply  to  cases  where  the 
defendant  pays  money  into  court,  and  the  plain- 
tiff takes  it  out,  although  it  be  a  much  smaller 
sum  than  that  for  whicli  the  defendant  was  ar- 
rested. Rowe  V.  Rhodes,  2  C.  &  M.  379;  2 
Dowl.  P.  C.  384  ;  4  Tyr.  216.  675 

Plaintiff  having  arrested  the  defendant  for  271.^ 
and  his  demand  having  been  reduced  to  102.  by  a 
claim  on  the  part  of^the  defendant,  the  court 
allowed  the  defendant  his  costs,  although  the  de- 
fendant's claim  was  not  altogether  undisputed. 
Sims  r.  Jaquest,  4  M.  &  Scott,  380;  2  Dowl.  P. 
C.800;  10  Ring.  510.  675 

R.,  a  builder,  is  employed  by  A.  in  altering 
A.'s  house.  During  the  progress  of  the  work  A. 
countermands  the  employment,  whereupon  R* 
requests  A.  to  appoint  a  valuer,  and  upon  re- 
ceiving no  answer  to  his  application,  R.  continues 
the  work,  completes  it,  and  arrests  A.  for  the 
whole  amount,  but  recovers  only  for  the  work 
done  previously  to  the  countermand.    The  de- 


?408 


[COSTS] 


fendant  is  entitled  to  costs.    Rassell  v.  Atkinson, 
2  Nev  <&  M.  667.  675 

To  entitle  a  defendant  to  coats,  it  is  essential 
that  there  should  be  an  arrest  as  well  as  a  hold- 
ing to  bail,  fiates  v.  Pilling,  2  C.  &  M.  374 ;  2 
Dowl.  P.  C.  367 ;  4  Tyr.  231.  675 

Where  a  defendant  was  held  to  bail  in  a  much 
larger  sum  than  the  plaintiff  recovered ; — Quaere, 
whether,  if  it  had  been  a  case  witliin  the  act  43 
Geo.  3,  c.  46,  bj  reason  of  the  absence  of  a  rea- 
sonable or  probable  cause  for  holding  to  bail  to 
sach  an  amount,  the  mere  fact  of  the  defendant's 
not  having  been  actually  arrested  would  have 
been  sufficient  to  deprive  him  of  the  benefit  of 
that  act?  Wilson  V.  Broughton,  2  Dowl.  P.  C. 
631.  675 

A  party  is  not  warranted  in  arresting  another 
for  a  debt  of  which  he  has  not,  at  the  time  of 
making  the  arrest,  some  evidence  besides  his  own 
personal  knowledge  of  its  existence  ;  and  there- 
fore a  plaintiff  arresting  a  defendant  for  a  large 
sum  or  money,  and  having  at  the  time  of  the  ar- 
rest evidence  only  as  to  a  small  portion  of  the 
amount,  was  held  to  be  liable  to  costs,  although, 
at  the  time  of  the  trial,  some  evidence  of  a  subse- 
quent acknowledgment  by  the  defendant  was 
given.  Griffiths  v.  Pointon,  2  Nev.  &  M.  675  : 
§.  P.  Nicholaa  v.  Hayter,  4  Nev.  &  M.  882 ;  2 
Adol.  Sl  Ellis,  348.  675 

The  plaintiff  arrested  the  defendant  for  40(U., 
having  previously  obtained  acceptances  for  320Z. 
for  part  of  the  debt  from  the  defendant's  agents, 
to  meet  which  remittances  were  made  to  the  lat- 
ter by  the  defendant : — Held,  that  the  arrest  for 
4001.  was  made  without  reasonable  or  probable 
cause,  and  therefore  that  the  defendant  was  enti- 
tled to  costs.  Reynolds  v.  Flowe^,  3  M.  &  Scott, 
801.  676 

Where  the  defendant  was  arrested  for  332.  8s. 
9<f.,  and,  on  the  cause  being  referred,  the  arbitra- 
tor directed  a  verdict  to  be  entered  for  the  plain- 
tiff for  the  sum  of  3Z.  Os.  only  : — Held,  that  it 
was  sufficient  prima  facie  evidence  that  the  ar- 
rest was  without  reasonable  or  probable  cause, 
and  that  it  threw  the  onus  upon  the  plaintiff  to 
satisfy  the  court  that  he  had  reasonable  and  pro- 
bable cause ;  and  the  plaintiff  havmg  failed  to  do 
00,  that  the  defendant  was  entitled  to  costs  under 
the  43  Geo.  3.  Summers  o.  Grosvenor,  S  C.  & 
M.  341 ;  2  Dowl.  P.  C.  224 ;  4  Tyr.  228.        676 

To  entitle  the  defendant  to  costs  under  43  Geo. 
3,  c.  46,  s.  3 ;  where  the  difference  between  the 
snm  for  which  he  was  arrested  and  that  recovered 
is  small,  the  defendant  must  show  clearly  to  the 
court  that  the  arrest  was  without  reasonable  or 
probable  cause.  Paley  «.  Barker,  I  Har.  A  W. 
206.  674 

The  statute  43  Geo.  3,  c.  46,  s.  3,  does  not 
apply  to  the  case  where  a  defendant,  having  been 
arrested  for  debt,  pays  into  court  less  than  the 
amount  sworn  to,  and  the  plaintiff  accepts  it. 
Brooks  V,  Rigby,  2  Adol.  &  £UJs,  21 ;  4  Nev.  <& 
M.  3.  675 

Where  a  defendant  was  arrested  for  UOl.  and 
upwards,  and  the  jury  gave  onl^  17(.  \9s.: — 
Held,  that  the  defendant  was  entitled  to  costs 
under  the  43  Geo.  3,  o.  46,  s.  3;  it  appearing 


that  the  plaintiff  bad  first  tent  in  a  bill  for  the 
above  sum,  and  had  afterwards  added  21.  2s.  for 
goods  supplied,  which  had  been  returned  as  un- 
suitable, there  being  reason  to  believe  that  the 
plaintiff  had  added  that  sum  to  make  op  an  arrest- 
able amount.  Sutton  v.  Burgess,  4  Dowl.  P.  C. 
376.  676 

The  power  of  the  court,  under  the  43  Greo. 
3,  c.  46,  s.  3,  to  allow  the  defendant  his  costs 
where  he  had  been  arrested  without  reasonable 
or  probable  cause,  was  given  to  an  arbitrator,  on 
a  cause  bein?  referred,  but  the  arbitrator  made 
no  order  on  the  subject : — Held,  that  the  court 
could  not  afterwards  make  the  order.  Green- 
wood V.  Johnson,  1  Har.  &,  WoU.  184.  675 

The  court  has  no  power  under  43  Geo.  3,  c.  46, 
s.  3,  to  award  costs  to  the  defendant,  except  in 
cases  where  the  plaintiff  has  recovered,  by  judg- 
ment only,  a  less  amount  than  the  sum  for  whicli 
he  had  arrested  the  defendant.  Holder  v.  Raith, 
4  Nev.  &  M.  466 ;  2  Adol.  &  Ellis,  445 ;  1  Har. 
&  WoU.  8.  675 

Therefore  they  have  no  jurisdiction  under  this 
statute  in  cases  in  which  the  recovery  has  been 
by  an  award  upon  a  reference  before  issue  joined. 
Id. 

So,  although  in  the  order  of  reference  it  is  ex- 
pressly agreed  that  the  costs  of  the  action,  of  the 
reference,  and  of  the  award,  shall  abide  the  event 
of  the  suit  in  like  manner  as  upon  a  verdict.     Id. 

Dubitatur,  whether,  if  in  such  a  case  the  parties 
consented  that  judgment  should  be  entered  up  for 
the  sum  awarded,  with  a  view  to  reserve  the  juris- 
diction of  the  court  under  the  statute,  the  court 
would  accept  the  power  }    Id. 

The  plaintiff  arrested  the  defendant  for  427.  5^. 
money  lent,  and  proved  on  the  trial  admissions  of 
the  loan  of  182.,  for  which  she  had  a  verdict. 
On  a  motion  to  allow  the  defendant  his  costs, 
under  the  stat.  43  €reo.  3,  c.  46,  s,  3,  it  appeared 
from  the  plaintiff's  affidavit,  that  she  had  lent  the 
defendant  sums  of  money  at  different  times, 
amounting  to  the  sum  for  which  he  was  arrested ; 
but  it  did  not  appear  that  she  had  any  witness  to, 
or  evidence  of  such  loans,  beyond  the  defendant's 
admissions,  as  proved  on  the  trial.  The  defen- 
dant swore  that  she  had  lent  him  only  \L  The 
court,  although  believing  from  the  affidavits  that 
the  whole  sum  was  due,  and  that  the  defendant's 
affidavit  was  false,  held,  that  as  the  plaintiff  could 
have  had  no  reasonable  ground  to  expect  that  she 
could  recover  the  whole  debt  for  which  she  made 
the  arrest,  the  defendant  was  entitled  to  his  costs 
under  the  statute.  Lewis  v.  Ashton,  1  Mees.  d^ 
Wels.  493.  674 

Where,  owing  to  the  omission  of  a  count  in 
the  declaration,  applicable  to  part  of  the  plaintiff's 
demand,  the  plaintiff  was  prevented  from  reco- 
vering an  amount  equal  to  the  sum  for  which  the 
defendant  was  arrested,  and  which  the  jury  found 
to  be  due ;  but  on  the  omission  in  the  declaration 
being  discovered,  the  verdict  was  ultimately 
given  for  a  less  sum : — Held,  that  the  defendant 
was  not  entitled  to  costs  under  43  Geo.  3,  c.  46, 
s.  3.  Preedy  ».  MTarlane,  1  C.  M.  &  R.  819; 
3  Dowl.  P.  C.  458;  5  Tyr.  355;  1  Gale,  20.   674 

Held,  also,  that  he  was  not  so  entitled,  although 


[COSTS] 


2409 


the  mdoTBement  for  bail  on  the  capias  by  mistake 
stated  a  larger  sum  than  that  stated  in  the  affida- 
vit of  debt,  the  defendant  not  having  been  arrest- 
ed for  the  amoant  so  indorsed,  but  for  the  amount 
really  due.     Id. 

Where  a  defendant  is  arrested  and  goes  to 
prison,  it  is  ^^an  arrest  and  holding  to  bail" 
within  the  meaning  of  the  statute.    Id. 

Where  the  defendant  was  arrested  for  201.  2s., 
and  the  plaintiff  faded  to  establish  at  the  trial  a 
reasonable  ground  for  proceeding  for  more  than 
101.  17^.,  the  court  refused  to  tax  the  defendant 
his  costs  under  43  Geo.  3,  c.  46,  the  plaintiff 
bein^  taken  by  surprise  on  the  objection  to  the 
5s.  deducted  from  his  claim.  Mantel  v.  Southall, 
2  Scott,  132 ;  2  Bing.  N.  R.  74.  675 

The  verdict  of  the  jury  is  not  conclusive  as  to 
the  amount  for  which  the  plaintiff  had  reasonable 
cause  (within  the  meaning  of  the  43  Greo.  3,  c.  46, 
8. 3)  for  holding  the  defendant  to  bail,  qusere  ?  Id. 

De&ndant  having  been  arrested  for  652.,  when 
there  was  not  prolmble  cause  for  arresting  him 
for  more  than  44^,  the  court  allowed  him  his 
costs  under  43  Greo.  3,  c.  46.  Bradley  v.  Milnes, 
1  Scott,  697;  1  Bing.  N.  R.  738 ;  1  Hodges,  118. 

675 

Where  a  defendant  obtains  costs  under  the  43 
Geo.  3,  c.  46,  s.  3,  on  the  ground  that  the  arrest 
was  without  reasonable  or  probable  cause,  neither 
party  is  entitled  to  the  costs  of  a  prior  unsuccess- 
nil  motion  to  enter  a  nonsuit.    Id. 

An  application  for  costs,  under  43  Geo.  3,  c. 
46,  on  the  ground  that  the  plaintiff  arrested  ■  for 
351 ,  and  recovered  only  192.  19^.,  is  not  answered 
by  affidavits  stating  that  the  plaintifTs  demand 
was  reduced  at  the  trial  by  the  false  evidence  of 
a  witness,  who  was,  in  fact,  a  partner  of  the  de- 
fendant, but  stated  herself  to  be  his  servant  only. 
Tipton  V.  Gardiner,  5  Nev.  &  M.  424.  675 

Where  a  plaintiff  recovers  a  sum  less  than  the 
amoant  for  which  he  arrested,  and  held  the  de- 
fendant to  bail,  and  it  appears  that  his  only 
probable  cause  of  action  was  not  bailable,  (being 
for  unliquidated  damages),  the  defendant  is  en- 
titled to  costs  under  43  Geo  3,  c.  46,  s.  3.  Beare 
«.  Pinkus,  4  Nev.  &  M.  846.  675 

The  court  refused  to  allow  the  defendant  his 
costs  under  the  43  Greo.  3,  where,  upon  conflict- 
ing testimony  as  to  the  value  of  the  goods  sup- 
plied, the  jury  gave  a  verdict  for  St.,  the  arrrest 
saving  been  for  20/. :  8/.  was  the  mean  of  the 
estimates  by  the  witneases  of  the  two  parties. 
Shotwell  V.  Barlow,  3  Dowl.  P.  C.  709;  1  Gale, 
107.  675 

Defendants  having  been  arrested  for  a  sum  of 
45^.,  the  plaintiff  at  the  trial  recovered  only  21/. 
Part  of  the  demand  was  for  a  sum  of  19/.  10^., 
which  it  was  stated  by  a  witness  he  had  seen  paid 
on  a  particular  day ;  and  a  receipt  was  put  in, 
from  which  it  appeared  that  the  mcmey  was  paid 
on  a  former  day.  The  jury  under  the  circum- 
stances disallowed  that  part  of  the  plaintiff's 
demand,  and  also'  made  a  small  deduction  from 
the  other  part.  It  was  not  denied,  however,  hy 
the  defendants,  that  the  money  was  due,  and  it 
was  positively  sworn  by  the  plaintiff  that  it  was 
due  ttom  the  defendants : — Held,  that  tlie  defen- 


dant was  not  entitled  to  his  costs  under  the  43 
Geo.  3,  c.  46.    Smith  v.  Smith,  3  Dowl.  P.  C.  733. 

675 

If  the  plaintiff  arrests  a  defendant  for  one  side 
of  a  mutual  account,  without  ffiving  credit  for 
what  he  knows  to  be  due  from  himscR*;  although 
the  defendant  has  refused  to  deliver  his  account, 
the  latter  is  entitled  to  his  costs  under  the  43 
Geo.  3,  c.  46,  s.  3.  Ashton  v.  Naull,  2  Dowl.  P. 
C.  727.  675 

Where  the  reduction  of  the  plaintiff's  clain> 
was  occasioned  by  a  dispute  as  to  the  right  of  the 
defendant  to  claim  a  setoff : — Held,  that  though 
the  arbitrator  awarded  in  favor  of  the  defendant 
in  respect  of  the  set-off,  and  therebv  reduced  the 
plaintiff's  claim  a  third,  that  the  defendant  was- 
not  entitled  to  his  costs  under  the  43  Greo.  3,  c. 
46,  s.  3.  Cawthorne  v.  Cawthome,  4  Dowl.  P.  C. 
182.  675 

Upon  a  moUon  to  allow  the  defendant  his  costs 
under  the  43  Geo.  3,  c.  46,  the  court  will  refer  to 
the  judge's  notes  taiken  at  the  trial,  in  order  to 
supply  uie  omission  in  the  defendant's  'affidavit 
of  the  amount  recovered  by  the  verdict  Van 
Neuvel  v.  Hunter,  5  Nev.  &  M.  376;  3  Adol.  db 
Ellis,  243 ;  1  Har.  <&  Woll.  273.  677 

The  verdict  of  the  jury,  in  a  question  of  a  dis- 
puted account,  must  be  taken  to  be  almost  con- 
clusive.   Id. 

The  rule  for  allowing  the  defendant  his  costs 
need  not   drawn  up   on  reading  the  record  or 
nisi.    Id. 

On  an  application  for  defendant's  costs  under 
the  43  Greo.  3,  c.  46,  s.  3,  the  onus  of  proving- 
that  the  arrest  was  without  reasonable  or  pro- 
bable cause  lies  on  the  defendant,  and  the  court, 
will  not  inquire  whether  the  finding  of  the  jury 
was  correct.  Twisst?.  Osborne,  4  Dowl.  P.C  107 }. 
1  Har.  &  Woll.  274.  677 

In  order  to  obtain  costs  under  the  43  Greo.  3^ 
c.  46,  s.  3,  it  is  not  necessary  to  show  that  the 
arrest  was  malicious.    Id. 

A  defendant  applying  for  costs  under  43  Geo. 
3,  c.  46,  must  show  a  prima  facie  case  of  absence 
of  reasonable  or  probable  cause  for  arresting  for 
the  amount  sworn  to.  Nicholas  v.  Hayter,4  Nev. 
&  M.  882  J  2  Adol.  &  Ellis,  348.  677 

A  great  disproportion  between  the  sum  re> 
covered  and  the  amount  sworn  to  is  a  sufficient- 
prima  facie  case.     Id. 

And  it  is  no  answer  for  the  plaintiff  to  allege, 
that  but  for  the  death  of  one  material  witness,, 
and  the  absence  abroad  of  another,  he  could 
have  proved  a  debt  to  the  full  amount.     Id. 

Several'  Issues] — Under  Reg.  CJen.   H.  T.  2 
Will.  4,  the  defendant  is  entitled  to  the  costs  or 
all  issues  found  for«  him,  although  they  exceed 
the  costs  of  those  found  for  the  plaintiff.    Milner 
V.  Graliam,  2  Dowl.  P.  C.  422.  678 

If  a  defendant  pleads  the  general  issue  and 
.several  special  pleas,  and  the  jury  find  for  him 
on  the  general  issue,  and  for  the  plaintiff  on  the 
special  pleas,  the  latter  is  entitled  to  the  costs 
of  the  pleadings  and  witnesses  on  those  pleas. 
Hart  V.  Cutbush,  2  Dowl,  P.  C.  456.  67S 


3410 


[COSTS] 


In  replevin,  the  defendant  pleaded  that  Uie 
goods  belonged  to  himself  and  others,  as  assig- 
nees under  a  commission  of  bankruptcy  :  he  also 
avowed  taking  the  goods  as  a  distress  for  rent- 
arrear.  Verdict  for  the  plaintiff  on  the  issue 
joined  in  the  plea;  for  the  defendant  on  the 
avowrj.  The  court  refused  to  allow  defendant 
costs  on  the  issue  found  for  the  plaintiff.  Mid- 
dleton  V,  Mucklow,  10  B'mg.  401.  678 

Before  the  issue  was  made  up,  the  cause  was 
referred,  the  costs  of  the  cause  were  to  abide  the 
event  of  the  award.  The  arbitrator  found  that 
the  plaintiff  had  sustained  damage  to  a  certain 
amount  upon  one  of  the  breaches  of  covenant 
specified  in  his  particular;  and  as  to  the  rest, 
that  he  had  no  cause  of  action  against  the  defen- 
dant : — Held,  that  the  defendant  was  entitled 
under  rule  74  H.  T.  2  Will.  4,  to  the  costs  of 
those  issues  that  were  found  for  him,  notwith- 
standing the  cause  was  not  in  strictness  at  issue. 
Daubuz  V.  Rickman,  1  Scott,  564  ;  4  Dowl.  P.  C. 
129;  I  Hodges,  75.  678 

Where,  in  an  action  on  the  case,  a  defendant 
succeeds  on  one  of  several  issues,  which  goes  to 
the  foundation  of  the  plaintiff's  cause  of  action, 
he  will  be  entitled  to  the  general  costs  of  the 
cause,  altliough  there  is  a  verdict  for  the  plaintiff 
upon  the  plea  of  ^*  not  guilty,"  without  damages. 
Frankum  v.  Falmouth  (Lord),  4  Dowl.  P.  C.  65 ; 
1  Har.  &  WoU.  337.  678 

The  rule  of  H.  T.  2  Will.  4,  s.  74,  does  not 
apply  to  paupers ;  and  the  costs  of  such  of  the 
opposite  parties,  who  have  got  verdicts,  cannot 
be  deducted  from  the  plaintiff's  costs  of  the 
cause.  Gougenhcim  v.  Lane,  4  Dowl.  P.  C.  482 ; 
I  Mees.  &  Wels.  136.  678 

Where,  in  case  for  libel,  on  the  general  issue, 
tlie  jury  found  for  the  plaintiff,  and  also  found  as 
a  fact,  that  a  great  part  of  the  declaration  did  not 
apply  specifically  to  the  plaintiff,  though  there 
were  innuendoes,  by  which  it  was  endeavored  to 
connect  him  with  tlie  matter  complained  of: — 
Held,  that  tlie  defendant  was  entitled  to  the  costs 
of  that  part.  Prudhomnic  r.  Fraser,  4  Nev.  &  M. 
512;  2  Adol.  <&  £Ui8,645;  1  Har.  <&  Woll.  5. 

678 

The  74th  rule,  H.  T.  2  Will.  4,  extends  to  give 
the  defendant  the  costs  of  an  issue  found  for 
bim  on  a  demise  in  ejectment,  which  the  lessor 
of  the  plaintiff  abandoned  at  the  trial,  though  the 
evidence  was  equally  applicable  to  the  demise, 
upon  which  he  succeeded.  It  is  not  necessary, 
under  the  terms  of  the  rule,  that  the  costs  should 
be  confined  exclusively  to  the  issue  found  for  the 
defendant :  but  the  question  of  amount  is  entirely 
a  question  for  the  Master,  with  which  the  court 
will  not  interfere.  Doe  d.  Smith  v.  Payne  or 
Webber,  4  Nev.  &  M.  38]  ;  2  Adol.  &  Ellis,  448 ; 
1  Har.  <&  Woll.  10.  678 


In  ejectment,  where  there  was  but  one  count, 
and  the  lessor  of  tlic  plaintiff  recovered  judg- 
ment for  part  only  of  the  lands  claimed,  the  de- 
fendant succeeding  as  to  the  chief  question  in  dis- 
Eute  : — Held,  that  the  defendant  was  entitled  to 
ave  his  costs,  as  to  the  part  found  for  him,  set 
off  against  the  costs  of  the  lessor  of  the  plaintiff, 
under  the  rule  H.  T.  2  Will.  4,  c.  1,  s.  74.    Doe 


d.  Errington  v.  Errington,  4  Dowl.  P.  C.  602;  1 
Har.  4&  Woll.  502.  678 

Where  there  are  several  issues,  some  of  which 
are  abandoned  at  the  trial,  the  plaintiff  is  entitled 
only  to  the  costs  of  those  parts  of  such  briefs  and 
sucli  of  tlie  witnesses  as  were  necessary  for  the 
issues  on  which  he  succeeded.  Grougenheim  v. 
Lane,  4  Dowl.  P.  €.482;  1  Mees.  &  Wels.  136. 

678 

Where  a  plea  of  not  guilty  to  the  whole  action 
is  found  for  the  defendant,  and  a  plea  of  justifica- 
tion is  found  for  the  plaintiff,  the  defendant  is  en- 
titled, under  4  Ann,  c.  16,  ss  4  &  5,  to  the  gene- 
ral costs  of  the  cause,  and  the  plaintiff  is  entitled 
to  the  costs  on  the  special  plea,  including  not  onl^ 
the  costs  of  the  pleadings  but  also  or  the  evi- 
dence, in  disproof  of  the  justification.  Spencer 
r.  Hamerton,  6  Nev.  &>  M.  22.  678 

Scmble,  that  Reg.  7  H.  T.  4  Will.  4,  giving 
the  costs  of  particular  issues  to  the  successfiil 
party,  does  not  apply  to  demurrers.  Farley  v.  Bri- 
ant,  5  Nev.  &  M.  58.  678 

Pan  found  only.  Vallance  v.  Evans,  1  C.  &. 
M.  856;  3  Tyr.  865:  S.  C  nom.  Valance  v. 
Adams,  2  Dowl.  P.  C.  118.  679 

Where  some  issues  are  found  for  the  plaintiff 
and  some  for  the  defendant,  the  latter  is  entitled 
to  the  costs  of  the  issues  found  for  him,  but  not 
to  the  general  costs  of  the  cause,  or  to  the  expen- 
ses of  nis  own  witnesses,  unless  their  evidence 
related  exclusively  to  the  issues  found  for  him. 
Larnder  v.  Dick,  2  Dowl.  P.  C.  332:  S.  C  nom. 
Lardner  v.  Dick,  2  C.  &  M.  389 ;  4  Tyr.  239.     679 

Where  several  defendants  defend  separately, 
and  apparently  by  different  attornies,  but  all  the 
business  is  virtually  done  by  one,  they  are  not 
entitled  to  char^  by  separate  bills  of^^costs,  but 
must  make  a  jomt  charge.  Nanny  v,  Kenrick,  2 
Dowl.  P.  C.  334.  679 

In  an  action  on  the  case  against  many  defend- 
ants, where  one  suffers  judgment  by  demult,  and 
a  verdict  is  entered  for  tlie  others,  those  for  whom 
the  verdict  is  entered  are  entitled  to  their  costs. 
Price  V.  Harris,  2  Dowl.  P.  C.  804 ;  10  Bing.  557 ; 
4  M.  &  Scott,  474.  679 

A  declaration  in  slander  contained  ten  counts ; 
the  jury  found  for  the  plaintiff,  with  50/.  dama- 
ges on  the  seventh  count,  and  100/.  on  the  other 
nine  counts.  On  error  brought,  the  court  held 
tliat  the  sixth  count  was  bad,  and,  consequently, 
that  a  venire  de  novo  must  be  awarded ;  but,  on 
the  plaintiff  consenting  to  remit  the  100/.  dama- 
ges, directed  that  the  verdict  should  be  retained 
on  the  seventh  count : — Held,  that  the  plaintiff 
waa  not  entitled  to  the  costs  of  the  other  nine 
counts.  Dadd  v.  Crease  (in  error),  2  C.  &  M. 
223 ;  4  Tyr.  74 :  S.  C.  nom.  Dann  v.  Crease,  2 
Dowl.  P.  C.  269.  681 


Where  there  were  issues  of  fact,  and  also  is- 
sues of  law  on  demurrer,  but  the  pleadings  de- 
murrer to  were  aflerwards  amended  by  leave,  upon 
payment  of  costs,  and  all  tlie  issues  made  issues 
of  fact : — Held,  that  the  Master  was  right  in  not 
allowing  so  much  of  the  briefs  and  paper  books 
for  argumg  the  demurrer  as  related  to  tne  issues 
of  fact.  Jones,  v.  Roberts,  2  Dowl.  P.  C.  374.  682 


[COSTS] 


2411 


Wbeie  there  are  several  defendants,  and  a  ver- 
dict passes  against  some  and  for  others,  the  latter 
are  entitled  to  their  aliquot  proportion  of  the 
whole  costs  incnrred,  and  not  merely  to  409.  each. 
Griffiths  V.  Jones,  4  Dowl.  P.  C.  159;  2  C.  M.  <& 
R.333;  1  Gale,  254.  67» 

Where  several  defendants  are  sued  in  trespass, 
and  a  verdict  is  found  for  the  plaintiff  on  some 
of  the  issues  against  some  of  the  defendants,  and 
against  him  on  all  the  other  issues,  the  plaintiff 
is  entitled  to  the  balance  only  of  the  costs,  ailer 
deduction  of  all  the  costs  of  all  the  defendants. 
Starliiig  ocStarving  v.  Cozens  or  Cousins,  3  Dowl. 
P.  C.  788 ;  2  C.  M:&  R.445;  1  Gale,  159.    679 

Where  there  are  several  defendants,  and  one 
akme  employs  an  attorney  for  all,  the  others  are 
not  entitled  to  claim  any  costs.    Id. 

In  an  action  on  the  case  containing  several 
counts  in  th^  declaration,  some  issues  were  found 
lor  the  plaintiff  and  some  for  the  defendant : — 
Held,  that  the  Master,  in  taxing  the  costs,  was  cor- 
rect in  deductingthe  costs  of  tl^  defendant's  issues 
from  the  plaintiff 's  costs,  and  that  the  lien  of  the 
plaintifrs  attorney  was  only  upon  the  balance 
coming  to  the  plaintiff.  Eades  v.  Everatt,  3  Dowl. 
P.  C.  687.  679 

Held,  also,  that  the  expense  of  a  witness  called 
by  the  defendant,  whose  evidence  was  substan- 
tially directed  towards  the  issues  found  for  the 


obtains  judgment  as  in  case  of  a  nohftuit,  the 
executor  is  not  liable  to  the  cost  of  the  cause, 
but  only  to  such  costs  as  have  been  occasioned  by 
his  own  wilful  negligence  in  not  proceeding  to 
trial.  Pickup  v.  Wharton,  2  C.  d^M.  401;  2 
Dowl.  P.  C.  368 ;  4  Tyr.  224.  683 

An  order  to  exempt  an  executor  plaintiff  from 
costs  afler  a  verdict  for  the  defendant,  is  a  matter 
within  the  discretion  either  of  a  single  judge  or 
of  the  whole  court;  and  if  a  single  judge  has 
made  an  order,  such  order  cannot  be  reviewed^ 
— ^tfae  decision,  either  of  the  whole  court  or  of  a 
single  judge,  being  final.  Maddocks  v.  Phillips, 
5  Nev.  A  M.  370;  1  Har.  &  Wol.  251.        ©S 

An  executor  plaintiff  who  loses  his  cause  is 
not,  under  the  3  &  4  Will.  4,  c.  42,  s.  31,  ex- 
empted from  the  payment  of  costs,  unless  mala 

fides   appears  on  the    part  of  the  defendant 

Yaughan,  J.,  dissentiente.    Brown  ».  Crolev,  3 
Dowl.  P.  C.  386.  "^683 

Upon  a  declaration  containing  an  account  stated 
with  the  plaintiffs  as  executors,  though  it  also 
contains  counts  on  promises  to  the  testator,  the 
defendant  is,  in  case  of  a  nonsait,  entitled  to  costs 
as  of  course.  Spence  v.  Albert,  4  Nev.  &  M. 
2  Adol.  &  EUis,  785 ;  1  Har.  &  Woll.  7. 

The  discretion  as  to  costs  in  actions  by  execu- 
tors, given  to  the  court  or  a  judge  of  any  of  the 
'     •     -  '    ■  y^iU.  4,  C.42,  s 


superior  courts,  by  3  &  4 


31, 


defi^ndant,  was  properly  allowed  to  the  defendant,    «"p"j>»^  couris, 

tltboogh  he  gave  some  evidence  upon  the  other   "tends  only  to  cases  m  which  executors  were 
-  -  '  before  that  enactment  exempted  from  the  pay- 

ment of  costs.  Id. 


Id. 

In  trespass,  four  defendants  pleaded  separate 
pkau  by  the  same  attorney;  one  the  ^neral 
nsoe  and  a  justification,  upon  both  of  which  he 
was  found  guilty ;  another,  similar  pleas,  but  was 
only  found  guilty  on  the  general  issue ;  and  the  two 
others,  the  general  issue  only,  upon  which  they 
were  acquitted  : — Held,  that  the  costs  payable  to 
the  three  last  might  be  set  off  against  the  costs 
which  the  plaintiff  was  entitled  to  recover  from 
the  first  Lees  v.  Kendall,  5  Nev.  &  M.  340 ;  1 
Bar.  &  WoU.  316.  679 

Ex^tmters  and  Administralors.'] — ^The  31st  spc- 
tien  of  the  3  db  4  Will.  4,  c.  42,  renders  executors 
or  administrators  suing  in  right  of  the  testator 
or  intestate  liable  to  ccMits,  where  they  are  non- 
ssifed  or  the  defendants  obtain  verdicts,  unless 
the  court  or  a  judge  shall  otlierwise   order  : — 


The  32nd  section  of  3  &  4  Will.  4,  c.  42,  as  to 
pajrment  of  costs  by  executors  and  administrators, 
in  actions  brought  by  them,  was  held,  (Littledale, 
J.,  dissentiente),  to  apply  to  actions  tried  after  the 
passing  of  the  act,  whether  commenced  before 
or  not ;  although  the  cause  had  been  made  a  re- 
manet  before  the  passing  of  the  act  Freeman  9. 
Moyes,  3  Nev.  dt  M.  883 ;  1  Adol.  A  Ellis,  338. 

683 

The  court  has  no  jurisdiction  under  the  3  ft.  4 
Will.  4,  c.  42,  s.  31,  to  relieve  an  executor  plain- 
tiff from  costs  to  which  he  was  liable  before  the 
act.  Ashton  v.  Poynter,  5  Tyr.  322 ;  1  C.  M.  &  R. 
738 ;  3  Dowl.  P.  C.  465;  1  Gak,  57.  683 

Where  an  executor  plaintiff  seeks  to  be  relieved 
from  costs  under  the  discretionary  power  of  the 
.     „  -  court,  the  application  should  be  made  before  tax- 

Semble,  that  the  court  will  otherwise  order  where    ation,  otherwise,  if  it  be  granted,  it  will  be  on  pay- 
there  appears  to  be  reasonable  or  probable  cause  |  ment  of  the  coste  of  the  application.  Id. 
for  suing  in  the  representetive  character.  Lysona 


V.  Banow,  4  M.  &  Scott,  463;  10  Bing.  .563 ;  2 
Dowl.  P.  C.  807.  683 

Tike  defendant  effected  a  policy  of  insurance 
en  the  life  and  for  the  benefit  of  one  G.,  and,  on 
his  death,  received  the  sum  insured.  The  plain- 
tiffii,  as  executors  of  G.,  sought  to  recover  this 
•mn  in  an  action  for  money  had  and  received  by 
the  defendant  to  their  use  as  executors,  and  were 
BOQsuited  on  a  ground  collateral  to  the  merits  of 
the  cause  : — The  court  ordered  the  judgment  of 
Boosoit  to  be  entered  up  with  costs,  under  the  sta- 
tote.    Lysons  v.  Barrow,  4  M.  &  Scott,  463.  683 

Where  an  execotor  or  administrator  sues  in 
lus  representative  character,  and  the  defendant 

Vol.  IV.  18 


Executors  declared  in  one  count  on  a  contract 
by  the  defendant  wjth  their  testator,  and  in  an- 
other on  a  contract  by  the  defendant  with  them  to 
pay  money  due  to  the  plaintiflb  as  executors  on 
an  account  stated  between  them,  with  a  piomise 
to  pay  them  as  executors,  and  a  verdict  was  found 
for  the  defendant : — Held,  that  he  was  entitled  to 
his  costs  of  the  last  count  under  SS  H.  8,  c.  15, 
and  that  the  court  has  no  power  to  interfere  under 
3  (&  4  Will.  4,  c.  42,  s.  31,  in  favor  of  the  plain- 
tifffl  as  executors.  Id. 

The  court  will  not  relieve  an  executor  or  ad- 
ministrator plaintiff  from  costs,  unless  there  has 
been  some  misconduct  on  the  part  of  the  defen- 
dant, which  led  the  phuntiff  to  proceed  with  tho 


9413 


[COSTS] 


actiod,  or  unlew  lome  other  rer^  peculiar  ground 
is  laid  for  the  interference  of  the  coort.  It  is 
not  enough  that  the  action  was  brought  bona 
fide ;  that  the  plaintiff  had  apparent  reasonable 
grounds  for  suing,  and  that  he  was  taken  by  sur- 
prise by  the  defence.  Godson  v.  Freeman,  2  C.  M. 
Jk  R.  585;  1  Tyr.  ^k  G.  35;  4  Dowl.  P.  C.  543. 

683 

The  discretion  as  to  costs  in  actions  by  execu- 
tors, given  by  the  court  or  a  judge,  by  the  3  dc  4 
Will.  4,  c.  42,  s.  31,  is  not  to  be  goyemed  by  the 
fact  of  the  action  haying  been  projierly  brought, 
but  it  must  be  shown  tiiat  the  plaintiff  was  in- 
duced to  bring  it  by  something  like  fraud  or 
misrepresentation  on  the  part  of  the  defendant. 
(Per  Curiam — Mr.  Justice  Vaughan  dissentins.) 
The  mere  fact  that  the  defendant  when  applied 
to  refuses  to  state  the  ground  of  his  resistance  of 
the  claim,  will  not  suffice.  Southgate  v.  Crowley, 
1  Scott,  374 ;  1  Bing.  N.  R.  519 ;  1  Hodges,  1. 

683 

Where  an  executor  has  commenced  an  action, 
without  using  due  diligence  to  ascertain  that  he 
can  proceed  with  a  reasonable  prospect  of  success, 
or  is  guilty  of  any  laches,  so  as  to  cause  nnne- 
cessaiy  expense  or  yexation  to  the  defendant,  the 
court  will  not  interpose  to  excuse  him  from  costs, 
in  exercidb  of  the  discretion  giyen  to  them  by  the 
31st  sect,  of  the  3  dk  4  Will.  4,  c.  42.  Wilkinson 
V.  Edwards,  1  Scott,  173;  1  Bing.  N.  R,  301 ;  3 
Dowl.  P.  C.  137.  683 

An  administrator  arrested  the  defendant  on  a 
bond  given  to  the  intestate  more  than  20  years 
before  his  death,  and  no  interest  had  been  paid 
upon  it.  The  defendant  pleaded  his  discbarge 
under  the  Insolvent  Act,  and  the  verdict  was 
found  in  his  fiivor.  It  appeared  that  the  plain- 
tiff had  knowledge  that  the  defendant  had  applied 
for  his  discharge  before  the  action  was  brought : 
— Held,  that  uie  adminsitrator  was  not  entitled 
to  be  relieved  from  the  payment  of  costs  to  the 
defendant  under  3  ds  4  Will.  4,  c.  42,  s.  31.  En- 
gler  17.  Twysden,  2  Bing.  N.  R.  263 ;  2  Scott, 
427 ;  4  Dowl.  P.  C.  330  ;  1  Hodges,  303.        683 

When  an  action  was  commenced  by  an  execu- 
trix before,  though  not  tried  till  af\er  the  passing 
of  the  3  &  4  Will.  4,  c.  32  :— Held,  that  a  suc- 
cessful defendant  was  entitled  to  costs.  Grant  v. 
Kemp,  2  C.  &  M.  636.  683 

An  executor  had  commenced  an  action  before 
the  Stat.  3  &  4  Will.  4,  c.  42,  and  the  court  aUow- 
ed  him  to  discontinue  on  payment  of  all  costs 
incurred  since  the  passing  of  that  act.  Lakin  v. 
Massie,  4  Dowl.  P.  C.  259;  1  Gale,  270.        684 

Quiere,  whether  the  powerof  a  judge  to  relieve 
an  executor  from  costs  is  final  or  subject  to  re- 
view by  the  court  .^  Id. 

An  administrator  who  pleads  the  general  issue 
and  plene  admin istravit,  and  succeeds  on  the 
latter  plea,  is  entitled  to  the  jreneral  costs  of  the 
cause.  Iggulden  v.  Terson,  2  Dowl.  P.  C.  277 : 
4  Tyr.  309.  684 

Arlntration.]— "Where  by  an  order  of  reference 
the  costs  of  the  causes  re^rred  were  to  abide  the 
event  of  them,  and  in  one,  which  was  not  at  issue. 


the  arbitrator  foond  that  the  plaintiff  hsd  no 
cause  of  action  against  the  defendants : — ^Held, 
that  the  costs  of  the  pleadings  followed  the  event 
of  the  cause,  as  in  case  of  a  nonsuit.  Dibben  v. 
Anglesea  (Marquis),  2  C.  &  M.  722;  4  Tyr.  927: 
S.  C.  10  Bmg.  568.  685 

Where  a  plaintiff,  who  did  not  give  distinct 
notice  of  attending  an  arbitrator  by  counsel,  at- 
tended by  counsel,  and  refused  to  consent  to  an 
adjournment,  except  on  the  defendant's  paying  the 
costs  of  the  meeting:  the  court  held  the  plaintiff 
not  entitled  to  such  costs,  stayed  the  certificate 
made  by  the  arbitrator  in  his  favor,  and  referred 
the  case  back  to  the  arbitrator.  Whatley  v.  Mor- 
land,  2  C.  &  M.  347;  4  Tyr.  255;  2  Dowl.  P.  C. 
249.  685 

Trespass,  qu.  cl.  fir.  Plea — ^first,  general  issue ; 
secondly,  lib.  ten. ;  thirdly,  a  private  way  ;  fourth- 
ly, a  highway.  The  cause  was  referred,  and  it 
was  agreed  that  the  fourth  plea  should  be  with- 
drawn, and  that  the  arbitrator  should  have  power 
to  direct  what  should  be  done  by  either  party, 
and  what  road  the  defendants  should  have  ;  that 
he  should  decide  on  the  costs  of  the  cause  as  if 
the  fourth  plea  remained,  and  that  the  costs  of 
the  cause,  and  of  the  reference,  to  be  taxed  by  the 
proper  officer,  should  be  in  his  discretion.  The 
arbitrator  found  for  the  plaintiff  on  the  first  and 
second  issues,  and  for  the  defendant  on  the  third, 
and  directed  that  the  plaintiff  should  pay  the  de- 
fendants the  costs  of  the  cause,  of  the  reference, 
and  of  the  award,  to  be  taxed,  &c.,  and  set  out  a 
road  to  be  used  by  the  defendants.  The  plaintiff  is 
entitled  to  costs  on  the  first  and  second  issues,  and 
tlie  defendants  to  the  costs  of  the  cause  upoo  the 
third  issue.  Neither  party  is  entitled  to  costs 
on  the  fdurth  issue.  AUenby  «.  Proudlock,  5  Nev. 
&  M.  636.  — 


In  Ejectment.^ — An  attachment  will  be  issued 
for  not  paying  costs  in  ejectment  on  the  Master's 
allocatur  after  judgment  as  is  case  of  nonsuit, 
thouffh  no  subpoena  solvas  has  issued  against  the 
nominal  plaintiff.  Doe  d.  Floyd  r.  Ro®*  4  Tyr. 

85 :  S.  C.  nom.  Doe  d. v.  Baker,  2  Dowl.  P. 

C.217:  S.P.Doed.Fryi>.Fry,2C.&M.234; 
2  Dowl.  P.  C.  265.  686 

A  rule  for  an  attachment  for  nonperformance 
of  the  terms  of  the  consent  rule,  is  properly  in- 
tituled as  in  an  action  against  the  casual  ejector, 
although  obtained  upon  affidavits  intituled  as  in 
an  action  against  the  tenant  Rex  o.  Bryant,  8 
Nev.  &.  M.  667.  ^  686 

In  ejectment,  twelve  defendants  entered  into 
a  joint  consent  rule  shortly  before  the  trial ;  by 
a  judge's  order  two  were  permitted  to  withdraw 
their  plea,  and  suffer  judgment  by  default.  At 
the  trial  the  two  did  not  appear  when  called  on : 
— Held,  that  the  plaintiff  was  entitled  to  a  gene- 
ral judgment  against  ^1  the  defendants,  they  re- 
ceiving the  costs  of  that  defence  which,  as  to  a 
part  ofthe  premises,  was  successful  Doe  d.  Bish- 
ton  V.  Hughes,  1  Gale,  263.  966 


Other  Proceedings.}— The  1  Will.  4,  c.2l,  does 
not  enable  the  court,  where  a  party  has  declared 
in  prohibition  and  succeeded,  to  grant  him  his 


[COSTS] 


3413 


OQCti  iQciirfed  in  the  ecclesiutieal  court.    Tessi- 
nond  V.  Yardley,  5  B.  d^  Adol.  458.  689 

No  costs  allowed  for  appearing  to  support  a 
demurrer  which  has  been  entered  in  the  paper 
before  yoinder,  and  without  delivering  the  demur- 
rer books  to  the  judges.  Howarth  v.  Hubbersty, 
5TVr.  391.  686 

IsBoes  were  joined  in  fact  and  in  law,  and  no- 
tice ol  trial  of  the  former  ffiven,  but  the  plaintiff 
hsTing  ^ne  to  trial,  paid  toe  costs  of  the  day  on 
motion  in  the  subsequent  term.  In  that  terra 
the  demurrer  was  argued,  and  the  defendant  had 
leaTe  to  amend  on  payment  of  costs.  The  Mas- 
ter disallowed  all  the  plaintiff's  costs  of  the  paper 
boc^a  and  benefit  which  related  to  the  issues  in 
Cict,  and  was  held  right.  Jones  v.  Roberts,  4  Tyr. 
310;  2  DowL  P.  C.  374.  6&d 

Under  staL  1  Will.  4,  c.  21,  s.  6,  the  costs  of  a 
mandsmns,  and  of  applying  for  it,  may  be  obtain- 
ed of  the  court  by  a  distinct  motion  afler  the  is- 
saiitg  of  the  writ.  And  upon  such  motion  for 
costs,  the  csouit  will  refer  for  its  guidance  to  the 
affidavits  filed  in  support  of  the  application  for  a 
muidamus,  if  it  be  clear  that  both  applications 
are  made  by  the  same  parties.  Rex  v.  Kirke,  5 
a.  and  Adol  1089.  688 

The  tenant  in  a  writ  of  intrusion  is  not  enti- 
tled to  costs  upon  a  nolle  prosequi.  The  statute 
8  Elix.  c.  2,  is  confined  to  personal  actions.  Wil- 
bams,  dem.  Harris,  ten.,  4  M.  &  Scott,  491 ;  2 
Dewl.  P.  C.  819.  690 

Where  a  ferdict  is  found  for  the  plaintiff  on 
same  counts  and  for  the  defendant  on  other 
eoonts,  and  the  Questions  raised  on  the  counts 
firand  for  the  defendant  are  submitted  for  the 
spinion  of  the  court,  in  the  form  of  a  special  case, 
9m  which  the  defendant  obtains  iudgment,  the 
Master,  in  taxing  costs,  should  allow  tbe  costs 
•f  the  special  case  to  the  defendant.  Gosbell  v. 
Aidier,5NeY  db  M.  523 ;  2  Adol.  dt  Ellis,  500 ; 
1  Bar.  A  WoU.  569.  691 

Where  a  special  case,  on  which  judgment  had 
been  given  for  the  plaintiff  in  this  court,  was  at 
tbe  mmtMnei^  of  the  defendant  turned  into  a  spe- 
cial Terdict,  that  he  might  have  an  opportunity 
•f  obtaining  the  judgment  of  a  court  of  error 
tfaeaeoo,  this  court,  alter  the  lapse  of  two  years, 
aad  after  the  costs  of  the  trial  and  special  case 
bad  been  taxed  and  paid,  refused  to  allow  the 
plantiff  the  costs  thereby  occasioned.  Collins  v. 
Gwyime,  2  Scott,  332 ;  4  Dowl.  P.  C.  122.     691 

Jfntf  THal.l — Where  a  new  trial  is  granted 
upon  payment  of  costs,  re  mane t  fees,  althoagh 
incurred  before  the  unsatisfactory  trial,  are  to  oe 
paid  by  the  party  impagning  the  verdict  Robin- 
son V.  Day,  2  Nev.  ^Et  M.  670 ;  5  fi.  &  Adol.  814. 

691 

Where  a  new  trial  is  granted,  and  nothing  said 
in  tbe  role  as  to  the  costs  of  the  former  one,  and 
after  varions  subsequent  proceedings  one  party 
socceeds,  he  is  not  entitled  to  the  costs  of  the  first 
taxaL    Newbury  r.  Colvin,  2  Dowl.  P.  C.  415. 

692 

If  an  attorney  ahowi  cause  on  his  own  behalf, 


a^inst  a  rule  for  a  new  trial,  or  a  stet  processus, 
his  client  not  appearing,  the  costs  of  the  attorney 
ate  not  costs  in  the  cause,  but  must  be  made  the 
flobiect  of  a  special  application  to  the  court ;  and 
if  that  application  is  not  made  when  the  rule  is 
disposed  of,  the  court  will  not  afterwards  amend 
the  rule  as  to  them.  Southee  v.  Tbiry,  2  DowJ. 
P.  C.  522.  603 

The  rule  as  to  the  payment  of  costs  on  a  mo 
tion  for  a  new  trial,  is  the  same  in  principle  in 
criminal  and  civil  cases.    Rex  v.  Aldridge,  1  Nev. 
A  M.  776.  693 

The  64th  rule  H.  T.  2  Will.  4,  applies  only  to 
cases  where  a  new  trial  is  granted  upon  the  wnole 
record.  Bower  v.  Hill,  2  Scott,  540 ;  1  Hodges, 
334.  691 

On  the  trial  of  a  right  of  way,  in  one  count 
claimed  as  a  public,  and  in  another  as  a  private 
way,  a  general  verdict  was  found  for  the  defend- 
ants.  The  court  afterwards  directed  a  new  trial, 
expressly  by  the  rule,  confining  it  to  the  right 
claimed  in  the  second  count.  In  the  rule  no 
mention  was  made  of  costs,  nor  any  reservation 
of  the  defendant's  verdict  on  the  first  count : — 
Held,  that  the  defendants  were,  nevertheless,  en- 
titled to  the  costs  of  the  issues  found  for  them  on 
the  first  trial,  and  not  in  contest  on  the  second, 
they  having  succeeded  on  such  second  trial.    Id. 

Where  a  jury,  not  being  able  to  agree  upon  a 
verdict,  were  dismissed  by  the  judge,  out  without 
the  consent  of  the  parties,  the  court  refused  to 
grant  the  plaintiff,  who  obtained  the  verdict  at  a 
second  trial,  the  costs  of  the  first  attempt  at  trial. 
Seally  v,  Powis  or  Powers,  3  Dowl.  P.  C.  372;  1 
Har.  &  WoU.  118.  691 

Where  a  jury  is  discharged  by  the  judge,  of  his 
own  authority,  from  finding  a  verdict,  they  being 
unable  to  agree,  the  ultimately  successful  party 
is  not  entitled  to  the  costs  of  me  first  attempt  at 
trial.    Waite  v)  Spurgin,  4  Dowl.  P.  C.  575.     691 

Where  a  plaintiff  is  prepared  to  try  at  one  sit- 
tings, but,  rrom  the  press  of  business,  the  cause 
does  not  come  on,  and  those  sittings  last  till  the 
second  sittings  commence,  but  the  plaintiff  is 
obliged  to  withdraw  his  record  on  account  of  its 
not  having  been  resealed,  he  is  still  not  liable  to 
the  costs  oT  the  first  sittings.  Waters  v.  Weath- 
erby,  3  Dowl.  P.  C.  328.  691 

Where  a  cause  was  referred  at  nisi  prius  to  an 
arbitrator  to  reduce  the  damans,  or  enter  a  ver 
diet  for  the  defendant,  on  which  the  court  gave 
judgment  that  the  verdict  ought  to  be  reduced : 
— Held,  that  the  costs  of  this  rule  were  properly 
taxed  as  costs  in  the  cause.  Goodalfv.  B^y,  A 
Dowl.  P.  C.  76 ;  1  Har.  6l  Well.  333.  691 

The  party  who  succeeds  at  a  second  trial,  will 
not  be  allowed  in  taxation  the  costs  he  has  incur- 
red for  copies  of  a  shortrhand  writer's  notes  of 
the  evidence  given  at  the  former  trial.  Grease 
V.  Barrett,  2  C.  M.  &  R.  738 ;  1  Tyr.  &  G.  112. 

693 

The  execution  of  a  writ  of  inquiry  was  set  aside 
for  misdirection  \  the  defendant  paid  the  amount 
of  the  verdict  without  proceeding  to  a  second  in- 
quiry : — Held,  that  he  was  not  liable  to  the  costs 


3414 


j:costsj 


of  the  fint  inqoinr.     Porter  v.  Cooper,  1  Oa]e, 
149.  693 


Double  and  treble  Coj^.]— The   doubld  costs 

S'tch  to  magristiates  by  21  Jac.  1,  c.  12,  s.  5,  are 
ose  GOBts  only  which  are  recoverable  in  the  or- 
dinary course  of  law  doubled.  Thomas  v.  Saun- 
ders, 3  Nev.  &  M.  572;  1  Adol.  and  Ellis,  552. 

694 

Therefore,  where  the  plaintiff  in  an  action  for 
false  imprisonment  against  magistrates,  within 
21  Jac.  1,  obtained  an  order  for  clianging  the  ye- 
nue  for  the  purpose  of  securing  an  impartial  trial, 
in  which  order  he  undertook  to  pay  to  the  defen- 
dants odl  the  extra  costs  necessarily  occasioned 
by  such  cause  being  tried  in  the  county  where 
the  trial  was  ordered  to  be  had,  the  defendants 
were  not  entitled  to  have  such  extra  costs  doubled. 
Id. 


A  justice  of  the  peace  is  not  entitled  to  have  a 
suggestion  entered  on  the  roll,  that  the  action 
was  brought  against  him  for  an  act  done  bv  him 
as  a  justice  of  the  peace,  in  order  to  obtain  double 
costs.  Fosbroke  «.  Hall,  1  Mees.  &>  Wels.  205 ; 
4  Dowl.  P.  C.  701.  694 

Semble,  that  a  justice  of  the  peace  is  entitled  to 
double  costs  on  discontinuance  before  trial,  under 
the  7  Jac.  1  c.  5.  Id. 

The  defendant  will  not  be  allowed  to  enter  a 
fuggestion  on  reoord  to  entitle  him  to  double 
costs,  if  the  plaintiff  is  willing  to  give  him  double 
costs  without.  Id. 

fiy  5  &  6  Will.  4,  c.  83,  8.  3,  treUe  easts  are 
given  to  patentees  in  whose  favor  a  verdict  or  de- 
crupasseSf  or  a  certificate  of  the  judges  that  the  va- 
lidity of  the  patent  came  in  piestion.  694 

Semble,  that  in  order  to  entitle  a  party  to  tre- 
ble coats  under  the  lOOth  section  of  tne  Building 
Act,  no  suggestion  on  the  record  is  necessary. 
Wells  V.  Ody,  3  Dowl.  P.  C.  799 ;  1  Gale,  161. 

694 

In  an  action  for  penalties  given  by  a  statute 
against  a  puty  acting,  though  disqualified,  the 
defendant  is  not  entitfed  on  a  nonsuit  to  treble 
costs  under  a  clause  of  the  act,  giving  them  in 
any  action  ''  for  any  act  or  thinjg;  done  m  execu- 
tion of,  or  under  the  authority  of  the  act." 
Charlesworth  v.  Rudgard,  3  Dowl.  P.  C.  517 ;  1 
CM.  A  R.  896}  5Tyr.476;  1  Gale,  42.    ~   694 

By  a  river*  navigation  act  commissioners  are 
,  authorised  to  appomt  a  clerk,  and  to  allow  and 
appo'uxt  to  him  a  reasonable  sum  for  his  attend- 
ance, d^c )  and  it  is  enacted  that  such  sum  shaU 
be  paid  by  the  proprietors  of  the  tolls  of  the  navi- 
gation. By  a  distant  section,  if  such  proprietors 
shall  neglect  or  refuse  to  pay  such  sum  of  money, 
&o.  which  shall  be  so  allowed  and  become  due  or 
payable  to  the  clerk,  upon  demand  thereof  made^ 
of  the  proprietors  or  the  collector,  such  sum  may 
be  recovered  by  action  of  debt,  drc.  with  double 
costs  of  suit,  such  action  to  be  brought  in  the 
name  of  the  clerk.  No  action  can  te  brought 
upon  the  prior  enactment  alone ;  and  an  action 
on  the  statute  must  be  taken  to  be  founded  on 
the  two  sections  conjointly,  although  the  decla^ 


ration  omit  to  state  an  actoal  demand.  Wheicv 
therefore,  in  debt  upon  the  statute,  the  plaintiff 
obtains  a  verdict  upon  nil  debit  pleaded,  he  is 
entitled  to  double  costs  notwithstanding  such 
omission.    Tibbets  v.  Torke,  5  Nev.  &.  M.  609. 

694 

Qusre,  whether  the  omission  would  have  been 
good  of  special  demurrer.'  Id. 

Security  for  Costs^—K  plaintiff  cannot  be  re- 

Suired  to  give  security  for  costs,  unless  it  appears 
iiat  he  is  gone  abroad  for  more  than  a  tempo- 
rarv  residence.    Taylor  v.  Fraser,  2  Dowl.  P.  C. 

Security  for  costs  cannot  be  required  from  a 
peer,  though  residing  abroad.  Ferrars  (ISarl)  «. 
Robins,  2  Dowl.  P.  C.  636.  696 

A  plaintiff  who  is  a  peer,  and  out  of  the  juris- 
diction, mast  give  the  usual  security  for  costs  in 
equity.  Aldborough  (Lord)  v.  Burton,  2  Mylne 
&  K.  401.  696 

A  commissioner  of  the  Ionian  Islands  filling 
lus  office  out  of  this  country  cannot  be  compelled 
to  find  security  for  costs,  when  plaintiff.  Nugent 
(Lord)  r.  Harcourt,  2  Dowl.  P.  C.  578.  696 

Where  a  plaintiff,  suing  in  forma  pauperis,  will 
be  absent  from  England  eighteen  months,  the 
court  will  compel  him  to  give  security  for  costs, 
or  stay  his  proceedings  until  his  return.  Foss  v. 
Wagner,  2  Dowl.  P.  G.  499.  696 

Where  the  pluntiff  resides  abroad,  the  court, 
bj  the  98th  rule  of  H.  T.  2  Will.  4,  has  a  discie- 
tionary  power  to  require  security  for  costs,  not* 
wiUistanding  that  the  defendant  has  proceeded  x 
in  the  cause  after  he  knew  that  the  plaintiff  re- 
sided abroad.  Fletcher  v.  Lew,  5  Nev.  &M.  351 ; 
1  Uar.  &  WoU.  430.  696 


So,  it  may  be  required  after  issue  joined, 
ble.  Id. 

If  a  plaintiff  be  permanently  resident  abroad, 
and  is  only  occasionally  in  this  country,  he  will 
be  liable  to  give  security  for  costs.  Ui:|mey  v. 
Key,  3  Dowl.  P.  C.  559 ;  I  Har.  ^  WoU.  203. 

696 

The  court  will  not  compel  a  plaintiff  to  give 
security  for  costs  because  he  had  gone  to  serve 
in  a  foreign  army  in  a  civil  war.  Frodsham  v. 
Myers,  4  Dowl.  P.  0.  280;  I  Har.  &  WoU.  526. 

696 

Where  a  cause  was  tried,  and  the  jury  not 
being  able  to  agree  in  their  verdict,  were  dis- 
charged by  consent  of  both  parties,  and  the 
plaintiff  gave  a  new  notice  of  trial: — Held,  that 
an  application  for  security  for  costs,  on  the 
grouna  that  the  plaintiff  had  gone  to  reside 
abroad,  was  too  late,  it  appearing  that  the  de- 
fendants had  been  fully  aware  of  Uiat  fact  before 
the  first  trial.  Wainwright  v.  Bland,  2  C.  M.  d& 
R.  740;  4  Dowl.  P.  0.  547;  1  Tyr,  &  G.  137. 

696 

In  an  action  brought  upon  a  bond,  in  the 
name  of  an  obligee  resident  abroad,  for  the  bene- 
fit of  an  assignee  in  this  country,  the  defendant 
ma^  claim  security  for  costs  from  the  nominal 
plaaatiff:   the  assignee's  written  uadeitaking  is 


[COSTS] 


2415 


not  loiEeieiit.    Tonde  v.  Yoade,  3  Adol.  &  Ellis, 
ail.  696 

Where  IB  an.  action  bj  a  foreigner,  security 
has  been  given  for  costs,  in  an  amount  aderwards 
nnieh  exceeded  by  the  defendant's  costs  actually 
iocurred  on  the  trial,  it  is  too  late  for  him  to 
more  lor  further  security  for  costs  after  a  nonsuit 
and  pending  a  rule  for  a  new  trial.  Alivon  v. 
Fomival,  2  C.  &  M.  555 ;  4  Tyr.  370.  696 

Where  one  of  two  lessors  of  the  plaintiff  is 
ibioad,  the  defendant  is  not  entitled  to  security 
for  his  costs.  Doe  d.  Bawden  v.  Roe,  1  Hodges, 
315.  696 

If  one  of  three  plaintiffs  is  resident  in  this 
eonntry,  and  the  other  two  are  residing  abroad, 
the  defendant  is  not  entitled  to  security  for  his 
costs.    Orr  v.  Bowles,  Hodges,  23.  696 

Where  a  plaintiff  is  a  mariner,  and  is  abroad 
on  a  Toyage,  his  ftmily  being  left  in  this  coun- 
tiy  in  Iod|pngs : — Held,  that  he  will  not  be  re- 
qnired  to  give  securiW  for  costs.  Ford  v.  Boucher, 
1  Hodges,  58.  696 

Assignees  of  bankrupts.  Mason  v.  Polhill,  1 
C.&.M.G20;  3Tyr.595;  2Dowl.P.C.6l.  698 

The  court  uriU  not  compel  a  plaintiff  in  a  qui 
tarn  action  to  give  security  for  costs,  though  it 
is  sworn  that  he  is  a  pauper,  and  has  a  yery  great 
Aomber  of  actions  by  the  same  attorney.  Gregory 
q.  t  y.  £lyid£e,  2  Dowl.  P.  C.  259 ;  2  C.  <&  M. 
336;  4Tyr.  235.  698 

If  an  insolvent  debtor  proceeds  with  an  action 
lAer  executing  his  assignment,  although  no  as- 
signees are  appointed,  the  court  will  compel  htm 
to  find  security  for  costs.  Doyle  v.  Anderson,  2 
Dowl.  P.C.  596.  698 

Where  a  plaintiff  becemes  bankrupt  before  the 
trial  of  a  cause,,  the  defendant  cannot  apply  for 
security  for  costs  till  he  has  ascertained  that  the 
assignees  haye  resolved  to  proceed  with  the  ac- 
tion.   Wilkinshaw  V.  Marshall,  4  Tyr.  993.    698 

A  plaintiff  declared  in  time  to  go  to  trial  at  the 
sittings  in  Mich.  T.,  had  not  two  orders  for  time 
to  plrad  been  obtained.  As  the  *«  usual  terras" 
were  imposed,  yis.,  inter  alia  the  accepting  short 
notice  or  trial,  the  plaintiff  might  still  haye  gone 
to  trial  a.t  the  sittings  after  Siat  term,  but  did 
not  On  the  10th  of  January  he  appeared  in  the 
Gaielte  as  a  bankrupt,  and  on  the  29\h.  the  issue 
was  deliyered : — Held,  that  an  application  for  se- 
cnrity  for  costs  from  the  assignees  made  on  tiie 
31at  January  was  in  time.    Id. 

Plaintiff,  who,  under  circumstances,  had  been 
ordered  to  giye  security  for  costs  by  reason  of  his 
iasolyency,  but  who  had  not  complied  with  the 
order  was  ordered  to  giye  that  security  within 
ten  days  or  his  bill  to  be  dismissed.  Tredwell  v. 
Byrch,  1  Y.  &  Col.  480.  698 

The  court  refused  to  grant  a  rule,  calling  upon 
the  defendant  in  repleyin  to  find  security  for 
costs,  although  it  was  sworn  that  neither  the  de- 
fendant nor  ue  broker  were  able  to  pay  them,  and 
the  defendant  had  taken  the  benefit  of  the  In- 
Boiyent  Act.  Hiskett  v,  Biddle,  3  Dowl.  P.  C. 
634;   1  Hodges,  119.  696 

After  an  anest  of  a  defendant,  the  plaintiff  re- 


moyed  his  furniture,  and  absconded,  to  ayoid  a 
charge  of  bigamy: — Held,  that  the  defendant 
was  entitled  to  security  for  costs.  Rogen  v* 
Banger,  4  Dowl.  P.  C.  411.  698 

Security  for  costs  may  be  applied  for  at  any 
time  before  plea  pleaded :  even  afWr  the  defend- 
ant has  had  an  order  for  time  to  plead.  Gurney 
r.  Key,  3  Dowl.  P.  C.  559;  1  Har.  &  WoU.  203. 

699 

So  at  any  time  afler  plea  pleaded.  Fletcher 
V.  Lew,  5  Ney.  &^  M.  351 ;  1  Har.  &,  Woll.  43a 

699 

Where  security  for  costs  has  been  giyen,  the 
defendant  will  not  be  entiUed  to  fresh  security  if 
the  sureties  become  insolyent.  Jones  v.  Jacobs, 
2  Dowl.  P.  C.  442.  699 

It  is  too  late  to  apply  for  security  for  costs  af- 
ter judgment  signed,  fiorhs  v.  Sessions,  2  Dowl. 
P.  C.  710.  699 

Unless  a  preyious  application  is  made,  the 
costs  of  the  rule  will  not  be  allowed.    Id. 

Where  a  party  is  seryed  with  a  notice  not  to 
proceed  without  ^iying  security  for  costs,  and 
giyes  an  undertakmg  to  that  effect,  tiie  notice 
and  undertaking  are  waiyed  by  the  opposite  party 
taking  a  step  in  the  cause.  Pulford  v.  Smithwick, 
1  Alcock  &,  Napier,  55.  (/risA).  699 

The  application  for  security  for  costs  is  stric* 
tissimi  juris.    £x  parte  Tull,  1  Mont.  A  Ayr.  80. 

699 

Examining  a  witness  before  the  commission- 
er, as  to  the  matter  of  the  petition,  and  an  applica- 
tion to  the  court  of  Reyiew  that  the  registrar 
may  attend  at  the  hearing  with  such  examina- 
tion, is  a  waiver,  of  the  ri^t     Id. 

Where  a  plaintiff  is  ^ilty  of  laches  in  de- 
claring, the  defendant  is  not  depriyed  of  his 
claim  to  security  for  costs  by  obtaining  time  to 
plead.    Fry  V.  Wills,  3  Dowl.  P.  C.  6.  69» 

The  court  will  not  compel  a  plaintiff  to  giye  se- 
curity for  costs  already  incurred.  Oxenden  v» 
Cropper,  4  Dowl.  P.  C.  574.  699 

During  the  pendancy  of  a  rule  for  a  new  trial 
obtained  by  the  plaintiff*,  the  court  will  not  com« 
pel  him  to  giye  security  for  the  future  costs  in 
the  cause.    Id. 

The  court  will  not  appoint  any  fixed  .time  be- 
fore which  a  plaintiff  is  to  giye  security  for  costs. 
Broughton  v.  Jeremy,  1  Har.  &  Woll.  525.     699 

A  rule  nisi  for  security  for  costs,  with  a  stay 
of  proceedings,  will  not  be  allowed  on  the  last  day 
of  term.    Gronow  v.  Pointer,  3  Dowl.  P.  C.  57K 

699 

An  application  for  security  for  costs  in  bank- 
ruptcy must  be  made  before  any  step  is  taken  by 
the  party  applying.  £x  parte  Tull,  3  Deac.  & 
Chit.  503.  699 


Taxation  of  Costs.') — An  allocatur  is  ths  pro- 
perty of  the  person  m  whose  fayor  it  is  made. 
Doe  d.  King  v.  Robinson,  2  Dowl  P.  C  503.  700 

Notice  of  taxing  costs  is  not  necessary  in  any 
case  where  Uie  cfefendant  has  not  appeared^  in 
person,  or  by  his  attorney  or  guardian,  notwith- 


1 


2416 


[COSTS] 


Btandinir  the  general  rule  T.  T.  ]  Will.  4.    Reg. 
Gen.  K.  B.,  C.  P.,  and  Exch.,  H.  T.  4  Will.  4. 

700 

No  notice  to  tax  is  necessary  when  a  defendant 
appears  in  person  and  gives  a  cognovit  which  is 

food,  though  there  is  no  declaration.    Clarke  v. 
ones,  3  Dowl.  P.  C  277.  700 

Costs  of  increase  form  no  integral  part  of  the 
suit,  as  they  are  awarded  by  the  court  in  conse- 
quence of  the  damages  recovered  by  the  plaintiff, 
and  form  the  subject  of  a  distinct  and  separate 
adjudication.  Taylor  v.  Wilkinson,  5  Nev.  ^  M. 
189 ;  1  Har.  &  WoU.  451.  700 

The  rule  for  taxing  to  the  defendant  the  costs 
of  the  two  issues  found  for  him  was  drawn  up 
with  this  additional  clause,  **  and  that  the  costs, 
when  so  taxed,  be  paid  by  the  safd  plaintiff  to 
the  said  defendant.-  — Held,  that  the  court  had 
no  power  to  nuike  such  an  order.  The  court 
directed  the  record  to  be  amended  by  an  entry 
of  a  judgpnent  for  the  costs  of  those  two  issues, 
upon  which  the  defendant  might  proceed  to  ob- 
tain his  costs  if  he  thought  proper.  Twigg  v. 
Potts,  4  Dowl.  P.  C.  266.  700 

Where  a  cause  is  ready  for  trial,  and  poiSt- 
poned  at  the  instance  of  either  party,  on  the 
terms  of  paying  the  costs  of  the  postponement, 
refreshing  llees  to  the   counsel  of  the  opposite 

Karty  form  a  portion  of  those  costs.    Bourne  v. 
linchin,  1  Alcock  6l  Napier,  144.  {Irish),       701 

Where  attested  copies  of  equity  pleadings 
are  rendered  necessary  as  evidence,  the  compen- 
sation to  the  attorney,  who  attendis  to  compare 
them  for  loss  of  time,  is  costs  in  the  cause.    Id. 

CosU  of  pleadings.  Ward  v.  Bell,  1  C.  &.  M. 
848  J  3  Tyi .  904 ;  )l  Dowl.  P.  C.  76.  702 

If,  by  an  alteration  in  the  state  of  the  plead- 
ings, aher  notice  of  trial,  certain  witnesses  are 
unnecessary,  the  part7  who  Bubp<Bnaed  them 
must  make  reasonable  efforts  to  prevent  their  atr 
tendance,  or  their  expenses  will  not  be  allowed  on 
taxation.    Allport  v.  Baldwin,  2  Dowl.  P.  C.  5d9. 

703 

It  is  a  question  for  the  discretion  of  the  Mas- 
ter, in  each  particular  case,  whether  the  expenses 
c^  witnesses  brought  from  abroad  should  be  al- 
lowed on  taxation  :  the  act  1  Will.  4,  c.  22,  for 
the  examination  of  witnesses  on  interrogatories 
has  made  no  alteration  in  this  respect.  Air  Alpine 
V.  Poles,  Powles,  or  Coles,  C.  &  M.  795 ;  3  Tyr. 
871 ;  2  Dowl.  P.  C.  299.  703 

It  is  a  question  for  the  discretion  of  the  Mas- 
ter, whether  a  witness  ought  to  be  allowed  for  the 
whole  time  of  his  attendance  at  the  assizes,  or 
only  a  portion  of  it ;  but,  where  the  Master  has 
decided  upon  it,  the  court  will  not  review  his  de- 
cision.   Piatt  V.  Greene,2  Dowl.  P.  C.  216.    703 

A  plaintiff  is  bound  to  have  his  witnesses  in  at- 
tendance from  the  commencement  of  the  assizes, 
and  may  therefore  have  the  costs  of  their  attend- 
ance previous  to  the  trial.  Cosgreve  v.  Evans, 
2  Dowl.  P.  C.  443.  704 

Where  the  master  has,  in  .his  discretion,  al- 
lowed, upon  taxation,  the  expenses  of  the  wit- 
nesses of  the  successful  party  at  the  assize  town 
for  several  days,  daring  which  their  attendance 


was  not  in  &ct  necessary,  the  court  will  not  in- 
terfere with  the  Mastei^s  decision,  unless  mala 
fides  be  shown  in  such  successful  party^  as  an 
intention  unnecessarily  to  increase  the  costs. 
Thomas  v.  Saunders,  3  Nev.  <5l.  M.  572.  704 

Previously  to  the  assizes,  the  plaintiff  serves 
on  the  defendant  a  notice,  importing  that  the 
cause  will  not  be  called  on  until  the  fourth  day 
after  the  commission  day,  and  that  he  shall  ob- 
ject, upon  the  taxation  of*^  costs,  to  any  allowance 
for  the  time  and  expenses  of  the  defendant's 
attorney  and  witnesses,  beyond  what  would  be 
necessary  if  the  trial  should  be  had  before  that 
day ;  and  that  he  undertakes  to  withdraw  the  re- 
cord if  the  cause  should  be  called  on  before.  The 
defendant  is  not  bound  to  pay  any  regard  to  such 
notice.    Id. 

Semble,  such  notice,  served  on  the  day  before 
the  commission  day,  afler  all  the  necessary  ar- 
rangements had  been  made  for  conveying  the 
witnesses  to  a  distant  assize  town  on  ihe  follow- 
ing day,  would  be  too  late,  supposing  it  to  be 
otherwise  good.    Id. 

A  party  succeeding  on  an  issue  is  entitled  to 
the  costs  of  an  V  witnesses  called  to  give  evidence 
on  a  fact  involved  in  that  issue,  though  the  iury 
or  an  arbitrator  may  find  that  fact  against  him. 
Radcliffe  v.  Hall,  2  C.  M.  &  R.  258 ;  1  Gale»  140. 

703 

The  Master  ought  not  to  allow  costs  exceeding 
the  sum  actually  paid.    Id. 

The  costs  of  executing  a  commission  in  a  for- 
eign country,  under  1  Wul.  4,  c.  22,  s.  4,  are  costs 
in  the  cause,  unless  some  special  ground  is  laid 
for  ordering  otherwise.  Prince  v.  Samo,  4  Dowl. 
P.  C.  5.  702 

If  the  officer  of  the  courty  in  taxing  a  bill  of 
costs,  disallows  charges  which  are  usually  allow- 
ed, the  court  of  Bankruptcy  will  order  a  re-taxa- 
tion. Aliter,  where  the  charges  are  not  usually 
allowed,  unless  a  special  appfication  is  made  to 
the  court,  stating  the  reasons  for  enforcing  such 
allowance.    In  re  Gray,  1  Deac.  105.  705 

A  motion  to  review  the  Master's  taxation  mnat 
be  supported  by  an  affidavit  that  the  Master  has 
made  his  allocatur.  Cleaver  v.  Hargrave,  2 
Dowl.  P.  C.  689.  705 

An  application  in  bankruptcy,  that  the  ofiioer 
may  be  directed  to  review  his  certificate  as  to  the 
taxation  of  costs,  may  be  made  by  motion.  Ex 
parte  Richardson,  3  Deac.  &  Chit  735.  705 

It  is  not  an  objection  to  such  application,  that 
the  amount  of  the  taxed  costs  has  not  been  paid 
into  court,  though  it  may  be  proper  to  make  such 
payments  one  en  the  terms  of  tne  order  for  re- 
taxation.    Id. 

An  application  for  a  review  of  the  Master's 
certificate  of  taxation,  on  the  ground  that  certain 
items  had  been  improperly  allowed,  is  not  regalar« 
by  way  of  motion.    Att  Gen.  v.  Brown,  1  Mylne 
&  K.  567.  705 

Under  the  directions  to  taxing  ofiicera  promnl- 

S.ted  in  H.  T.  4  Will.  4,  it  is  not  necessary  for 
e  judge  who  certifies  jto  enable  a  plaintiff  to  ob- 
tain full  costs,  to  hear  the  cause  throughout. 
Nokes  17.  Frazer,  3  Dowl  P.  C.  339.  705 


[COSTS— COVENANT] 


2417 


Rttawry  of  Costs.'] — ^Where  the  plaintiff  has 
been  nonprossed  in  the  Exchequer,  and  after- 
wards brings  an  action  in  K.  B.,  that  court  will 
sta^  the  proceeding  till  the  costs  of  the  former 
action  are  paid.    Nevitt  v.  Lade,  3  Dowl.  396. 

706 

Where  the  plaintiffs  recovered  Is,  damages,  al- 
though the  surname  of  one  of  them  was  omitted 
in  the  Nisi  Prius  record,  on  which  ground  the 
court  refused  to  increase  the  damages  to  the  sum 
the  plaintifi  sought  to  recover,  and  they  sued 
oat  execution  for  the  costs  on  the  verdict  for  Is., 
and  brought  another  action  for  the  sum  they  ori- 
rinally  sought  to  recover,  although  they  had  re- 
msed  to  amend  the  record  on  payment  of  costs : 
the  ooort  stayed  the  proceedings  in  the  second 
action,  the  defendant  not  having  pleaded.  Long- 
ridge  V.  Brewer,  7  Moore,  522 ;  1  Bing.  307.    70i6 

Where  a  second  action  was  brought  for  the 
same  cause  of  action  for  which  a  former  one  was 
pending,  the  court  discharged  a  rule  for  staying 
the  proceedings  in  the  second  action,  upon  the 
affidavit  of  the  plaintiff  disclaiming  the  act  of  his 
attorney  in  brining  the  first  action.  Souter  v. 
Watts,  2  Dowl.  P.  C.  263.  706 

Proceedings  stayed  in  a  second  ejectment  on 
the  several  demises  of  A.,  an  insolvent  debtor, 
and  of  B.,  his  assignee,  until  payment  of  the  costs 
of  a  former  ejectment  broturht  by  A.  Doe  d. 
Standiah  v.  Roe,  2  Nev.  dt  AL  468;  5  B.  A  Adol. 
W8.  707 

A  second  ejectment  will  be  stayed  until  the 
payment  of  the  costs  of  a  former  ejectment  on 
the  same  title,  where  in  the  first  ejectment  the 
pka  has  been  filed,  and  the  drafl  consent  rule 
drawn  up  but  not  entered  into.  Doe  d.  Langdon 
«.  Langdon,2  Nev.  &  M.  848 ;  5  B.  &  Adol.  864. 

707 

Where,  in  a  country  cause,  a  declaration  in 
ejectment  ¥ms  delivered  on  the  30th  of  Septem- 
ber, an4,  on  the  fifth  dav  of  the  ensuing  Hilary 
terra,  a  motion  was  made  to  stay  proceedings  in 
thai  ejectment  until  the  costs  of  a  former  eject- 
nent  were  paid  : — Held,  that  the  motion  was  not 
too  late,  although  a  term  had  elapsed  since  the 
coaunencenieiit  of  the  action,  and  notice  of  trial 
had  been  given.  Doe  d.  Martin  v.  Packer,  2  C.  & 
M.  457 :  S.  C.  nom.  Doe  d.  Maslin  v.  Packer,  4 
Tyr.  144 ;  nom.  Doe  d.  Green  v.  Packer,  2  Dowl. 
P.  C.  373.  707 

A  tenant  who  has  been  served  with  a  declara- 
tion in  ejectment,  cannot  move  to  stay  proceed- 
ings  nntil  the  costs  of  a  former  ejectment,  m  every 
way  similar,  are  paid,  before  he  has  entered  into 
the  consent  rule.  Doe  d.  Crockett  v.  Roe,  1  Har. 
&,  WoU.  35L  707 

The  court  refused  to  discharge  an  order  of  a 
judge,  by  which  time  was  ^iven  to  the  defendant 
to  rejoin,  until  ailer  the  plaintiff  had  purged  him- 
self of  a  contempt  in  the  nonpayment  of  inter- 
locutory costs  in  the  cause,  although  an  attach- 
ment bad  been  issued  for  the  same  contempt,  but 
it  had  not  been  executed.  Wenham  v.  Downes,  5 
Nev.  &  M.  244 ;  1  Har.  <&  WoU.  324.  706 


COVENANT. 

Construction  of  covenent  to  indemni^.  Carr  v* 
Roberts,  5  B.  &  Adol.  78;  2  Nev.  &  M.  42.    709 

Executors,  though  not  named,  may  sue  upon 
a  covenant  made  with  their  testaitor  in  reference 
to  a  chattel.  Doe  d.  Rogers  v.  Rogers,  2  Nev.  d^ 
M.  550.  718 

In  consideration  of  the  sum  of  300Z.,  T.  D.  A 
R.  D.  by  deed,  severally  and  respectively,  and 
for  their  several  and  respective  heirs,  executors, 
and  administrators,  granted,  covenanted  and 
agreed,  to  and  with  L.  &,  B.,  their  heirs,  execu- 
tors, administrators,  and  assigns,  to  pay  to  L.  dt 
B.,  their  executors,  &c.,  one  annuity  or  clear ' 
yearly  sum  of  30Z.  in  the  shares  and  proportions 
following,  viz.  the  sum  of  152.,  being  one  moiety 
of  the  annuity,  unto  L.,  his  executors,  &c.,  and 
the  sum  of  lA ,  the  remaining  moiety,  unto  B., 
his  executors,  &c.,  to  be  respectively  paid  quar- 
terly. The  powers  for  better  secunn^  the  pay- 
ment of  the  annuity  contained  in  the  deed  were 
all  given  to  L.  &  B.  jointly,  and  the  deed  also 
contained  a  joint  power  of  attorney  to  them  to 
enter  up  joint  iudgment;  and  a  joint  power 
was  mnted  to  them  to  dispose  of  the  reversion 
of  a  close  of  land,  with  a  joint  power  of  attorney 
to  sell  certain  stock ;  and  the  annuity  was  re* 
deemable,  on  seven  days'  notice  in  writing  being 
^iven,  by  the  payment  to  L.  &  B.  of  the  sum  of 
3072.  iOs.  and  all  arrears  of  the  annuity.  In  an 
action  brought  by  L.  against  T.  D.  to  recover 
arrears  of  the  annuity : — Held,  that  the  covenant 
was  a  joint  covenant,  and  that  the  interest  in  the 
annuity  was  joint,  and  that  L.  could  not  sue 
alone.  Lane  v.  Drinkwater,  1  C.  M.  &  R.  599 ; 
5  Tyr.  40.  717 

A  covenant  with  the  part-owners  of  a  ship,  and 
their  several  and  respective  executors,  &c.  to  pay 
money,  to  accrue  lor  the  hire  of  the  ship,  for 
freight  of  goods,  and  for  compensation  for  the  use 
of  the  ship's  tackle,  Ac.  to  the  covenantees,  their 
and  every  of  their  several  and  respective  execu- 
tors, &c.,  at  a  certain  banking-house,  in  such 
parts  and  proportions  as  were  set  against  their 
several  and  respective  names,  is  a  several  cove- 
nant and  cannot  be  sued  upon  by  the  cove- 
nantees jointly.  Servante  v.  James,  5  M.  dc^  R. 
299.  717 

The  lessees  of  a  theatre,  by  de^d  under  seal, 
agreed  to  pay  certain  money  lent  to  them  by  the 
plaintiff,  on  a  certain  day,  and  that  untilpay  men  t 
the  plaintiff,  and  such  persons  as  he  mignt  ap- 
point, should  have  the  free  use  of  two  Iwxes  in 
the  theatre,  one  in  the  dress  circle,  and  one  in  the 
circle  above,  no  specific  boxes  bein^^  mentioned. 
The  lessees  afterwards  assigned  their  interest  in 
the  theatre  to  the  defendant: — Held,  that  this 
was  a  mere  personal  contract,  and  that  no  action 
could  be  maintained  against  the  assignee  for  re- 
fusing to  permit  the  plaintiff  to  use  the  boxes  in 
the  Uieatre.  Flight  v.  GIossop,  2  Scott,  220 ;  3 
Bing.  N.  R.  125 ;  1  Hodges,  263.  719 

"  A.  by  indenture,  executed  by  himself  and  B., 
assigned  to  B.  certain  premises,  subject  to  the 
payment  of  the  rent,  and  to  the  performance  of 
the  covenants  and  agreements  reserved  and  con- 


3418 


[COVENANT-^CRIMINAL  LAW] 


tained  in  the  origina]  leue.*'  B.  entered  under 
this  aBsignment,  and  afterwards  assigned  over  to 
a  third  person  : — Held,  that  B.  was  not  liable  in 
covenant  to  A.,  for  rent  which  the  latter  had  been 
called  upon  to  pay,  in  consequence  of  the  default 
of  B.'s  assignee  :  the  words  '*  subject  to  the  pay- 
ment of  the  rent,  Slc."  being  words  of  qualifica- 
tion and  not  of  contract  Wolyeridge  v.  Steward, 
3M.&  Scott,  561.  720 

The  11  Anne,  (Irish),  c.  2,s.  6,  renders  the 
notion  of  covenant  against  the  assignee  of  the 
lessee  transitory.  Giogan  v.  Magan,!  Alcock  & 
Napier,  3G6.  (Irish).  790 

In  declaring  in  covenant  it  is  only ^  necessary 
to  set  forth  so  much  of  the  indenture  as  is  requi- 
site to  support  the  action.  Id. 

Where  an  indenture  of  lease  contained  a  pro- 
viso, that  if  a  certain  event  should  happen  after 
the  execution  of  the  lease,  the  rent  reserved 
should  be  reduced : — Held,  that,  in  an  action  of 
covenant  for  nonpayment  of  rent,  the  covenant 
might  be  declared  upon  as  an  absolute  covenant 
Id. 


fendant  covenanted  to  pay  a  certain  sum  of  money 
at  a  certain  time.  Upon  oyer,  the  covenant  ap- 
peared to  be  to  pay  the  money  at  that  time,  and 
also  at  a  particular  place.  The  defendant  de- 
murred, and  assigned  the  variance  as  a  cause 
of  demurrer : — Held,  that  there  was  no  material 
variance.  Paine  v.  Emery,  4  Dowl.  P.  C.  191 ; 
lGale,2G6.  790 

In  covenant  to  allow  a  business  to  be  carried 
on  in  a  certain  shop,  a  breach  that  defendant  im* 
properly  ^ut  up  the  shop  is  sufficient,  without 
alleging  that  the  shop  was  shut  up  at  unreasooa* 
ble  or  improper  times.  Hodges  v.  Gray,  4  Dowl. 
P.  C.  733.  TW 


CRIMINAL  LAW. 


I.  Persovs  capable  op'coMnrrrnio  Cbiheb. 


A.  &  B.  are  lessees  of  a  coal  mine,  A.  beinff  also 
lessee  in  trust  for  himself  and  B.  of  land  adjoin- 
ing, necessary  for  the  working  of  the  mine,  cove- 
nant with  C  that  he  will  do  nothing  whereby  an 
annuity,  charged  (with  power  of  entry  upon  the 
mine,  Ac.  and  sale,  in  case  the  annuity  should  be 
in  arrear),  upon  the  profits  which,  after  payment 
of  the  rent,  taxes,  &c.  then  charged  thereon, 
might  be  made  under  the  leases  of  ihe  mine  and 
land,  bv  the  sale  of  the  coal  or  otherwise,  mav  be 
iropeacbed.  In  an  action  on  the  covenant,  C.  as- 
«igns  as  breaches — ^first,  that  A.  surrendered  the 
land,  and  took  a  new  lease  to  himself  and  B.  joint- 
ly, in  trust  for  other  persons,  whereby  the  annuity 
Xiecame  and  was  impeached,  and  the  plaintiff  lost 
his  remedies  to  enforce  it ;  2ndly,  that  A.  &•  B.  ac- 
cepted a  new  lease  of  the  land,  at  an  increased 
rent,  and,  in  other  respects,  upon  less  advanta^ 
4>ns  terms,  for  the  fraudulent  purpose  of  obtainmg 
from  the  lessor  a  demise  of  mines  under  the  land 
upon  terms  advantageous  to  A.  &  B.,  whereby 
the  annuity  became  and  was  impeached ;  3rdly, 
that  A.  &,  B.  assigned  (amongst  other  things) 
«uch  neighboring  mine  and  the  land  to  D., 
thereby  tne  annuity  became  and  was  impeached : 
—Held,  that  the  declaration  was  insufficient,  for 
tiot  showing  in  what  manner  the  acts  complained 
of  operated  to  impeach  the  annnuity.  ritt  v. 
WiUiams,  4  Ncv.  &  M.  412 ;  2  Adol.  A  Ellis,  419. 

720 

In  an  action  on  a  covenant,  to  do  no  act  where- 
hj  an  annuity  charged  upon  the  profits  of  a  coal 
mine  shall  be  impeached,  it  is  no  ground'  of  de- 
murrer that  the  declaration  does  not  allege  that 
any  profits  have  been  made.  Id. 

Quere,  whether  such  omission  would  disen- 
title the  plaintiff  to  recover  more  than  nominal 
damages?  Id. 

In  an  action  to  recover  arrears  of  annuity,  such 
allegation  in  the  declaration  would  be  required. 
Id. 

In  covenant  the  declaration  stated  that  the  de- 


If  larceny  be  committed  jointly  by  husband 
and  wife,  the  latter  is  entitled  to  be  acquitted,  an 
she  must  be  presumed  to  be  under  his  eoereion 
and  control ;  and  where  she  was  indicted. as  ^*  the 
wife  of  A.  B.  :**— Held,  to  be  sufficient  proof  that 
she  was  so,  without  adducing  further  evidence  to 

?rove  that  fact    Rex  v.  Knight,  1 C.  &  P.  116 — 
ark.  727 

A  person,  deaf  and  dumb,  was  to  be  tried  for  m 
capital  felony :  the  judge  ordered  a  jurv  to  be  im- 
panneled,  to  try  whether  he  wna  mute  by  the  visi- 
tation of  God ;  the  jury  found  that  he  was  so. 
The  jury  were  then  sworn  to  try  whether  he  was 
able  to  plead,  which  they  found  m  the  affirmative ; 
and  the  prisoner,  by  a  sign,  pleaded  not  guilty. 
The  judge  then  ordered  the  jury  to  be  sworn  to 
try  whetner  the  prisoner  was  now  sane  or  not ; 
and  on  the  question,  his  lordship  directed  the 
jury  to  consider  whether  the  prisoner  had  sufli 
cient  intellect  to  comprehend  the  course  of  the 
proceedings,  so  as  to  make  a  proper  defence,  to 
challenge  any  juror  he  might  wish  to  object  to, 
and  to  comprehend  the  details  of  the  evidenee  : 
and  that  if  thev  thought  he  had  not,  tliev  should 
find  him  not  of  sane  mind.  The  jury  did  so.  and 
the  judge  ordered  the  prisoner  to  be  detained  un* 
der  the  stat.  39  &  40  Geo.  3,  c.  94,  s.  2.  Rex  v. 
Pritchard,  7  C.  &  P.  303— Alderwm.  727 

It  is  no  defence  on  behalf  of  a  foreigner  charged 
in  England,  with  a  crime  committed  there,  that  he 
did  not  know  he  was  doing  wrong,  the  act  not  be- 
ing an  ofl[ence  in  his  own  country.  But  thonek 
itis  not  a  defence  in  law,  vet  it  is  a  matter  to  be 
considered  in  mitigation  ot  punishment  Rex  v. 
Esop,  7  C.  &  P.  456— Bosanquet  &>  Vaughan. 

727 

The  case  of  Rex  v,  Grindley,  in  which  it  was 
said  that  the  intoxication  of  a  person  charged  with 
murder  was  a  proper  circumstance  to  be  tucen  in- 
to consideration  in  order  to  show  whether  the  act 
was  premeditated,  or  done  only  with  sudden  heat 
and  impulse,  is  not  law.  Rex  v.  Carroll,  7  C.  & 
P.  145— Parke.  728 

In  a  case  of  stabbing,  where  the  prisoner  has 
used  a  deadly  weapon,  Uie  fact  that  the  prisoner 
was  drunk,  does  not  at  all  alter  the  nature  of  the 
case ',  but  if  the  prisoner  had  intemperately  used 


[CRIMINAL  LAW] 


^19 


VI  instmiDent,  not  in  its  nature  a  deadly  weapon, 
at  a  time  when  he  was  drunk,  the  fact  of  his  be- 
ui|r  drank  might  induce  the  jury  to  less  strongly 
inier  a  malicious  intent  in  him  at  the  time.  Rex 
r.  Meakin,  7  C.  &  P.  S^^Alderaon.  728 

II.   PlUlfClPAL   AND   ACCESSORT. 

A.,  a  lad  who  was  a  clerk  in  a  banking  house, 
robbed  his  employers ;  afler  doing  so,  he  went  to 
tlw  lodgings  of  tf.,  who  was  much  older  than  him- 
self, and  who  had  relations  in  America.  A. 
stayed  twenty  minutes  at  B/s  lodgings ;  and  after 
thai,  on  the  same  night,  A.  and  B.  started  toge- 
ther by  the  coach,  and  went  from  Reading  to  Li- 
verpool, intending  to  embark  for  America: — 
Held,  that,  on  this  evidence,  B,  might  be  convict- 
ed as  an  accessory  afler  the  fact,  in  *^  harboring, 
reoeiying,  and  maintaining"  A.  the  principal  felon. 
Rejc  V.  £ee,  6  C.  &  P.  5§6— Williams.  728 

A.  was  indicted  for  larceny  as  a  principal,  B. 
being  chared  in  the  same  indictment  with 
having  received  the  stolen  property  from  A.  B. 
was  tried  at  the  Clerkenwell  sessions  for  the  re- 
ceiving, and  was  convicted,  and  sentenced  to  be 
transported.  A.  was  afterwards  tried  at  the  Old 
Bailey  as  the  principal,  and  acquitted  : — Held, 
that,  although  B.  was  imprisoned  in  Newgate,  in 
Musnanoe  ofhis  sentence,  the  judges  at  the  Old 
bailey  had  no  jurisdiction  to  order  his  discharge. 
Ex  paite  Palmer,  6  C.  dt  P.  122-LitUedale.  728 


VII.   Offikces  relating  to  Stamps. 

A  person  may  be  found  guilty  under  the  stats. 
13  Geo.  3,  c.  52,  s.  14,  and  38  Geo.  3,  c.  60,  s.  7, 
if  he  be  proved  to  have  transposed  the  mark  of  the 
Goldsmiths*  Company  from  one  gold  ring  to 
another,  although  both  rings  be  genuine,  and 
although  the  jury  may  be  of^opinibn  that  he  did 
sowithont  any  fraudulent  intention.  Rez  v.  Og- 
den,  6  C.  dk  P.  631— Grim.  Court.  iSi 


VUL    OrrEVCBs   relatiho  to  the   Post-of- 
fice. 

At  the  trial  of  a  person  on  the  stat.  52  Greo.  3, 
c.  143,  s.  2,  for  embezzling  a  letter  containing  a 
hill  (rf  exchange,  he  being  at  the  time  employed 
under  the  Post-office,  it  is  sufficient  to  prove  that 
such  person  acted  in  the  service  of  the  Post-office, 
and  it  is  not  necessary  to  go  into  proof  of  his  ap- 
pointment.   Rez  V.  Kees,  6  C.  &  P.  606 — Parke. 

735 

On  an  indictment  for  embezzlement  against  a 
letter  carrier  charged  under  2  Will.  4,  c.  4,  as  a 
person  employed  m  the  public  service  of  his  Ma- 
jesty, it  is  not  necessary  to  prove  his  appointment 
as  a  letter  carrier,  but  evidence  of  his  having 
acted  as  such  is  sufficient.  Rez  v.  Borrett,  6  C. 
A  P.  124— LitUedale.  735 

If  the  wife  of  a  party  to  whom  a  letter  is  di- 
rected pays  the  postage  of  the  letter,  she  is  enti- 
tled to  demand  an  overcharge  made  for  it ;  and  a 
refusal  on  the  part  of  the  letter  carrier  to  account 
for  it  to  her  is  evidence  of  an  embezzlement  by 
hiflL  Id. 


Vol.  IV. 


19 


XIV.  Homicide. 

Murder. 1 — A  child  must  be  actually  wholly  in 
the  world  in  a  Irving  state  to  be  the  subject  of  a 
charge  of  murder ;  but,  if  it  is  wholly  bom  and 
is  alive,  it  is  not  essential  that  it  should  have 
breathed,  but  the  jury  must  be  satisfied  that  the 
child  was  wholly  born  into  the  world  at  the  time 
it  was  killed,  or  they  ought  not  to  convict  the 
prisoner  of  murder.  Rez  v.  Brain,  6  C.  &  P.  349 
—Park.  737 

If  two  persons  fight,  and  one  overpower  the 
other,  and  knock  him  down,  and  put  a  rope 
round  his  neck  and  strangle  him,  Uiis  will  be 
murder.    Rez  v.  Shaw,  6  C.  &  P.  372 — Patteson. 

738 

A  servant  of  Mr.  C.  attempted  to  apprehend  A., 
who  was  out  night-poaching  in  a  wood,  and  the 
servant  was  killed  by  A.  Mr.  C.  was  neither  the 
owner  nor  the  occupier  of  the  wood,  nor  the  lord 
of  the  manor,  Mr.  C.  having  only  the  permission 
of  the  owner  of  the  wood  to  preserve  game  there  : 
— Held,  that  this  was  manslaughter  only  in  A. 
Rez  V.  Addis,  6  C.  &  P.  388— Patteson.  738 

In  criminal  cases,  the  definition  of  a  wound  is, 
an  injury  to  the  person,  by  which  the  skin  is 
broken.  Moriarty  v.  Brooks,  6  C.  <&  P.  864 — 
Lyndhurat.  738 

Mandaughter,'\ — A.  being  on  board  a  ship,  and 
B.  in  a  boat  alongside,  they  had  a  dispute  about 
the  payment  for  some  goods,  both  bemg  intozi- 
cated.  A.,  to  get  rid  of  B.,  pushed  away  the 
boat  with  his  foot.  B.  reaching  out,  to  lay  hold 
of  a  barge,  to  prevent  his  boat  from  drifting  away, 
overbalanced  nimself,  and  fell  into  the  water  and 
was  drowned.  A.  was  charged  with  manslaugh- 
ter:— Held,  that  these  facts  did  not  constitute 
that  offisnce.  Rez  v.  Waters,  6  C.  <&  P.  32&— 
Park  and  Patteson.  739 

If  A.  and  B.  be  riding  fast  along  a  highway, 
as  if  racing,  and  A.  ride  by  without  doing  any 
mischief,  but  B.  rides  against  the  horse  of  C, 
whereby  C.  is  thrown  and  killed;  this  is  not 
manslaughter  in  A.  Rez  o.  Mastin,  6  C.  &  P. 
346— Patteson.  740 

A  foot  passenger  walking  at  lamplight  in  the 
carriage  road  along  a  public  highway,  when  the 
owner  of  a  cart,  who  was  proved  to  be  near-sighted, 
drove  along  at  the  rate  of  eight  or  nine  miles  an 
hour,  sitting  at  the  time  on  a  few  sacks  laid  on 
the  bottom  of  the  cart,  and  ran  over  the  foot  pas- 
senger and  killed  him : — Held,  that  he  was  guilty 
of  such  carelessness  as  amounted  to  the  crime  of 
manslaughter.  Rez  v.  Grout,  6  C.  dt  P.  629 — 
Crim.  Court.  740 

Where  a  mother,  being  angry  with  one  of  her 
children,  took  up  a  small  piece  of  iron  used  as  a 
poker,  and  on  his  running  to  the  door  of  the  room, 
which  was  open,  threw  it  afler  him,  and  hit  an* 
other  child  who  happened  to  be  entering  the  room 
at  the  moment,  in  consequence  of  which  he  died : 
— It  was  held  to  be  manslaughter,  although  it 
appeared  the  mother  had  no  intention  of  hitting 
the  child  with  whom  she  was  angry,  and  only  in- 
tended to  frighten  him.  Rez  v,  Conner,  7  C.  db 
P.  438— Parke  and  Gaselee.  740 


34S0 


[CRIMINAL  LAW] 


Where  a  person  in  loco  parentifl  inflicts  cor- 
poral pnnishnient  on  a  child,  and  compels  it  to 
work  tor  an  unreasonable  number  of  hours,  and 
beyond  its  strength,  and  the  child  dies,  the  death 
being  of  consumption,  but  hastened  by  the  ill 
treatment,  it  will  not  be  murder,  but'  only  man- 
slaughter in  the  person  inflicting  the  punishment, 
although  it  was  cruel  and  excessiv;e,  and  accom- 
panied by  violent  and  threatening  language,  if 
such  person  believed  that  the  child  was  shamming 
illness,  and  was  really  able  to  do  the  quantity  of 
work  required.  Rex  v.  CheeseQian,  7  C.  «  P. 
454— Vaughan.  740 

Where  a  person  grossly  ignorant  of  medicine, 
administers  a  dangerous  remedy  to  one  laboring 
under  a  disease,  proper  medical  assistance  being 
at  the  time  procurable,  and  that  dangerous  reme- 
dy causes  death,  the  person  so  administering  it  is 
guilty  of  manslaughter.  Rex  v,  Webb,  1  M.  & 
Rob.  405— Lyndhurst  740 

To  make  the  captain  of  a  steam  vessel  guilty  of 
manslaughter,  in  causing  a  person  to  be  drown- 
ed by  running  down  a  boat,  the  prosecutor  must 
show  some  act  done  by  the  captain ;  and  a  mere 
omission  on  his  part,  in  not  doing  the  whole  of 
his  duty  is  insufiicient.  But  if  there  be  snflicient 
light,  and  the  captain  of  a  steamer  is  either  at  the 
helm  or  in  a  situation  to  be  pving  the  command, 
and  does  that  which  causes  me  injury,  he  is  guil- 
ty of  manslaughter.  Rex  v.  Green,  7  C.  w  P. 
156— Park  and  Alderson.  740 

The  captain  and  pilot  of  a  steam  boat  were 
both  indicted  for  the  manslaughter  of  a  person 
who  was  on  board  of  a  smack,  by  running  the 
smack  down.  The  running  down  was  attributed 
on  the  part  of  the  prosecution,  to  improper  steer- 
age of  tne  steamboat,  arising  from  there  not  be- 
ing a  man  at  the  bow  to  keep  a  look-out  at  the 
time  of  the  accident.  It  was  proved  that  there 
was  a  man  on  the  look-out  when  the  vessel  start- 
ed, about  an  hour  previous.  According  to  one 
witness,  the  captain  and  pilot  were  both  on  the 
bridge  between  the  paddle-boxes ;  according  to 
another,  the  pilot  was  alone  on  the  paodle- 
box : — Held,  tliat  under  these  circumstances 
there  was  not  such  personal  misconduct  on  the 
part  of  either  as  to  make  them  guily  of  felony. 
Rex  V.  Allen,  7  C.  &>  P.  153— Pari  and  Alderson. 

740 

If  a  police  constable^  on  being  sent  for  at  a  late 
hour  of  the  night  to  dear  a  heer-house,  do  so, 
and  one  of  the  persons  on  leaving  the  house, 
and  being  told  to  go  away,  refuse  to  do  so,  and 
use  threatening  language,  the  police  constable  is 
justified  in  laying  hands  on  him  to  remove  him ; 
and  if  he  cut  the  police  constable  with  a  knife, 
with  intent  to  do  grievous  bodily  harm,  this  is  a 
capital  oflTence,  and  the  fact  of  the  police  con- 
stable having  laid  hands  on  the  party,  would  not 
have  reduced  the  crime  to  manslaughter,  if  death 
had  ensued.  Rex  «.  Hems,  7  C.  &  P.  313— Wil- 
liams. 740 


Indictment.] — In  an  indictment  for  murder, 
where  the  death  is  alleged  to  have  been  caused 
by  a  wound,  it  is  not  necessary  to  describe  either 
the  length,  breadth,  or  depth  of  the  wound.    Rex 


V.  Tomlinson,6C.  4t  P.  370~Park  and  Patt0iOD. 

741 


If  in  a  case  of  murder  the  death  of  a  deceased 
is  charged  to  be  by  suffocation,  by  placing  the 
hand  on  the  mouth  of  the  deceased  : — Held,  that 
this  allegation  is  made  out  if  the  jury  are  satis- 
fied that  any  voilent  means  were  used  to  stop  the 
respiration  of  the  deceased.  Rex  v.  Waters,  7  C. 
A  P.  250— Denman.  741 

In  an  indictment  for  manslaughter,  it  is  not 
necessary  to  allege  the  causes  merely  natural 
which  conducted  to  the  death  of  the  party ;  it  is 
snflicient  to  allege  truly  the  acts  with  which  the 
prisoner  is  charged,  if  that  act  accelerated  the 
death.  Rex  v.  Webb,  1  M.  dt  Rob.  405— Lynd- 
hnrst.  741 


Evidenes.'] — ^A.  was  charged  with  manslani^h- 
ter,  in  killing  B.,  by  driving  a  cabriolet  over  hnn. 
C.  saw  the  cabriolet  drive  by,  but  did  not  see  the 
accident,  and  immediately  afterwards,  on  hearing 
B.  groan,  C.  went  up  to  him,  when  B.  made  a 
statement  as  to  how  the  accident  had  happened : 
— Held,  that  this  statement,  being  made  at  the 
moment  of  the  accident  occurring,  was  receiTahle 
in  evidence  on  the  trial  of  A.  for  the  mandangh- 
ter  of  B.  Rex  v.  Foster,  6  C.  &  P.  325— Park, 
Patteson,  and  Gnmey.  742 

An  indictment  charged  a  murder  to  have  been 
committed  by  cutting  the  throat  of  the  deceased : 
— Held,  that  the  **  uiroat*"  means  what  is  com- 
monly so  called;  and  that  this  allegation  was 
proved  by  showing  that  the  jugular  vein  was  di- 
vided, although  the  carotid  artery  was  not  cnt, 
and  although  the  surgeon  stated  that  what  he 
should  call  the  throat  was  not  cnt.  Rex  v.  Ed- 
wards, 6  C.  4k  P.  401— Patteson.  743 

DedaraUmt  in  Artkuio  Mortis.  ] — In  order  to 
render  a  declaration  in  aiticulo  mortis  admiasible 
in  a  case  of  manslaughter,  it  is  not  necessary  to 
prove  expressions  of  the  deceased,  that  he  was 
in  apprehension  of  almost  immediate  death;  bat 
the  judge  will  consider,  from  all  the  circum- 
stances, whether  the  deceased  had  or  had  not 
any  hope  of  recovery.*  Rex  v.  Bonner,  6  C.  dt  P. 
386— Patteson.  743 

On  the  question  whether  a  declaration  of  a 
deceased  person  be  admissible  as  a  declaration 
in  articulo  mortis,  the  judge  will  consider  whe- 
ther the  conduct  of  the  deceased  Was  that  of  a 
dying  person,  such  as  whether  he  gave  directions 
respecting  his  funeral,  his  will,  &c.,  and  not 
merely  the  expressions  he  used,  as  to  whether 
he  thought  he  should,  or  should  not  recover. 
Rex  V.  Spilsbury,  7  C.  &  P.  187— Coleridge.  743 

If  a  declaration  in  articulo  mortis  be  taken 
down  in  writing,  and  signed  b^  the  party  making 
it,  the  judge  wul  neither  receive  a  copy  of  the 
paper  in  evidence,  nor  will  he  receive  parol  evi- 
dence of  the  declaration.  Rex  v.  Cray,  7  C.  & 
P.  230— Coleridge.  743 

It  is  no  objection  against  a  declaration  in  ar- 
ticulo mortis,  that  it  was  made  in  answer  to  ques- 
tions put  to  the  deceased  by  the  surgeon,  and 
'  not  a  continuous  statement  made  by  the  de- 


[CRIMINAL  LAW] 


3431 


I 

\ 


Bex  V.  iWeoL  7  C.  &  P.  S38— Gaselee. 
^^  743 

If  E  penon  whoM  death  in  the  subject  of  a 
chaii^  of  manslaughier  express  an  opinion  that 
she  shall  not  recoyer,  and  make  a  declaration, 
and  at  a  subsequent  part  of  the  same  day  ask  a 
person  ^diether  he  thmks  she  will  **  rise  again :" 
— Held,  that  this  showed  such  a  hope  of  recovery 
ss  rendered  the  preyious  declaration  inadmissible. 
Id. 


XV.  SnooTiva,  Stabbiho,  Ac, 

A.  had  the  barrels  of  a  double-barrelled  per- 
cussion gun  detached  from  the  stock  and  lock, 
and  by  striking  the  percussion  cap  which  was  on 
the  nipple  of  one  of  the  barrels,  he  fired  it  and 
shot  B.  :~Held,  to  be  within  the  stat.  9  Geo.  4, 
c.  31,  «.  11, 12.    Rex  V.  Coates,  6  C.  ^  P.  3d4 

745 


I- 


A.  aentatin  box  to  B.,  containing  three  pounds 
of  gunpowder,  and  two  detonators,  which  were 
iatended  to  ignite  the  gunpowder  when  any  per- 
■en  opened  the  box,  and  so  destroy  the  person 
wko  opened  it :— Held,  that  this  was  not  an  at- 
tempt to  discharge  loaded  arms^at  B.  within  the 
slaL  9  Geo.  4,  c.  31,  ss.  11, 12.  Rex  v.  Mount- 
fed,  7  C.  A  F.  242— Williams.  746 

Gamekeepers  being  in  a  preserye  between 
twelve  and  one  at  night,  heard  the  firing  of  two 
guns,  and  proceeding  in  the  direction  of  the 
asond,  met  with  two  persons  who  neither  had 
guBs  nor  game  upon  them,  nor  were  either  found 
near  them .  Hie  gamekeepers  immediately  seized 
them  without  calling  on  tnem  to  surrender,  or  in 
any  way  notifying  to  them  who  they  were.  The 
keepers  were  wounded,  one  of  them  seriously  : 
— ^HeM,  that  the  prisoner  who  wounded  them 
nigfaft,  under  the  circumstances,  and  taking  into 
Moderation  the  situation  and  the  time  oif  the 
mghi,  &e.,  be  properly  conyieted  under  the  stat. 
9Geo.  4,  c.  31,  ss.  11, 12.  Rex  v.  Taylor,  7  C. 
&  P.  2G&— Vaughan.  745 

On  an  indictment  for  wounding,   the  jury, 

rs  the  question  whether,  if  death  had  ensued, 
offence  would  have  been  murder,  should  con- 
sider whether  the  instrument  employed  was,  in 
its  or^nary  use,  likely  to  cause  death ;  or,  if  it 
be  an  instrument  not  likely,  under  ordinary  cir- 
cumstances, to  cause  death,  whether  it  was  used 
in  such  an  extraordinary  manner  as  to  make  it 
likely  to  cause  death,  either  by  continual  blows 
or  o&erwise.  Rex  v.  Hewlett,  7  C.  &.  F.  274— 
AMerson.  745 

Biting  off  the  end  of  a  person's  nose,  is  not  a 
wounding  within  the  meaning  of  the  stat.  9  Geo. 
4f  c  31,  e.  IS,  nor  is  biting  off  a  joint  from  a 
penon's  finger,  as  the  statute  is  intended  only  to 
apply  to  woanding  produced  by  some  instrument, 
and  not  by  the  hands  or  teeth,  &c.  Rex  v.  Har- 
lis,  7  C.  &  P.  446— Patteson.  745 

In  an  indictment  under  Lord  Lansdowne's 
Act  (9  Geo.  4,  c.  31,  ss.  11,  12>,  the  question 
whether  in  caee  death  had  ensued  it  would  haye 
amounted  to  murder,  is  a  question  of  law  to  be 
decided  by  the  jndge,  and  is  not  for  the  jury 
te  pKooooiiGe  their  opinion  upon,  uded  by  tfaie 


judge's  obseryations.    Rex  v.  Beeson,  7  C.  &  P. 
142— Parke  and  Littledale.  745 


XVI.  Administkrino  to  pxocure  Abortioh. 

Semble,  that  so  far  as  the  nature  of  the  thing 
administered  is  concerned,  the  question  on  an 
indictment  on  the  stat.  9  Geo  4,  c.  31,  s.  13,  for 
administering  to  procure  abortion,  is  a  question 
as  to  the  intention  of  the  party  administering  it, 
and  not  of  the  noxious  or  innoxious  character  of 
the  article  itself.  Rex  v.  Coe,  6  C.  &  P.  403— 
Vaughan.  747 

Xir.  Rape. 

In  cases  of  rape,  4^.,  the  capital  oiSenoe  is 
completed  if  there  be  penetration,  although  there 
has  been  no  emission,  and  the  prisoner  has  been 
interrupted  in  the  conmiission  of  the  offence. 
Rex  V.  Cozins,  6  C  &  P.  351— Park.  748 

On  the  trial  of  an  indictment  for  a  rape,  the 
prosecutrix  ma^r  be  asked  whether,  preyiously 
to  the  commission  of  the  alleged  offence,  tlie 
prisoner  has  not  had  intercourse  with  her  by  her 
own  consent  Rex  v,  Martin,  6  C.  &  P.  562 — 
Williams.  748 

A  count,  charging  A.  with  a  rape  as  a  princi- 
pal in  the  first  degree,  and  B.  as  principal  in  the 
second  dome,  may  be  joined  with  another  count, 
charging  B.  as  principal  in  the  fint  degree,  and 
A.  as  principal  in  the  second  degree.  Rex  v. 
Gray,  7  C.  &  P.  164— Coleridge.  748 


XXIV.  Assault  and  Indecxxt  Exposcrx. 

A  count  in  an  indictment  charged,  that  a  de- 
fendant ^^did  attempt  to  sssault''  a  girl  **  by  so- 
liciUng  and  inducing  her"  to  place  herself  m  an 
indecent  attitude,  he  doing  the  like  : — Held,  that 
such  a  count  is  bad.  Rex  c.  Butler,  6  C.  &  P. 
368— Patteson.  754 

If  a  party  be  charged  before  two  magistrates 
with  an  assault,  and  mey  dismiss  the  complaint, 
giying  him  a  certificate  under  the  stat.  9  Geo.  4, 
c.  31,  s.  27,  he  cannot  ayail  himself  of  this  certi- 
ficate as  a  defence  to  an  action  for  the  same  as- 
sault, unless  it  be  specially  pleaded.  Harding  v. 
King,  6  C.  &  P.  427— Gumey.  754 

On  an  indictment  for  an  assault  with  an  intent 
to  commit  a  rape,  eyidence  that  the  prisoner  on 
a  prior  occasion  had  taken  liberties  with  the  pro- 
secutrix, is  not  receiyable  to  show  the  prisoner's 
intent.  In  order  to  conyict  on  a  charge  of  assault 
with  intent  to  commit  a  rape,  the  jury  must  be 
satisfied,  not  only  that  the  prisoner  intended  to 
gratify  his  passions  on  the  person  of  the  prosecu- 
trix, out  that  he  intended  to  do  so  at  all  eyents, 
and  notwithstanding  any  resistance  on  her  part. 
Rex  V.  Lloyd,  7  C.  A.  P.  318— Patteson.         753 


XXVII.  Omittiho  to  oiye  sufficient  Fooo  to, 
AND  Ill-treatment  of  SxRyANTS,  Paupers, 

AND  HELPLESS  PERSONS. 

A  married  woman  cannot  be  conyieted  of  the 
murder  of  her  illegitimate  child  three  years  old. 


34f2 


[CRIMINAL  LAW] 


by  omiftiiig  to  tunpiy  it  with  proper  food,  unlesB 
it  is  shown  that  ner  husband  supplied  her  with 
food  to  give  to  the  child,  and  that  she  wilfully 
neglected  to  give  it.  A  count  charged  a  married 
woman  with  the  murder  of  her  illegitimate  child 
of  three  years  old,  by  omitting  to  supply  it  with 
sufficient  food,  and  also  by  beating :  it  was  not 
shown  that  her  husband  nad  supplied  her  with 
food  to  give  to  the  child  : — Held,  that  this  count 
could  not  be  supported.  Rex  v.  Saunders,  7  C. 
&  P.  277— Alderson.  754 


XXX.  Forcible  Entry. 

A  conviction  for  a  forcible  detainer  under  8 
Hen.  6,  c.  9,  must  show  an  unlawful  entry  as 
well  as  a  forcible  detainer.  Rex  v.  Oakley,  I 
Nev.  &  M.  68;  4  B.  &  Adol.  307.  755 

Whether  the  holding  over  by  a  termor  afler 
the  expiration  of  his  term,  is  constructively  an 
unlawful  entry,  qusere  ?     Id. 

An  indictment  for  forcible  entry  charged  that 
defendants  into  one  messuage,  &c.,  then  and 
there  being  in  the  possession  of  W.  P.,  he  the 
said  W.  P.  then  and  there  being  also  seised 
thereof,  with  force  of  arms,  &c.,  did  enter,  and 
the  said  W.  P.,  from  the  peaceable  possession, 
with  force  and  arms,  6lc.^  did  put  out.  After 
conviction  of  defendants : — Held,  that  this  was  a 
sufficient  averment  of  the  present  seisin  of  W. 
P.  to  warrant  the  court  in  awarding  a  writ  of  res- 
titution.   Rex  V,  Hoare,  6  M.  &.  S.  266.         755 

In  a  conviction  under  8  Hen.  6,  c.  9,  for  a  for- 
cible detaiher,  it  must  appear  on  the  face  of  the 
conviction  that  there'  was  an  unlawful  entry. 
Rex  V,  Wilson,  5  Nev.  &  M.  164  ;  I  Har.  &  Woll. 
387.  755 

A  conviction  under  a  forcible  detainer,  on  the 
view  merely  of  the  justices,  without  any  evidence 
of  an  unlawful  entry,  is  bad,  even  though  infor- 
mation and  complaint  of  an  unlawful  expulsion 
be  stated.    Id. 

In  a  conviction  for  a  forcible  detainer,  under  8 
Hen.  6,  c.  9,  where  the  magistrates  proceed  upon 
view,  it  is  not  necessary  to  set  out  Uie  particular 
fecte  presented  to  their  view.  Rex  v.  Wilson,  3 
Nev.  &  M.  753;  1  Adol.  &  Ellis,  627.  755 

A  conviction,  under  stat.  8  Hen.  6,  c.  9,  set 
forth  a  complaint  made  to  two  justices,  of  an  en- 
try into  premises  of  the  complainant,  an  unlawful 
S'ectment,  and  a  forcible  deteiner  by  the  defen- 
mt;  that  the  justices,  on  personal  view,  found* 
the  defendant  forcibly  detaining,  according  to  the 
complaint,  and  that  he  was  therefore  convicted 
bjr  them,  a  forcible  detainer,  by  their  own  view. 
The  defendant  gave  written  notices  to  the  jus- 
tices afler  the  conviction,  denying  the  force,  and 
complainant's  possession.  On  an  inquisition  after- 
wards had,  the  jury  found  a  seisin  in  fee  by  the 
complainant,  and  an  unlawful  entry,  ejection,  and 
forcible  detainer.  The  justices  indorsed  upon 
the  inquisition  a  memorandum  of  having  received 
the  premises,  and  put  the  complainant  into  posses- 
sion. The  conviction,  inquisition,  and  memo- 
randum having  been  returned  by  the  justices  to  a 
certiorari,  requiring  a  return  of  the  conviction 
and  inquisition,  and  all  things  touching  the  same^ 


this  court  refused  to  grant  a  mandamus  to  omeml 
the  return  by  reti;irmng  the  information,  and  by 
returning  on  the  face  of  the  conviction  the  evi* 
dence  given  touching  the  entiT,  and  the  facts 
touching  the  conduct  of  the  cieiendant  on  the 
view,  it  not  being  suggested  in  affidavit,  that  any 
evidence  was  received  by  the  magistrates  on  the 
view.  The  court  gave  no  opinion  as  to  the  va^- 
lidity  of  the  conviction.    Id. 


XXXI.  SiMPLK  Larcsnt. 

The  Taking.^ — If  a  person  picks  up  a  thinn^ 
when  he  knows  that  he  can  immediately  find  the 
owner,  and  instead  of  retuminj|r  it  to  the  owner, 
converte  it  to  his  own  use,  this  is  a  larceny.  Rex 
V.  Pope,  6  C.  &  P.  346— Park.  756 

A.  went  to  a  shop,  and  asked  a  boy  there  to 
give  him  change  for  a  half-crown ;  the  boy  gave 
him  two  shillings  and  sixpenny  worth  of  copper. 
The  prisoner  held  out  a  half  crown,  which  the 
boy  touched,  but  never  got  hold  of,  and  the  pri- 
soner ran  away  with  the  two  shillings  and  the 
copper : — Held,  a  larcenv  of  the  two  shillings  and 
the  copper.  Rex  v.  WilUams,  6  C.  &  P.  390 — 
Park.  756 

A.,  the  owner  of  a  boat,  was  employed  by  B., 
the  captain  of  a  ship,  to  carry  a  number  of 
wooden  staves  ashore  in  his  boat;  B.'s  men  were 
put  into  the  boat,  but  were  under  the  control  of 
A.,  who  did'  not  deliver  all  the  staves,  but  took 
one  of  them  away  to  the  house  of  his  mother : — 
Held,  that  this  was  a  bailment  of  the  staves  to 
A.,  and  not  a  charge  only  ;  and  that  a  mere  non- 
delivery of  the  staves  would  not  have  been  a  lar- 
ceny in  A.;  but  that  if  A.  separated  one  of  the 
staves  from  the  rest,  and  carried  it  to  a  ]>lace  dif- 
ferent from  that  of  its  destination,  with  intent  to 
appropriate  it  to  his  own  use,  that  was  equivalent 
to  a  breaking  of  bulk,  and  therefore  would  be  suf- 
ficient to  constitute  a  larceny.  Rex  v.  Howell, 
7  C.  &  P.  335— Patteson.  756 

If  A.  asks  B.,  who  is  not  a  servant,  to  put  a  let- 
ter in  the  post,  telling  him  it  contains  monev,and 
B.  breaks  the  seal  and  abstracts  the  money  before 
he  put  the  letter  in  the  post,  he  is  guilty  of  larce- 
ny.   Rex  V.  Jones,  7  C.  &  P.  151 — Crun.  Court 

756 

Indictment.'] — In  an  indictment  for  stealing 
property  which  had  belonged  to  a  deceased  per- 
son, who  appointed  executors,  who  would  not 
prove  the  will,  it  was  held  that  the  property  must 
be  laid  in  the  ordinary,  and  not  in  a  person  who, 
afler  the  commfssion  of  the  offence,  but  before 
the  indictment,  had  taken  out  letters  of  adminis- 
tration with  the  will  annexed ;  because  the  rights 
of  an  administrator  only  commence  from  the  date 
of  the  letters  as  distinguished  from  the  letters  of 
an  executor,  which  commence,  tiot  from  the 
granting  of  the  probate,  but  from  the  death  of  the 
testator.  Rex  v.  Smith,  7  C.&  P.  147— Bolland 
and  Coleridge.  761 

Evidence.'] — Stolen  property  being  found  con- 
cealed in  an  old  engine-house,  and  it  being 
watohed,  the  prisoners  were  seen  Uking  it  away : 


[CRIMINAL  LAW] 


8428 


—Held,  that,  to  wttmnt  the  conyietion  of  the 
prisoners  on  an  indictment  chargingr  them  as  re- 
ceiven,  the  jury  mnst  he  satisfied  that  the  pro- 
perty had  heen  stolen  by  some  other  person  to 
the  Knowledge  of  the  prisoners,  and  that  there 
should  be  some  evidence  to  show  that  such  was 
the  case  : — Held,  also,  that  the  evidence  given  in 
this  case  would  have  warranted  a  conviction  for 


the  stealing.    Rex  v.  Densley,  6  C.  A  F.  39d— 
Patleson.  762 


XXXIV.  Assault  with  intent  to  rob. 

A.  was  decoyed  into  a  house  and  chained  down 
to  a  seat,  and  compelled  to  write  an  order  for  the 
payment  of  money  and  an  order  for  the  delivery 
of  deeds.  The  paper  on  which  he  wrote  remain- 
ed in  his  hand  half  an  hour,  but  he  was  chained 
all  the  time : — Held,  that  this  was  not  an  assault 
with  intent  to  rob  within  the  statute  7  6l  8  Geo. 
4,  c.  29,  s.  6.  Bex  v.  Edwards,  6  C.  &  P.  521  — 
Patteson.  765 

If  a  person  with  menaces  demand  a  sum  of 
money  of  another,  and  that  other  does  not  ^ve 
it  to  him  because  he  has  it  not  with  him,  this  is 
a  felony  within  the  statute  7  d^  8  Geo.  4,  c.  29, 
i.  6 ;  but  if  the  person  demanding  the  money 
knows  that  the  money  is  not  then  m  the  posses- 
skm  of  the  party,  and  only  intends  to  obtain  an 
order  for  the  payment  of  it,  it  is  otherwise.  Rex 
9.  Edwards,  6  C.  <&  P.  51S— Patteson.  765 


XXXVi.  Sacrilsgb. 

A  dissenting  meeting-house  is  not  within  the 
Stat  7  &  8  Geo.  4,  c.  &,  s.  10,  which  makes  it  a 
capital  o£fence  to  '*  break  and  enter  any  church 
or  chapel,  and  steal  therein,"  &c.  Rex  v,  Richard- 
son, 6  C.  &  P.  335^Gaselee,  Vaughan,  and 
Taunton:  S  P.  Rex  v.  Warren,  Id.  n. — Gase- 
ke  and  Vaughan.  767 

A  prisoner  was  indicted  under  the  7  A^  8  Geo. 
4,  e.  29,  s  10,  for  breaking  and  entering  a  chapel, 
and  stealing  several  fixtures,  and  a  bell  not  fixed. 
It  appearecT  the  chapel  was  a  Wesleyan  chapel, 
and  not  a  chapel  of  the  church  of  England : — 
Held,  that  the  case  must  be  confined  to  the  act 
of  simple  larceny  for  stealing  the  bell.  Rex  v. 
Nixon,  7C.  &  P.  442^— Patteson  and  Gumey.  767 


XXXVII.  BURGLARV. 

A  shutter-box  partly  projected  from  a  house, 
and  adjoined  the  side  of  the  shop  window,  which 
WIS  projected  by  wooden  panelling,  lined  with 
iron : — Held,  that  the  breaking  and  entering  the 
shotler-boz  did  not  constitute  t>urglary.  Rex  v. 
Paine,  7  C.  &  P.  135— Crim.  Court.  767 

A  room  door  was  latched,  and  one  person 
lifted  the  latch  and  entered  the  room  and  con- 
cealed himself,  for  the  purpose  of  committing  a 
robbcary  there,  which  he  afterwards  accomplish- 
ed. Two  other  persons  were  present  with  him 
at  the  time  he  lifted  the  latch,  for  the  purpose  of 
assisting  him  to  enter,  and  screened  him  from 
obserration  by  opening  an  umbrella: — It  was 
held,  that  the  two  were  in  law  parties  to  the 


breaking  and  entering,  and  were  answerable  for 
the  robbery  which  took  place  aflerwards,  though 
they  were  not  near  the  spot  at  the  time  when  it 
was  perpetrated.  Rex  v.  Jordan,  7  C.  &  P.  432 
— Crim.  Court.  767 

In  burglary,  where  the  breaking  is  one  night 
after,  a  person  present  at  the  breaking,  though 
not  present  at  the  entering,  is  in  law  guuty  of  ue 
whole  ofience.    Id. 

A  prisoner  was  indicted  for  burglary  in  the 
dwellmg-house  of  J.  fi.  J.  B.  worked  for  one 
W.,  who  did  carpenter's  work  for  i^  public  com^ 
pany  and  put  J.  B.  into  the  house  in  question, 
which  belonged  to  the  company,  to  take  care  of 
it,  and  some  mills  adjoining.  J.  B.  received  no 
more  wages  after  than  before  he  went  to  live  in 
the  house : — Held,  not  rightly  laid.  Rex  v.  Raw- 
lings,  7  C.  &  P.  150— Gaselee.  771 

An  indictment  for  burglary  stated  in  one  count 
that  the  prisoner  *•*•  did  break  to  get  out,"  and  in 
another  that  he  did  break  and  get  out : — Held, 
sufficient,  since  the  statute  7  db  8  Geo.  4,  c.  29, 
s.  11,  which  uses  the  words  ''break  out."  Bex 
V.  Compton,  7  C.  A^  P.  139 — Vaughan  and  Patte- 
son. 771 


XXXVIIl.    HOUSXBBEAXINO. 

A.  broke  into  a  house  and  took  two  half  so- 
vereigns from  a  bureau,  which  he,  being  dis- 
turbed, threw  under  the  grate  in  the  same  room : 
— Held,  that  this  was  sufficient  to  constitute  the 
felony  of  breaking  into  a  house  and  stealing 
therein  within  the  stat.  7  &  8  Geo.  4,  c.  29,  s.  12. 
Rex  r.  Amier,  6  C.  dt  P.  344— Park.  772 

Raising  a  window  which  is  shut  down  close, 
but  not  fastened,  though  it  has  a  hasp  which 
might  have  been  fastened,  is  a  breaking  of  the 
dwelling-house.  Rex  v.  Hyams,  7  C.  db>  P.  441 
— Parke  and  Coleridge.  772 

An  entry  to  a  house  through  a  hole  in  the  roof, 
left  for  the  purpose  of  ligh^  is  not  a  sufficient 
proof  to  constitute  house-breaking.  Rex  v. 
Spriggs,  1 M.  &  Rob.  357— Bosanquet.  772 

XXXl^.    LaRCEIIT    in    ▲    DWXLLINO-HOUSE. 

Stealing  in  a  bed-room  over  a  stable  in  a  yard, 
not  under  the  same  roof,  nor  having  any  direct 
communication  with  the  house  in  which  tne  pro- 
secutor resides,  cannot  be  properly  charged  as  a 
stealing  in  his  dwelling-house.  Rex  v.  Turner, 
6  C.  <fc  P.  407— Vaughan.  772 

XLI.  Larceny  on  Rivers. 

The  luggage  of  a  passenger  going  by  a  steam- 
boat, is  wifliin  the  words  "  goods  or  merchandize" 
in  the  17th  section  of  the  stat.  7  &  8  Geo.  4,  c. 
29,  which  relates  to  property  stolen  from  any 
vessel  in  any  navigable  river.  Rex  v.  Wright,  7 
C.  &  P.  159^Park  and  Alderson.  773 


XLII.    Stealing  or  destrotino  Records,^ 
Wills,  or  Writings  of  Real  Estates. 

On  an  indictment  on  the  stat  7  &  Q  Geo.  4, 


S4S4 


[CRIMINAL  LAW] 


e.  S9,  ■.  23,  toir  itediiiff  writiagB  reUting  to  real 
estate,  the  jury  moat  be  aatiaiiea  that  tns  defen- 
dant took  them  under  such  circumstances  as 
would  have  amounted  to  larceny,  if  the  writings 
in  question  had  been  the  subject  of  larceny. 
Bez  V.  John,  7  C.  •&  P.  324— Palteaon.  773 


XLIII.  Cattle  Stkaliks. 

On    an  indictment  for   sheep-stealing,  a  riff 
sheep  is    properly  described    as  ^*one  sheep. 
Rex  V.  Stroud,  6  C.  «&  F.  535— Alderson.        774 

An  indictment  charged  in  the  first  count,  that 
A.  and  B.  killed  a  sheep,  with  intent  to  steal  one 
of  its  hind  legs ;  and,  m  the  second  count,  that 
C.  received  nine  pounds  weight  of  mutton  so 
stolen  as  aforesaid ;  and  in  the  third  count,  that 
G.  received  the  mutton  **  of  a  certain  evil  disposed 
person,"  scienter,  dtc. ; — Held,  that  on  this  form 
of  indictment,  all  the  three  prisoners  might  be 
properly  convicted.  Rex  v,  Wheeler,  7  C.  &  P. 
170— Coleridge.  774 

The  phrase  ^*  bullock-stealing,"  in  the  stat.  "^ 
Geo.  4,  c.  64,  s.  28,  relating  to  the  allowance  of 
rewards  in  certain  cases  for  the  discovery  of 
offenders,  includes  all  cases  of  cattle-stealing  of 
that  particular  description,  e.  g.  ox,  cow,  heifer, 
Ac.  Rex  p,  GiUbrass,  7  C.  &  P.  445— Grim. 
Court  774 


XLVI.  Nl«HT    POACHIHO    AVD   OfFXHCXS  RE- 

LATino  TO  Gams  and  Rabbits. 

Jfigkt  Poadung.'l'-'To  support  an  indictment 
fix  nightppoaching  by  three  or  more  being  armed, 
^b«.,  it  is  not  sufficient  to  prove  that  one  of  the 
prisonen  was  in  the  place  laid  in  the  indictment, 
and  that  the  rest  of  the  party  were  in  another 
wood  which  was  separated  from  the  place  men- 
tioned in  the  indictment  by  a  turnpike  road. 
Rex  V.  Dowsell,  6  C.  &  P.  398— Patteson.        775 

To  sustain  an  indictment  for  night-poaching, 
armed,  Ate.,  the  parties  must  have  been  in  tSe 
place  charged  in  the  indictment,  with  intent  to 
destroy  game,  &c.  there,  and  it  is  incumbent  on 
the  prosecutor  to  convince  the  jury  that  the  de- 
ibniuntB  had  an  intent  to  destroy  game,  &^.  in 
the  particular  place  mentioned  in  the  indictment. 
Rex  o.  Gainer,  7  C.  ^t  P.  231— Coleridge.     775 

The  9th  sect  of  the  stat.  9  Geo.  4,  c.  69,  which 
relates  to  nij^ht-poaching,  creates  two  distinct 
offences.  Fmt,  the  entering  in  the  night  on 
land  to  the  number  of  three,  some  one  of  them 
being  armed ;  and  second,  the  being  in  the  night 
op.  land  to  the  number  of  three,  some  one  of  them 
being  armed.  Rex  «.  Kendriek,  7  C.  d^  P.  184— 
Coleridge.  775 

The  form  of  indictment  given  in  Jerv.  Areh.  is 
good.    Id. 

On  an  indictment  for  nightppoaching  by  four, 
one  being  armed ;  semble,  that  if  two  enter  the 
land  laid  in  the  indictment,  and  the  other  two  re- 
main outside  the  preserve,  but  are  of  the  same 
partv,  and  are  there  for  the  same  purpose,  all 
ougnt  to  be  found  guilty.  Rex  v.  M)dLett,  7  C. 
4tP.  90(^Aldenon.  775 


Senible,  that  in  caw  of  nightrpoaehing,  all 
who  are  at  the  place,  each  actu^  his  part  with  a 
common  intent,  are  equally  guilty,  although 
some  only  are  bodily  upon  une  land: — HeM, 
that  those  who  are  watciiing  at  the  outside  of 
a  preserve,  for  the  purpose  of  giving  the  alarm  on 
the  approach  of  tne  gamekeeper  to  othen  who 
are  in  the  preserve,  and  who  afterwards  go  into 
the  preserve  for  that  purpose,  are  equally  guilty 
with  those  who  enter  the  preserve  at  fint.  Rex 
r.  Passey,  7  C.  &  P.  282— Alderson.  775 

Whether  the  preferring  of  an  indictment  against 
a  party  for  night-poaching,  which  is  ignorea,  is  a 
commencement  of  the  prosecution  within  sect.  4 
of  the  stat.  9  Geo.  4,  c.  69,  so  as  to  warrant  the 
conviction  of  the  party  on  another  indictment 
preferred  four  yean  afler  the  offence,  quere? 
Rex  V,  Killminster,  7  C.  dt  P.  228-^oleridge.  775 

The  servant  of  the  owner  of  a  wood  attempted 
to  apprehend  a  poacher  whom  he  found  there  at 
eight  o'clock  on  the  morning  of  the  17th  Decem- 
ber, and  the  poacher  shot  at  him : — Held,  that 
this  was  not  a  capital  oflence  within  the  stat. 
9  Geo.  4,  c.  31,  ss.  11,  12,  as  there  was  no 
proof  that  the  poacher  was  in  pursuit  of  the  game 
an  hour  before  sunrise.  Rex  v.  Tomlinson,  7  C. 
Si  P.  183— Coleridge.  775 

A  person  who  is  employed  by  a  lord  of  a  manor 
as  a  watcher  of  his  game  preserves,  is  a  person 
having  authority  to  apprehend  night-poachers, 
and  he  need  not  have  any  authonty  from  the 
lord  of  the  manor.  Rex  v.  Prize,  7  C.  &  P.  178 
—Park.  775 

Where  a  person  is  found  night-poaching  on 
the  manor  of  A.  by  one  of  his  watchen,  and 
is  pursued  off  the  manor,  and  then  on  to  it  again, 
and  there  snaps  his  gun  at  the  watcher,  he  is 
guilty  of  a  capital  offence  under  the  stat.  9  Geo. 
4,c.3l,»*ll»13«  Id. 


Ofenees  rdating  to  Rahlnt9.'\ — Destroying  rab- 
bits in  the  night  time,  in  a  rick  yard  id  which 
they  were  kept,  is  not  a  misdemeanor  under  the 
sUt.  7  &  8  Geo.  4,  o.  29,  s.  30.  Rex  v.  Ganratt, 
6  C.  &  P.  369— Patteson.  776 


L.  Larcsnt  bt  servants. 

The  driver  of  a  glass-eoach  hired  for  the  dajr 
is  not  the  servant  of  the  party  hiring  it,  so  as  to 
bring  him  within  the  statute  rdating  to  larceny 
bv  servants,  7  dk  8  Geo.  4,  e.  29,  s.  ,46.  Rex  v. 
Haydon,  7  C  &  P.  445— Patteson  and  Gumey. 

777 


Li.  Ehbxzzlement. 

A.,  a  servant  of  B.,  was  sent  to  receive  rent 
due  to  B. ;  A.  received  it,  and  immediately  went 
off  with  it  to  Ireland : — ^Held,  that  A.'s  thus  leav- 
ing her  place  and  going  off  to  Ireland,  was  avi- 
dence  from  which  the  jury  might  in&r  that  A. 
intended  to  embezzle  the  money.  Rex  v.  Wil- 
liams, 7  C.  dt  P.  33&— Coleridge.  777 

A.  owed  5^.  to  B.,  and  A.  paid  it  to  C,  a  ser- 
vant of  B.,  who  was  not  authorized  by  B.  to  re- 


[CRIMINAL  LAW] 


2425 


eeiv«  money  for  him,  thooffh  A.  supposed  that  he 
WM  00.  C.  ne-ver  aceountea  to  B.  for  the  money : 
— Held,  that  this  was  neither  embezzlement  nor 
Urceny.     Rex  v,  Hawtin,  7  C  &  P.  281— Alder- 

777 


If  a  servant  be  indicted  under  the  stat.  7  &  8 
Geo .  4,  c.  29,  for  embezzlement,  and  the  indict- 
ment contain  only  one  count,  charging  the  re- 
ceipt of  a  gross  sum  on  a  particular  day,  if  it 
torn  out  that  the  money  was  received  in  different 
sams,  on  different  days,  the  prosecutor  must 
make  his  election,  and  confine  himself  to  one 
sum  and  one  day ;  and  if  the  money  was  paid  to 
the  prisoner  as  the  servant  of  the  prosecutor,  it 
will  be  sufficient,  although  the  paymen|  was 
made  by  one  of  a  class  of  customers  of  whom 
the  |»rosecutor  did  not  authorize  the  prisoner  to 
receive  any.  Rex  r.  Williams,  6  C.  *  P.  e3&— 
Aiabin,  Seijt  781 


LIII.  Falsi  Prstincbs. 
The  prisoner  was  charged  with   obtaining  a 
filly  by  the  false  pretence  that  he  was  a  gentle - 
Bsan's  servant,  and  had  lived  at  Brecon,  and  had 
bought  twenty  horses  in  Brecon  fair.    It  appear- 
ed that  he  bought  the  filly  of  the  prosecutor  for 
lU.,  making  him  this  statement,  which  was  falfe, 
and  also  telling  him  that  he  would  come  down  to 
the  Cross  Keys  and  paj^  him.    The  prosecutor 
sUted  that  he  parted   with  his   filly  because  he 
expected  the  prisoner  would  come  to  the  Cross 
Keys  and  pay  him,  and  not  because  he  believed 
that  the  prisoner  was  a  gentleman's  servant,  &c. : 
—Held,  that  if  the  prosecutor  did  not  part  with 
his  filly  by  reason  of  the  false  pretence  charged. 
Of  any  part  of  it,  the  prisoner  must  be  acquitted. 
Rexv.Dale,  7  C.&  P.  352— Coleridge.  782 

If  a  party  obtain  money  by  a  false  pretence, 
knowing  it  to  be  false  at  the  time,  it  is  no  answer 
to  show  that  the  party  from  whom  he  obtained 
the  money  laid  a  plan  to  entrap  him  into  the 
csmmiasion  of  the  ofibnce.  Rex  v.  Ady,  7  C.  & 
P.  140 — Vanghan  and  Patteson.  782 

Where  a  forged  request  for  the  delivery  of 
gsods  was  addressed  in  her  maiden  name  to  a 
ftmaie,  who,  prior  to  the  date  of  it  had  married ; 
it  was  held  that  the  party  nttering  it  might  pro- 
perty be  convicted,  on  an  indictment  charging 
the  mtent  to  be  to  defraud  the  husband.  Rex  v. 
Carter,  7  C.  &  P.  ]»4— Crim.  Court.  782 

Ab  attorney  who  had  appeared  for  a  person 
who  was  fined  22.  on  a  summary  conviction,  call- 
ed on  a  person's  wife  and  told  her  that  he  had 
been  with  another  person,  who  was  fined  21,  for  a 
like  oti&noe,  to  Mr.  B.  and  Mr.  L.,  and  that  he 
had  prevailed  upon  Mr.  B.  and  Mr.  L.  to  take  XL 
lastead  of  22.,  and  that  if  she  would  give  him  U. 
he  would  go  and  do  the  same  for  her.  She  gave 
the  attamej  a  sovereign,  and  afterwards  paid  him 
ftrhis  trouble.  It  was  proved  that  the  attorney 
never  u>plied  to  either  Mr.  B.  or  Mr.  L.  respect- 
ing either  of  the  fines,  and  that  botii  were  after- 
wards  paid  in  full : — Held,  that  the  attorney  was 
fBiity  of  obtaining  money  by  false  pretences. 
Bex  p.  Afterley,  7  C.  &  P.  191— Park.  782 

A.  owed  B.  a  debt,  of  which  B.  could  not  get 


payment.  C,  a  servant  of  B.,  went  to  A.'s  wife 
and  obtained  two  sacks  of  malt  from  her,  saying* 
that  B.  had  boueht  them  of  A.  C.  knew  this  to 
be  false,  but  took  the  malt  to  B.,  his  master,  to 
enable  him  to  pay  himself  the  debt:— Held,  that 
if  C.  did  not  intend  to  defraud  A.,  but  merely 
to  put  it  into  his  master's  power  to  compel  A.  to 
pay  him  a  just  debt,  C.  ought  not  to  be  convict" 
ed  of  obtaining  the  malt  by  false  pretences.  Rex 
V,  Williams,  7  C.  &  P.  354— Coleridge.  782 

An  indictment  on  a  charge  of  obtaining  goods 
under  false  pretences,  is  bad,  if  it  states  that  the 
prisoner  "  unlawfully,  knowingly,  and  designed- 
ly, did  feloniously  pretend,"  Ac.  Rex  v.  Walker, 
b  C.  &  P.  657— Crmi.  Court.  784 

LVI.  Receivers. 
If  a  receiver  of  stolen  goods  receive  them  for 
the  mere  purpose  of  concealment,  without  de- 
riving any  profit  at  all,  he  is  just  as  much  a  n* 
ceiver,  under  the  sUt.  7  &  8  Geo.  4,  c.  29,  as  if 
he  had  purchased  tliem.  Rex  v,  Richardson,  6  C. 
ik  P.  335— Gaselee,  Vaughan,  and  Taunton.  785 

It  makes  no  difference  whether, a  receiver  re- 
ceives for  the  puipose  of  profit  or  advantage,  or 
whether  he  does  it  to  assist  the  thief.  Rex  v, 
Davis,  6  C.  &  P.  177— Gumey.  795 

In  an  indictment  for  receiving  stolen  goods, 
knowing  them  to  have  been  stolen  by  a  person 
named,  the  stealing  by  the  person  must  be  proved, 
or  the  receiver  must  be  acquitted.  Rex  v.  Wool- 
ford,  1  M.  &  Rob.  384— Patteson.  785 

LVII.  OFFE5CE8  BY  BANKRUPTS. 

,  An  indictment  for  a  conspiracy  to  embezzle 
the  goods  of  a  bankrupt  must  state  the  tradings 
the  petitioning  creditor's  debt,  and  the  becoming- 
bankrupt  ;  and  it  is  not  sufficient  to  state  that  a. 
commission  issued,  under  which  the  party  was 
duly  found  and  declared  a  bankrupt.  Rex  r. 
Jones,  1  Nev.  &  M.  78 ;  4  B.  db  Adol.  345.     786 

The  balance  sheet  of  a  bankrupt  given  on  oath 
under  his  commission  is  not  admissible  against 
him  on  a  criminal  charge.  Rex  v.  Britton,  1  M, 
&  Rob.  297— Patteson.  785 

LIX.  Burking. 

Setting  fire  to  a  score  of  faggots  which  arepile<| 
one  upon  another  in  a  lofl,  which  was  made  by 
means  of  a  temporary  floor  put  over  an  archway 
roofed  in  between  two  houses,  and  under  whico 
carts  could  go,  is  not  setting  fire  to  a  stack  of 
wood  within  the  stat.  7  &  8  Geo.  4,  c.  30,  s.  17. 
Rex  V.  Aris,  6  C.  &  P.  348— Park.  787 

A  cart  hovel,  consisting  of  a  stubble  roof  sup- 
ported b^  uprights,  in  a  field  at  a  distance  from 
other  buildm^,  is  not  an  out-house  within  the 
meaning  of  the  stat.  7  &  8  Geo.  4,  c.  30,  s.  2. 
Rex  u.  Parrott,  6  C.  &  P.  402— Vaughan.        787 

A  stack,  of  which  the  lower  parts  consists  of 
cole-seed  straw,  and  the  upper  part  of  wheat 
stubble,  is  not  a  stack  of  straw:  and  the  setting 
it  on  fire  is  not  therefore  a  capital'  offence  within 
the  stat.  7  A  8  Geo.  4,  c.  29,  s.  17.  Rex  v,  Tot- 
tenham, 7  C.  dE.  P.  237— I>enman  and  Gaselee.  787 


84S6 


[CRIMINAL  LAW] 


LXII.  Injvbies  to  Propsrtt  bt  Rioters. 

£very  man  has  a  right  to  work  for  the  best 
price  he  can  get,  but  if  others  choose  to  work  for 
less  than  the  usual  prices,  the  law  will  not  per- 
mit that  violence  should  be  committed  towards 
them,  or  towards  those  by  whom  they  are  em- 
ployed, or  those  with  whom  they  are  connected. 
Where  a  party  of  coal-whippers,  having  a  feeling 
of  ill-will  towards  a  coal-lumper,  who  paid  less 
than  the  usual  wages,  created  a  mob,  aiid  riot- 
ously went  to  the  house  where  he  kept  his  pay- 
table,  and  cried  oat  that  they  would  murder  him, 
and  .began  to  throw  stones,  brick-bats,  &c.,  and 
broke  windows,  and  partitions,  and  part  of  a  wall, 
and  continued  after  his  eacB;pe  throwing  stones 
at  the  house,  till  they  were  compelled  to  desist  by 
the  threats  of  the  police : — Held,  that  they  might 
be  convicted  of  beginning  to  demolish  under  the 
Btat.  7  &S  Geo.  4,  c.  30,  s.  8,  thoiigh  their  prin- 
cipal object  was  to  injure  the  lumper ;  provided  it 
was  also  their  object  to  demolish  the  house,  either 
on  account  of  its  being  used  by  him,  or  by  his 
men,  and  though  they  had  not  any  ill-will  against 
the  owner  of  the  house  personally.  Rex  v.  Batt, 
6  C.  &  P.  329^6umey.  790 


LXVIl.  Forgery. 

It  is  not  any  o&nce,  under  the  stat.  1  Will.  4, 
c.  66,  to  forge  an  indorsement  upon  a  warrant  or 
order  for  the  payment  of  money ;  nor  if  a  party 
write  on  the  back  of  a  bill  of  exchange  payable 
to  R.  A.,  ^*  Received  for  R.  A.,"  and  signs  his 
own  name  to  it,  is  he  guilty  of  forging  a  receipt 
within  the  provisions  of  tnat  statute.  Rez  v. 
Arscott,  6  C.  &  P.  408— Littledale,  Vaughan, 
«nd  Bolland.  794 

If  a  person  presents  a  bill  of  exchange  for  pay- 
ment, with  a  forged  indorsement  upon  it  of  a  re- 
ceipt by  the  payee,  and  the  clerk  to  whom  he 
presents  it  objects  to  a  variance  between  the  spell- 
ing of  the  payee's  name  in  the  bill  and  the  in- 
dorsement, upon  which  the  person  alters  the  in- 
dorsement into  a  receipt  by  himself  for  the 
payee  :  semble,  that  the  act  of  presenting  the  bill 
to  the  clerk  previous  to  his  objection  is  sufficient 
to  constitute  the  offence  of  uttering  the  forged 
indorsement,    id. 

If  A.  put  the  name  of  B.  on  a  bill  of  exchange 
BS  acceptor,  without  B.'s  authority,  expecting  to 
be  able  to  meet  it  when  due,  or  expecting  that  B. 
will  overlook  it;  this  is  forgery.  But  if  A.  either 
had  authority  from  B.,  or,  tVom  the  course  of  their 
dealings,  bona  fide  considered  that  he  had  such 
authority  it  is  not  forgery.  Rex  v.  Forbes,  7  C. 
&  P.  224— Coleridge.  .  794 

In  a  case  of  forging  and  uttering  a  'forged  bill, 
a  letter  written  by  the  prisoner  to  a  third  person, 
saying  that  such  person's  name  is  on  another  bill, 
and  desiring  him  not  to  say  that  that  bill  is  a 
forgery,  is  receivable  in  evidence  to  show  ^ilty 
knowledge ;  but  the  jury  ought  not  to  consider  it 
as  evidence  that  the  other  oill  is  forged,  unless 
such  bill  is  produced,  and  the  forgery  oT  it  proved 
in  the  usual  way.     Id. 

Held,  that  a  leceipt,  signed  by  the  captain  of 


a  detachment,  on  the  authority  of  which  money 
is  received  from  an  army  agent,  on  account  of 
the  monthly  subsistence  for  such  detachment, 
may  be  properly  described  as  "a  receipt  for 
money,"  under  the  stat.  2  <&  3  Will.  4,  c.  123, 
s.  10,  relating  to  forgery,  although  it  appeared 
that  such  instrumente  were  frequently  cashed, 
upon  indorsement,  by  tradesmen  in  the  neigh- 
borhood of  the  place  where  the  regiment  was 
stationed,  and  the  amount  afterwards  received  by 
them  of  the  army  agent  Rez  v.  Rice,  6  C.  &  r. 
634--Crim.  Court.  794 

If  an  engraving  of  a  forged  note  be  given  to  a 
party  as  a  pattern  or  specimen  of  skill,  the  party 
giving  it  not  intending  that  the  particular  note 
should  be  put  in  circulation,  it  is  not  an  utter- 
ing within  the  statute.  Rex  v.  Harris,  7  C.  &  P. 
428— LitUedale.  797 

Where  three  persons  were  jointly  indicted 
for  feloniously  using  plates,  containing  im- 
pressions of  forged  notes ;  it  was  held  that  the  jury 
must  select  some  one  particular  time  after  all 
three  had  become  connected,  and  must  be  satis- 
fied, in  order  to  convict  them,  that  at  such  time 
tiiey  were  all  either  present  together  at  one  act 
of  using,  or  assisted  in  such  one  act,  as  by  two 
using,  and  one  watehing  at  the  door  to  prevent 
the  others  being  disturbed,  or  the  like ;  and  that 
it  was  not  sufficient  to  show  that  the  parties  were 
general  dealers  in  forged  notes,  and  that  at  dif- 
ferent times  they  had  singly  used  the  plates,  and 
were  individually  in  possession  of  forged  notes 
taken  from  them.  Rex  o.'  Harris,  7  C.  &  P.  416 
— Crim.  Court.  796 

In  an  indictment  for  forgery,  a  count  which, 
since  tlie  stat.  1  WiU.  4,  c.  66,  charges,  that  the 
prisoner  "  did  falsely  make,  forge,  and  counter- 
feit, and  did  cause  and  procure  to  be  falsely 
made,  forged,  and  countor&ited,  and  did  willing- 
ly act  and  assist  in  the  false  making,  forging,  and 
counterfeiting**  a  bill  of  exchange,  is  good,  as  are 
counto  charging  that  he  *'  did  utter  and  publish 
as  true,"  and  did  ^*  after  dispose  of  and  put  away" 
the  biU.    Rex  r.  Brewer,   6  C.  <&  P.  968— Park. 

799 

Sewing  to  the  parchment  on  which  the  indict- 
ment is  written  impressions  of  forged  notes  taken 
from  engraved  plates,  is  not  a  legal  mode  of  set- 
ting out  the  notes  in  the  indictment.  Foreign 
notes  were  set  out  in  an  indictment  in  the  origi- 
nal language,  but  the  translation  omitted  some 
words  which  were  in  a  margin  or  border  round 
the  body  of  the  note,  and  denoted  the  year  in 
which  the  notes  were  issued,  and  it  speared 
that  without  these  words  the  notes  would  not  be 
capable  of  being  ciroulated  in  the  country  to 
which  they  belonged  : — Held,  that  the  transla- 
tion was  imperfect,  and  the  special  counto  setting 
out  the  notes  consequently  bad.  Describing  a 
foreign  note  wholly  in  the  English  language  is 
not  sufficient  in  an  indictment  for  forgery,  not- 
withstanding the  stat.  2  <&  3  Will.  4,  c.  123,  s.  3 ; 
but  this  objection,  provided  the  description  is  in 
the  words  of  the  statute  creating  the  offence,  can 
only  be  taken  advantage  of  by  demurrer,  and  is 
cured  after  verdict  by  the  stat.  7  Geo.  4,  c.  64, 
s.  21.    On  indictmente  for  uttering  forged  Polish 


[CRIMINAL  LAW] 


2427 


notes,  it  was  held  that  conversations  with  the 
prisoners  respecting  th*  forgery  and  circulation 
of  Ibrged  Austrian  notes  were  admissible  in  evi- 
dence to  prove  the  scienter.  Rex  v.  Harris,  7  C. 
&  P.  42S*— Williams.  799 

On  an  indictment  for  uttering  a  forged  check 
in  the  name  of  J.  W.,  on  Messrs.  C.  G.  &  Co., 
who  were  armv  agents  and  bankers,  it  was  proved 
by  a  clerk  in  the  former  department  that  ne  did 
not  know  any  customer  named  J.  W.,  and  that  he 
had  been  told  by  the  other  clerks  that  there  was 
not  any  such  customer  in  the  banking  depart- 
ment:— Held,  that  this  was  sufficient  proof  on 
the  part  of  the  prosecution  to  call  upon  the  pri- 
soner to  show  tnat  there  was  in  fact  such  a  person 
as  J.  W.  having  an  account  with  Messrs.  C.  G. 
A  Co.,  and,  in  the  absence  of  such  proof,  was 
sufficient  by  itself  for  the  consideration  of  the 
jury.  Rex  v.  firannan,  6  C.  db  P.  326 — Park, 
Patteson,  and  Gurney.  801 

The  supposed  indorsor  of  a  forged  bill  is  in- 
competent to  prove  the  forgery  of  the  indorse- 
ment, and  when  such  bill  is  indorsed  by  the 
prisoner,  and  delivered  by  him  to  the  prosecutor, 
no  consideration  having  passed  from  the  latter  to 
the  former,  a  release  by  the  prosecutor  is  ineffec- 
tual to  make  such  indorsor  competent,  for  the 
property  of  the  bill  still  remained  in  the  prisoner. 
Rex  9.  Young,  Peake's  Add.  Cas.  228— Le  Blanc. 
^     *  801 

A.vwas  charged  with  a  forgery,  and  B.  was  ex- 
amined on  oath  before  the  magistrate  as  a  witness 
a^inst  A.;  after  this  B.  was  himself  charged 
with  a  different  forgery  : — Held,  that  the  deposi- 
tion of  B.  was  evidence  against  him  on  his  trial 
for  the  forgery,  nothwithstanding  that  it  was  taken 
on  oath.  Rex  v.  Haworth,  4  C-  &  P.  254— 
Parke.  801 

If  a  forged  deed  be  in  the  possession  of  a  pri- 
soner, who  is  indicted  for  forging  it,  the  prosecu- 
tor is  not  entitled  to  give  secondary  evidence  of 
its  contents,  unless  he  nas,  a  reasonable  time  be- 
fore the  commencement  of  the  assizes,  g^iven  the 
prisoner  notice  to  produce  it ;  and  a  notice  given 
daring  the  assizes  is  too  late ;  but  if  the  prisoner 
has  said  that  he  has  destroyed  the  deed,  no  no- 
tice to  produce  it  will  be  necessary.  Id. 


LXVIIl.  Perjury. 

To  prove  perjury,  it  is  sufficient  if  the  matter 
alleged  to  be  faJsely  sworn  be  disproved  b^  one 
witness,  if,  in  addition  to  the  evidence  of  that 
witness,  there  be  proof  of  an  account,  or  a  letter 
written  by  the  defendant  contraditting  his  state- 
ment on  oath.  Rex  v.  May  hew,  6  C.  oc  P.  315— 
Denman.  808 

On  an  indictment  for  perjury  committed  on  the 
hearing  of  a  parish  appeal  at  the  quarter  sessions, 
the  production  of  the  sessions  book  is  not  suffi- 
cient proof  that  the  appeal  came  on  to  be  heard, 
and  a  regular  record  ought  to  be  made  up  on 
parchment,  the  same  as  on  a  return  to  a  certio- 
rari, and  &at  record,  or  an  examined  copy,  must 
be  produced.  Rex  v.  Ward,  6  C.  <&  P.  366— 
Park.  See  the  case  of  Porter  v.  Cooper,  post, 
p.  2333.  808 

YoL.  IV.  20 


On  the  trial  of  an  indictment  for  perjury,  where 
the  perjury  was  alleged  to  have  been  committed 
before  a  magistrate,  the  written  deposition  of  the 
defendant  tuien  down  by  the  magistrate,  was  put 
in  to  prove  what  he  tfaien  swore.  Afler  this  it 
was  proposed  to  call  the  attorney  for  the  prosecu- 
tion to  prove  some  other  matters  which  the  de- 
fendant then  swore,  which  were  not  mentioned 
in  the  deposition  : — Held,  that  this  could  not  be 
done.    Rex  v.  WyJde,  6  C.  &  P.  380— Park.  808 

Perjury  cannot  be  assigned  on  an  answer  in 
Chancery,  denying  a  promise  absolutely  void  by 
the  statute  of  frauds.  Rex  v,  Benesech,  Peaked 
Add.  Cas.  93— Kenyon.  .  808 

If  in  an  indictment  for  perjury  a^inst  C.  D. 
it  is  averred  that  a  cause  was  dependmg  between 
A.  B.  and  C.  D.  a  notice  of  setroff  intituled  in 
a  cause  ^.  B.  v.  C.  />.,  and  signed  by  the  attor- 
ney of  C.  O.,  is  not  sufficient  evidence  to  support 
the  allegation.  Rex  v.  Stoveld,  6  C.  &  P.  489— 
Denman.  808 

On  an  indictment  for  perjury,  committed  by 

A.  on  the  trial  of  an  action  against  B.  and  others, 

B.  is'  not  rendered  incompetent  as  a  witness  for 
the  prosecution  merely  on  the  ground  that  he 
has  not  paid  the  debt  and  costs,  and  has  filed  a 
bill  in  equity ;  but  it  seems  that  if  B.  expects 
that  A.  will  be  a  witness  against  him  in  a  simi- 
lar action  coming  on  for  trial  soon  after  the  in- 
dictment, that  is  such  an  immediate  interest  in 
B.  as  will  disqualify  him  from  being  a  witness. 
Rex  v.  Hulme,  7  C.  &  P.  8— Denman.  808 

In  an  indictment  for  perjury,  a  suit  in  the  Ec- 
clesiastical court  was  stated  to  have  been  depend- 
ing between  W.  P.  and  R.  M.  The  proceedings 
of  the  suit,  when  produced,  were  between  W.  P. 
and  R.  M.  the  elder : — Held,  no  variance.  Rex 
V.  Bailey,  7  C.  &  P.  264— Williams.  805 


LXIX.   COKSPIRACT. 

Indictment  against  B.  and  C.  for  conspiring  to 
extort  money  from  the  prosecutor  A.,  by  means 
of  a  charge  of  forgery,  in  which  indictment  a  let- 
ter written  by  B.  in  execution  of  the  conspiracy, 
and  charging  A.  with  the  forgery  of  a  check  on 
C.'s  banker,  is  set  out.  The  letter  was  given  in 
evidence,  as  were  also  conversations  referring  to 
the  check  alleged  to  have  been  forged :— Held, 
that  the  prosecutor  was  not  bound  to  produce  the 
check,  though  it  appeared  that  such  check  was 
actually  in  existence.  Rex  v.  Aldridge,  1  Nev. 
&  M.  776.  WO 

A  conspiracy  to  procure  a  marriage  between 
poor  persons  or  different  parishes,  for  the  purpose 
of  exonerating  the  parish  of  the  woman  and 
charging  the  other  parish,  is  not  an  indictable 
offence,  unless  the  parties  were  unwilling  to 
marry,  or  some  forcible  or  fraudulent  means  of ' 
bringing  about  the  marriage  were  resorted  to.  A 
conspiracy  to  exonerate  from  the  prospective  bur- 
then of  maintaining  a  pauper,  not  at  the  time 
actually  chargeable,  and  to  throw  the  burthen 
upon  another  parish,  by  means  not  in  themselves 
unlawful,  is  not  indictable.  In  such  an  indict- 
ment, a  statement  that  the  woman  was  a  poor 
unmarried  woman  with  child,  is  not  equivalent 


3428 


[CRIMINAL  LAW] 


to  a  itateinent  of  actual  ehargeabiUty.    Rex  «. 
Seward,  3  Nev.  dt  M.  557 ;  I  Adol.  Sl  Ellis,  706. 

610 

An  indictment  for  a  conspiracy  to  cheat  and 
defraud  a  party  of  the  fruits  and  advanta^  of  a 
verdict  obtained,  is  too  general,  and  bad  in  point 
of  law.  Rex  v.  Richardson,  1  M.  dt  Rob.  40S^ 
Denman.  811 


LXX.   LlIBKL. 

Leaye  to  file  a  criminal  information  for  a  libel 
should  be  applied  for  in  a  reasonable  time,  before 
the  expiration  of  the  second  term  after  the  publi- 
cation of  it,  if  it  come  to  the  knowledge  of  the 
prosecutor  early  enough  to  enable  him  to  moye 
within  that  period.  Rex  v.  Jollie,  1  Nev.  6l  M. 
483 ;  4  fi.  &  Adol.  8G7.  813 

The  court  of  K.  B.  will  discharge  a  rule  for  a 
criminal  information  for  a  libel  against  the  pub- 
lisher of  a  newspaper,  where  in  the  affidavits 
Xn  which  the  rule  had  been  obtained,  and  the 
lavits  sworn  at  the  stamp-office,  the  defendant 
was  described  as  of  different  places.  Rex  v. 
Francis,  4  Nev.  &  M.  251 ;  2  Adol.  &  Ellis,  49. 

813 

So,  although  the  rule  had  been  twice  enlarg- 
ed, and  tlie  suitor  apply  to  have  the  rule  agam 
enlarged,  that  he  may  have  an  opportunity  of 
amending  his  affidafvit.  Id. 

Where  a  newspaper  is  filed,  together  with 
affidavits  in  support  of  a  motion  for  a  criminal 
information  for  a  libel,  the  court  will  take  notice 
of  it,  if  it  correspond  in  the  necessary  particulars 
with  the  stamp-office  affidavit,  though  it  be  not 
annexed  to  and  expressly  identifiecT  by  any  affi- 
davit. Id. 

Where  an  information  for  libel  states  that  cer- 
tain transactions  took  place,  and  that  the  libel 
was  published  of  and  concerning  them,  and  then 
sets  out  the  libel  as  referring  to  them,  and  the 
prosecutor,  at  the  trial,  gives  general  proof  of 
■ach  transaotions,  to  support  the  introductory 
part  of  his  pleading,  the  acfendant  is  not  thereby 
authorised  to  give  evidence  of  the  particular  his- 
tory of  those  transactions,  so  as  to  bring  into  is- 
sue the  truth  or  fidsehood  of  the  libel.  Rex  v. 
Grant,  3  Nev.  &  M.  106;  5  B.  A.  Adol.  1061. 

815 

But  if  such  evidence  be  adduced  bona  fide,  to 
show  that  the  transactions  referred  to  in  the  al- 
leged libel,  are  not  the  same  with  those  which  the 
information  supposes  it  to  have  had  in  view,  and 
the  judge  is  informed  that  the  evidence  is  ofiered 
for  that  purpose,  it  is  admissible.  Id. 

The  rule  established  at  Nisi  Prius  in  prosecu- 
tions for  libels  in  a  newspaper,  vis.  that,  nSiet  pro- 
duction of  the  stamp-ofnce  affidavit,  a  paper 
corresponding  with  it  in  title,  printer's  and  pub- 
lisher's name,  and  place  of  publication,  may  be 
put  in  and  read,  as  published  by  the  parties 
therein  named,  without  other  proof  on  this  point, 
applies  equally  on  motions  for  criminal  informa- 
tions.   Rex  V.  Donnison,  4  B.  &  Adol.  698.  815 

A  libel  stated  that  there  was  a  riot  at  C,  and 
that  a  person  fired  a  pistol  at  an  asKmblage  of 


persons,  and  upon  this  the  libel  impotBd  neg leei 
of  duty  to  the  mag[i8tratet : — Held,  that  on  the 
trial  of  a  criminal  information  for  this  libel  on 
the  magistrates,  the  defendant's  counsel,  with  a 
view  ofshowing  that  the  libel  did  not  exceed  the 
bounds  of  free  discussion,  could  ^  not  go  into 
evidence  to  prove  that  there  f^as  in  &ct  a  riot 
and  that  a  pistol  was  fired  at  the  people.  Rex  v. 
Brigstock,  6  C.  and  P.  184— Patteson.  815 

In  an  information  for  a  libel  the  juir  are  t(» 
consider  whether  the  defendant  published  it  with 
a  crimind  intent  or  not  Rex  v.  Reeves,  Peake's 
Add.  Cas.  83— Kenyon.  313 


LXXl.  Uin.AwrvL  Oaths. 

[37  Gm,  3,  c.  123;  39  Geo.  3,  e.  79;  52  Gm.  3, 

e,  104.] 

The  provisions  of  the  stat  37  Geo.  3,  c.  123, 
which  makes  it  a  felony  to  administer  an  unlawfol 
oath,  are  not  confined  to  oaths  administered  with 
either  a  mutinous  or  a  seditious  object.  "Rex  v. 
Brodribb,  6  C.  dt  P.  571—Holroyd.  317 

A  party  of  sixteen  persons  were  going  out 
armed  for  the  purpose  of  night-poaehmg.  Be- 
fore they  went  out  the  prisoner  swore  them  all 
to  secrecy : — Held,  a  felony  within  that  statute. 
Id. 

Where  sixteen  persons  took  the  same  unlaw- 
ful oaths,  two  or  tiiree  at  a  time,  all  being  pre- 
sent : — Held,  that  the  person  who  administered 
the  oath  might  be  convicted  on  an  indictment  for 
administering  a  certain  oath  to  A.,  B.,  C,  D. 
&c.  (naming  the  whole  sixteen  persons).  Id. 

If  the  indictment  state  the  oaths  to  have  been, 
not  to  inform  or  give  evidence  against  any  per- 
son belonging  to  a  confederacy  of  persons  asso* 
ciated  together  ^*  to  do  a  certain  illegal  act,"  this 
is  sufficient,  without  stating  what  ue  illegal  act 
was.  Id. 

If  the  oath  administered  was  intended  to 
make  the  parties  to  whom  it  was  administered 
believe  themselves  under  an  engagement,  it  is 
equally  within  the  statute  whether  the  book  on 
which  they  were  sworn  was  a  Testament  or  not. 
Id.  ^ 

Where  an  oath  was  administered,  that  the 
party  taking  it  should  not  make  buttons  under 
certain  stated  prices,  and  should  keep  all  the  se- 
crets of  the  lodge  : — Held,  to  be  an  administer- 
ing of  an  unlawful  oath  within  the  statutes.  Rex 
9.  Ball,  6  C.  df,  P.  563— Williams.  817 

The  administering  an  oath  or  any  agreement 
to  any  person  not  to  reveal  the  secrets  <m  any  as- 
sociation, is  an  ofience  within  those  statutes.  Id. 

An  association,  the  members  of  which  are 
bound  by  oath  not  to  disclose  its  secrets,  is  an 
unlawful  combination  and  confederacy,  (unless 
expressly  declared  by  some  act  of  Parliament  to 
be  legal),  for  whatever  purpose  or  object  it  may 
be  formed  ;  and  the  administering  of  an  oath  not 
to  reveal  anything  done  in  such  association  is  an 
oifence  within  37  Geo.  3,  o.  UO,  s.  1.  Rex  e. 
Lovelass,  1  M.  dtRob.349;  6C.  &>  P.59&-Wil- 
liams.  817 


[CRIMINAL  LAW] 


2439 


The  enadinp  ptrt  of  the  37  Geo.  3,  is  not  re- 
■brained  bj  the  preftmUe  to  oaths  administered 
for  jmrposesof  sedition  or  mutinj.    Id. 

The  precise  form  in  which  the  oath  is  admi- 
nistered is  not  material ;  it  is  an  oath  within  the 
meaning  of  the  act,  if  it  was  understood  by  the 
party  tendering,  and  the  party  taking  it,  as  having 
the  roree  and  obligation  of  an  oath.    Id. 

£Tery  person  who  engages  in  an  association,  the 
members  of  which,  in  consequence  of  being  so, 
take  an  oath  not  required  by  law,  is  guilty  of  an 
oflSsnce  within  the  stat.  57  Geo.  3,  c.  19,  s.  25. 
Rex  9.  Dixon,  6  C.  &.  P.  601— Bosanqoet.      817 

LXJXVIII.  NuisAircx. 

Where  a  statute  enacts,  that  the  erection  of  a 
building  within  certain  limits  shall  be  deemed 
**  a  common  nuisance,"  and  also  gives  a  sum- 
mary remedy  by  proceedings  before  magistrates, 
the  (^fender  may  be  indicted  for  the  nuisance. 
Bex  V.  Gregory,  2  Nev.  &  M.  478.  822 

In  an  indictment  against  a  gas  company  for  a 
naisanoe  in  conveying  the  refuse  of  gas  into  a 
gieal  public  river,  whereby  the  fish  are  destroyed 
and  the  water  is  rendered  unfit  for  drinking,  &c., 
the  question  for  the  jury  is,  whether  the  acts  done 
by  the  particular  company  complained  of  amount 
to  a  nuisance.  Rex  v.  Medley,  6  C.  &  F.  292— 
Denman.  822 

The  circomstanoe,  that,  by  the  diminution  of 
fish,  a  eontideiaUe  number  of  fishermen  are 
thrown  oat  of  employ,  is  not  of  itself  sufficient 
ground  to  sustain  an  mdictment    Id. 

The  directon  of  a  gas  company  are  answerable 
on  an  indictment  for  a  nuisance  for  an  act  done 
bj  their  superintendent  and  engineer,  under  a 
general  authority  to  manage  the  works,  though 
tbey  ate  personally  ignorant  of  the  particuhtf 
plan  adopted,  and  though  such  plan  be  a  depar- 
ture firom  the  original  and  understood  method 
which  the  directors  had  no  reason  to  suppose  dis- 
eontinued.    Id. 

If  m  party,  having  a  house  in  a  street,  exhibit 
effigies  at  his  windows,  and  thereby  attract  a 
erowd  to  look  at  them,  which  causes  the  footway 
to  be  obstructed,  so  that  the  public  cannot 
pass  as  they  ought  to  do ;  this  is  an  indictable 
nuisance,  and  it  is  not  at  all  essential  that  the 
effigies  should  be  libeUous ;  and,  semble,  that  it  is 
not  necessary  to  show  that  the  crowd  consisted 
of  idle,  disorderly,  and  dissolute  persons.  Rex 
V.  Carifle^  6  C.  &  P.  637— Crim.  Cfourt.  822 


IjXXXIX.  HienwAYS  ahd  fiRinosi. 

Where  a  statute  prolubits  the  erection  of  build- 
inge  within  ten  feet  of  a  certain  road,  and  directs 
that  the  footpaths  shall  be  deemed  part  of  the 
road,  a  building  erected  within  ten  feet  of  the 
ibotoath  is  within  the  prohibition.  Rex  v.  Gre-* 
gofy,2Ney.  d^M.478;  5B.  ^kAdol.555.    824 

A  road  dedicated  to  and  used  by  the  public  be- 
eomes  a  highway  which  the  perish  must  repair, 
aJthoogh  wither  rach  dedication  nor  such  user 


have  been  adopted  or  acquiesced  in  by  the  parish. 
Rex  V.  Leake,  2  Nev.  &  M.  583.  824 

Where  drainage  commissioners  are  directed  by 
act  of  Parliament  to  purchase  lands,  cut  drains, 
and  cleanse  them  when  cut,  by  placing  the  mud 
upon  the  banks,  it  is  competent  to  such  commis- 
sioners to  dedicate  such  banks  to  the  public  as  a 
highway — Per  Denman,  C.  J.,  and  Parke,  J. ; 
diss.  Littledale,  J.  Id. 

Whether  one  act  of  repairing  on  the  part  of  the 
parish  can  be  construed  as  an  adoption  of  a  high- 
way, quesre  ?    Id. 

After  a  verdict  for  the  defendant  upon  an  in- 
dictment for  the  non- repair  of  a  highway,  the 
court  refused  an  application  for  a  new  trial,  on 
the  ground  of  the  improper  rejection  of  evidence, 
but  suspended  the  judgment  in  order  that  another 
indictment  might  be  preferred.  Rex  v.  Sutton,  2 
Nev.  &  M.  57 ;  5  fi.  &.  Adol.  52.  824 

A  parish  may  be  indicted  for  non-repair  of  a 
bridge,  without  stating  any  other  ground  of  lia- 
bility than  immemorial  usage.  Rex  v.  Hendon ,  3 
B.  &  Adol.  628.  8^ 

A  country  bridge  haying  been  washed  away, 
was,  after  the  passing  of  the  43  Geo.  3,  c.  59, 
built  wider  than  before,  and  without  notice  to  the 
county  surveyor,  by  the  parish,  partly  with  the 
old  materials  and  in  the  same  line  of  passage  over 
the  river : — Held,  that  the  county  was  liable  to 
repair,  and  that  this  was  not  a  new  bridge  within 
the  meaning  of  the  act  Rex  v.  Devonshire,  2 
Nev.  &  M.  212.  824 

A  public  footway,  leading  from  A.  to  the  gate 
of  a  church-yard,  and  communicating  through 
that  gate  by  a  public  path,  through  me  church- 
yard with  the  church,  may  be  described  in  an  in- 
dictment as  a  footway  leading  from  A.  towards 
and  unto  the  church.  Rex  v.  Downshire  (Mar- 
chioness), 5  Nev.  &  M.  662.  824 

So,  although  part  of  the  path  across  the  church- 
yard is  ancient,  and  part  has  been  recently  de- 
dioated  to  the  public.    Id. 

So,  although  the  path,  instead  of  leading  di- 
rectly from  Uie  gate  to  the  church,  forms  an 
acute  angle  in  one  part  of  it.    Id. 

If  a  parish  be  indicted  for  the  non-repair  of  a 
pack  and  prime  way,  and  it  be  proved  that^the 
way  is  a  carriage  way,  this  is  a  misdescription  of 
the  way,  and  the  defendante  are  entitled  to  be 
acquitted.  Rex  v.  St.  Weonards,6  C.  &.  P.  582 — 
Alderson.  824 

In  an  indictment  for  non-repair  of  a  highway, 
it  is  not  necessary  to  state  the  termini ;  but  if  they 
are  stated,  they  must  be  proved.    Id. 

On  an  indictment  against  a  |>ari8h  for  non- 
repair of  a  highway,  a  plea  of  guilty  to  a  former 
indictment  against  the  same  parish  for  non-repair 
of  the  same  highway  is  conclusive  evidence  that 
it  is  a  public  way.  Rex  v.  Whitney,  7  C.  &  P. 
208— Park.  824 

Evidence  that  a  narish  did  not  put  guard  fences 
at  the  side  of  a  road,  is  not  receivable  on  an  indict- 
ment, which  charges  that  the  king's  subjecte  could 
not  pass  aa  '*thev  were  wont  to  do"  if  no  such 
fences  existed  betore.    Id. 


2430 


[CRIMINAL  iJiW] 


An  indictmeiit  charged  that  the  inhabitants  of 
the  township  of  Bondgate  in  Auckland,  Newgate 
in  Auckland,  and  the  borough  of  Auckland,  in 
the  parish  of  St.  Andrew  Auckland,  were  imme- 
morially  liable  to  repair  a  highway  in  the  town 
of  Bishop  Auckland,  in  the  parish  of  St.  Andrew 
Auckland,  and  no  consideration  was  laid : — Held 
bad,  in  arrest  of  judgment,  as  not  showing  that 
the  highway  was  in  the  defendant's  district . — 
Held,  to  be  no  objection  that  the  inhabitants  of 
the  three  townships  were  charged  conjointly.  Rex 
V.  Bishop  Auckland,  1  Adol.  &,  Ellis,  744 :  1  M. 
A  Rob.  286.  824 


XCII.  Attempt  to  commit  Misdemvahor. 

An  attempt  to  commit  a  misdemeanor  cxeated 
by  statute  is  itself  a  misdemeanor.  Rez  v.  But- 
ler, 6  C.  dt  P.  368— Patteson.  829 


XCin.  Offekces  at  Sea. 

A  Spaniard,  being  in  Enj|rland,  signed  articles 
to  serve  in  a  ship  '•^  bound  on  a  voyage  to  the 
Indian  seas  and  elsewhere,  on  a  seeking  and 
trading  voyage  (not  ezceedinf  three  years'  dura- 
tion), and  back  to  the  united  kingdom."  On  the 
ship's  arrival  at  Zanzibar,  an  island  in  the  Indian 
seas,  which  was  under  the  dominion  of  an  Arab 
king,  the  captain  left  the  vessel  (in  pursuance 
of  an  understanding  in  England),  ana  set  up  in 
trade,  and,  without  the  consent  of  the  rest  of 
the  crew,  engaged  the' Spaniard  as  an  interpreter, 
the  new  captain  of  the  ship  not  requiring  nim  to 
serve  on  board.  The  ship  went  two  or  three  short 
voysxres  without  him,  and  returned  to  anchor  a 
few  hundred  yards  from  the  shore,  in  a  roadstead 
of  seven  fathoms  water,  between  Zanzibar  and 
several  other  islands.  The  crew  being  on 
shore,  a  quarrel  arose  between  the  Spaniard 
and  one  of  them,  whi^h  led  to  blows  by  the 
Spaniard,  which  killed  the  other.  The  death 
took  place  on  board  of  ship.  The  Spaniard  was 
brouffht  to  England,  and  indicted  and  tried  in 
London  under  a  special  commission  issued  in 
pursuance  of  the  9  Geo.  4,  c.  31,  s.  7 : — Held, 
that,  under  the  circumstances,  he  could  not  be 
convicted — first  as  he  was  not  a  **  subject  of  his 
Majesty"  within  the  meaning  of  that  section ;  and 
secondly,  that  as  the  death  was  on  shipboard, 
thouffh  the  blows  were  given  on  shore,  the  offence 
could  not  be  said  to  have  been  committed  accord- 
ing to  the  words  of  the  statute,  "  on  land  out  of 
the  united  kingdom."  Whether,  if  the  Spaniard 
had  continued  on  board  the  ship,  and  had  been  at 
the  time  serving  under  the  articles,  he  could  have 
been  tried  as  a  British  subject,  qusre  ?  semble, 
that  he  could  not.  Rez  v.  Mattos,  7  C.  &  P.  458 
— Vaughan  and  Bosanquet.  829 


XCV.  Examikatioh. 

The  binding  over  to  prosecute,  which  is  neces- 
sary to  give  the  grand  jury  of  the  Central  Crimi- 
nal Court  jurisdiction  in  certain  cases  of  rots- 
demeanor,  under  the  13th  sect,  of  the  act  4  &  5 
Will.  4,  c.  36,  must  take  place  before  a  magistrate, 
&c.,  previous  to  the  sessions  of  that  court,  and 


cannnot  be  done  by  the  court  itself.    Rez  v.  Carl- 
ton, 6  C.  dD  P.  651— Crim.  Court.  831 


XCVIIl.  Bail. 

In  order  to  entitle  a  defendant  on  a  charge  of 
felony  to  be  bailed  before  a  magistrate  in  the 
country,  it  is  not  necessary  to  produce  an  affi- 
davit of  poverty,  if  it  appears  from  the  other  af- 
fidavits in  the  case  that  ne  is  in  an  humble  situ- 
ation of  life.    Rez  v.  Brooker,  2  Dowl.  P.C.  446. 

832 

Where  bills  for  misdemeanors  are  found  un- 
der tlie  commission  of  oyer  and  terminer  at  the 
Central  Criminal  Court,  the  defendant  must  giv« 
48  hours'  notice  of  bail,  unless  the  application 
for  process  is  made  on  a  Friday,  in  any  case  in 
which  there  is  reason  to  think  that  there  is  a  de- 
sire to  keep  the  party  in  custody  over  Sunday. 
Rex  V,  Carlile,  6  C.  &  P.  628— Criminal  Court. 

832 

The  judg^es  at  the  Central  Court,  afler  post- 
ponement till  the  next  session,  on  motion  for  the 
prosecution,  of  the  presentation  of  a  bill  for  a 
capital  offence,  refused,  on  motion  for  the  prison- 
er, to  read  over  very  long  depositions,  to  enable 
them  to  decide  whether  Uiey  would  admit  him  to 
bail ;  although  the  application  was  made  on  the 
ground  that  there  was  not  sufficient  time  to  pre- 
pare the  proper  affidavits  before  the  breaking  up 
of  the  court.  Rez  v.  Palmer,  6  C.  db  P.  654 — 
Criminal  Court.  832 

By  5  Sl6  Will.  4,  c.  33,  s.  3,  the  provisions  of 
7  Geo.  4,  c.  64,  as  to  taking  bail  in  easts  of  fdony^ 
are  extended  ;  and  any  two  justices^  of  tokom  one  or 
other  shall  hope  signed  the  loarrant  m  commitment^ 
may  admit  to  bail  any  person  ekargedwitkfelonu,  in 
such  sum,  and  toith  sueh  sureties,  as  they  shall  uink 
Jit,  nowithstanding  such  person  shall  have  eonfessedy 
or  such  justices  shall  not  think  the  charge  ground- 
less, or  shall  think  that  the  circumstances  are  such 
as  to  raise  a  presumption  of  guilt,  832 


CI.  Coroner's  Inquests. 

lSeeanU,p.e33.] 

The  court  will  ex  officio  quash  a  coroner's  in- 
quisition in  which  the  facts  of  the  case  are  stated, 
and  the  verdict  found  is  not  warranted  by  such 
facU.  In  re  Cully,  2  Ne  v.  A.  M.  61 ;  5  B.  dk  Adol. 
230.  833 

If  a  coroner's  inquisition  states  it  to  have  been 
taken  on  the  affirmation  of  a  man,  it  should  state 
that  man  to  be  eitlier  a  Quaker  or  a  Moravian. 
Rez  V,  Polfield,  2  Dowl.  P.  C.  469.  833 

The  court  will  not  grant  a  rule  nisi  to  remove 
the  depositions  taken  before  a  coroner,  and  to 
bail  a  partv  charged  upon  the  coroner's  inqaest 
with  manslRUffhter,  without  an  affidavit  of  what^ 
took  place  before  the  coroner.  Rez  v.  Mills,  4 
Nev.  ^M.e.  833 


CIV.  Indictment. 

Change  of  Fatus.l — ^Jn  felony,  the  court  refused 
to  allow  the  defendant  to  enter  a  suggestion  for 


[CRIMINAL  LAW] 


2431 


cfaftnging  the  venae,  on  the  ground  of  prejudice 
penrMling  the  county.  Rex  v,  Penpraze,  1  Nev. 
dt  M.  312  \  AB,&.  Adol.  573.  835 

The  court  of  K.  B.  has  a  discretionary  power 
of  ordering  a  suggestion  to  be  entered  on  the  re- 
cord of  an  indictment  for  felony,  removed  thither 
by  certiorari,  for  the  purpose  of  awarding  the 
jury  process  into  a  foreign  county ;  but  this 
power  will  not  be  exercised  unless  it  be  absolutely 
m^cessary  for  the  purpose  of  securing  an  impar- 
tial trial  Rex  v.  Holden,  2  Nev.  <&  M.  167 ;  5 
B.  &  Adol.  347.  835 

Where  a  defendant  is  in  custody  in  the  county 
of  A.,  upon  an  attachment  issumg  out  of  the 
court  of  Exchequer,  he  may  be  removed  to  the 
county  of  B.,  to  take  his  trial  upon  an  indictment 
found  in  the  latter  county.  Re  Wetton,  1  C.  ^ 
J.  459.  835 

Qusre,  whether  an  application  to  change  the 
venue  in  an  indictment  for  libel  can  be  entertain- 
ed afler  a  special  jury  are  struck  ?  Rex  v.  Tar- 
peley,  1  Har.  &  Wolf.  58.  835 


Aohm  of  the  Party  injured.] — A.  was  indicted 
for  stealing  the  property  of  Richard  P.  It  ap- 
peared that  the  prosecutor's  n&me  was  Richard 
Jeremiah  P.,  but  that  he  was  generally  known 
bv  the  name  of  Richard   P. : — Held  sufficient. 

Rex  V. J  6  C.  dt  P.  408 — Denman  and  Vaug- 

han.  ^  838 

In  an  indictment,  the  prosecutor  (a  boy)  was 
described  as  "  Edward  Dobson."  He  ffave  his 
name  to  the  constable  as  **  Peach,"  and  nis  mas- 
ter and  moet  other  persons  so  called  him,  and  he 
was  generally  known  by  the  name  of  **  Peach." 
He  stated  that  his  right  name  was  Dobson,  and 
that  his  mother,  who  nad  married  two  husbands. 
Peach  and  Dobson,  had  always  told  him  that  he 
was  the  son  of  the  latter,  ana  had  always  called 
him  Edward  Dobson  : — Held,  that  he  was  rightly 
deKribed.  Rex  v.  WiUiams,  7  C.  &  P.  £)8— 
WUiiams.  838 

An  indictment  charged  the  murder  of  *<  Eliza 
Waters."  It  appeared  that  the  deceased  was  the 
illegitimate  child  of  the  prisoner,  whose  name 
was  Ellen  Waters;  and  a  witness  said  on  the 
trial— *<  The  child  was  called  Eliza :  i  took  it  to 
be  baptized,  and  said  it  was  Eleanor  Waters' 
child:" — Semble,  that  it  was  not  sufficient  proof 
that  the  surname  of  the  deceased  was  Waters. 
Rex  17.  Waters,  7  C.  &  P.  250— Denman.       838 


Contra formam  Staiuti^ — A  counj.  which  charges 
B.  with  shooting  at  A.,  with  intent  to  murder 
him,  and  then  charges  C.  and  D.  with  aiding  and 
abetting  B.,  and  at  the  end  of  the  count  con- 
cludes with  a  contra  formam  statuti,  is  good ;  and 
it  need  not  state  that  B.  shot  A.  with  intent,  &c., 
contra  formam  statuti,  and  that  C.  and  D.  aided 
him,  also  contra  formam  statuti.  Rex  v,  Nelmes, 
6  C.  &  P.  347— Park.  838 

Other  TTungs.l — A  person  who  has  pleaded  to 
an  indictment  which  was  invalid,  on  account  of 
iti  having  been  found  upon  the  testimony  of 


witnesses  not  duly  sworn  to  give  evidence,  nuiy 
be  required  to  plead  to  another  indictment  for 
the  same  offence,  without  the  first  indictment 
being  quashed  by  the  court.  Rex  v.  Chamber- 
lain, 6  C.  &  P.  97— LitUedale.  834 

An  indictment  for  manslaughter  charged,  that 
A.  gave  to  deceased  divers  mortal  blows  at  P., 
in  the  county  of  M.,  and  that  the  deceased  lan- 
guished and  died  at  D.,  in  the  county  of  K.; 
and  that  the  prisoner  was  then  and  there  aiding 
in  the  commission  of  the  felony  : — Held,  that  the 
indictment  was  good,  and  that  the  word  ^*  there" 
referred  to  P.,  in  the  county  of  M.  Rex  p.  Har- 
grave,  5  C.  A  P.  170— Patteson.  836 

When  there  are  counts  in  an  indictment  for 
forging  a  bill,  acceptance,  and  indorsement,  the 
prosecutor  is  not  driven  to  elect  on  which  he  will 
proceed.  Rex  v.  Young,  Peake's  Add.  Cas.  228 
— Le  Blanc.  839 

A  prosecutor  cannot  maintain  two  indictments 
for  misdemeanor  for  the  same  transaction  ;  he 
must  elect  to  proceed  with  one  and  abandon  the 
other.  Rex  v.  Britton,  1  M.  &  R.  297— Patte- 
son. 839 

The  word  **  guilder"  is  sufficiently  an  English 
word  to  justify  its  use  in  an  indictment  as  a 
translation  of  the  Polish  word  **zlotych,"  which 
is  also  called  a  guilder  and  a  florin.  Rex  v.  Har- 
ris, 7  C.  &  P.  416— Criminal  Court.  837 

Words  of  reference,  as  "  there"  and  "  said,"  in 
an  indictment,  will  not  be  referred  to  the  last 
antecedent,  where  the  sense  requires  that  they 
should  be  referred  to  sutiie  prior  antecedent. 
Wright  «.   Rex  (in  error),  3  Nev.  <&  M.  892. 

837 

Thus,  where,  in  an  indictment  for  a  nuisance, 
it  was  alleged  that  the  defendant,  at  the  township 
of  W.,  encroached  upon  a  highway  there  (i.  e.  at 
the  township  of  W.)*  leading  from  a  highwav  in 
the  said  township,  leading  from  the  villa[^  of  W. 
towards  O.  to  another  highway  in  the  said  town- 
ship, from  the  village  of  W.  to  the  township  of 
X.,  by  a  certain  wall  there  extending  to  the  said 
highway,  and  erected  by  the  defendant ;  it  was 
held,  that  the  words  "  there"  and  *^  said"  must  be 
taken  as  referring  to  the  township  of  W.  and  the 
highway  there,  and  not  to  the  township  of  X.,  or 
to  the  highway  leading  from  the  village  of  W. 
to  the  township  of  X.    Id. 

Where  a  count  in  an  indictment  stated  that  the 
defendant  made  an  assault  upon  a  person  who 
was  in  lawful  possession  of  goods,  under  a  levy 
for  a  specified  sum  of  money,  for  arrears  of  as- 
sessed taxes,  with  intent  unlawfully  to  force  him 
out  of  possession : — Lord  Denman,  C.  J.,  held, 
that  it  was  necessary  to  prove  that  the  specific 
sum  was  due,  although  he  thought  that  no  sum 
need  have  been  stated.  Rex  t?.  Ford,  4  Nev.  6l 
M.  451.  837 

If  an  indictment  have  an  interlineation,  and 
have  a  caret  at  the  proper  place,  where  the  inter- 
lined words  are  to  come  m,  the  court  will  take 
notice  of  the  caret,  and  read  the  indictment  cor- 
recUy.    Rex  t>.  Davis,  7  C.  &  P.  319— Patteson. 

837 


3432 


[CRIMINAL  LAW] 


CV.  Arraigitmbiit  awd  Plka. 

A  party  cannot  be  legally  convicted  upon  an 
indictment  found  by  tne  fiprand  jury  upon  the 
testimony  of  witnesses,  who  were  sworn  by  an 
officer  of  the  court  after  the  session  had  lapsed, 
in  consequence  of  its  haying,  on  two  successive 
days,  been  opened  and  adjourned  without  the 
presence  of  any  judge.  Middlesex  Special  Com- 
mission, 6  C.  ^Sl  F.  §0— J.  Parke.  840 

The  statute  7  &  8  Geo.  4,  c.  28,  s.  2,  authoriz- 
ing the  court  to  direct  a  plea  of  not  guilty  to  be 
entered  for  a  party  who  stands  mute  of  malice, 
or  will  not  answer  directly  to  an  indictment,  ap- 
plies to  the  case  of  a  party  who  refuses  to  plead, 
on  the  ground  that  he  haa  previously  pleaded  to 
another  indictment  for  the  same  offence,  but 
which  indictment  was  not  valid  in  consequence 
of  its  having  been  found  upon  the  testimony  of 
witnesses  not  duly  sworn  to  give  evidence  before 
the  grand  jury.  Rex  v.  fiitton,  6  C.  &  P.  92 — 
Litltedale.  840 

To  an  indictment  in  the  King's  Bench,  a  de- 
fendant will  be  allowed  to  plead  in  forma  paupe- 
ris, on  making  an  affidavit  that  he  is  not  worth 
52.,  &o.    Rex  v.  Pa^,  1  Dowl.  P.  C.  507.      840 


CVIII.  Plea  op  Autrk  Fois  Convict. 

A  plea  of  autre  fbis  convict  stated  that  the 
prisoner  was  indicted,  convicted,  and  sentenced, 
at  a  session  of  the  peace  ^  duly  holden  by  ad- 
journment on  the  5tJi  of  July :  replication,  nul 
tJel  record.  The  record,  produced  m  support  of 
the  plea,  stated  that  the  indictment  was  found  at 
a  session  commenced  and  holden  on  Monday  the 
1st  of  July,  and  that  the  court  was  adjourned  till 
Tuesday  the  2nd ;  that  the  court,  having  re-as- 
•embled  on  Thursday  the  4th,  was  adjourned  to 
Friday  the  5th,  when  the  prisoner  was  tried  and 
convicted.  It  was  held,  that  the  plea  oT  autre  fois 
convict  was  not  proved  by  the  record,  inasmuch 
as  for  want  of  an  adjournment  from  the  Tuesday 
to  the  Thursday,  the  proceedings  on  the  Friday 
were  coram  non  judioe,  and  a  nullity.  Rex  v. 
liowman,  6  C.  dk  P.  337 — Oaaelee,  Vaughan,  and 
Tkonton.  840 

The  court  will  not  reject  a  plea  of  autre  fois 
convict  on  account  of  the  informal  manner  in 
which  it  is  handed  in  b^  the  prisoner,  but  will 
assign  counsel  to  put  it  mto  a  formal  shape,  and 
postpone  the  trial,  to  give  time  for  its  preparation. 
Rex  V.  Chamberlain,  6  C.  &  P.  93— Littledale. 

840 

A  plea  of  autre  fois  convict  can  only  be  proved 
by  tne  record,  and  the  indictment,  with  the  find- 
ing of  the  jory*  dke.,  indorsed  by  the  proper  offi- 
cer, is  not  sufficient,  although  it  appear  that  no 
record  has  been  made  up.  But  the  court,  before 
whom  the  prisoner  is  brought  to  be  tried  the  se- 
cond time,  will  postpone  &e  trial  at  the  request 
of  the  prisoner,  on  affidavit  of  the  ftct,  to  give 
time  for  an  application  for  a  mandamus  to  com- 
pel the  making  up  of  the  record.  Aex  v.  Bow- 
man, 6  C.  &  P.  101.  840 

CXI.  EviDXircB. 
CM|/«Mi0ii.]— If  a  prisoner  be  told  **  Yon  had 


better  split,  and  not  rafier  for  all  of  thenn ;"  this 
is  such  an  inducement  to  confess  as  will  exclude 
what  the  prisoner  said  in  consequence  of  it  Rex 
V.  Thomas,  6  C.  &  P.  353— Patteson.  843 

So,  where  the  witness  said  to  the  prisoner,  **  It 
would  have  been  better  if  you  had  told  at  first.*' 
Rex  V.  Walkley,  6  C.  &  P.  175— Gumey.      843 , 

A  prisoner  was  in  custody  on  a  charge  of  for- 

gery,  and  was  not  allowed  even  to  see  his  wife ; 
e  wrote  to  a  friend  **  to  ask  Mr.  G.,  or  some 
other  solicitor,  whether  the  punishment  was  the 
same  whether  the  names  forced  were  those  of 
real  or  fictitious  persons.**  Bir.  G.  was  not  the 
prisoner's  attorney,  though  he  was  an  attorney : 
— Held,  that  this  was  not  a  privileged  communi- 
cation.   Rex  V.  Brewer,  6  C.  &  r.  363— Park. 

843 

A.  was  in  custody  on  a  char^  of  murder.  B., 
a  fellow  prisoner,  said  to  him — ^^'I  wish  yon 
would  tell  me  how  you  murdered  the  boy — pray 
split"  A.  replied — ^**Will  you  be  upon  your 
oath  not  to  mention  what  I  tell  you."  B.  went 
upon  his  oath  that  he  would  not  tell.  A.  then 
made  a  statement : — Held,  that  this  was  not  such 
an  inducement  to  confess  as  would  render  the 
statement  inadmissible.  Rex  v.  Shaw,  6  C.  A  P. 
372— Patteson.  843 

Where  A.  and  B.  were  charged  with  the  joint 
commission  of  a  felony,  and  A.,  on  his  exami- 
nation before  a  magistrate,  stated,  in  the  hemr- 
ing  of  B.,  that  he  and  B.  jointly  committed  each 
felonyi  which  B.  did  not  deny : — Held,  that  these 
circumstances  were  not  admissible  as  evidence 
against  B.  Rex  v.  Appleby,  3  Stark.  33— Hol- 
royd.  843 

A.  and  his  wife  were  separately  in  custody  on 
a  charge  of  receiving  stolen  property.  A  person 
who  was  in  the  room  with  A .  said — **  I  hope  yon 
will  tell,  because  Mrs.  G.  (the  prosecutrix)  can 
ill  afford  to  lose  the  money ;"  and  the  constable 
then  said — ^^  If  you  will  tell  where  the  property 
is,  yon  shall  see  your  wife :" — Held,  that  a  state- 
ment made  by  A.  afterwards  was  admissible  in 
evidence.  Rex  «.  Uoyd,  6  C.  4t  P.  393— Patte- 
son. 843 

Where  a  person,  who  made  a  confession  to  a 
constable  in  consequence  of  a  promise  held  out, 
was  taken  before  a  magistrate,  who,  knowing  what 
had  taken  place,  captioned  the  prisoner  against 
making  any  confession  before  him ;  but  the  pris- 
oner, notwithstanding,  did  make  a  confession  to 
the  magistrate  : — Held,  that  this  second  confes- 
sion was  receivable  in  evidence  on  the  trial  of  the 
prisoner,  though  it  did  not  appjear  that  the  ma- 
gistrate told  the  prisoner  that  his  first  confession 
would  have  no  efiect,  and  he  therefore  mi^ht 
have  acted  under  an  impression  that,  having  once 
acknowledged  his  guilt,  it  was  too  late  to  re- 
tract   Rex  V.  Howes,  6  C.  &  P.  404 — Denman. 

843 

What  a  prisoner  is  overheard  to  say  to  his 
wife,  or  even  what  he  is  overheard  to  say  to  him- 
self, is  receivable  in  evidence  against  nim  on  n 
charge  of  felony:  it  is,  howeyer,  a  species  of 
evidence  to  be  acted  on  with  caution,  as  it  is  yeiy 


[CRIMINAL  LAW] 


2439 


liable  to  be  onintentionallj  miflrepresented  bj  the 
vitnewee.  Rex  v.  Simonf,  6  C.  &  P.  540— Al- 
deieoo.  843 

A  statemeDt,  made  bj  e  prieoner  when  he  is 
dmnk,  is  leeeiTable  in  evidence;  and  semble, 
that,  if  a  constable  ^ve  him  liquor  to  make  him 
BO,  in  the  hope  of  his  saying  something,  that  will 
not  render  his  statement  inadmissible,  but  it  will 
be  matter  of  obserration  for  the  judge  in  his 
aomming  up.    Rex  v.  Spilabury,  7  C.  dt  P.  187 

843 

If  a  prisoner,  during  the  examination  of  wit- 
neascaa  against  him  l^fore  the  magistrate,  make 
an  observation,  parol  evidence  may  be  ^iven  of 
■neb  observation,  if  the  magistrate  s  clerk  prove 
that  he  only  took  down  the  evidence  of  the  wit- 
Bcasea,  and  the  statement  of  the  prisoner,  afler 
tbe  evidence  against  him  was  concluded.  Id. 

A  priaoner  charged  with  felony,  being  in  cus- 
tody Jiaadcufied,  in  the  house  of  the  prosecutor, 
aiHer  a  conversation  with  the  prosecutor  and  an- 
otber  person,  in  which  he  was  told  that  they 
would  do  all  they  could  for  him,  said — ^^  If  the 
faandcuffii  are  taken  off,  1  will  tell  you  where  1 
pot  the  property :" — ^mble,  that  this  statement 
waa  receivable  m  evidence,  and  could  not  be  ob- 
jected to,  either  as  a  confession  made  under  a 
pnxniae,  or  a  statement  obtained  by  duress.  Rex 
V.  Green,  6  C.  &  P.  666 — Bosanquet  and  Taunt- 

843 


A  witness  stated,  that  a  prisoner  charged  with 
felony  asked  him  if  he  had  better  confess  ;  and 
the  wit&ess  replied,  that  he  had  better  not  con- 
fess, but  that  the  prisoner  might  say  what  he 
had  to  say  to  him,  for  it  should  go  no  further. 
Tlie  prisoner  made  a  statement: — Held,  that 
it  waa  receivable  in  evidence  on  the  trial.  Rex 
9.  Thomaa,  7  C.  d^  P.  345— Coleridge.  843 

A.  being  in  the  custody  of  a  constable,  on  a 
charge  of  felony,  was  taken  by  the  constable  to 
an  innkeeper,  wno,  in  the  hearing  of  the  constable, 
held  out  an  inducement  to  A.  to  confess ;  and  A. 
in  the  hearing  of  the  constable,  made  a  confea- 
sion  to  the  innkeeper,  which,  at  the  trial,  the 
eonetablo  was  called  to  prove : — Semble,  that  this 
confession  was  not  leoeivable  in  evidence.  Rex 
V.  Foontney,  7  C.  &  P.  302— Alderson.  843 

A  prisoner  was  indicted  for  sending  a  threat- 
ening letter.  The  only  evidence  against  him  was 
his  own  statement,  tnat  he  should  never  have 
written  it,  but  for  W.  G. : — Held  not  sufficient. 
Rex  9.  Howe,  7  C.  &  P.  268— Abinger.  843 

A  magistrate  returned  with  the  depositions 
taken  before  him,  that  the  prisoner  said — "  I  de- 
dine  to  say  any  thin^  :** — Held,  that  under  those 
circumstances,  a  witness  for  the  prosecution 
ooold  not  be  allowed  to  give  evidence  of  the 
terms  of  a  confession,  which  he  stated  the  pri- 
soner made  in  the  presence  of  tbe  magistrate, 
and  while  under  examination.  Rex  r.  Walter, 
7  C.  &  P.  267— Abinger.  843 

If  a  prisoner,  when  examined  before  a  magis- 
trate, say  that  the  deposition  of  F.  T.  is  true,  the 
deposition  of  F.  T.  may  be  read  at  the  trial  as  a 
Mrt  of  the  prisoner's  statement,  although  F.  T. 
nas  been  examined  at  the  trial  as  a  witness  for 


the  prosecution.    Rex  «.  Joluii  7  C.  dt  P.  324 — 
Patteson.  843 

Where  a  magistrate  has  signed  the  examina- 
tion of  a  prisoner  under  7  Geo.  4,  c.  64,  in  order 
to  allow  it  to  be  read  on  the  trial,  it  is  sufficient 
to  prove  the  handwriting  of  the  magistrate,  and 
to  show  that  the  examination  is  that  of  the  par- 
ticular prisoner.  Rex  v.  Foster,  7  0.  &  P.  14{^ 
— Alderson.  843 

An  examination  of  a  prisoner  taken  before  a 
magistrate,  signed  with  the  prisoner's  name,  may 
be  given  in  evidence  on  the  prisoner's  handwri- 
ing  being  proved  by  any  one  present  at  the  time 
oisuch  examination.  Rex  v.  Chappel,  1 M.  d& 
Rob.  3i^5— Denman.  843 

When  the  prisoner  has  merely  put  his  mark^ 
it  must  be  proved  that  the  examination  was  eor- 
rectly  read  over  to  him.  Id. 

It  is  not  necessary  to  call  either  the  magis- 
trate or  his  clerk  to  prove  the  due  taking  in 
writing  of  a  prisoner's  confession.  Hex  p.  Hopes^ 
7  C.  ^b  P.  136— Crim.  Court.  843 

If  a  prisoner's  examination  before  a  magistrate 
conclude,  **  taken  and  sworn  before  me,"  and 
under  that  is  the  magistrate's  signature,  it  is  not 
receivable  in  evidence;  and  the  judge  will  nei* 
ther  allow  the  magistrate's  clerk  to  prove  that^ 
in  fact,  it  was  not  sworn,  nor  will  he  receive  paro( 
evidence  of  what  the  prisoner  said.  Rex  v.  Ri- 
vers, 7  C.  &  P.  177— Park.  84$ 


AccomjiUees.l — If  an  accomplice's  evidence  be 
confirmed  only  as  to  collateral  facts,  which  do  not 
either  connect  the  accused  with  the  offence,  or 
connect  the  accused  and  the  accomplice  toffetber^ 
it  is  not  sufficient  Rex  v.  Addis,  6  C.  &  r.  388 
—Patteson.  847 

Proving  by  other  witnesses  that  a  robbery  waa 
in  fact  committed  in  the  mode  in  which  an  ac- 
complice states  it  to  have  been  committed  is  not 
such  confirmation  of  him  as  is  required  to  war- 
rant a  conviction  on  his  evidence.  Rex  v,  Webb^ 
6  C.  A.  P.  595— WiUiams.  847 

There  is  a  great  difference  between  confirma- 
tions of  an  accomplice  as  to  the  circumstancea 
of  the  felony,  and  those  which  apply  to  the  indi- 
vidual charged.  The  former  only  show  that  the 
accomplice  was  present  at  the  commission  of  the 
offence,  but  the  others  show  that  the  prisoner 
was  connected  with  it.  Confirmation  of  an  ac- 
complice as  to  the  commission  of  the  felony,  is 
really  no  confirmation  at  all,  and  though  a  jury 
may  legally  convict  on  the  evidence  of  an  accom- 
plice only,  the  iudges  advise  them  not  to  act  on 
the  evidence  or  an  accomplice,  unless  he  is  con- 
firmed as  to  the  particular  person  who  is  chamd 
with  the  ofllence.  Rex.  v.  WUkes,  7  C.  &  P.  272 
—Alderson.  847 

In  a  case  of  felony  the  testimony  of  the  wife 
of  an  accomplice,  is  not  such  evidence  as  a  jury 
ought  to  rely  upon  as  confirmation  of  the  state- 
ment of  the  accomplice.  Rex  v.  Neal,  7  C.  &  F. 
16&-Park.  847 

If  A.  is  charged  as  a  principal,  and  B.  as  a 
receiver,  and  A.  plead   guilty, — an  accomplice 


I 


2434 


[CRIMINAL  LAW] 


when  called  to  give  evidence  against  B.,  should 
be  confirmed  aa  to  some  matter  affecting  B.,  and 
a  confirmation  as  to  the  guilt  of  A.  does  not  ad- 
vance the  case  against  B.  Rez  v.  Moores,  7  C.  & 
P.  270— Alderson.  847 

A  jurv  may,  if  they  please,  act  upon  the  evi- 
dence 01  an  accomplice  without  any  confirmation 
of  his  statement.  Rex  v.  Hastings,  7  C.  &  P.  152 
— Denman,  Park,  and  Alderson.  847 


Depositions. ] — A.,  who  was  a  witness  for  the 
prosecution  against  B.,  on  a  charge  of  arson,  had 
first  been  examined  by  the  magistrate  before  any 
specific  charge  was  made  against  any  person,  and 
his  deposition  taken  in  writing.  A.  was  next 
accused  of  the  offence,  and  his  statement  as  a 
prisoner  was  also  taken  down  by  the  magistrate. 
Afler  this,  B.  was  charged  with  the  offence,  and 

A.  examined  as  a  witness,  when  A.'s  statement 
made  at  that  time  was  taken  down,  B.  being 
then  committed  for  trial : — Held,  that  all  these 
statements  of  A.  ought  to  be  returned  to  the 
judge,  and  not  merely  the  statement  made  when 

B.  was  committed.  Rex  v.  Simonds,  6  C.&.  P. 
540— Alderson.  848 

It  is  the  duty  of  a  magistrate  to  return  all  the 
depositions  taken  against  a  prisoner,  and  not 
merely  the  depositions  of  those  whom  he  thinks 
proper  to  bind  over  as  witnesses.  Rex  v.  Fuller, 
7  C.  &  P.  269— Vaughan.  848 


Swearing  and  examining  Witnessts.'] — Where 
a  witness  for  the  prosecution  at  the  Old  Bailey, 
on  being  asked  to  repeat  an  answer  which  she 
had  previously  given  before  the  whole  of  it  had 
been  taken  down,  omitted  what  the  prisoner's 
counsel  thought  an  important  part  of  it,  and  de- 
nied that  she  had  ever  uttered  such  part;  the 
judges  allowed  the  short-hand  writer  of  the  court, 
who  had  taken  down  the  answer,  to  be  examined 
as  a  witness  to  show  whether  the  words  had  been 
used  or  not.  Rex.  v.  Slater,  6  C.  <&  P.  334— 
Oaselee  and  Vaughan.  850 

A  witness  was  asked  by  the  prisoner's  counsel 
on  cross-examination  whether  be  had  not  become 
bail  for  a  witness  previously  examined.  He  re- 
plied, yes ;  and  that  he  believed  it  was  on  a  charge 
of  keeping  a  gaming-house.  In  order  to  prevent 
any  impression  agamst  the  character  of  the  party 
so  accused,  the  court,  on  the  suggestion  of  the 
counsel  for  the  prosecution,  allowed  such  party 
to  be  called  up  again,  and  asked  whether  the 
charge  was  in  fact  true  or  fiilse.  Rex  v.  Noel,  6 
C.  &.  P.  336— Gaaelee  and  Taunton.  850 

If  a  party  robbed  go  within  a  few  hours  ailer 
the  robbery  to  a  constable,  and  mention  the  name 
of  the  person  who  robbed  him,  the  party  robbed 
may  be  asked  at  the  trial  whether  he  named  any 
person  to  the  constable,  but  ought  not  to  he 
asked  what  name  he  mentioned ;  and  the  consta- 
ble may  be  asked  whether,  in  consequence  of 
the  party  mentioning  a  name  to  him,  he  went  in 
search  of  any  person ;  and  if  so,  who  that  person 
was.    Rex  v.  Wink,  6  C.  &  P.  397— Patteson. 

850 

The  counsel  for  the  prosecution  in  a  case  of 


felony  opened  that  he  should  call  A.  and  B.  as 
witnesses,  the  former  being  a  king's  evidence, 
Both  before  and  afler  those  persons  were  called, 
the  prisoner's  counsel  were  allowed  to  ask  the 
other  witnesses  whether  A.  and  B.  were  not  per- 
sons of  very  bad  character.  Rex  v.  Nichols,  5  C. 
&  P.  600— Parke.  350 

In  a  case  of  burning,  it  had  been  opened  by 
the  counsel  for  the  prosecution,  that  evidence 
would  be  given  of  expression  of  ill-will,  used  by 
the  prisoner  towards  the  prosecutor: — Held, 
that  the  prisoner's  counsel  might  cross-examine 
the  prosecutor,  to  show  that  other  persons  be- 
sides the  prisoner  had  used  expressions  of  ill-will 
towards  him.  Rex  v.  Stallard,  7  C.  and  P.  263— 
Williams.  850 

Whether,  afler  the  examination  of  witnesses  to 
fact  on  behalf  of  a  prisoner,  the  judge  (there  beinff 
no  counsel  for  the  prosecution),  calls  back  and 
examines  a  witness  zor  the  prosecution,  the  pri- 
soner's counsel  has  a  right  to  cross-examine-again 
if  he  thinks  it  material.  Rex  o.  Watson,  6  C.  d& 
P.  653— Crim.  Court.     '  850 

It  is  not  usual  to  cross-examine  witnesses  to 
character,  except  the  counsel  cross-examining 
have  some  distinct  charge  to  which  to  cross-ex- 
amine them.  Rex  v.  Hodgkiss,  7  C.  &  P.  298 — 
Alderson.  850 


IVihusses  ordered  out  of  Court] — ^The  witnesses 
had  been  ordered  out  of  court,  but  the  attorney 
remained  in  court : — Held,  that  afler  thi«  order 
he  could  not  be  examined  as  a  witness.  Rex  v. 
Webb,  3  Stark.  L.  of  £v.  17^3— Best.  856 

In  a  case  of  burglary,  a  witness  for  the  defence 
remained  in  court  afler  an  order  for  the  witnesses 
to  leave  the  court : — Held,  that  it  depended  on 
the  circumstances  of  the  case,  whether  the  judge 
would  allow  the  witness  to  be  examined.  Rex 
V.  Colley,  M.  <&  M.  329— LitUedale  and  Gaselee. 

856 

On  a  trial  for  arson,  witness  for  the  prisoner 
had  lefl  the  court,  on  an  order  being  gfiven  for 
the  witnesses  to  go  out  of  court  j  but  he  had 
afterwards  come  into  court  again,  and  heard  a 
part  of  the  evidence :  he  was  allowed  to  be  ex* 
arained.  Rex  v.  Brown,  4  C.  &  P.  588,  n^ — Pat- 
teson. 856 

On  the  trial  of  an  indictment  for  perjury,  all 
the  witnesses  were  ordered  out  of  court  Afler 
this  order,  a  witness  for  the  prosecution  remained 
in  court :  the  judge  would  not  allow  him  to  be 
examined.    Rex  v.  Wylde,  6  C.  &  P.  380— Park. 

866 

As  to  witnesses  being  examined  in  civil  cases, 
afler  being  ordered  to  leave  the  court,  see  the 
cases  of  Att.  Gen.  v.  Bulpit,9  Price,  4;  Pomeroy 
V.  Baddeley,  R.  &  M.  430 ;  Beamon  v.  Ellice,  4 
C.  &  P.  565 ;  and  Everett  v,  Lowdham,  5  C.  & 
P.  91. 


Proof  of  previous  Contiction.'] — ^The  judges 
have  determmed  that  if  a  prisoner  is  indicted 
for  a  felony  afler  a  previous  conviction,  the  proof 
of  the  previous  conviction  is  to  be  given  before 
the  prisoner  is  called  on  for  his  defence.    Rex  v. 


[CRIMINAL  LAW] 


2435 


Jooet,  6  C.  &  F.  391— Park.    [See  7  &  8  Geo. 
4,  c.  28,  0. 11.]  855 

Evidence  of  the  Finding  of  an  Indictment.^ — 
An  allegation,  that  '*  on,  <Sli:,c.,  at,  &c.,  a  certain 
indictment  was  preferred  at  the  quarter  sessions 
of  the  peace  then  and  there  bolden  in  and  for  the 
said  coontjof  W.,  a^inst  the  defendant  and  one 
T.  E.,  which  said  indictment  was  then  and  there 
fbund  a  true  bill,"  is  not  supported  by  the  pro- 
duction of  the  original  indictment  with  the  words 
**true  bill"  indorsed  on  it,  it  being  necessary 
(hat  a  regular  record  should  be  drawn  up  and 
prored,  either  by  its  production,  or  by  an  ex- 
amined copy  of  it  Porter  v.  Cooper,  6  C.  &  P. 
'£4— Patteson.  855 


CXll.  Pbacticb. 

The  coort  refused  to  discharge,  without  pre- 
ferring a  bill  of  indictment,  the  reco^izances  of 
prosecutors,  being  members  of  a  society  for  pro- 
moting religious  knowledge  amon^  the  poor,  who 
had  caused  a  servant  to  be  committed  for  embez- 
tlraient,  the  application  being  made  not  on  the 
ground  of  any  defect  in  the  evidence,  but  on  the 
ground  that  the  prosecutors  thought  that  the  re- 
formation of  the  oflfender  would  be  best  promoted 
by  such  a  course.  Rex  v,  Paul,  6  C.  &  P.  323 — 
Park,  Patteaon,  and  Gumey.  855 

But  where,  at  the  assizes,  parish  officers  were 
mider  recognizances  to  prosecute  a  pauper  for 
obtaining  money  bv  fiilse  pretences,  the  jud^ 
on  motion  permitted  the  recognizances  to  be  dis- 
charged, the  party  having  been  in  prison  several 
weeu,  and  the  parish  being  unwilling  to  indict. 
Rex  V.  Adams,  6  C.  &^  P.  ?Si,  n.— Vaughan.  855 

On  an  indictment  on  the  prosecution  of  a  pri- 
vate individual  for  keeping  a  common  gaming- 
hooee,  the  solicitor  of  the  treasury  was  allowed 
to  have  a  new  record  of  Nisi  Pnus  engrossed, 
and  the  pcMtea  and  verdict  indorsed  from  the 
judge's  notes,  on  an  affidavit  that  the  poetea 
coah  not  be  found,  and  that  the  solicitor  of  the 
treasury  was  instructed  by  the  secretary  of  state 
to  call  for  the  judgment  of  the  court.  Rex  v. 
Oldfield,  3  B.  d&  A&l.  659,  n.  855 

Where  a  party  has  been  tried  at  a  court  of 
<Ioarier  sessions,  which  has  previously  lapsed  for 
want  of  due  adjournment,  he  has  a  right  to  have 
s  record  of  the  proceedings  made  up  by  the  clerk 
cf  the  peace,  although  t£e  object  of  the  applica- 
tion is  to  enable  him  to  support  a  plea  of  autre 
fois  convict.  Rex  v.  Middlesex  (Justices),  3  Nev. 
AM.  no.  855 

The  prosecutor  of  an  indictment  for  misde- 
meanor may  obtain  the  usual  crown  office  certi- 
ficate of  his  bill  having  been  found,  for  the  pur- 
pose of  taking  out  a  judge's  warrant  against  the 
defendant,  without  obtaining  an  office  copy  of  the 
indictment.  Rex  v.  Redfem,  2  Adol.  &  Ellis, 
337 ;  4  Nev.  &  M.  198.  855 

Where  a  document  is  in  the  custody  of  an  of- 
ficer of  a  court  of  equity,  the  court  will,  on 
^unds  of  public  policy,  order  the  production  of 
uiat  document  at  the  trial  of  an  indictment 
against  any  individual,  whether  he  be  a  party  to 

Vol.  IV.  21 


the  suit  in  which  the  document  is  in  evidence  or 
not    Taylor  v.  Sheppard,  1  Y.  &  Col.  280.    855 

The  court  of  King's  Bench  will,  under  special 
circumstances,  remove  an  indictment  for  a  mis- 
demeanor, from  the  Central  Criminal  Court.  Rex 
V,  Caldecott,  3  Dowl.  P.  C.  315.  855 

A  prosecutor  in  an  indictment  for  a  nuisance 
may  be  compelled  to  give  a  particular  of  the  acts 
of  nuisance  intended  to  be  relied  on.  Rex  v, 
Curwood,  5  Nev.  &,  M.  369 ;  1  Har.  &  WoU.  310. 

856 

A  rule  for  this  purpose  may  be  granted  without 
affidavit,  upon  reading  the  indictment  only.    Id. 

If  the  counts  of  an  indictment  for  a  conspiracy 
be  framed  in  a  general  form,  the  judge  will  order 
that  the  prosecutor  shall  furnish  the  defendants 
with  a  particular  of  the  charges ;  and  that  parti- 
cular should  give  the  same  information  to  the 
defendants  thai  would  be  given  by  a  special  count. 
But  the  judge  will  not  compel  the  prosecutor  to 
state  in  his  particular  the  specific  acts  with  which 
the  defendants  are  charged,  and  the  times  and 
places  at  which  those  acts  are  alleged  to  have 
occurred.  Rex  v.  Hamilton,  7  C.  d&  P.  448—  - 
LitUedale.  855 

The  presentment  of  a  bill  for  a  capital  o^noe 
may  be  postponed  on  affidavit  of  the  attorney  for 
the  prosecution,  stating  the  illness  of  a  material 
and  nece&sary  witness,  although  such  witness 
have  been  examined  before  a  magistrate,  and  his 
deposition  do  not  disclose  matter  of  sufficient 
importance  to  show  that  his  evidence  was  neces- 
sary, as  the  important  facts  may  have  been  dis- 
covered since.  Rex  v.  Palmer,  6  C.  &  P.  652— 
Criminal  Court  855 

The  court  cannot,  under  the  stat.  7  &  8  Geo. 
4,  c.  29,  s.  57,  relating  to  the  restitution  of  stolen 
property,  order  a  Bank  of  England  note  which 
nas  been  paid  and  cancelled,  to  be  delivered  up 
to  the  prosecutor  of  an  indictment  against  the 
party  who  stole  it  Rex  v.  Stanton,  7  C.  &.  P. 
431— Criminal  Court.  855 

A  constable  who  apprehends  a  prisoner  hafl 
no  right  to  take  away  from  him  any  money 
which  he  has  about  him,  unless  it  is  in  some  way 
connected  with  the  offence  with  which  he  is 
charged,  as  he  thereby  deprives  him  of  the 
means  of  making  his  defence.  Rex  v.  O'Don- 
nell,  7  C.  &  P.  1&— Patteson.  855 

A  police  officer  who  apprehended  a  person  on 
a  charge  of  rape,  took  from  him  a  watch  and 
other  articles.  The  judges  of  the  court  at  which 
he  was  indicted,  on  motion  supported  by  affidavit, 
directed  the  property  to  be  given  up  to  the  pri- 
soner, saying  that  ought  not  to  have  been  taken 
from  him.  Rex  v.  William  Kinsey,  7  C.  A>  P. 
447 — Patteson  and  Gumey.  865 

If  a  person  taken  on  a  charge  of  stealing  a 
horse,  nave  the  horse  in  his  possession  when  he 
is  apprehended,  any  money  found  upon  him  ought 
not  to  be  taken  away  from  him.  Rex  v.  Jones,  6 
C.  &  P.  343— Patteson.  855 

Where,  in  case  of  murder,  whiclr  had  occu- 
pied the  whole  of  the  day,  the  judge,  after  he 
nad  commenced  his  summing  up,  a^ourned  the 
court,  in  consequence  of  the  noise  made  by  the 


2436 


-  [CRIMINAL  LAW] 


crowd  in  the  hall,  his  lordship  ordered  that  two 
iNiili&  should  be  sworn  to  keep  the  jury  together 
till  the  next  day,  and  that  the  jury  should  be 
supplied  with  suitable  refreshments  and  sccom- 
mooation  by  the  high  sheriif,  and  next  day  his 
lordship  recommenced  his  summing  up  the  evi- 
dence.   Rex  17.  Clay,  7  C.  &  P.  2f&— Alderson. 

^  855 

Where  a  defendant  indicted  for  a  nuisance, 
conducted  his  own  case,  the  judge,  at  the  conclu- 
sion of  the  case  on  the.  part  of  the  prosecution, 
warned  him,  that,  if  he  called  a  witness  or  read 
any  letter  or  paper  in  evidence,  or  opened  new 
facts,  the  counsel  for  the  prosecution  would  have 
a  riffht  to  rep\y.    Rex  v.  Carlile,  6  C  A&  F.  637 

— ^(>im.  Court.  855 

• 

At  sessions  the  jury  gave  a  special  yerdict  of 
not  guilty,  and  it  was  entered  in  the  book  of  the 
clerk  of  tJi^  peace.  Afterwards,  the  chairman 
told  the  jury  they  must  reconsider  their  verdict ; 
and  they  gave  a  verdict  of  guilty  generaUy,  but 
recommended  the  defendant  to  mercy  on  account 
of  his  not  doing  the  act  with  a:  malicious  intent; 
and  the  verdict  was  then  altered  in  the  book  of 
the  clerk  of  the  peace.  The  court  refused  to 
interfere  by  mandamus  to  cancel  the  alterations. 
Rex  V.  Suffolk  Justices,  5  Nev.  &  M.  139 :  S.  C. 
nom.  Rex  v.  Hughes,  1  Har.  &  WoU.  313.     855 

In  addressing  the  court  in  aggravation  of  pun- 
ishment, upon  a  conviction  for  a  nuisance,  it  is 
competent  to  the  prosecutor  to  advert  to  provis- 
ions contained  in  an  act  relating  to  a  private  com> 
pany,  if  such  act  contain  a  clause  declaring  it  to 
be  a  public  statute,  though  it  be  not  referrea  to  in 
any  of  the  prosecutor's  affidavits.  Rex  v.  The 
Equitable  Gas  Comp.,  3  Nev.  (k  M.  759.         855 

The  charters  of  the  city  of  Liondon  vest  in  that 
body,  fines  for  misdemeanors  committed  within 
the  city,  though  imposed  or  adjudged  by  the 
court  of  King's  Bench,  sitting  in  banc  at  West- 
minster, afler  a  trial  at  the  sittings  at.  Gaildhall. 
Rex  p.  Mayor  and  Inhabitants  ofuie  city  of  Lon- 
don»  1  C.  M.  &  R.  1 ;  4  Tyr.  709.  855 


CXIV.  New  Trial. 

The  rule  as  to  payment  of  costs  on  a  motion 
for  a  new  .trial  is  the  same  in  principle  in  civil 
and  criminal  cases.  Rex  v.  Ford,  1  Nev.  &>  M. 
776.  858 

Quiere  whetlier  a  new  trial  is  grantable  after 
acquittal  in  any  criminal  case,  except  a  penal 
action  ?  Rex  v.  Sutton,  5  B.  &  Adol.  52 ;  2  Nev. 
dE&  M.  57.  856 

After  a  verdict  for  the  defendant  upon  an  in- 
dictment for  the  non-repair  of  a  hignway,^the 
court  refused  an  application  for  a  new  trial,  on 
the  ground^f  the  improper  rejection  of  evidence ; 
but  suspended  the  judgment  in  order  that  an- 
other indictment  might  be  preferred.    Id. 

All  the  defendants  convicted  upon  a  criminal 
information  n^ust  be  in'court  upon  a  motion  on 
their  behalf  for  a  new  trial.  Kex  v.  Scully,  1 
Alcock  &  Napier,  262.     {Irish.)  858 


CXV.  JOOGMBITT  Airp  ExtCVTIOH. 

In  a  case  of  conviction  for  murder,  in  which 
the  prisoners  were  brought  up  by  habeas  corpus, 
and  the  record  by  certiorari,  the  court  gave  the 
prisoners  three  days*  time  to  examine  the  record 
and  instruct  counsel  to  show  c^use  why  execution 
should  not  be  awarded  against  them.  Rex  v. 
Garside,  4  Nev.  dk  M.  33 ;  2  Adol.  dt  Ellis,  266. 

860 

Semble,  that  a  pardon  afler  judgment  may  be 
pleaded  ore  tenus,  and  in  bar  of  execution ;  and 
there  may  be  a  demurrer  to  such  a  plea  ore  tenus. 
Id. 

The  court  of  King's  Bench  has  authority  to 
order  the  sheriff  of  any  county,  or  the  marshal  of 
the  court,  to  carry  into  execution  the  sentence  of 
death,  pronounced  by  a  judge  under  a  commis- 
sion of  oyer  and  terminer  and  general  gaol  deli- 
very,   la.        , 

A  proclamation  promising  a  pardon  cannot  be 
pleaded  as  a  pardon.    Id. 

But  where  such  proclamation  had  been  oaade, 
the  court,  in  their  discretion,  deferred  the  award- 
ing of  execution  upon  the  sentence,  until  the 
prisoner  should  have  had  time  to  apply  to  the 
secretaxT  of  state  for  a  pardon,  according  to  the 
terms  ox  the  proclamation.    Id. 

The  attorney-general,  upon  motion,  is  entitled, 
as  of  course,  to  a  habeas  corpus  and  certiocari, 
to  oring  up  a  prisoner  and  the  record  of  his  con- 
viction in  case  of  felony.    Id. 

The  court  refused  to  hear  an  application  from 
a  sheriff,  into  whose  custody  the  prisoners  bad 
been  removed,  praying  that  the  order  to  do  exe- 
cution might  not  be  made  upon  him.    Id. 

A  sheriff  is  not  bound,  upon  service  of  a  copy 
of  the  calendar  of  prisoners  signed  by  a  justioe 
of  gaol  delivery  at  the  assizes,  to  execute  pri- 
soners against  whom  sentence  of  death  has  bees 
passed,  unless  such  prisoners  are  in  his  le^ 
custody.  Rex  v.  Antrobus,  4  Nev.  d(c  M.  665 ; 
2  AdoL  &  Ellis,  798;  6  C.  db  F.  784;  1  Har.  & 
Wolh  96.  860 

Therefore,  where  a  county  gaol  and  the  cus- 
tody of  the  prisoners  in  such  gaol  belonged  to  a 
patent  officer,  ind^iendent  of  the  sheriff  it  was 
held  that  the  sheriff  was  not  legally  bound,  upon 
receiving  the  calendar,  to  demand  to  have  the 
prisoner  delivered  to  him  by  such  patent  officer 
for  the  purpose  of  executing  him.    id. 

In  such  case,  in  order  to  make  the  liability  of 
the  sheriff  complete,  the  court  in  which  the  pri- 
soner is  condemned,  should,  hy  a  writ  of  habeas 
corpus  or  other  mandate,  reauire  the  patent  offi- 
cer to  deliver  the  prisoner  to  tne  sheriff,  and  should 
by  anoUier  writ  or  mahdate  require  the  sheriff  to 
receive  and  execute  him.    Id. 

Quaere  whether  a  special  order  of  the  court,  to 
the  patent  officer  and  the  sheriff,  (they  being 
both  bound  to  be  present  in  court),  would  be 
sufficient  ?    Id.  , 

Mere  notice  of  the  sentence,  and  of  the  lia- 
bility of  the  sheriff  to  execute,  is  not  sufficient 


[CRIMINAL  LAW] 


2437 


to  warTMit  the  patent   oiBcpr  to  deliver  the  pri- 
soner to  the  sheriff  lor  execution.    Id. 

Where  the  sherifE  has  the  castody  of  the  pri- 
■sner,  the  judgment  of  the  court  passing  sen- 
teiie»  of  death  upon  him,  is,  without  any  war- 
rant or  copy  of  the  calendar,  sufficient  to  auUio- 
rixeand  require  the  sheriff  to  do  execution;  the 
copy  of  the  calendar  signed  by  the  judge  is  a 
mere  memorial.    Id. 

CXVI.  Error. 

Where  error  is  brought  on  a  conviction  of 
felony,  and  after  a  four-day  rule  has  been  ob- 
tained and  served  on  the  attorney-general  and 
prosecutor,  and  there  is  no  joinder  in  error,  the 
party  convicted  is  entitled  to  be  discharged  out 
of  castody.  So  in  error  upon  a  conviction  for  a 
misdemeanor.  Rex  v.  Howse,  3  Nev.  A  M. 
—  862 


CXVIIl.  Costs. 

A  public  body  at  its  own  expense  preferred  an 
isdictment  for  a  libel  upon  A.,  one  of  its  officers, 
in  the  name  of  A.,  as  prosecutor.  The  defeifdant 
removed  the  indictment  by  certiorari,  and  was 
eooricted : — Held,  that  no  costs  could  be  awarded 
under  the  stat.  4  &  5  Will.  &  Majy,c.  11,  s.  3. 
Rex  V.  J>ewfauiBt,  2  Nev.  <fe  M.  253 ;  5  B.  A  Adol. 
405.  865 

Wheie  an  indictment  on  the  7  &  8  Geo.  4, 
c  90i,  s.  16,  is  remored  by  certiorari  into  the 
King's  Bench,  and  is  tried  on  a  record  issuing  out 
of  that  court,  the  expenses  of  prosecution  cannot 
be  allowed  under  the  7  GTeo.  4,  c.  64,  s.  22.  Hex 
V.  Kelsey,  1  Dowl.  P.  C.'481.  865 

If  a  proeecutor,  having  removed  an  indictment 
by  certiorari,  give  notice  of  trial  for  the  assizes, 
and  bring  down  the  record,  and  withdraw  it  after 
it  has  been  entered  for  trial,"  the  judge  at  the  as- 
Msn  cannot  order  the  prosecutor  to  pay  the  de- 
JeDdant  the  costs  of  the  da^ ;  but  a  motion  must 
ke  made  in  the  court  of  King's  Bench.  Rex  v. 
W«ttoB,  4  C.  &  P.  229— BqUand.  865 

By  the  general  Highway  Act,  13  Geo.  3,  c.  78, 
a.  64,  the  court,  before  which  any  indictment  for 
mm-iepair  of  a  road  is  tried,  may  award  costs  to 
the  proaecutor,  if  any  defence  appear  to  liave 
been  fnTolous,  or  to  the  defendant,  if  it  appear 
that  the  proaeeution  was  vexatious.  This  section 
api^ies  only  to  cases  tried  in  the  ordinary  course ; 
and  where  on  an  indictment  removed  by  the  de- 
fendant by  certiorari,  the  court  above  had  ordered 
a  new  tnal,  and  the  prosecutor's  costs  of  both 
triala  to  abide  the  erent:  it  was  held  that  this 
rule  look  away  the  authority  of  the  judge  to  cer- 
tify in  h,Tor  of  the  defendant  Rex  v.  Salwick, 
2  B.  &  AdoK  136.  865 

A  party  who  is  bound  over  to  prosecute  at  a 
aaperior  court  by  a  court  of  quarter  session,  is 
entitled  to  his  expenses  under  the  statute.  Rex 
9.  Paine,  7  C.  &  V.  135— Grim.  Court  864 

Qucre,  whether  under  7  Geo.  4,  c.  64,  a  prose- 
cutor under  recognizances  to  prosecute  at  the  ses- 
sions, who  proaecnted  at  the  assizes,  is  entitled  to 
eoalB  at  all?  Rex  a.  Jeves,  5  Nev.  &,  M.  101 ;  3 
AM.A£Uia,416:  1  tiar.  db  WoU.  325.         864 


I  Semble,  that  the  statute  meant  to  give 
costs  to  those  parties  only  who  have  previously 
gone  before  a  magistrate.  It  docs  not  apply  to 
cases  where  an  indictment  is  preferred  after  a 
magistrate  has  dismissed  the  complaint — Per 
LitUedale.     Id. 

The  prosecutor  in  a  case  of  perjury,  who  has 
included  his  name  in  a  subpoena,  is  entitled  to 
his  costs  as  prosecutor,  though  he  is  not  hound 
over  to  prosecute  by  a  magistrate,  and  he  is  not 
limited  to  his  expenses  incurred  as  a  witness 
only.  Rex  v.  Sheering,  7  C.  d^  P.  440— Parke 
and  Coleridge.  864 

In  the  case  of  an  indictment  removed  into 
K.  B.  by  certiorari,  the  court  has  no  power  to 
order  the  payment  of  costs  incurred  before  the 
removal.  Rex  v.  Pasman,  3  JNev.  d^  M.  730 ;  1 
Adol.  &,  Ellis,  603.  865 


CXIX.  Information. 

A  magistrate  is  entitled  t6  notice  before  an  ap- 
plication is  made  for  a  criminal  information, 
where  he  is  charged  with  misconduct  in  his  ma- 
gisterial capacity,  although  other  misfTonduct  be 
also  charged.  Rex  v.  Heming,  2  Nev.  &  M.  477 ; 
5B.dk  Adol.  666.  867 

The  court  will  not  ^ant  a  rule  nisi  for  a  cri- 
minal information  agamst  magistrates,  unless  it 
appears  they  have  acted  from  an  oppressive, 
dishonest,  or  corrupt  motive,  under  whicn  fear  or 
favor  are  included.  In  re  Fentiman,  4  Nev.  db 
M.  128 ;  1  Adol.  &.  Ellis,  127.  867 

A  magistrate  is  entitled  in  all  cases  to  six  days* 
notice,  (3*  an  intention  to  apply  for  a  rule  nisi  for 
a  criminal  information ;  .and  it  is  not  sufficient 
that  in  point  of  fact,  six  days  have  expired  be- 
tween the  notice  and  the  motion,  if  tne  notice 
contemplates  an  earlier  applicatidn.    Id. 

Upon  a  motion  for  a  criminal  information 
against  A.  for  challenging  B.,  an  affidavit, 
stating  tliat  in  a  correspondence  between  them, 
A.  hM  intimated  an  intention,  after  the  settle- 
ment of  accounts  between  himself  and  B.,  to 
require  an  apology  for  offensive  expressions  con- 
tained in  a  letter  received  by  him  from  B.,  or 
"  such  satisfaction  as  is  usual  on  such  occasions 
between  gentlemen  /'  and  that  afterwards,  C,  a 
relation  of  A.,  came  with  a  letter  of  B.  in  his 
hand, — settled  the  account  by  paving  a  balance 
due  from  A.  to  B.,  and,  after  saying  that  he  had 
come  in  conseonence  of  the  letter  in  his  hand, 
delivered  a  hostile  message  as  from  A. ; — was  held 
insufficient  to  connect  A.  with  the  challenge ; 
and  therefore  the  court  refused  the  rule.  Rex  «. 
Tounghuflband,  4  Nev.  &  M.  850.  869 

But  the  court  afterwards  granted  a  rule  nisi 
against  C.    Id. 

A  rule  nist  for  a  criminal  information  will  not 
be  granted  where  a  former  rule  for  the  same  mat- 
ter against  the  same  defendant  has  been  dis- 
charged, although  the  second  motion  is  made 
upon  additional  affidavits.  Rex  v.  Smithson,  1 
Nev.  &  M.  775 ;  4  B.  &  Adol.  861.  870 

The  court  will  not  enlarge  anile  for  a  crimi- 
nal information,  in  order  that  the  affidavit  on 


1 


2438 


[CRIMINAL  LAW— DAMAGES} 


which  the  rale  wu  obtained  may  be  resworn. 
Rex  V.  Cockshaw,  2  Nev.  &.  M.  378.  870 

The  county  in  which  a  deponent  is  sworn  to 
an  affidavit  to  sproand  a  rule  tor  a  criminal  infor> 
mation,  made  oefore  a  commissioner,  must  ap- 
pear in  the  jurat    Id.  871 

Leaye  to  file  a  criminal  information  for  a  libel 
should  be  applied  for  in  a  reasonable  time  before 
the  expiration  of  the  second  term  afler  the  pub- 
lication, if  it  come  to  the  knowledge  of  the  pro- 
secutor early  enough  to  enable  him  to  move 
within  that  period.  Rex  v.  Jollie,  1  Nev.  6l  M. 
483;  4B.  &Adol.8b7.  870 

Semble,  that  an  affidavit  to  found  a  criminal 
information  for  a  libel  published  in  England,  in 
parts  beyond  seas,  may  be  sworn  abroad.  Rex 
9.  Satirist  (Editor),  3  Nev.  &  M.  532.  871 


CXX.  Prison. 

A.  was  to  be  tried  for  felony  at  the  assizes  for 
the  county  of  W.,  and  B.,  a  material  witness  for 
A.,  was  committed  to  the  W.  city  prison  for  fur- 
ther examination  on  a  charge  ot  felony  : — Held, 
that  before  the  trial  of  A.  the  governor  of  the  W. 
city  prison  ought  to  allow  A.'s  attorney  to  see  B. 
in  his  presence.  Rex  v.  Simmonds,  7  C.  dt  P. 
176— Park.  872 


CXXII.  Articlks  of  thk  Peace. 

The  court  of  King*s  Bench  cannot  interfere  to 
reduce  the  amount  of  security  which  the  magis- 
trates require  a  defendant  to  give  for  the  preser- 
vation of  the  peace.  Rex  v.  Holloway,  2  Dowl. 
P.  C.  525.  873 

A  party  rave  information  on  oath  before  a 
magistrate,  Uiat  from  certain  language  used  to- 
wards him,  he  was  in  bodily  fear  from  another, 
and  the  magistrate  upon  hearing  the  complaint, 
required  the  latter  to  enter  into  recognizances  to 
keep  the  peace.  On  motion  to  discharse  the  re- 
cognizances, on  the  ground  that  the  language 
was  used  in  a  metaphorical  sense  only,  the  court 
refused  to  interfere,  because  it  was  for  the  ma- 
gistrates to  judfie  in  what  sense  the  language  was 
used.    Rex  v.  Tregarthen,  5  B.  &  Adol.  678 ;  2 


Nev.  &  M.  379. 


873 


CUSTOM  AND  PRESCRIPTION. 

A  usage  of  trade  must  be  proved  by  instances, 
and  cannot  be  supported  by  evidence  of  opinion 
merely.  Cunningham  v.  Fonblanque,  6  C.  &  P. 
44— Park.  876 

The  general  law  as  to  a  custom  is,  that  if  its 
existence  at  a  distant  time  be  shown,  and  there  is 
no  evidence  that  at  any  certain  time  it  did  not 
exist,  a  jury  may  infer  that  it  went  back  as  far  as 
the  reign  of  Richard  the  First,  which  is  the  time 
of  legiU  memory.  Leuckhart  v.  Cooper,  7  C  & 
P.  119— Tindal.  873 

Quaere,  whether  the  same  person  can  have  a 
right  by  custom,  and  a  prescriptive  right  to  do 


the  same  thing?    Blewitt  v.  Tregonning,  5  Nev. 
&  M.  308 ;  1  Har.  6i,  Woll.  432.  874 

A  jury  cannot,  from  the  same  evidence,  find  a 
customary  right  in  all  the  inhabitant  occupiers  of 
land  within  a  district,  and  a  prescriptive  right  to 
the  same  subject  matter,  in  respect  of  a  particular 
estate  within  the  district.    Id. 

Whether,  in  point  of  law,  a  prescriptive  and  a 
customary  right  to  the  same  subject  matter,  may 
exist  in  respect  of  the  same  land,  if  each  bie 
proved  by  proper  evidence  applicable  to  each, 
quere?  Id. 

Enjoyment  of  a  profit-a-prendre  by  the  owners 
and  occupien  of  a  particular  estate,  during  living 
memory,  without  any  evidence  of  user  or  non- 
user  at  any  antecedent  period,  is  evidence  of  a 
prescriptive  right,  but  will  not  support  a  plea  of 
a  lost  grant.    Id. 

in  order  to  support  such  plea  of  a  lost  grant, 
some  evidence  tending  to  point  the  user,  as  re- 
gards its  commencement,  to  the  period  of  the 
supposed  grant,  must  be  given.    Id. 

Where  rights  are  claimed  by  prescription,  the 
jury  ought  to  be  directed,  that  from  modem  usage 
they  are  warranted  in  presuming  that  the  right 
claimed  is  immemorial,  unless  they  are  satisfied 
of  the  contrary  by  other  evidence.  Jenkins  v. 
Harvey,  1  C.  M.  «.  R.  877 ;  1  Gale,  23.  And 
see  S.  C.  2  C.  M.  &,  R.  393.  874 

A  custom  that  the  town  crier  of  a  corpoiate 
town  shall  have  the  exclusive  privilege  of  pro- 
claiming, by  the  sound  of  the  bell,  the  sale  ot  all 
goods  brought  into  the  borough  to  be  sold  by 
auction  is  a  good  custom.  Jones  r.  Waten,  1  C. 
M.  4fe  R.  713;  5  Tyr.  361 ;  1  Gale,5.  876 


DAMAGES. 

A.,  having  been  illegally  arrested  on  mesne 
process,  applied  to  the  court  to  be  discharged ; 
the  rule  was  referred  to  a  judge  at  chambers, 
who  ordered  him  to  be  discharged,  and  would 
have  given  him  the  costs  of  the  rule  if  he  would 
have  undertaken  to  bring  no  action ;  but,  as  he 
refused  to  give  such  undertaking,  nothing  was 
ordered  as  to  the  costs.  In  an  action  for  trespass 
and  false  imprisonment  brought  by  A.  for  the  ar- 
rest ;  it  was  neld,  fint,  that  he  was  entitled  to  re- 
cover those  costs  as  special  damage  if  properly 
laid  in  his  declaration  :  and  secondly,  that,  as  the 
declaration  only  alleged  that  he  had  been  forced 
and  obliged  to  pay  and  had  paid  C,  he  could  not 
recover  the  whole  of  the  bill  of  costs  of  his  attor- 
ney which  he  had  not  paid,^hough  he  was  liable 
to  pay  them ;  but  that  ne  might  recover  so  much 
of  the  bill  of  costs  as  consisted  of  money  actually 
paid  by  the  attorney,  as  that  might  be  considerea 
as  money  paid  through  his  agent.  Pritchet  v. 
Boevey,  1  C.  &  M.  775.  878 

Semble,  that  under  an  averment  that  he  had 
been  forced  and  obliged  to  and  had  become  liable, 
&c  ,  he  might  have  recovered  damages  for  such 
liability.    Id. 

In  assumpsit  for  a  breach  of  contract,  in  not 
delivering  a  quantity  of  linseed  pursuant  to  a 
contract  of  sale,  it  appeared  in  evidence,  that  the 
plaintiffii,  pursuant  to  contract,  had  paid  part  of 


[DAMAGES— DEBTOR  AND  CREDITOR] 


2439 


the  pnrchase-mone J  to  the  vendor  in  advance ; 
that  the  defendant,  at  the  time  when  the  linseed 
ouffht  to  have  been  delivered,  had  notice  of  his 
inability  to  perform  the  contract,  but  the  money 
was  not  returned  until  after  the  action  was  com- 
menced, when  the  amount  was  paid  into  court, 
with  interest  up  to  the  time  it  was  so  paid  in,  as 
a  consideration  for  a  commission  to  examine  wit- 
neaaes  abroad,  and  was  only  obtained  out  of  court 
by  the  plainliifs  a  short  time  before  the  trial : — 
Held,  that,  in  estimating  the  damages,  the  plain- 
tifi  were  not  entitled  to  take  the  price  of  linseed 
at  the  time  of  the  trial  as  a  criterion ;  and  the 
pjaintjffii  not  having  proved  that  they  had  sus- 
tained any  special  damages  from  the  non«delivery 
of  the  seed,  and  the  non- return  of  the  money, 
thai  the  repayment  of  the  money  advanced,  with 
simple  inteiest  opon  it,  and  payment  of  the  dif- 
ference between  the  contract  price  and  the  price 
of  the  linseed  at  the  time  when  it  ought  to  have 
been  delivered,  was  that  to  which  the  plaintiffs 
were  entitled ;  and  the  jury  having  found  accord- 
ing! j,  that  the  verdict  was  right.  Startup  v. 
Cortazzi,  2  C.  ^.  &  R.  165.  878 


DEATH. 

Pieaamption  of  death  firom  absence.  Doe  d. 
Knight  V.  Nepean,  b  B.  &  Adol.  86 :  S.  C.  nom. 
Doe  d.  Slade  v.  Nepean,  2  Nev.  &  J/l.  219.     880 


DEBT. 

In  an  action  of  debt  it  is  immaterial  that  the 
aggregate  of  the  sums  claimed  in  several  counts 
ezeeeds  the  amount  claimed  in  the  queritur. 
Gardmer  v.  Bowman,  4  Tyr.  412.  880 

The  words  *'  undertook  and  agreed  to  p&v*"  in 
a  qoantum  meruit  count,  do  not  necessarily  im- 
port the  form  of  action  to  be  assumpsit,  but  are 
good  in  debt.  id. 

A.  eoTeoanted  to  pay  B.  270Z.  on  the  15th  of 
December,  with  interest  np  to  that  time.  He 
did  not  do  so,  and  B.  brought  an  action  of  debt, 
laying  hie  waages  at  10^. : — Held,  that  B.  could 
not  recover  more  than  the  principal,  the  interest 
up  to  the  15th  of  December,  and  lOl,  more, 
attbough  the  interest  up  to  the  time  of  the  action 
amounted  to  a  larger  sum ;  and  the  judge  at  the 
trial  would  not  order  the  declaration  to  be 
amended  by  inserting  a  larger  sum  than  10^.  as 
tlie  damages.  Watkms  v,  Morgan, 6  C.  &  P.  661 
— UtUedale.  880 

In  an  action  of  debt,  for  goods  sold  and  deli- 
vered, the  defendant  pleaded  nunquam  indebita- 
tus : — Held,  that  he  could  not  give  in  evidence, 
under  this  plea,  that  the  goods  were  sold  on  credit 
which  had  not  expired.  Edmunds  v.  Harris,  4 
Ner.  dt  M.  182.  880 

A  plea  of  the  ^neral  issue  in  debt  on  simple 
contract,  roust  be  in  the  form  given  by  rule  3,  tit. 
«« covenant  and  debt,"  of  the  rules  of  Hil.  T.  4 
WilL  4 ;  and  therefore  a  plea  that  the  defendant 
^  never  did  owe,"  waeheld  bad  on  special  de- 
mnner,  the  former  being  ^  never  was  indebted." 
Smedley  v.  Joyce,  4  Dowl.  P.  C.  421 ;  2  C.  M.  & 
R.  721  >  1  Tyr.  84.  880 


If  one  sue  several  defendants  in  debt,  and  the 
evidence  do  not  fix  all  the  defendants,  the  plain- 
tiff must  be  nonsuited ;  and  the  judse  win  not 
allow  the  declaration  to  be  amended  bv  striking 
out  the  names  of  those  defendants  who  are  not 
affected  by  the  evidence.  Cooper  v.  Whitehouse, 
6  C.  «&  P.  545— Alderson.  880 

To  debt  for  20  years'  rent,  at  80Z.  a-year, 
upon  a  lease,  the  defendant  pleaded  the  statute  of 
limitations;  and  further  as  to  1420/.  part  of  the 
demand,  that  17J  years  ago,  the  plaintiff  by  deed 
assigned  his  reversion,  and  that  no  part  of  the 
1420^.  had  accrued  before  the  assignment :  ver- 
dict for  the  plaintiff  upon  the  first  issue,  and  for 
the  defendant  upon  the  second : — Held,  that  the 
defendant  was  entitled  to  the  postea.  Paddon  v. 
Bartlett,  4  Nev.  <&  M.  321.  880 

To  debt  for  1600Z.  for  20  years'  rent,  at  80L  a- 
year,  defendant  pleaded  to  the  whole  action  actio 
non  accrevit  infra  sex  annos  ;  and  also  as  to  1420^, 
parcel,  &c.,  that  17)  years  before  plaintiff  assigned 
over  his  reversion^  and  that  no  part  of  the  14202. 
accrued  before  the  assignment  Verdict  for  the 
plaintiff  on  the  first  issue,  and  for  the  defendant 
on  the  second.  Semble,  that  the  plaintiff  was 
entitled  to  judgment  for  180/.  Paddon  v.  Bartlett, 
5  Nev.  &  M.  &3.  880 


DEBTOR  AND  CREDITOR. 

Change  of  Joint  into  Separate  Debts."] — A.  & 

B.  being  partners,  A.  retires  and  B.  continues  the 
business,  having  the  partnership  effects:  C,  a 
creditor,  bein^  told  by  B.  that  he  must  look  for 
payment  to  him  alone,  draws  a  bill  of  exchange 
en  B.  for  his  debt;  the  bill  is  dishonored,  and 

C.  gives  B.  time  to  pay  :  these  facts  raise  a  ques- 
tion for  the  jury,  whether  it  was  not  an  agreement 
between  B.  &.  C,  that  C.  should  accept  B.  as 
his  sole  debtor,  and  should  take  the  bill  of  ex- 
change from  him  alone  by  way  of  satisfaction  for 
the  debt  due  from  both.    Thompson  v.  Percival, 

3  Nev.  <&  M.  167 ;  5  B.  &  Adol.  925.  881 

Such  an  agreement  followed  bv  the  receipt  of 
the  bill  from  B.  would  be  a  good  defence  by  way 
of  accord  and  q^tisfaction,  in  an  action  hy  U. 
against  A.  A.  B  jointly.  Id. 

The  bankrupt  kept  an  account  open  with  A., 

B.  &  C,  as  bankers,  who  afterwards  took  into 
partnership  D.,  the  son  of  C. ;  after  which  the 
bankrupt  executed  a  legal  mortgage  to  A.,  B.  db 

C,  for  securing  the  repayment  of  the  loan  of 
60002.  Subsequently  to  this,  the  bankrupt  ad- 
dressed a  letter  to  Messrs.  A.,  B.  &.  (j.  au- 
thorizing them  to  consider  all  the  securities  they 
then  held  as  responsible  for  any  advances  made, 
or  to  be  made  by  them  to  the  bankrupt : — Held, 
that  this  letter  must  be  taken  to  have  been  ad- 
dressed by  the  bankrupt  t$  the  four  partners,  and 
amounted  to  an  equitable  mortgage  to  the  four  of 
the  previous  legal^  mortgage  to  the  three,  operat- 
ing as  a  security  for  all  the  advances  made  either 
by  the  three  or  the  four  partners.    Ex  parte  Parr, 

4  Deac.  6l  Chit.  426.  681 

m 

Mere  knowledge  by  a  creditor  of  the  dissolu- 
tion of  partnership  will  not  release  the  old  part- 
ners from  their  liability  to  him,  though  he  conti« 


9440 


[DEBTOR  AND  CREDITOR] 


nae  bw  accoant  with  the  new  firm^  nnlen  he  ap- 
pears expressly  or  by  some  act  to  have  accepted 
the  substitoted  credit  of  the  new  partnership  in* 
atead  of  the  retiring  partners.  0.,  M.  &  M. 
trading  under  the  name  of  J.  K.  ik  Sons,  were 
indebted  to  A. ;  C.  retired  from  the  partnership, 
and  M.  &  N.  undertook  to  liquidate  the  con- 
cerns; afterwards  N.  went  out  of  the  business, 
jufid  on  his  retirement  a  new  partner  was  taken 
in :  at  that  time  a  notice  of  the  previous  dissolu- 
tion of  partnership  was  advertised  in  the  Gazette, 
but  therf  was  no  proof  that  the  plaintiff  ever  saw 
that  advertisement :  no  notice  was  given  of  the 
introduction  of  the  new  partner ;  the  business  was 
carried  on  in  the  old  style  of  J.  K.  &.  Sons, 
and  the  plaintiff  continued  his  account  with  them 
under  that  name  About  eleven  months  after  the 
•dissolution,  in  a  letter  to  one  of  the  partners  who 
had  retired,  plaintiff  said  he  was  aware  that  af\er 
the  dissolution  he  had  no  claim  afirainst  him, 
'*  but  there  was  nothing  to  show  that  ne  accepted 
the  substituted  credit  of  the  new  partner  in  his 
stead  :" — Held,  that  the  three  original  partners 
to  whom  the  loan  was  made  were  not  released 
from  their  liability.  Kirwan  v,  Kirwan,  4  Tyr. 
491.  881 

The  creditors  of  A.  having  issued  a  fiat  in 
liankruptcy  against  him,  and  luving  at  the  close 
of  the  proceedings  under  the  fiat  received  notice, 
by  means  of  the  examination  of  the  bankrupt  and 
others,  that  A.*  was  only  the  agent  of  fi.  d^  Co., 
proceeded  nevertheless  to  sign  A.'s  certificate  : — 
Held,  that  this  was  not  an  election  by  the  credi- 
tors to  treat  A.  as  their  sole  debtor.  Taylor  v, 
Sheppard,  1  T.  dt  Col.  371.  881 


Jiggigfiment  of  Debts.  ] — A.  having  contracted 
to  pay  to  B.  2X101.  by  instalments,  S.  signed  and 
gave  to  C,  for  value,  a  paper  authorizing  A.  to 

Ey  parts  of  each  instalment  to  C,  and  400/.  to 
reserved  in  A.'s  hands  out  of  the  balance  of 
the  contract,  and  C.'s  receipt  was  to  be  a  dis- 
charge to  X. ;  A.  was  served  with  a  notice  of  the 
order  on  the  day  on  which  it  was  signed  : — Held, 
that  the  writing  was  an  equitable  assignment  of 
the  sums  mentioned  in  it  to  C.  Lett  v.  Morris, 
4  Sim.  607.  882 

An  assignee  of  a  debt  has  a  right  to  use  the 
isignor's  name  in  suing  for  it,  and  it  is  a  suffi- 
cient authority  for  the  attorney,  if  he  is  instructed 
by  the  former  to  commence  proceedings.  Pick- 
ford  V.  £wington,  4  DowL  P.  C.  453.  882 

The  plaintiffs  in  London,  and  the  defendant  at 
H.f  were  correspondents  of  J.  ib  Co.  of  R.  J. 
J.  A  Co.  informed  the  plaintiffs,  that  they  had 
requested  the  defendant  to  pay  the  proceeds  of 
certain  coffee  to  them  after  a  sale  had  been 
realized.  The  plaintiffs  thereupon  wrote  to  the 
defendant,  and  requested  to  know  the  particulars 
of  the  remittances  from  J.  &  Co.,  to  which  the  de- 
fendant returned  the  following  reply : — ^  We  are 
directed  by  J.  Sl  Co.  to  remit  to  you  the  proceeds 
of  110  bags  real  ordinary  coffee,  which  tney  con- 
signed to  us,  but  which  are  not  yet  disposed  of:" 
--%eld,  that  this  amounted  to  an  undertaking  on 
the  part  of  the  defendant,  to  hold  the  proceeds 
of  the  coffise  for  the  use  of  the  pUintifii,  and  that 


the  defendant  could  not  afterwaitis  claim  to  set 
off  the  amount  of  the  sale  of  the  coffee  against  a 
balance  due  to  himself  irom  J.  dL  Co. : — Held, 
secondly,  that  assumpsit  for  money  had  and  re- 
ceive^l  was  the  proper  form  of  action ;  3rdly, 
that  the  correspondence  relating  to  a  mer- 
cantile transaction,  the  effect  of  it  was  properly 
left  to  the  jury ;  4thlv,  that,  notwithstanding  Uie 
money  might  have  been  payable  to  J.  ^  Co. 
with  interest,  that  the  interest  could  not  be  re- 
covered by  the  plaintii&  from  the  defendant 
Fruhling  v.  SchroCder,  2  Scott,  135 ;  7  C.  &  P. 
103 ;  1  Hodges,  105.  882 

In  assumpsit  for  money  had  and  received,  an 
admission  in  writing  was  in  evidence  by  the 
defendant, — ^  I  undertake  to  pay  yon  5(M.,  which 
1  hold  of  C,  and  have  bv  him  been  autboriaed 
to  pay  you."  The  defenoant  called  C.  as  a  wit- 
ness, who  proved  that  the  defendant  had  been  in- 
debted to  him,  and  he  had  been  indebted  to  the 
plaintiff,  but  that  he  had  never  authorized  the  de- 
fendant to  pay  the  plaintiff: — Held,  that  this  was 
an  answer  to  the  plaintiff*s  case,  and  that  the  de- 
fendant was  nut  estopped  by  the  admission. 
Pearce  v.Evans,  2  C.  M.d&  R.204;  1  Gale,  265. 

882 

Serable,  also,  that  if  the  defendant  had  been 
authorized  to  pay  the  502.  by  C,  the  plaintiff 
would  not  have  been  entitled  to  recover  after  the 
payment  of  the  debt  by  C.  Id. 


Deeds  of  Composition.] — If  partners  by  deed 
assign  all  their  partnership  effects,  dE^c.  to  trus- 
tees for  the  benefit  of  their  creditors,  and  some 
of  the  se]>arate  creditors  of  one  partner  do  not 
assent  to  it,  the  assignment  is  fraudulent  and 
void.    Eckhardt  V.  Wilson,  8  T.  R.  140.         884 

A.,  a  creditor  of  a  firm,  held  securities  irom 
one  of  its  members  for  n^oney  advanced  by  him 
at  different  times  to  the  firm,  but  claimed  a  ba- 
lance beyond  what  those  securities  would  cover ; 
all  the  creditors  of  the  firm  agreed  to  accept  a 
composition  ''  of  7s.  for  every  20^.  due  to  the 
said  creditors  respectively."  A.  was  the  first  to 
sign  this  deed,  but  added  to  his  signature  the 
words,  **  without  prejudice  to  any  securities  what- 
ever that  1  hold;"  the  other  creditors  signed  in  their 
respective  order  under  A.'s  signature : — Held,  that 
sucm  a  composition,  thus  accepted,  did  not  affect 
the  rights  of  A.  upon  his  previous  securities,  but 
only  related  to  the  balance  beyond  the  sum  they 
would  cover,  and  that  he  mi|[ht  afterwards  en- 
force those  securities  in  equity.    Duffy  v.  Orr, 

1  Clark  &  Fin.  253 ;  5  Bligh,  N.  S.  620.        884 

An  agreement  of  composition  entered  into  by 
one  creditor,  in  contemplation  and  in  considera- 
tion of  a  general  composition  being  entered  into 
by  all  the  creditors,  is  not  binding  on  him  if  the 
others  refuse  to  come  in.    Reay  v.  Richardson, 

2  C.  M.  <&  R.  422;  1  Gale,  219.  884 

In  an  action  on  a  bill  of  exchange,  a  plea  of 
composition  alleged  that  the  defenoant  was  in- 
debted to  A.  B.  and  to  divers  other  persons,  and 
was  in  insolvent  circumstances ;  and  therefore,  on 
&c.,  and  btofore^e  said  bill  became  due,  with  a 
view  to  induce  and  enable  the  defendant  to  induce 


[DEBTOR  AND  CREDITOR] 


2441 


other  persons,  being  creditors,  to  accepts  compo- 
lition  of  10».  in  the  pound,  the  plaintiir  agreed 
to  icccpt  it,  and  that  this  was  afterwards  made 
known  to  A.  B.,  and  that  he,  in  consklenition  of 
the  premises,  and  upon  the  faith  thereof, 
wu  lured  and  indnced  to  agree  to  accept  109. 
in  the  Boond,  and  that  he  had  not  ever  since 
received  or  sought  to  receive  more  than  10s. 
in  the  pound : — Held,  that  the  agreement  stated 
onut  be  understood  to  have  been  made  in  con- 
templation of  a  general  composition,  to  which 
one  creditor  only  had  come  in ;  that,  conse- 
qoeatlj,  the  consideration  of  the  agreement  had 
not  been  received,  and  therefore  notwithstanding 
t  verdict  for  the  defendant  on  the  plea,  that  the 
plaintiff  was  entitled  to  judgment.    Id. 

In  order  to  prove  the  agreement  stated  in  the 
1^  the  defendant  put  in  a  letter  from  one  of 
the  pkintiib,  containing  the  terms  of  the  agree- 
Bent  for  the  composition  : — Held,  that  evidence 
of  I  previous  conversation,  when  the  plaintiff 
lade  inquiries  as  to  what  the  other  creditors 
were  likelv  to  do,  was  admissible  to  show  the 
motive  which  induced  Mim  to  write  the  letter, 
and  the  intention  with  which  the  agreement  was 
entered  into.    Id. 

To  a  declaration  in  assumpsit,  the  defendant 
pbttled  as  to  all  except  201.  9s.  non  assumpsit ; 
and  as  to  this  sum,  that  the  defendant  being  in 
enbanasaed  circumstances,  the  plaintiff  and  other 
cfeditors  agreed  to  take  ois.  in  the  pound,  and 
thtt  the  defendant  was  ready  and  willing  to  pay 
the  amount  of  the  composition,  but  the  plaintiff 
refined  to  receive  it,  and  discharged  the  defen- 
dant fmm  payment  of  it : — Held,  that  the  plea 
was  no  answer  to  the  sum  agreed  to  be  taken 
for  composition,  because  no  consideration  was 
stated  for  the  plaintiffs  discharging  the  defendant 
from  paying  it,  and  that  therefore  the  agreement 
as  to  that  was  void.  The  plea  was  allowed  to  be 
amended  by  paying  that  sum  into  court.  Cooper 
V.  Phillipps,  3  Dowl.  P.  C.  196 ;  1  C.  M.  &  R. 
619;  5  Tyr.  166.  885 

The  bankrupt  entered  into  a  deed  of  compo- 
sition with  his  creditors,  by  which  they  released 
him  from  his  debts: — Held,  that  a  promissory 
note  subsequently  given  to  a  creditor  for  the  re- 
Bainder  of  the  debt,  was  a  nudum  pactum,  and 
ooBsequently  a  bad  petitioning  creditor's  debt. 
Ex  parte  Ball,  1  Deacon,  171 .  885 

Where  a  creditor  compounds  with  his  debtor 
under  a  false  imprcs8ion,in  which  the  debtor  know- 
ingiy  leaves  him,  as  to  the  extent  of  the  debtor's 
estate,  the  creditor  is  not  estopped  from  suing  for 
the  balance  of  his  debt.  Vine  v.  Mitchell,  1  M. 
&  Rob.  337— Tindal.  8d7 

By  an  agreement  entered  into  between  the 
plaintiib,  together  with  other  creditors,  and  the 
defendant,  the  defendant  agreed  to  pay  a  compo- 
sition <»f  fifteen  shillings  in  the  pound  by  two  in- 
atalments ;  and  a  surety,  in  consideration  of  the 
creditors  agreeing  to  discharge  the  defendant 
from  all  debts  and  demands  on  receiving  such 
eomposition  of  fifleen  shilling  in  the  pound 
acieed  to  pay  a  sum  of  money  in  part  payment, 
af  the  aeeondf  tiae  creditors  agreeing  ^^  to  exone- 


rate and  discharge  the  defendant  on  payment  of 
the  said  fifleen  shillings  in  the  pound ;"  it  was 
also  agreed  that  several  bills  of  exchange,  the 
amount  of  which  was  equal  to  the  residue  of  the 
sum  payable  on  the  composition,  which  had  been 
before  indorsed  by  the  defendant  and  handed  over 
to  the  plaintiffs,  **  should  be  considered  as  part 
payment  of  the  said  fifleen  shillings  in  the 
pound:" — Held,  that  the  bills  lefl  in  the  hands 
of  the  plaintiff  were  not,  under  this  agreement, 
to  be  considered  as  an  absolute  payment,  unless 
they  were  paid  when  at  maturity,  and  one  of 
them  havinjg  been  dishonored,  thayt  the  defen- 
dant remained  liable  upon  his  indorsement. 
Constable  v.  Andrew,  2  C.  &  M.  298 ;  4  Tyr.  206. 

889 

Action  a^inst  the  defendants  as  acceptors  of  a 
bill  of  exchange  for  1039f. ;  it  appeared  that  the 
defendants  owed  the  plaintiffs  a  balance  of  32U., 
that  the  defendants  failed,  and  their  creditors, 
amongst  whom  were  the  plaintifib,  a»eed  to  take 
a  composition  of  five  shillings  in  the  pound  on 
their  debts,  by  notes  at  four  and  eight  months ; 
there  was  a  dispute  as  to  the  balance  due  to  the 
plaintiffs,  and  they  promised  to  adjust  their  ac' 
count  with  one  of  the  defendants,  and  said  they 
would  do  as  the  other  creditors  did ;  the  defen- 
dants insisted  for  some  time  that  25(M.  9s.  7d.  was 
the  balance  due,  but  the  defendants*  attorney 
aflerwards  called  on  the  plaintiffs'  attorney,  and 
told  him  that  the  defendants  were  ready  to  pay 
the  composition  on  321  i.,  the  sum  reaJly  due, 
but  the  plaintifiii'  attorney  refused,  and  said  they 
must  have  the  whole ;  no  actual  tender  was  made 
of  the  notes  or  of  cash  for  the  amount  of  the 
composition : — Held,  that  a  tender  was  not  ne» 
cessary  under  the  circumstances,  and  that  the 
plaintiffs  could  only  recover  the  amount  of  the 
composition  on  the  balance.  Reay  v.  White,  1  C. 
&  M.  748 :  S.  C.  nom.  Reay  v.  Whyth,  3  Tyr. 
597.  ^   8d9 

An  assi^ment  for  benefit  of  creditors,  by  a 
trader  and  farmer,  of  all  her  **  effects,  stocky 
books,  and  book  debts,"  conveys  the  cattle  on  the 
farm.  Lewis  v.  Rogers,  1  C5.  M.  &  R.  48 ;  4 
Tyr.  872.  S8» 

A  trader,  being  in  embarrassed  circumstances^ 
executed  an  assignment  of  all  her  **  effects,  stock, 
books,  and  book  debts,"  for  the  benefit  of  he^ 
creditors ;  in  an  action  afler  her  death  against  the 
assignee,  treating  him  as  her  execntor  de  son 
tort,  it  was  held  tnat  a  list  of  creditors,  made  ont 
about  the  time  of  the  execution  of  the  assignment, 
by  the  direction  of  the  assignor,  was  evicrence,  as 
part  of  the  transaction,  for  we  purpose  of  disprov- 
ing fraud.    Id. 

If  property  be  conveyed  by  a  debtor  in  trust  for 
the  benefit  of  creditors,  who  are  neither  parties 
nor  privy  to  the  deed,  the  ()eed  merely  operatee 
as  a  power  to  the  trustees  to  apply  the  property 
in  payment  of  debts :  such  power  is  revocable  by 
the  debtor.  Acton  v.  Woodgate,  2  Mylne  A  K, 
492.  88» 

Qusre,  whether  a  communication,  by  the 
trustees  to  the  creditors,  of  the  fact  of  such  a 
trust,  will  not  defeat  the  powei  of  revocation  by 
the  debtor?    Id. 


2443 


[DEBTOR  AND  CREDITOR— DEED] 


Riffhto  and  liabilities  of  tnuWes.  Emeiy  v. 
MucElow,  2  Dowl.  P.O.  TSS.  889 

If  a  party  obtaina  the  benefit  of  a  troat  deed 
executed  bj  his  creditors,  and  in  it  is  contained 
a  conaideration,  that  he  shall  make  a  full  dis- 
closure of  his  pi^opertj,  but  he  conceals  a  portion 
of  it,  the  creditors  signing  the  deed  may  still 
proceed  aninst  him.    Wenham  v.  Fowle,  3  Dowl. 


P.  C.  43 


889 


Upon  a  composition,  the  original  debt  reviTes 
upon  failure  of  the  debtor  in  performing  his 
undertaking.  Ex  parte  C^rosbie,  2  Mont  &  kjr. 
393 :  8.  C.  nom.  Ex  parte  Crosley,  1  Deac.  107. 

884 

Where  a  creditor  enten  into  an  agreement 
with  his  debtor  to  accept  a  composition  of  debt 
and  to  execute  a  release  upon  certain  conditions, 
but  the  debt  is  never  actually  released,  a  sub- 
«e<|uent  promise  of  the  debtor,  either  expressed 
•or  jmplied,  will  revive  the  debt.    Id. 


Poynuml,'] — Semble,  that  a  payment  made  to 
an  apprentice  in  his  master's  oounling-hooae,  not 
in  the  usual  course  of  business,  but  on  a  collateral 
transaction,  is  not  a  g[ood  payment  tu  the  mas- 
ter :  aa  where  a  deposit  is  paid  by  a  stake  holder 
to  the  apprentice  of  the  party  who  makes  the  de- 
posit, at  his  counting-house.  Saunderson  e.  Bell, 
2  C.  &  M.  304;  4  Tyr.  224.  891 

The  acceptance  by  a  creditor  of  a  check  in 
his  favor,  drawn  by  his  debtor,  operates  as  pay- 
ment, unless  dishonored.  The  mere  fact  of  a 
person  drawing  such  a  check  in  favor  of  another 
18  not  evidence  of  a  debt.  Pearce  v.  Davis,  1  M. 
Ol  Rob.  365— Fatteson.  894 

Appropriation  cf  Paymenl.'\ — Though  payment 
of  money  on  account  ^nerally,  without  a  specific 
appropriation,  would,  in  many  cases,  go  to  dis- 
cnarge  the  first  part  of  an  account,  such  payment 
is  not  conclusive ;  it  is  evidence  of  an  appropria- 
tion only ;  and  other  evidence  may  be  adduced 
to  vary  Uie  application  of  the  rule.  Wilson  v. 
Hirst,  1  Nev.  A.  M.  746.  893 

If  a  debtor  pays  money  generally  to  his  credi- 
tor without  any  direction  as  to  its  specific  appro- 
priation, the  creditor  may  apply  it  m  liquidation 
cither  of  a  judgment  or  simple  contract  debt. 
Chitty  V,  Naisb,  2  Dowl.  P.  C.  511 ;  Brazier  v, 
aryant,  2  Dowl.  P.  C.  477.  894 

If  the  creditor  under  such  circumstances, 
make  no  specific  application,  the  money  shall  be 
applied  to  one  or  other  account,  accordmg  to  the 
presumed  intention  of  the  parties,  to  be  collected 
from  all  the  facts.    Id. 

Where  there  was  a  running  cash  and  bill  ac- 
count between  the  bankrupt  and  a  banking  com- 
pany, who  were  under  considerable  advances  to 
him,  but  part  of  these  advances  arose  out  of  ille- 
g^  transactions ;  and  the  bankrupt  from  time  to 
time  deposited  bills  and  made  payments,  without 
any  specific  appropriation,  or  any  settled  account 
between  him  and  the  bankers : — Held,  that  the 
payments  mast  be  appropriated  in  reduction  of 
the  earlier  items  of  the  account,  and  of  tlra  legal 


and  not  the  iUegal  part  of  the  demand.    Ex  parts 
RandleMm,  2  Deae.  &  Chit  634.  804 

The  plaintifis  (bankers)  liad  an  account  with 
D.  &  Co.,  and  had  advanced  D.  &,  Co.  large 
sums  of  money  on  credit,  before  the  11th  of 
March,  1829;  on  the  11th  of  March,  1829,  the 
defendant  executed  an  indemnity  bond  to  the 
plaintifis,  which  recited  that  the  plaintiffs  were 
then  about  to  enter  into  and  have  large  dealings 
and  transactions  with  D.  6l  Co.,  in  the  course  of 
which  D.  dt  Co.  would  require  advances,  dkc. : 
and  that  defendant  had  agreed  to  secure  and 
indemnify  the  plaintiffs  against  the  same ;  and  the 
condition  of  the  bond  was,  that  if  the  defendant 
should  indemnify  and  save  harmless  the  plaintiffs 
from  and  against  all  and  all  manner  of  engage- 
ments, debts,  and  lawful  claims,  not  exoeedmg 
10,0002.,  which  the  said  D.  &i  Co.  might  legally 
make,  contract,  or  come  under,  to  and  with  tfaie 
said  plaintifib,  in  the  course  of  the  said  dealinn 
and  transactions,  from  the  date  of  the  bond  tul 
the  11th  of  March,  1831  \  or,  if  at  the  close  of 
such  dealings  and  transactions,  within  the  period 
aforesaid,  there  should  tw  a  balance  due  to  the 
said  plaintifib  firom  D.  A  Co.  not  exceeding 
10,000e.,  and  that  the  defendant  should  paj  the 
said  balance,  then  the  obligation  to  be  void  :— 
Held,  that,  as  between  plaintifi  and  the  defendant, 
the  former  had  no  rignt  to  appropriate  to  the  old 
account  of  D.  &  Co.  sums  of  money  paid  in  ge- 
nerally by  D.  dk  Co.  subsequent  to  the 'date  of 
the  bond,  but  that  these  payments  should  go  in 
liquidation  of  advances  made  afler  that  date. 
Sed  quiere.  Parr  r.  Howlin,  1  Alcock  dt  Napier, 
196.  (/mA.).  8£6 

The  appropriation  of  part  payment  of  principal, 
or  of  payment  of  interest  to  a  particular  debt,  may 
be  shown  by  any  medium  of  proof,  and  does  not 
require  an  express  declaration  of  the  debtor  at  the 
time  of  the  payment,  to  establish  it;  it  may 
therefore  be  proved  bv  previous  or  subsequent 
declarations  of  the  debtor,  although  the  &ct  of 
the  payment  must  be  proved  by  inaependent  evi- 
dence. Waters  v,  Tompkins,  2  C.  M.  &  R.  723  ; 
1  Tyr.  &  G.  137.  893 

Rutipts.'] — A  receipt  for  rent,  stipulating  that 
acceptance  of  rent  shall  not  operate  as  a  waiver 
of  a  previous  notice  to  quit,  does  not  require  an 
agreement  stamp  under  55  Geo.  3,  c.  184.  Doe 
d.  Wheble  «.  Fuller,  1  Tyr.  &,  G.  17.  696 


DEED. 

Construction  and  Operation.] — Where  a  party  to 
a  conveyance  is  therein  described  as  heir-at-law 
of  J.  P.,  a  surviving  devisee  of  the  legal  estate, 
such  description  is  not  evidence  of  the  prior 
death  of  the  co-devisees,  or  that  such  party  ia 
heir  of  J.  P.,  even  against  another  party  who  ex- 
ecuted the  conveyance.  Doe  d.  Pntohard  v. 
Dodd,  2  Nev.  dt  M.  838.  908 

As  to  premises.  Doe  d.  Dearden  v.  Bladen,  4 
B.  &  Adol.  880 ;  1  Nev.  &,  M.  533.  903 

Under  a  lease  ofall  that  part  of  the  park  called 
B.  situate  and  being  in  toe  county  of  O.,  and 


[DEED] 


2443 


BOW  in  the  •ccupatioa  of  S.,  lying  within  certain 
specified  ahntt&b,  with  aUhouaes,  &c.,  belonging 
thereto,  and  which  now  are  in  the  occupation  of 
S.,  a  house  on  a  part  which  is  within  the  abuttals, 
bat  not  in  tlu^  occupation  of  S.,  will  pass.  Doe 
d.  Smith  V.  Gallowaj,  5B.A  Adol.  43.  902 

By  the  grant  of  a  house  all  the  fixtures  pass ; 
fecos,  where,  by  an  enumeration  of  particular 
fixtures  in  tlie  conveyance,  an  intention  is  shown 
to  exclude  other  fixtures  of  greater  value  and 
importance.  Hare  v.  Horton,  2  Nev.  &  M.  428 ; 
5  B.  &  Adol.  715.  90:) 

Under  the  word  ''  appurtenances,"  an  easement, 
which  has  become  extinct  (as  by  unity  of  posses- 
sion), or  which  has  no  legal  existence,  though 
enjoyed  de  fiicto,  does  not  pass.  Plant  v,  James, 
8  NcT.  &  M  517 ;  5  B.  &  Adol.  ^1.  903 

To  revive  an  easement  legally  extinguished  (as 
where  there  haji  been  ;unity  of  possession),  but 
■nbsistingde  facto,  the  grantor  should  use  ex- 
press words  of  creation,  or  introduce  the  terms 
** therewith  used  and  enjoyed."    Id. 

The  word  "appurtenances"  in  a  declaration 
of  uses  is  not  to  be  construed  in  its  strict  techni- 
cal sense,  where,  in  creating  the  seisin  to  serve 
such  jueAf  the  more  general  words,  *^  ways  used, 
wcapied,  or  enjoyed  therewith,"  occur  in  the 
mm  deed.    Id.    . 

In  an  action  of  covenant  on  an  indenture  of 
kase  by  tenants  in  common,  where  the  moiety  of 
sne  of  the  plaintiflb  is  alleged  in  the  declaration 
to  have  been  conveyed  to  him  by  lease  and  re- 
Inae,  but  no  profert  is  made  of  the  deed  of  re- 


: — Held,  on  special  demurrer,  that  the  de- 
claration was  on  this  ground  defective ;  the  deeds 
of  lease  and  release,  although  contained  in  the 
sime  instrument,  being  separate  and  distinct 
deeds,  and  the  latter  deriving  its  entire  efficacy 
from  the  common  law.  Pentland  r.  Healey,  1 
Aloock  &  Napier,  165.  {(risk).  904 

G.  having,  in  1815,  purchased  the  tithe  of  land 
of  winch  he  was  seised  in  fee,  in  1816,  by  a  set- 
tlement on  tlie  marriage  of  his  son,  conveyed  the 
land  to  trustees  for  his  son's  wife,  **  together  with 
>11  profits,  commodities,  advantages,  emoluments, 
bneditameDts,  and  appurtenances,  to  the  pre- 
Bnses  belon^ng  or  in  anvwise  appertaining,  and 
the  reversion,  &  c. ;  and  all  the  estate,  right,  title, 
interest,  use,  trust,  possession,  freehold,  inheri- 
tance, reversion,  possibility,  property,  challenge, 
dum,  and  demand  whatsoever  of  him  G.  therein 
or  thereto,  or  to  any  part  or  parcel  thereof:" — 
Held,  that  the  tithes  did  not  pass  by  this  convey- 
uce.   Chapman  v.  Gatcombe,  2  Bmg.  N.  R.516. 

903 

Semble,  that  a  limitation  in  a  settlement  to 
the  executors  and  administrators  of  A.,  for  their 
own  use  and  benefit,  unconnected  with  any  other 
limitation  showing  more  specificallv  who  are  to 
take,  is  void  for  uncertainty.  Marsnall  r.  Collett, 
1  T.  &  Col.  232.  903 

Semble,  that  words  at  the  end  of  a  deed,  fol- 
lowing the  **In  cujns  rei  testimonium,"  Ac/foTm 
BO  part  of  the  deed.  Pearse  v.  Morrice,  4  Nev. 
&  M.  48 ;  2  Adol.  dL  Ellis,  84.  899 

Vol.  IV.  22 


A  lease  for  years  of  tin  mines  and  toll  tin, 
determinable  on  lives,  was  granted  in  1797,  and 
was  surrendered  in  1810.  Another  was  then 
granted  on  paying  a  fine,  part  of  which  was  paid 
for  Uie  surrender  of  the  former  lease.  In  1796, 
the  lessor  executed  a  lease  of  the  surface : — Held, 
that  a  recital  in  that  lease  was  admissible  in  evi- 
dence against  the  lessee  of  the  mines  and  toll  in 
1810,  for  he  cannot  claim  by  any  title  prior  to 
that  date.    Crease  v.  Barrett,  1  C.  M.  &  R.  919; 

5  Tyr.  458.  902 

Where  the  truth  appears  by  recitals  in  a  deed, 
professing  to  convey  a  possibility,  the  partv  con- 
veying is  not  barred  by  estoppel,  although  ne  has 
received  the  purchase  money.  Doe  d.  Lumley  v. 
Scarborough,  4  Nev.  &  M.  724 ;  3  Adol.  A  Ellis, 
2.  902' 

There  may  be  an  estoppel  by  matter  of  recital. 
Rowman  v.  Taylor,  2  Adol.  A  EUis,  278 ;  4  Nev. 

6  M.  264.  901 

Declaration  stated  the  execution  of  a  deed  by 
plaintiff  and  defendant.  The  plea  did  not  traverse 
the  execution,  but  alleged  new  matter,  upon 
which  the  replication  took  issue.  The  deed  was 
put  in  at  the  trial,  and  its  recital  directly  contrar 
dieted  the  new  matter  alleged  in  the  plea: — 
Held,  nevertheless,  that  the  defendant  was  not 
precluded  from  submitting  such  matter  of  de- 
fence to  the  jury,  inasmuch  as  the  plaintiff  had 
not  pleaded  the  recital  of  the  deed  by  wajr  of 
estoppel.  And  the  judge  at  nisi  prius  having 
treated  such  deed  as  conclusive,  and  directed  a 
verdict  for  the  plaintiff,  the  court  granted  a  new 
trial  without  entering  into  the  question  whether 
the  plea  was  or  was  not  bad.  Bowman  v.  Rostrow, 
4  Nev.  &  M.  552 ;  2  Adol.  &  Ellis,  295.  901 

A  party  to  a  deed  of  conveyance  is  not  estopped 
by  recitals  contained  in  other  deeds  through 
which  the  title  so  conveyed  is  derived.  Doe 
d.  Shelton  «.  Shelton,  4  Nev.  &  M.  857  ^3  Adol. 
&  Ellis,  265.    1  Har.  &  WoU.  287.  902 

If  a  man  executes  a  deed,  in  which  a  former 
deed  is  recited,  to  which  he  is  a  party,  but  which 
he  has  not  executed,  he  does  not  thereby  bind 
himself  by  all  the  conditions  of  the  former  deed 
in  the  same  manner  as  if  that  also  had  been  ex- 
ecuted by  him.  Id. 

A  deed  of  assignment  of  a  mortgage  by  de- 
mise, to  which  the  original  mortgagor,  who  was 
tenant  in  fee,  and  the  mortgagee,  were  parties, 
recited  the  mortgage  deed : — Held,  in  ejectment 
by  the  executor  of  the  assignee  of  the  mortgage, 
that  this  recital  afforded  sufficient  evidence  of 
title  without  producing  the  mortgage  deed.  Doe 
d.  Rogers  v.  Brook,  1  Har.  <&  Woll.  400.         903 


Confirmation  and  Alteration.] — The  necessary 

Earties  met  to  execute  a  marriage  settlement, 
mmediatelv  afler  the  conveying  party  had  exe- 
cuted, and  before  the  execution  or  assent  by  any 
other  party,  the  father  of  the  intended  wife  ob- 
jected to  a  clause  ',  the  objection  was  acouiesced 
in,  and  the  clause  was  struck  out,  and  then  the 
conveying  party  immediately  re>executed,  and  the 


2444 

A0  M  M  M 


[DEED— DEFAMATION] 


other  ptrtief  eztcnted : — Held,  thai  the  exeeiitioii 
of  the  deed  was  in  fieri  only  when  the  alteration 
took  place,  and  tfaat  the  alteration  did  not  make  a 
firesh  atamp  reoaisite.  Jones  9.  Jones,  1  C.  dt  M. 
721;3Tjr.8W.  906 

FrauduUfU  or  void.} — ^If  A.,  betn^  in  easiodj 
on  a  charge  of  felony,  convey  all  his  property  in 
trust  for  his  wife  Gy  life,  and  then  m  trust  for 
his  son,  and  on  the  next  day  A.,  be  convicted  of 
the  felony,  this  conveyance  will  be  void  as 
against  the  crown.  Morewood  0.  Wilkes,  6  C  A 
P.  144-~Tindal.  906 

Copyholds  are  within  the  stat.  27  Eliz.  c.  4, 
which  avoids  all  conveyances  of  any  lands,  tene- 
ments,  or  hereditaments,  made  for  the  intent 
and  of  purpose  to  defraud  and  deceive  persons 
that  shall  afterwards jpnrchase  the  same.  Doe  d. 
Tunstai  V.  fiottriell,  5  B.  ^  Adol.  131.  906 

Fraudulent  conveyance  of  land.  Butcher  v. 
Harrison,  1  Nev.  &,hi,  677 ;  4  B.  &  Adol.  129. 

907 

Qusre,  whether  a  post-nuptial  settlement  made 
by  a  husband  upon  his  wife  at  the  instance  of 
her  friends,  she  having,  at  the  time  of  her 
marriage,  been  entitled  to  legacies  which  were 
then  in  the  hands  of  executors,  and  one  of  which 
continued  to  be  so  at  the  time  of  the  setUement, 
is  or  is  not  a  fraudulent  conveyance  within  the 
Stat.  27  Eliz.  c.  6,  so  as  to  be  void  as  against 
creditors  and  subsequent  purchasers  for  value? 
Doe  d.  Sweetland  v.  Webber,  3  liev.  &.  M.  586 ; 
1  Adol.  A  £Uis,  733.  907 

In  an  ejectment  brought  by  a  person  claiming 
under  a  post-nuptial  settlement  against  a  subse- 
quent purchaser  from  the  husband,  declarations 
and  admissions  by  the  husband  that  he  had  re- 
«jeived  valuable  consideration  from  the  purchaser 
are  not  admissible  in  evidence.  Id. 

Other  things,] — Where  A.  execntei  a  deed, 
and  delivers  it  to  B.  as  an  escrow,  to  be  delivered 
to  C.  on  a  certain  event,  possession  of  the  deed 
by  C.  is  prima  facie  evidence  of  the  performance 
of  the  condition.  Hare  v,  Horton,  2  Nev.  A  M. 
428 ;  5  B.  &  Adol.  715.  900 

A.  having  received  monies  from  B.,  privately 
and  without  any  communication  with  B.,  pre- 
pared and  executed  a  mortgage  to  him  for  the 
amount  A.  retained  the  deed  in  his  custody  for 
12  years,  and  then  died  insolvent.  After  his 
death,  the  deed  was  discovered  in  a  chest  con- 
taining his  title  deeds  :— -Held,  that  the  deed  was 
not  an  escrow,  there  being  no  evidence  to  show 
that  it  was  executed  conditionally,  but  that  it 
took  effect  from  its  execution,  and  was  good 
against  A.'s  creditors.  Extern  v.  Scott,  6  Bim. 
31.  900 


Stanms.] — ^The  counterpart  of  a  lease  for  a 
term  of  years  exceeding  thirty-one  years  must, 
under  47  Geo.  2,  e.  50,  have  a  2<.  stamp  on  it  to 


A  leoffinent  in  coBsidetalion  ol  natnal  nfke* 
tion and alsoof  10s. does  not,  under  55 Geo.  3, 
e.  184,  require  two  separate  stamps  of  XL  15s. 
each.  Dee  d.  Wheeler  v.  Wheeler,  4  Nev.  A  M. 
10 ',  2  Adol.  A  Ellis,  28.  910 

A.,  an  architect  employed  to  superintend  the 
erection  of  certain  buildings  upon  commission, 
bjr  deed,  aasii^  to  D.,  a  creditor,  all  the  com- 
mission to  which  he  then  was  or  might  tfaeiealter 
be  entitled  in  respect  of  such  superintendence, 
upon  trust  to  pay  C.  a  certain  debt  due  from  A., 
and  to  retain  the  residue  towards  satisfection 
of  a  certain  debt  due  from  A.  to  D.,  and  in 
which  deed  are  contained  a  power  of  attorney 
to  receive  the  commission,  and  covenants  that  A. 
would  pay  the  debt  due  to  D.,  would  not  receive 
the  commission,  or  revoke  the  power  thereby 

Siven,  or  do  any  act  by  which  D.  might  be  hin- 
ered  in  leoeivmg  payment ;  that  he  had  a  right 
to  assign,  had  not  encumbered,  and  for  further 
assurance : — Held,  that  this  deed  was  not  a  m<Hir 
gage  but  an  absolute  conveyance  of  the  com- 
mission money ;  and  that  a  conveyance  stamp, 
calculated  upon  the  amount  of  commission  even- 
tually received,  was  sufficient  Pooky  v.  Good- 
win, 5  Nev.  &  M.  466;  1  Har.  A  WoU.  567. 

910 

The  transfer  dntv  on  a  mortgage  is  imposed 
only  where  no  furtlier  sum  is  advanced.  Doe  d. 
Bartley  v.  Gray,  4  Nev.  A  M.  719 ;  3  Adol.  A 
Ellis,  89 ;  1  Har.  A  Well.  235.  910 

Where  an  additional  sum  is  advanced,  it  is 
sufficient  to  pay  the  ad  valorem  duty  on  the  sum 
advanced.  lu. 

So,  where  the  original  mortgage  is  assigned  to 
secure  the  mortgage  money.  Id. 

A  mortgage  for  years  was  g^ven,  before  the 
passing  of^he  3  Geo.  4,c.  117,  to  secure  the  pav- 
ment  of  1502.  Afler  the  passing  of  that  act,  the 
mortgagor  and  mortgagee  joined  in  a  conveyance 
in  fee  to  a  new  mort^igee  for  3502.  The  latter 
deed  consisted  of  four  skins,  and  had  a  IL  15s. 
stamp  OD  the  first,  with  an  ad  valorem  stamp  of  22., 
and  11.  on  the  second,  third,  and  fourth ', — ^Held, 
that  these  stamps  were  sufficient.  Id. 

Such  a  mortga^  is  a  transfer  of  the  old  mort- 
gage as  to  the  original  sum,  and  a  new  mortgage 
as  to  the  further  sum  advanced,  within  the  mean- 
ing of  the  3  Geo.  4.  Id. 

Quiere,  whether  a  common  deed  stamp  was 
necessary  ?    Id^ 

Semble,  a  mortgage  to  secure  a  principal  sum, 
and  also  the  costs  of  the  trustees,  and  a  reason- 
able sum  by  way  of  compensation  to  them  for 
their  trouble,  requires  onljr  a  stamp  of  such  an 
amount  as  will  cover  the  principal  sum.  Paddon 
V.  Bartlett,  4  Nev.  &  M.  1 ;  2  Adol.  A  Ellis,  9. 

910 


DEFAMATION. 
Crenero^y.]— >The   question  in  an  action   for 


render  it  available  in  evidence  as  an  origind  words,  is  not  what  the  party  using  them  eonsi- 
instrument  of  demise.  Moore  v.  Macabe,  1  Alcock  I  dered  their  meaning,  by  any  secret  reservation 
A  Napier,  47.  (IrM),  910   in  his  own  mind,  but  what  he  metnt  to  have  «b« 


[DEFAMATION] 


2445 


dentaiod  u  their  meaning  by  the  putj  to  whom 
he  Qllered  them.  Read  e.  Ambridge,  6  C.  &■  P. 
308— Denman.  915 

Where  a  verdict  hu  been  found  with  dama^ 
in  an  action  of  defamation  for  words  imputing 
fekmj,  the  court  will  not  stay  the  proceedings  or 
grant  a  new  trial,  on  the  ground  that  since  the 
trial  the  plaintiff  has  been  convicted  and  attaint- 
ed of  the  same  felony :  a  fortiori,  where  the  de- 
fendant has  been  examined  as  a  witness  upon  the 
trial  of  the  indictment  Syroms  v.  Blake,  2  C. 
M.  &  R.  416;  4  Dowl.  P.  C.  263;  1  Gale,  182. 

915 


PMicaHnm.'] — If  the  publication  of  a  libel 
eonsists  in  merely  selling  a  few  copies  of  a  pe- 
riodical^ in  whicli,  inter  uia,  it  is  contained,  one 
question  for  the  jury  is,  did  the  parties  know 
what  it  was  they  were  selling?  Chubb  v,  Flanni- 
gan,  6  C.  db  P.  431— Park.  917 

On  die  trial  of  an  action  against  the  publisher 
of  a  monthly  periodical  for  a  libel  contained  in 
it,  artidea  published  from  month  to  month  al- 
loding  to  the  action,  and  attacking  the  plaintiff, 
aie  lecehrable  as  evidence  quo  animo  the  libel 
was  pnbliahed,  and  as  showin^^  that  the  publisher 
eonsidered  it  as  applying  to  the  plaintiff.  Chubb 
r.  Westley,  6  C.  A  P.  436— Park.  917 

If  the  printer  and  the  editor  of  a  magazine  be 
ioed  for  a  libellous  article  contained  in  it,  they 
an  both  liable  for  a  libellous  lithographic  print 
which  is  contained  in  the  work,  though  it  was 
not  printed  by  the  printer,  provided  that  the  print 
is  xefened  to  in  the  letter-press  part  of  the 
libeUoos  article.  Watts  v.  Fraser,  7  C.  d&  P.  369 
— Denman.  916 

A  defendant  cannot  justify  a  repetition  of 
slanderous  words,  by  merely  showing  that  at  the 
time  when  he  repeated  them,  he  stated  that  he 
had  heard  them  from  another,  whom,  he  named ; 
he  must  also  show  that  he  repeated  them  upon  a 
iQSti6ab]e  occasion,  and  that  he  believed  them  to 
he  tme.    M'Pherson  v.  Daniels,  5  M.  &  A.  251. 

922 

If  a  defendant  in  -an  action  for  verbal  slander, 
al  the  time  of  speaking  the  slander,  gave  up  the 
i>fmA  of  the  person  m>m  whom  he  heard,  this 
is  no  justification ;  but  if  he  did  this,  and  at  the 
trial  prove  thai  he  did  in  fact  hear  the  sUnder 
fion  that  nerson,  it  will  go  in  mitigation  of 
dunacea.  Bennett  9.  Bennett,  6  C.  Sl  P.  5B6— 
AUenon.  9^ 

A  letter,  written  by  the  defendant,  and  eon- 
tmniag  a  libel,  was  dated  in  Essex,  and  addressed 
to  a  person  in  Gkotland.  It  was  proved  to  have 
keen  in  the  Colchester  post-office,  and  afler  being 
marked  there,  to  have  been  forwarded  to  London, 
QA  iiB  way  to  Scotland.  It  was  nrodueed  at  the 
trial  with  proper  post-marks,  and  with  the  seal 
broken,  bat  not  by  the  party  to  whom  it  was  ad- 
dressed : — ^Held,  sufficient  prima  facie  evidence 
of  a  publication  in  Essex,  and  that  it  had  reached 
its  address  in  Scotland.  Warren  v.  Warren,  4 
Tyr.  850;  ICfA.Sc  R.  150.  616 

Cmi/idatUl    Cranmiiiteatioiif.]  —  Confidential 


communications.     Moore  v.  Terrell,  4  B.  &  Adol. 
871 ;  1  Nev.  &  M.  559.  918 

A  defamatorv  communication  iVom  A.  to  B. 
respecting  the  mmates  of  the  house  occupied  by 
B.  as  his  tenant,  is  privileged,  when  such  com- 
munication is  made  bona  fme  in  consequence  of 
the  relation  of  landlord  and  tenant,  and  without 
malice  in  fiict.  Knight  v.  Gibbs,  3Nev.  6l  M. 
467 ;  1  Adol.  dk.  Ellis,  43.  917 

A.  was  engaged  to  superintend  the  works  of  a 
railway  company,  and  subsequently,  at  a  general 
meeting  of  the  proprietors,  the  engagement  was 
not  continued,  but  a  former  inspector  was  rein- 
stated. A  vacancy  subsequently  occurred  in  the 
situation  of  engineer  to  the  commissioners  for 
the  improvement  of  the  river  Wear,  and  A.  be- 
came a  candidate.  B.  worte  to  C,  introducing 
D  as  a  candidate,  and  C,  having  written  to  B., 
informing  him  that  another  person  had  suc- 
ceeded in  obtaining  the  appointment,  B.  wrote 
an  answer  to  C,  reflecting  on  the  conduct  of  A. 
whilst  in  the  situation  of  engineer  to  the  railway 
company.  There  was  a  subsequent  election,  at 
which  A.  was  unsuccessful,  in  consequence  of 
this  letter  having  been  shown.  It  appeared  that 
B.  and  C.  were  both  shareholders  in  the  railway 
company,  and  that  B.  managed  C.'s  a&irs  in 
the  railway.  B.  had  not  been  applied  to  for  his 
opinion,  and  the  letter  containing  the  libel  was 
writ)ten  afler  the  termination  of  one'election,and 
before  the  other  was  in  contemplation  : — Held, 
in  an  action  by  A.  against  B.  for  the  libel,  that 
the  letter  was  not  a  privileged  communication. 
Brooks  V.  Blanshard,  1  C.  &  M.  779 ;  3  Tyr.  844. 

917. 

A.,  the  tenant  of  a  farm,  required  some  repairs 
to  be  done  to  the  fiurm-house,  and  B.,  the  agent 
of  the  landlord,  directed  C.  to  do  the  work.  C. 
did  it,  but  in  a  negligent  manner,  and  during 
the  progress  of  it  got  drunk  ;  and  some  circum- 
stances occurred  which  induced  A.  to  believe 
that  C.  had  broken  open  his  cellar  door  and  ob- 
tained access  to  his  cider.  A.,  two  davs  after- 
wards, met  C  in  the  presence  of  D.,  and  charged 
him  with  having  broken  open  his  cellar  door,  and 
with  having  got  drunk  and  spoiled  the  work.  A. 
afterwards  told  D.,  in  the  absence  of  C,  that  he 
was  confident  C.  had  broken  open  the  door.  On 
the  same  day  A.  complained  to  B.  that  C.  had 
been  negligent  in  his  work,  had  got  drunk,  and  he 
thought  ne  had  broken  open  his  cellar : — Held, 
that  the  complaint  to  B.  was  a  privileoed  com- 
munication, if  made  bona  fide,  and  wiuout  any 
malicious  intention  to  injure  C. : — Held,  also, 
that  the  statement  made  to  C,  in  the  presence 
of  D.,  was  also  privileged,  if  done  honestlv  and 
bona  fide;  andtutthe  circumstance  of  its oeing 
made  in  the  presence  of  a  third  person  does  not 
of  itself  make  it  unauthorized ;  and  that  it  was  a 

auestion  to  be  left  to  the  Jury  to  determine  from 
lie  curcumstanoes,  including  the  sWle  and  cha- 
racter of  the  langnace  used,  whether  A.  acted 
bona  fide,  or  waa  influenced  by  malicious  mo- 
tives : — Held,  also,  that  the  statement  to  D.,  in 

Ithe  ahsence  of  C.,  was  nnauthorixed  and  offi- 
cious, and  therefore  not  protected,  although 
made  in  the  belief  of  its  tratli)  if  it  were  in  pomt 


244G 


[DEFAMATION] 


of  fact  false.    Toogood  v.  Spyring,  1  C.  M.  &  R. 
181 ;  4  Tyr.  682.  917 

Defendant  haviiijr  some  cause  for  suspicion, 
went  to  the  plaintin 's  relations,  and  charged  him 
with  thefl ;  it  appearing,  however,  that  his  object 
in  making  the  communication  was  rather  to  com- 
promise Uie  felony  than  to  promote  inquiry ,  or 
to  enable  the  relations  to  redeem  the  plaintiff's 
character: — Held,  that  tliis  was  not  a  privileged 
communication,  that  malice  must  be  implied, 
and  that  the  existence  of  it  was  not  a  fact  to  be 
left  for  the  consideration  of  a  jury.  Hooper  v. 
Truscott,  2  Bing.  N.  R.  457.  917 

A  letter  to  the  manager  of  a  property  in  Scot- 
land in  which  the  plaintiff  and  defendant  were 
jointly  interested,  related  principally  to  the  pro- 
perty and  the  plaintiff's  conduct  respecting  it, 
out  also  contained  a  passage  reflecting  on  his 
conduct  to  his  mother  and  aunt : — Held,  that  the 
latter  part  could  not  be  priyileged  as  a  confi- 
dential communication.  Warren  v,  Warren,  4 
Tyr.  850 ;  1  C.  M.  &  R.  150.  917 

The  meaning,  in  law,  of  a  privileged  commu- 
nication, is,  a  communication  made  on  such  an 
occasion  as  rebuts  the  prima  facia  inference  of 
malice  arising  firom  the  publication  of  matter 
prejudicial  to  the  character  of  the  plaintiff,  and 
throws  upon  him  the  onus  of  proving  malice  in 
fact,  but  not  of  proving  it  by  extrinsive  evidence 
only ;  he  has  still  a  right  to  require  that  the 
alleged  libel  itself  shall  be  submitted  to  the 
jury,  that  they  may  judge  whether  there  is  any 
evidence  of  malice  on  the  face  of  it.  Wright  v. 
Woodgate,  2  C.  M.  As  R.  573;  1  Tyr.  &  G.  12. 

917 

The  defendant  was  a  solicitor  employed  in  an 
equity  suit  on  behalf  of  the  plaintiff,  a  minor. 
The  plaintiff  was  desirous  of  changing  his  soli- 
citor, and  informed  tlie  defendant  of  it.  The 
defendant  thereupon  wrote  a  letter  to  the  plain- 
tiff 's  next  frieno,  (who  was  liable  for  the  costs 
of  the  suit^,  dissuading  him  from  giving  any 
directions  m  the  matter,  and  alleging,  among 
other  observations  on  the  plaintiff^s  conduct, 
that  a  civil  engineer,  to  whom  the  plaintiff  had 
been  apprenticed,  had  made  him  a  present  of 
his  indentures,  because  he  was  worse  than  useless 
m  his  office : — Held,  that  this  was  a  privileged 
communication.    Id. 

The  plaintiff,  a  dissenting  minister,  accompa- 
nied by  a  friend  to  the  defendant,  who,  in  an- 
swer to  questions  put  by  plaintiff  and  his  friend, 
stated  that  his  (the  defendant's)  wife  had  been 
cautioned  against  the  plaintiff  as  a  drunkard, 
&c.  : — Held,  that  this  was  a  privileged  commu- 
nication, and  that  slanderous  expressions  used 
in  it  were  not  actionable,  if  the  defendant  spoke 
bona  fide,  and  was  not  actuated*  by  malice : — 
Held,  also,  that  it  was  incumbent  on  the  plaintiff 
to  prove  that  the  defendant  was  actuated  by  ma- 
licious motives.  Warrv.  Jolly,  6  C.  &  P.  497 — 
Alderson.  917 

A  letter  written  to  the  postmaster  general,  or 
to  the  secretary  to  the  general  post-onice,  com- 
plaining of  misconduct  in  a  postrmaster,  is  not 
a  libel,  if  it  was  written  as  a  bona  fide  complaint 
to  obtain  redress  for  a  grievance,  that  the  party 


really  believed  he  had  suffered ;  and  partienlar 
expressions  are  not  to  be  strictly  scrutinized, 
if  the  intention  of  the  defendant  was  good. 
Woodward  v.  Lander,  6  C.  &  P.  548— Alderson. 

917 


Character  of  ServantsJ] — A  statement  made  by 
a  late  master  of  a  servant  to  another  person  who 
had  thoughts  of  engaging  that  servant,  is  not  pri- 
vileged, where,  from  other  evidence,  though  of  a 
slight  description,  the  jury  has  inferred  actual 
malice.  Kelly  v.  Partington,  2  Nev.  &,  M.  460 ; 
4  B.  d&  Adol.  700.  919 


Reports  of  Proceedings,] — The  defendant  pub- 
lished an  account  of  the  proceedings  under  a 
commission  of  lunacy,  which  the  plaintiff  had  at- 
tended as  a  witness,  and  stated  that  the  plaintiff's 
testimony,  ^*  being  unsupported  by  that  of  any 
other  person,  failed  to  have  any  effect  on  the 
jury."  "  The  object  was  to  set  aside  a  will." 
^*  Mr.  Jervis  commented  with  cutting  severity  on 
the  testimony  of  Mr.  O."  (the  plaintiff) :— Held, 
that  the  whole  taken  together  was  a  libel,  and 
that  a  plea  justifying  only  the  words,  **  Mr.  Jervis 
commented  with  cutting  severity  on  the  testi- 
mony of  Mr.  O.,"  was  ill?  Roberts  v.  Brown,  10 
Bing.  519 ;  4  M.  &  Scott,  407.  921 

A  libel  purported  to  be  a  report  of  what  oc- 
curred before  one  of  his  Majf^sty's  commissioners 
of  inquiry  respecting  corporations : — Held,  that 
the  defendant  could  not  give  evidence  of  the  ac- 
curacy of  the  report  as  a  matter  of  justification, 
but  that  he  might  give  such  evidence  in  mitiga- 
tion of  damages :— lield  also,  that,  if  he  did  so, 
the  plaintiff  might  give  evidence  in  reply,  to  show 
the  inaccuracy  of  the  report.  Charlton  v.  Wal- 
ton, 6  C.  &  P.  385~Patteson.  921 

Though  one  part  of  a  statement  taken  alone 
be  injurious  to  a  man's  character,  if  the  jury 
think  that  the  effect  of  that  part  is  removed  by 
the  other  part  of  the  statement,  it  is  not  a  libel. 
Chalmers  v.  Payne,  2  C.  M.  dit  R.  156;  1  Gale, 
69.  921 

In  an  action  for  a  libel,  on  not  guilty  pleaded, 
it  appeared  that  the  libel  Twhich  was  contained 
in  a  newspaper)  purported  to  be  an  account  of 
the  trial  or  a  former  action,  brought  by  the  same 
plaintiff  for  a  libel  against  third  parties ;  and  afWr 
stating  the  libel  in  the  original  action,  and  the 
facts  proved  by  the  then  defendants,  and  the 
summing  up  of  the  judge,  stated  that  the  jury 
found  a  verdict  for  the  plaintiff,  with  90^.  da- 
mages. No  evidence  was  given  as  to  any  such 
trial  having  in  fact  taken  place,  or  whether  the 
report  was  fair  or  not.  The  judge  lefl  it  to  the 
jury  to  say,  whether  the  report,  although  it  con- 
tained some  allegations  injurious  to  the  plaintiff^ 
was,  if  taken  altogether  with  the  statement  of 
the  verdict  beinjg  in  his  ftvor,  injurious  to  the 
plaintiff  on  the  tace  of  it;  and  the  jury  having 
found  for  the  defendant,  the  court  refused  to 
grant  a  rule  for  a  new  trial.    Id. 

Words  of  Crime.] — Words  of  crime.  Williams 
V.  Stott,  1  C.  ^b,  M.  675 ;  3  Tyr.  688.  924 


[DEFAMATION] 


2447 


The  words,  ^*  he  robbed  J.  W.,"  are  actionable, 
as  imputinji  an  ofience  paniahable  bv  law — Per 
Denman,  <J.  J.,  and  Parke,  J.;  Littledale  dubi- 
lante.  Tomlinson  p.  Brittlebank,  4  £.  &  Add. 
630 ;  1  Nev.  &  M.  455.  924 

If  they  wens  used  in  any  other  sense  the  de- 
fendant must  show  it.  Id. 

The  words,  "  you  have  done  an  act  for  which 
I  cao  transport  you  :" — Held,  actionable  without 
colloquium  or  innuendo.  Curtis  v.  Curtis,  4  M. 
&.  Scott,  337 ;  10  Bing.  447.  924 

The  words,  "  he  is  a  thief,  and  robbed  me  of 
my  bricks:** — Held,  actionable  without  any  in- 
troductory averment.  Slowman  v.  Datton,  10 
Bing.  402;  4  M.  A:  Scott,  174.  924 

A  declaration  for  slander  stated  by  way  of  in- 
doceioent,  that  plaintiff  was  a  pork- butcher,  and 
then  charged  defendant  with  publishing  to  plain- 
tiff*. In  the  presence  of  other  persons,  these  words 
of  and    concerning   the  plaintiff: — "Tou  are  a 
bloody  thief!  who  stole  F.'s  pi^?  You  did,  you 
bloody  thief,  and  I  can  prove  it :  you  poisoned 
them  with  mustard  and  brimstone.       Innuendo, 
the  plaintiff  was  guilty  of  pig-stealinff.     The  jury 
found  that  the  words  were  not  intended  to  impute 
felony,  but  were  spoken  of  plaintiff  in  relation  to 
his  trade : — Held,  that  the  plaintiff  was  not  enti- 
tled to  recover,  as  the  words  used  did  not  show 
thai  they  were  spoken  of  him  in  relation  to  his 
trade,  and  no  colloquium  concerning  his  trade 
was  laid  in  the  declaration.    Sibley  t'.  Tomlins,  4 
Tyr.  90.  924 

In  an  action  for  libel,  to  support  a  plea  of  jus- 
tification, stating  that  the  plaintiff  had  forged  and 
ottered,  knowing  it  to  be  forged,  a  certain  bill 
exchange ;  to  iustify  a  verdict  for  the  defendant, 
the  same  evidence  must  be  given  as  would  be 
necessary  to  convict  the  plaintiff,  if  he  were  on 
trial  for  those  offences ;  but  if  the  evidence  falls 
short  of  satisfying  the  jury  that  the  strict  legal 
offence  was  committed,  the^  may  take  the  facts 
proved  into  their  consideration,  in  estimating  the 
damages.  Chalmers  r.  Shackell,  6  C  &  P.  475 — 
Tindal.  924 

The  plaintiff  brought  an  action  for  slander, 
and  the^  words  spoken  were,  ^^  who  stole  the  parish 
bell  ropes?*'  Innuendo,  that  the  plaintiff,  whilst 
chorehwarden,  had  stolen  the  parish  bell  ropes  : 
— Meld,  that  the  churchwarden  had  the  possession 
of  the  bell  ropes  belonging  to  the  church,  and 
that  he  could  not  be  guiltv  of  stealing  them ;  and, 
therefore,  no  action  would  lie  for  the  words  spoken, 
as  tfaey  did  not  impute  an  indictable  offence. 
Jackson  v.  Adams,  2  Scott,  599 ;  2  Bing.  N.  R. 
402 ;  1  Ho^s,  339.  924 

The  words  so  laid  in  the  declaration  were  held 
not  to  be  proved  by  evidence  of  a  conversation,  in 
which  the  defendant  charged  the  plaintiff  with 
fraudulently  selling  the  ropes  for  a  smaller  sum 
than  he  baa  giyen  for  them.  Id. 


Charge  of  Fraud  and  Swindling.] — A  libel  con. 
tained  m  an  advertisement  by  two  tradesmen  in 
partnership,  stating  that  they  deemed  it  necessary 
to  caution  their  friends  against  a  fraudulent  re- 


presentation that  any  part  of  their  business  had 
been  removed,  it  l>eing  obvious  that  their  concern 
was  still  carried  on  solely  at  No.  9,  Mansion 
House  Street,  and  that  they  had  no  connexion 
with  a  shop  recently  opened  m  another  place,  un- 
der circumstances  grossly  misrepresented,  and 
highly  discreditable,  with  a  view  of  defrauding 
them  of  a  part  of  their  business — is  not  justified 
by  proof  that  the  person  alluded  to  ^who  had  been 
for  several  years  in  partnership  with  them)  had 
issued  a  bill,  in  which,  after  thanking  his  friends 
for  their  favors  during  his  residence  at  No.  9, 
opposite  the  Mansion  House,  he  stated  that  he 
had  removed  his  establishment  to  another  place, 
where  the  business  would  be  carried  on  under  the 
firm  of  R.  R.  C.  &  Co. ;  and,  in  addition  to  this, 
had  put  over  his  shop  door,  **  R.  R.  C.  &,  Co.,  re- 
moved from  opposite  the  Mansion  House.*'  Chubb 
V.  Flannignn,  6  C.  &  F.  431— Park,  J.  925 

Defendants  justified  and  proved  the  truth  of  a 
libel,  charging  the  plaintiff  with  having  acted  in 
a  grand  swindling  concern  at  Manchester,  but 
omitted  any  justif^ation  of  the  following  passage : 
— ^^  As  we  have  already  stated,  Clarke  had  been 
at  Leeds  for  one  or  two  days  before  his  arrival  in 
this  town,  and  is  supposed  to  have  made  con- 
siderable purchases  there ;  it  is  hoped,  however, 
that  the  detection  of  his  plans  in  Manchester 
fvill  be  learned  in  time  to  prevent  anv  very  serious 
losses  from  taking  place.  We  nave  already 
stated  that  Clarke  referred  Mr.  Norris  to  a  stock- 
broker in  London,  a  Mr.  Peacock  we  believe,  to 
whom  Mr.  Norris  wrote  for  information  respect- 
ing Clarke's  circumstances.  He  received  a  reply 
from  Mr.  Peacock,  statins  that  Mr.  Clarke  had 
been  introduced  to  him  oy  a  very  respectable 
party ;  that  he  had  sold  stock  for  Clarke  amount- 
mg  to  17002.,  and  had  introduced  him  to  Messrs. 
Jones,  Lloyd  &>  Co.,  with  whom  he  had  opened 
an  account  by  depositing  20002.  We  believe 
there  is  not  the  sfiffhtest  reason  to  doubt  the 
truth  of  Mr.  Peacock's  statement,  and  the  pro- 
bability is,  that  Clarke  had  been  furnished  with 
the  stock,  and  an  introduction  had  been  obtained 
to  the  stockbroker  for  the  purpose  of  ffiyincr 
color  to  his  proceedings  here  and  in  Yorksnire. 
A  jury  having  found  for  the  defendants  on  the 
part  of  the  libel  which  was  justified,  the  court 
refused  to  enter  a  verdict  for  the  plaintiff  on  the 
passage  not  justified.  Clarke  v.  Taylor,  2  Bing. 
N.  R.  654.  9& 


Professional  Misconduct.'] — It  is  no  objection  to 
maintaining  an  action  for  a  libel  on  an  attorney, 
that  it  appeared  that,  during  the  time  of  the  griev- 
ances stated  in  the  declaration,  the  plaintiff  had 
omitted  to  take  out  his  certificate  as  required  by 
the  Stat.  37  Geo.  3,  c.  90,  for  more  than  a  year,  as 
he  might  still  sue  as  an  attorney  for  damages  in 
consequence  of  a  libel,  imputing  improper  con- 
duct to  him  in  his  character  as  such.  Jones  v. 
Stevens,  1 1  Price,  235.  926 

In  an  action  of  slander  for  words  spoken  of  the 
plaintiff  as  a  physician,  importing  a  denial  that 
the  plaintiff  is  duly  qualified  to  practise  as  a  phy- 
sician, the  plaintiff  must,  under  the  general  issue, 
prove  the  inducement  in  the  declaration,  alleging 


2448 


[DEFAMATION] 


that  the  plaintiff  had  exerciaed  the  proieasion 
of  and  was  a  phjBician,  and  show  not  only  that 
he  practifled  as  a  physician,  bat  also  that  he  prac- 
tised lawfully.  Collins  v.  Carnegie,  3  Ney.  ol  M. 
703 ;  1  Adol.  &  Ellis,  605.  927 

In  an  action  on  the  case  for  defamation,  for 
words  charging  a  physician  with  adultery,  it  is 
not  sufficient  (unless  special  damage  be  alleged) 
to  state  that  the  misconduct  was  imputed  to  the 
plaintiff  in  his  profession.  Ayre  v.  Craven,  4 
Nev. '  &  M.  220 ;  2  Adol.  &  £Uis,  2.  927 

The  declaration  ought  also  to  set  forth  in  what 
manner  such  misconduct  was  connected  by  the 
speaker  with  that  profession.    Id. 

Therefore,  where  the  declaration  alleged  that 
words  containing  such  an  imputation  were  spoken 
of  and  concerning  the  plaintiff's  carrying  on  the 

Erofession  of  a  physician,  and  of  and  concerning 
im  in  his  profession,  without  more,  judgment 
was  arrested.    Id. 

QuflBie,  whether  words  imputing  to  a  physician 
that  he  had  taken  advantage  of  the  opportunities 
afforded  him  by  his  profession  to  commit  acts  of 
adultery,  would  be  actionable  without  special 
damage  ?    Id. 

In  an  action  for  alander  of  an  attorney,  the 
jodge  nonsuited  (he  plaintiff,  on  the  ground  that 
the  worda  were  mere  general  abuse,  and  not 
of  tod  concerning  him  in  his  professional  cha- 
racter,  and  it  was  not  insisted  on  at  the  trial  that 
the  question  ought  to  be  submitted  to  the  jury ; 
the  court  refused  to  set  aside  the  nonsuit  and 
grant  a  new  trial.  Tomlinson  v.  Brittlebank,  1 
Bar.  &  WoU.  573.  927 


KidieuU  and  CcnUmpt.] — Worda  of  ridicule 
and  contempt.  Oigby  v.  Thompson,  4  B.  &  Adol. 
821 ;  1  Ney.  &,1A,4&,  928 

Where  one  newapaper  copied  a  libelloua  para- 

Saph  from  another,  adding  the  word  **  fudge"  at 
e  doee : — Held,  in  an  action  by  the  party  li- 
belled against  the  publiaher  of  the  paper  m  wliich 
the  word  **  fudge"  was  added,  that  it  was  for  the 
jury  to  say  whether  the  object  waa  to  yindicale 
the  character  of  the  party  by  the  addition  of  the 
word,  or  whether  it  waa  only  introduced  for  the 
purpose  of  creating  an  argument  in  case  proceed- 
mga  ahould  be  afterwards  taken.  Hunt  v.  Algar, 
6  C.  A  P.  245— Lyndhurst  928 


Sptdal  Damage,"} — In  order  to  support  an  ac- 
tion for  defamatory  words  actionable  only  in  re- 
spect of  special  damage,  it  is  not  necessary  that 
the  person  whose  act  constitutes  the  special  da- 
mage should  haye  belieyed  the  defamatory  charge, 
proyided  that  he  acted  in  consequence  of  the  words 
naying  been  spoken.  Knight  v.  Gibbs,  3  Ney.  & 
M.  467 ;  1  Adol.  &  £llis,  43.  930 

Words  are  not  actionable,  with  special  damage, 
iinleaa  they  are  of  themaelvea  diaparaging,  Kel- 
ly V.  Partington,  3  Ney.  &  M.  117 ;  5  B.  &  Adol. 
&15 ;  2  Nay.  A  M.  460 ;  4  B.  &.  Adol.  700.    930 

Deelaration  in  alander.  The  second  count 
•tated  that  the  defendant,  contriying  and  intend- 


ing to  injure  the  plaintiff  as  a  ahopwoman  and 
aeryant,  maliciouaiy  spoke  of  her  aa  auch  the 
following  worda : — "  She  (meaning  the  plaintiff) 
aecreted  Is.  6*/.  under  the  till,  atating  theae  are 
not  timea  to  be  robbed."  The  declaration  al- 
leged aa  special  damage  that  one  S.,  by  reason 
ofthe  words,  refused  to  take  the  plaintifi^^into  his 
seryice.  After  a  general  yerdict  for  the  plaintiff, 
it  was  held,  that  the  words  in  the  second  count, 
if  actionable  at  all,  were  ao  only  by  reason  of  the 
special  damage,  and,  therefore,  that  the  plaintiff, 
if  entitled  to  recoyer,  ought  to  haye  full  costs : — 
Held,  secondly,  on  motion  in  arrest  of  judgment, 
that  Uie  words  in  that  count  were  not  ctfamatory 
in  their  nature,  and  therefore  were  not  actionable, 
eyen  though  followed  by  special  damage.  Id. 

Semble,  that  the  proprietor  of  a  newspaper, 
conyicted  and  fined  for  the  publication  of  a.  libel 
in  the  paper,  inserted  without  iiis  knowledge  and 
consent  by  the  editor,  cannot  recover  against  the 
editor  the  damages  sustained  by  such  oonyiction. 
Colbum  V.  Patmore,  1  C.  M.  &  R.  73 ;  4  Tyr.  677. 

930 


Actum  for  De/afiutfien.] — Action  by  husband 
and  wile.  Sayifle  v.  Sweeney,  4  B  &  Adol.  514  ; 
1  Ney.  &  M.  554.  .932 

An  act  of  parliament,  afler  reciting  the  diffi- 
culties  ezperieneed  by  joint-stock  companies  in 
suits  fur  recovering  debts  and  enforcing  obliga- 
tions, and  in  the  prosecution  of  offenders,  enact-' 
ed,  that  actions  commenced  by  the  Hope  Com- 
pany for  recoyering  debts,  enforcing  claims  or 
demands  then  due,  or  which  thereafter  might 
become  due  or  arise  to  the  company,  might  be 
commenced,  and  indictments  for  o&nces  t>e  pre- 
ferred in  the  name  of  the  chairman : — ^Held,  that 
the  chairman  might  sue  for  a  libel  on  the  com- 
pany, although  it  waa  not  a  corporate  body.  Wil- 
liama  v.  Beaumont,  10  Bing.  2dO.  932 

No  yalid  Judgment  can  be  gi?en  upon  an 
asaeasmentcH  entire  damagea  uponaeveral  counts 
in  alander,  one  of  which  counta  diaclosea  no  cauae 
of  action.  Day  «.  Robinaon  (in  error),  4  Ney.  A 
M.  884 ;  1  Adol.  Ik  EUia,  554.  937 

And  when  a  judgment  had  in  fact  been  giyen 
for  the  plaintiff  to  recoyer  damagea  so  aaaeaaed,  a 
yenire  oe  noyo  waa  awarded.  Id. 

In  an  action  for  alander  after  a  yerdict  for  the 
plaintiff  with  1002.  damagea,  the  court  refused  to 
allow  the  defendant  to  haye  a  new  trial,  and  to  be 
allowed  to  plead  tlie  truth  of  the  worda  upon  any 
terms,  though  it  was  alleged  that  there  was  ample 
eyidence  to  support  a  justification,  and  the  general 
issue  only  was  pleaded  through  the  mistake  of 
the  pleader,  which  was  notdiscoyered  till  the  day 
before  the  trial  by  the  counsel,  when  an  applica- 
tion had  been  made  for  leave  to  add  a  justifica- 
tion; but  the  defendant  did  notawear  that  he  had 
neyer  uaed  the  worda,  and  one  of  the  witnesses 
had  pointed  out  the  want  of  a  apecial  plea  a  con- 
aiderable  time  preyioualy.  Kirby  e.  oimpaon,  3 
Dowl.  P.  C.  791.  937 

Where,  after  notice  of  declaration  in  an  action 
of  slander,  the  defendant  signs  a  paper  containing 


[DEFAMATION] 


2449 


an  apelo^,  and  a  sUtenwnt,  that  at  his  request 
the  plaintiff  hma  consented,  on  his  paying  the 
costa  as  between  attorney  and  client,  and  making 
SQch  apology,  to  stay  the  proceedings  thereon, 
and  notice  of  trial  is  accordingly  countermanded, 
the  eonrt  will  require  the  defendant  to  pay  such 
eosts,  and  empower  the  defendant  to  sign  judg- 
ment as  for  want  of  a  plea,  in  case  of  non-pay- 
ment  thereof.  Yardrew  9.  Brook,  2  Ney.  &  M. 
835 :  S.  C.  nom.  Tardrew  v.  Brook,  bB,&,  Adol. 
880.  937 

PUadingsA — An  alleeation  that  the  defendant 
aaid  to  tl^  plaintiff,  "  she  secreted  Is.  6d.  under 
the  till,**  stating,  **  these  are  not  times  to  be 
robbed,"  was  held  to  import  that  the  plaintiff', 
when  secreting  the  l^.  6d.,  had  used  the  latter 
words,  and  that  therefore  the  allegation  did  not 
contain  that  which  was  actionable  per  se,  so  as 
to  dieentitle  the  plahitiff  to  full  costs  where  the 
verdict  was  under  40«.  Kelly  v.  Partington,  2 
Nev.  A.  M.  460 ;  4  B.  &  Adol.  700.  932 

Innuendo.  Williams  o.  Stott,  1  C.  &  M.  675; 
3Tyr.688.  634 

Innuendo.  Sweetapple  v,  Jesse,  5  B.  &  Adol. 
27;  2Nev.  &M.36.  934 

Defendant  wrote  concerning  plaintiff*,  **  he  is 
so  inflated  with  300(.  made  in  my  service,  God 
ooly  knows  whether  honestly  or  otherwise,  that," 
Ac. : — Held,  without  any  preliminary  averment, 
to  warrant  an  innuendo  that  plaintiff'  had  con- 
ducted himself  in  a  dishonest  manner  in  the  de- 
fendant's service.  Clegg  v.  Laffer,  3  M.  &  Scott, 
727;  lOBing.  250.  934 

The  declaration  in  an  action  for  a  libel  stated 
that  the  defendant,  in  whose  service  the  plaintiff 
had  formerly  been  as  a  gardener,  wrote  to  his 
master,  ^  1  have  reason  to  suppose  that  many  of 
the  flowers  of  which  I  have  been  robbed  are  now 
growing  in  your  earden."  Innuendo,  "  raeaninff 
uat  the  plaintiff liad  been  guilty  of  larceny,  and 
had  stolen  certain  plants,  roots,  and  flowers.'* — 
Held,  that  after  verdict,  it  might  be  intended 
that  the  plaintiff  had  taken  flowers  before,  and  so 
the  libel  charged  a  second  offence,  which  would 
be  broeny ;  or  that  the  flowers  were  not  growing 
in  the  soil  at  the  time  of  the  taking.  Bemble, 
that  the  innuendo  did  not  enlarge  ue  sense  of 
<*  flowers  ;'*  or  that  if  it  did,  the  words  *^  plants 
and  roots"'  might  be  rejected  as  surplusage. 
Gardiner  v,  WUfiams,  2  C.  M.  d^  R.  78;  i  GiUe, 
89.  934 

In  libel,  one  of  the  counts  set  forth  the  follow- 
ing passage  of  a  letter  from  the  defendant  to  one 
P. : — ^  I  have  reason  to  suppose  that  many  of  the 
flowers  of  which  I  have  been  robbed  are  grow- 
ing upon  ^our  premises,*'  (thereby  meaning  that 
iSbe  ptaintiff  hao  been  guilty  of  larceny,  and  had 
sti^n  from  the  defendant  certain  plants,  roots, 
and  flowers  of  the  defendant,  and  had  unlawfully 
disposed  of  them  to  P.,  and  unlawfally  placed 
ihm  in  P.'s  garden).  The  previous  part  of  the 
letter  stated  Uiat  the  plaintiff,  whom  P.  had  taken 
into  his  employ  as  a  gardener,  had  been  in  the 
defendant's  service  in  the  same  capacity,  and  had 
been  discharged  for  dishonesty  : — Held,  on  error, 
that  the  innuendo  was  not  too  large,  and  tbat  the 


count  was  good.    Williams  o.  Gardiner  (in  error). 
1  Mees.  ^  Wels.  245.  934 

A  count  in  a  declaration  for  slander  laid  the 
words  as  follows : — **  You  have  robbed  me  of  one 
shilling  tan  money  ;"  and  the  innuendo  explain* 
ed  the  meaninfir  to  be  that  the  plaintiff  had 
fraudulently  taken  and  applied  to  his  own  use 
one  shilling  received  by  him  for  the  defendant, 
being  the  produce  of  the  sale  of  some  tan  sold  by 
the  plaintiff  for  and  as  servant  to  the  defendant ; 
but  the  facts  stated  in  this  innuendo  were  not 
alleged  by  any  independent  averment  in  the  de- 
claration : — Held,  that  the  innuendo  was  bad,  a» 
introducing  new  facts ;  and  that,  without  the  in* 
nuendo,  the  count  did  not  char^  words  action- 
able in  themselves.  Day  v.  Robmson  (in  error). 
4  Nev.  &  M.  884 ;  1  AdToI.  &  Ellis,  564.  934 

A  declaration  for  words  imputing  that  tulips 
of  the  plaintiff,  about  to  be  sold  by  auction,  were 
stolen  property,  whereby  purchasers  were  deter- 
red from  bidding,  and  the  sale  was  defeated,  was 
held  bad  in  arrest  of  judgment,  fer  not  setting  out 
the  words  verbatim.  Gutsole  v.  Mathers,  1  Mees. 
&  Wels.  495.  933 

The  declaration,  having  stated  that  the  tulips 
were  about  to  be  sold  by  auction,  alleged  that  the 
defendant  asserted  and  represented  uat  the  said 
tulips  were  stolen  property : — Held,  that  this  was 
sufficient  without  stating^  that  he  spoke  the  words 
of  and  concerning  the  said  tulips,  the  property  of 
the  plaintiff.  Id. 

A  declaration  in  case  for  words  **  that  the 
plaintiff  had  set  fire  to  his  own  barley  stack," 
averred  that  the  stack  was  insured,  and  was  burnt 
without  his  own  default,  and  that  the  defendant 
spoke  the  words  of  and  concerning  the  plaintiff 
and  the  fire : — Held  bad  on  demurrer.  West  v. 
Smith,  4  Dowl.  P.  C.  703.  93S 

A  plea  in  bar,  which  merely  denies  that  the 
plaintiff  has  sustained  special  damage,  is  bad, 
where  the  words  are  actionable  in  uemselves. 
Smith  V.  Thomas,  2  Scott,  546;  4  Dowl.  P.  C. 
333;  2  Bing.  N.  R.  372;  1  Hodges,  353.        934 

In  an  action  of  slander,  the  plea  of  privileged 
communication  must  allege  that  the  defendant 
made  the  communication  on  a  lawful  believing  it 
to  be  true,  and  without  malice ;  or  at  least  bona 
fide.  Id. 

In  an  action  for  slander,  the  dechiration  alleged 
that'  the  defendant  falsely  and  maliciously  spoke 
certain  words  insinuating  that  the  plaintiff  was 
in  embarrassed  circumstances,  and  unfit  to  be 
trusted  in  business.  The  plea  justified  the  speak- 
ing of  the  words  in  a  communication  maoe  by 
the  defendant  to  a  tradesman  who  made  inquiries 
of  him  in  the  way  of  his  trade,  respecting  Uie 
state  of  the  plaintiff's  affairs,  and  it  was  alleged 
that  the  defendant  believed  the  statement  to  be 
true  : — Held,  on  special  demurrer,  that  the  plea 
was  insufficient,  because  it  neither  expressly  de- 
nied malice,  nor  stated  the  publication  to  have 
been  made  honestly  and  bona  fide,  which  might 
have  amounted  to  an  implied  denial  of  mahce. 
Id. 

Evidence.'} — In  an  action  of  slander,  imputing 
to  the  plaintiff  that  he  was  the  writer  of  a  scan* 


2450 


tDEFAMATION— DETINUE] 


daloos  letter  lefleeting  on  the  defendant,  the  lat- 
ter in  one  of  his  pleas  aet  forth  the  letter  and  jus- 
tified the  words  spoken.  The  coart  permitted  the 
plaintiff  to  inspect  the  letter  with  witnesses,  in 
order  that  he  might  be  prepared  at  the  trial  to 
show  that  it  was  not  in  his  handwriting.  Curtis 
V.  Cortis,  3  M.  db  Scott,  819.  935 

In  an  action  for  libel,  the  libel,  as  set  oat  on  the 
record,  imputed  to  the  plaintiff  **  misroanafe- 
ment  or  ignorance."  The  eTidenoe  was,  that  Uie 
expression  in  the  libel  (which  had  been  destroyed) 
was  ^*  ignorance  or  inattention  -/' — Held,  a  fatal 
variance.  Brooks  v.  Blanshud,  1  C.  &  M.  779 ; 
3  Tyr.  844.  935 

If  the  declaration  in  case  for  a  libel  state,  inter 
alia,  that  at  a  certain  place  certain  meetings  for 
the  promotion  of  sedition  and  blasphemy  had  been 
held,  and  that  the  defendant  published  of  and  con- 
ceming  th^  plaintiff,  and  of  and  concerning  the 
other  matters,  and  of  and  concerning  the  said 
meetings,  a  libel  charging  him  among  oQier  things 
with  having  taken  the  chair  at  the  said  place, 
but  not  saymg  any  thing  of  the  character  of  the 
meetings  there,  it  will  not  be  ground  of  nonsuit 
should  the  pluntiff  at  the  trid  fail  to  prove  that 
the  meetings  were  such  as  he  described  in  his  in- 
ducement Chalmers  v.  Shackell,  6  C.  &  F.  475 
— Tindal.  935 

Slanderous  words,  charged  as  addressed  to  the 
plaintiff  in  the  second  person,  are  not  supported 
by  evidence  of  words  spoken  of  him  in  the  third 
perstm,  though  so  sMken  in  his  presence.  Stan- 
nard  v.  Harper,  5  M.  die  R.  295.  935 

If,  in  a  case  of  libel,  the  defendant  in  his  plea 
state  certain  specific  facts  on  which  he  justifies 
the  publication,  a  letter  written  by  the  plaintiff 
which  does  not  go  to  prove  any  of  the  specific 
facts  alleged  in  the  plea,  is  not  admissiole  in 
evidence  tor  the  defendant.  Moscati  v.  Lawson, 
7  C.  &  P.  32— Alderson.  935 

In  an  action  for  a  libel  a|rainst  the  printer  of  a 
newspaper,  one  of  the  proprietors  of  tne  newspa- 
per is  a  competent  witness  for  the  defendant,  as 
he  is  not  liable  for  contribution.  Id. 

In  an  action  for  slander,  a  writ  of  inquiry  issued 
in  a  former  suit  against  the  defendant  for  speak- 
ing similar  slanderous  words,  may  be  received  in 
evidence  to  prove  malice.  Jackson  v.  Adams,  1 
Hodges,  78.  9% 

In  an  action  for  slander,  the  plaintiff  may  give 
evidence  of  anything  that  the  defendant  after- 
wards said,  that  goes  to  show  malice  in  the  defen- 
dant, provided  that  it  cannot  be  the  subject  of  an- 
other action ;  therefore,  the  plaintiff  may  give  evi- 
dence that  the  defendant  repeated  the  same  words 
at  a  subsequent  time,  or  spoke  on  the  subject  of 
tliis  action,  but  cannot  go  mto  evidence  of  other 
words  subsequently  spoken,  if  those  words  may 
bo  the  subject  of  another  action.  Defries  v.  Da- 
vis,7C.&P.  111^-Tindal. 

On  the  trial  of  an  action  for  slander,  the  plain- 
tiff may  go  into  evidence  to  show  that  he  had  re- 
covered m  a  previous  action  for  slander  against 
the  defendant's  son,  and  that  after  the  trial  of  that 
action,  he  sent  to  the  defendant's  attorney  to  com- 
promise the  present  action.  Id. 

If,  in  an  action  for  libel,  the  defendant  by  his 


pleading  admits  the  pnblicatioD,  the  plunttff  k 
still  at  liberty  to  show  the  manner  or  the  pub- 
lication, with  a  view  to  the  amount  of  damages. 
Vines  v.  Seiell,  7  C.  &  P.  163— Park.  935 

In  an  action  for  a  libel  published  in  a  news- 
paper, the  defendant  cannot  go  into  evidence  in 
mitigation  of  damages,  to  show  that  the  same 
libel  had  appeared  in  another  newspaper,  from 
which  the  plaintiff  had  already  recovered  damages; 
but  the  defendant  may  show  that  he  copied  the 
libel  from  another  newspaper,  and  omitted  several 
passages  contained  in  that  newspaper  which  re- 
flected on  the  character  of  the  piaintiff.  Creevey 
V.  Carr,  7  C.  dk  P.  64— Gumey.  936 

In  an  action  for  a  libel  the  defendant  may,  in 
mitigation  of  damages,  give  in  evidence  other 
libels  published  recently  before  bv  the  plaintiff 
of  the  defendant,  with  a  view  of  showing  a  pro- 
vocation bv  the  plaintiff;  and  a  witness  may  be 
also  asked,  whether  the  plaintiff  has  not  previ- 
ously published  attacks  on  the  defendant,  but  the 
judge  will  caution  the  jury  not  to  consider  one 
libel  as  at  all  like  a  set-off  against  the  other. 
Watts  V.  Fraser,  7  C.  &  P.  369— Denman.      936 

In  an  action  for  libel,  the  defendant  may  give 
evidence  of  provocation  in  mitigation  of  damages, 
and  may  for  (hat  purpose  ^ow  that  the  plaintiff 
had  used  expressions  calculated  to  provoke  him, 
both  in  writing  and  verbally.  Trapley  r.  Blaby, 
7  C.  A;  P.  395— Tindal :  S.  C.  nom.  Tarpley  v. 
Blabey,  2  Bing.  N.  R.  437.  936 

In  order  to  the  admission  in  evidence  of  libels 
by  the  plaintiff  in  mitigation  of  damages,  it 
must  be  shown  with  precision  that  such  libels 
relate  to  the  libels  by  the  defendant.  Id. 

A  libellous  paper,  in  the  handwriting  of  the 
defendant,  founa  in  the  house  of  the  editor  of  a 
newspaper  in  which  the  libel  complained  of  ap- 
peared, is  admissible  in  evidence  against  the  de- 
fendant, nothwithstanding  several  parts  of  it  have 
been  erased,  and  are  omitted  in  the  newspaper, 
provided  the  passages  erased  do  not  gualiiy  the 
libel.  Tarpley  r.  Blabey,  2  Bing.  N.  R.  437 : 
S.  C.  not  S.  P.  nom.  Trapley  v.  BlAey,  7  C  &  P. 
395.  936 


DETINUE. 

In  detinue  fer  several  things,  the  court  will 
not,  on  motion,  assess  the  damages  as  to  one 
article,  and  strike  it  out  of  the  declaration  on  ita 
being  delivered  up  to  the  plaintiff.  The  object 
of  the  application  was  afterwards  obtained  by  con- 
sent. Phillips  V.  Hay  ward,  3  Dowl.  P.  C.  362 ; 
1  Har.  &  WoU.  108.  937 

The  bailment  cannot  be  traversed  in  detinue. 
Walker  v.  Jones,  2  C.  &  M.  672 ;  4  Tyr.  915.  937 

If,  in  an  action  of  detinue  against  an  attorney 
for  not  delivering  up  papers  to  nis  client  af\er  his 
bill -has  been  paid,  the  defendant  plead  non  de- 
tinet,  the  plaintiff  must  prove  that  the  papers 
were  in  the  defendant's  possession  ;  but  evidence 
that  they  were  produced  bv  his  agent  before  the 
Master,  on  the  taxation  or  his  bOl,  is  sufficient 
proof  of  his  possession.  Anderson  v.  Passman,  7 
C.  &  P.  193--Coleridge.  937 

If  a  defendant,  in  an  action  of  detinue  for 


[DETINUE— DISTRESS] 


2451 


p«pen»  nl  up  18  a  defence  that  he  deliTeied  up 
the  papers  to  K.,  in  punuanoe  of  a  notice  from 
the  plajintiff's  attorney  to  that  efiect,the  plaintiff  *a 
oomwel  may  call  K.  as  a  witneae  in  reply,  to  proye 
that  he  received  the  papers  in  another  right,  and 
not  on  behalf  of  the  plaintiff;  and  K.  is  a  com- 
petent witness  to  prove  that  he  has  a  lien  on  the 
papers  as  against  the  defendant.    Id. 

lo  an  action  of  detinue  for  papers,  the  jury 
mnai  find  the  value  of  each  paper  separately ; 
asd  it  is  the  duty  of  the  plaintiff  to  prove  tne 
Taloe  of  the  articles  he  sues  for.    Id. 


DISTRESS. 

Per9&msduiraining,and  Reta.] — Wherealand- 
ferd  is  entitled  to  a  term  of  years,  and  dies  with- 
out appointing  an  executor,  a  distress  for  rent 
made  liter  his  death,  and  before  any  grant  of  ad- 
ninistration,  cannot  be  justified.  Keane  v.  Dee, 
1  Alcock  Sl  Napier  496,  n.  {Irish).  939 

The  ffOdds  of  C.  found  upon  land,  out  of  which 
irent^charge  has  been  granted  by  A.  to  B.,  are 
liable  to  the  distress  off.,  unless  C  has  an  in- 
terest in  the  land  paramount  to  that  which  A. 
bad  at  the  time  of  the  grant.    Saffery  v.  Elgood, 

3  Nev.  &  M.  346 ;  1  Adol.  ^b;  Ellis,  191 .         940 

Defendant  reserved  rent,  payable  quarterly,  or 
faalf-qnarterly,  if  required.  Defendant  having 
leeerved  the  rent  quarterly  for  a  twelvemonth ; 
held,  that  he  could  not,  without  notice,  distrain 
Sn  a  half-quarter's  rent.  Mallam  v.  Arden,  10 
Bing.  299 ;  3  M.  <&  Scott,  793.  940 

If  a  plea  allege  that  the  plaintiff  held  as  tenant 
to  the  defendant  under  a  demise,  and  the  plain- 
tiff replies  generally,  the  law  presumes  that  the 
terersion  is  in  the  landlord,  and  that,  therefore, 
be  has  a  right  to  distrain.  Any  question  as  to 
he  landlord's  reversion  shonla  be  raised  on  a 
special  replication.  Hooker  v.  Nye,  4  Tyr.  477 : 
lC.M.^R.25d.  939 

Where  a  promissory  note,  payable  afUr  date, 
wu  given  by  a  tenant  to  his  landlord  on  account 
of  rent  due,  without  there  being  any  distinct 
agreement  between  the  parties,  that  it  should 
operate  as  a  suspension  of^the  right  to  distrain  : — 
Held,  that  it  had  not  that  effect.  Davis  v.  Gyde, 

4  Nev.  db  M.  462 ;  S  Adol.  d&  EUis,  G83 ',  I  Har. 
&  WoU.  50.  944 

If  a  note  given  with  such  an  agreement  would 
bt?e  the  effect  of  suspending  the  right  to  distrain, 
the  agreement  must  he  specially  pleaded  in  bar  to 
the  avowry,  as  well  as  the  fact  that  the  note  was 
given  on  accpunt  of  the  rent.    Id. 

A  promissory  note  given  by  a  tenant  to  his 
landlord,  on  account  of  rent  due,  is  no  extinguish- 
ment of  the  right  to  recover  the  amount  by  dis- 
tress until  it  is  paid.    Id. 

From  an  agreement  to  which  the  landlord  of  a 
turn  is  privy,  for  a  sale  by  the  tenant  of  some 
estate  of  pasture  to  A.  B.,  the  amount  produced 
by  the  sale  to  be  paid  to  the  landlord,  a  contract 
by  him  may  be  inferred  not  to  dbtrain  cattle 
put  on  the  (femised  land  to  consume  the  eatage. 

Vol.  IV.  23 


Honrfbrd  e.  Webster,  1  C.  M.  A^  R.  696;  5  Tyr. 
409;  1  Gale,l.  944 


What  may  be  distrained.'] — Replevin  for  taking 
goods  and  standing  com.  Cognizance,  that,  by 
deed  of  25th  September,  1806,  A.  granted  to  B. 
an  annuity,  charged  on  the  premises,  with  power 
to  enter  and  distrain  for  the  arrears,  and  the  dis- 
tresses "  to  detain,  manage,  sell,  and  dispose  of  in 
the  same  manner  in  all  je^pects  as  distxesses  for 
rents  reserved  on  leases  foryeaA,"  and  that  C  as 
B.'s  bailiff  entered  and  distrained  for  arrears  of 
that  annuity.  Plea  in  bar,  that  by  (previous) 
deed  of  7th  May,  1806,  A.  granted  to  D.  an  an- 
nuity charged  on  the  (same)  premises;  and  for 
better  securing  the  payment  granted,  sold,  and 
demised  them  to  E.  for  99  years  with  power  of 
distress ;  and  that  arrears  had  accrued  and  were 
due : — Held,  first,  that  as  no  entry  appeared  by  £., 
the  first  grantee,  or  by  any  person  in  privity  with 
him,  afler  the  demise  of  7th  May,  1806,  no  estate 
vested  in  him  at  common  law  by  that  deed; 
secondly,  that  as  no  election  appeared  by  E.,  the 
first  grantee,  to  take  unaer  that  deed  as  a  bargain 
and  sale,  pursuant  to  the  statute  of  uses,  and  as 
the  plaintiff  in  replevin  was  not  shown  to  be 
other  than  a  stranger  to  that  deed,  the  court  could 
not,  at  his  request,  make  that  election  for  E., 
which  would  defeat  the  distress  by  B.  under  the 


A  tenant*8  growing  crops,  taken  in  execution 
and  sold,  and  remaining  on  the  premises  a  rea- 
sonable time  for  the  purpose  of  being  reaped,  are 
not  distrainable  by  the  landlord  for  rent  oecome 
due  afler  the  taking  in  execution.  Wright  v-Dewes, 

3  Nev.  &  M.  790 ;  1  Adol.  &  Ellis,  641.         941 

Such  crops  having  been  so  taken,  sold,  and 
left  on  the  premises,  and  the  arrears  of  rent  paid, 
pursuant  to  stat.  8  Anne,  c.  14,  s.  1,  the  landlord 
cannot  distrain  them  for  rent  subsequently  due, 
on  the  ground  that  the  purchaser  has  not  enter- 
ed into  the  agreement  with  the  sheriff,  (to  use 
and  expend  the  produce  in  a  proper  manner]!,  di- 
rected by  stat.  56  Geo.  3,  c.  oO,  s.  3.  Nor  is  he 
entitled  to  presume,  from  the  absence  of  such 
agreement,  that  the  straw  of  such  crops,  was  sold 
for  the  purpose  of  being  carried  off  the  land,  con- 
trary to  sect.  1.    Id. 

All  goods  sent  to  a  tradesman  for  the  purpose 
of  bein^  wrought  upon  in  the  wa]r  of  his  trade, 
are,  during  the  time  that  they  remain  in  his  cus- 
tody, protected  from  distress.    Brown  v.  Shevil, 

4  Nev.  &  M.  277 ;  2  Adol.  &  EUis,  138.         942 

As  the  carcass  of  a  beast  in  the  custody  of  a 
butcher,  sent  to  him  for  the  purpose  of  being 
slaughtered  for  the  sender.   Id. 

So,  although  the  sender  be  also  a  butcher.    Id. 

An  action  is  not  maintainable  for  distraining 
beasts  of  the  plough,  when  there  is  not  other 
sufficient  subject  of  distress  on  the  premises  but 
growing  crops.  Piggott  v.  Birtles,  1  Mees.  4t 
Wehi.441.    *^        **  '942 


3453 


[DISTRESS] 


When  and  hmo  to^  be  made.] — ^A  landlord  cannot  i 
jufltify  making  a  durtreas  for  rent  afler  dark.    Al- 
denburg  v.  Peaple,  6  C.  ds  P.  212— Parke.      943 

The  Stat.  8  Anne,  c.  14,  a.  6,  which  enables  a 
landlord  to  distrain  after  the  determination  of  a 
tenancy,  does  not  apply  to  cases  where  the 
tenancy  is  put  an  end  to  by  the  tenant's  wrong- 
ful disclaimer.  Doe  d.  David  v,  Williams,  7  C. 
&  P.  322— Patteson.  942 

A  broker*s  man  hayinfi^  taken  possession  of 
property  under  a  distress  Tor  rent,  after  remain- 
mg  two  days,  letl  the  house  in  a  state  of  mat  ex- 
citement, Dordering  on  insanity.  The  landlord 
thinking  that  his  leaving  had  been  procured  by 
the  drugging  of  his  liquor  by  the  parties  in  the 
house,  but  which  was  not  proved,  six  days  after 
broke  into  the  house  and  took  away  the  goods, 
without  any  previous  demand  of  admission : — 
Held,  that  ne  had  no  right  to  enter  again  after 
to  long  a  delay,  and  that  the  owner  of  the  goods 
might  maintain  trover  for  them.  Russell  v.  Ri- 
der, 6  C.  &  P.  416— Bosanquet.  943 

There  is  no  statutory  limit  to  the  amount  of 
the  costs  and  charges  for  levying  and  impounding 
a  distress  for  rent  above  202.,  where  it  is  im- 
pounded on  the  premises  by  virtue  of  1 1  Geo.  2, 
c.  19,  s.  10.  Child  V.  Chamberlain,  3  Nev.  Sl  M. 
520 ;  5  B.  &  Adol.  1049 ;  6  C.  &  P.  213.        943 

The  57.  Greo.  3,  c  93,  regulating  the  costs  and 
charges  for  levying  and  disposing  of  a  distress 
for  rent  under  20(.,  does  not  apply  to  a  case  of  a 
distress  taken  for  more  than  20Z.  made  of  goods 
which  are  appraised  at  and  sold  for  less  than  that 
amount.    la. 

The  statute  of  Westminster  2,  c.  27,  which 
requires  distresses  to  be  made  by  brokers  sworn 
and  known,  does  not  extend  to  distresses  for  rent. 
Id. 

If  goods  be  distrained  for  rent,  the  landlord 
must  wait  five  whole  days,  t.  e,  five  times  twenty- 
four  hours,  before  he  sells,  and  if  he  does  not, 
he  is  liable  to  an  action.  Thus,  where  a  distress 
was  made  on  Friday  at  two,  p.  k.,  and  the  sale 
was  on  the  following  Wednesday  at  eleven,  a.  m., 
the  sale  was  held  to  be  wrongful.  Harper  v. 
Taswell,  6  C.  A  P.  166— Tindal.  944 

In  making  a  distress  for  rent,  circumstances 
may  oceur  which  may  require  the  presence  of  a 
police  ofiicer.  But  to  justify  the  landlord  in 
calling  him  in,  it  must  be  shown  that  his  pre- 
sence was  rendered  necessary  either  from  threats 
of  resistance,  or  the  apprehension  of  violence,  &c. 
Skidmore  v.  Booth,  6  C.  4&  P.  777— Tindal.    943 

The  Stat.  13  Edw.  1,  c.  37,  (West.  2),  which 
enacts,  that  no  distress  shall  be  taken  except  by 
bailifis  ^*  sworn  and  known,"  does  not  apply  for 
distresses  taken  for  rent  in  arrear.  Begbie  9. 
Hayne,2Scott,193;  2  Bing.  N.  R.  124j  1  Hodg- 
es,  266.  943 

Held,  at  Nisi  Prius,  on  a  distress  for  rent, 
where  the  rent  distrained  for  does  not  exceed  20Z., 
only  one  sworn  appraifK?r  is  necessary  since  the 
Stat.  57  Geo.  3,  c.  93.  Fletcher  r.  Saunders,  6  C. 
&  P.  747;  1  M.  &  Rob.  375-Lyndhurst.      944 

Semble,  that  it  is  necessary  tliat  goods  seized 


under  a  distresi  for  rent,  should  be  appraised  hy 
two  sworn  appraisers,  under  2  Will.  &,  Mary, 
aess.  1,  c.  5,  s  2,  notwithstanding  the  schedule  of 
the  statute  57  Qeo.  3,  o.  93,  directs  that  for  an 
appraisement  under  20t.,  whether  **  by  one  bro- 
ker ^r  more,"  shall  be  charged  only  6d,  in  the 
pound  on  the  goods.  Bishop  v.  Byrant,  6  C.  db 
P.  484— Tindal.  944 

If  the  tenant,  to  save  expense,  reouests  that 
appraisers  may  not  be  called  in,  and  in  conse- 

auence  the  broker  who  made  the  aeiiure  values 
lie  goods,  the  tenant  cannot,  in  an  action,  com* 
Elain  of  that  which  was  done  as  an  irregolarity. 
d. 


Fraudulent  Removal.] — In  trespass  for  taking 
goods  under  a  distress  for  rent,  if  they  have  been 
clandestinely  removed,  and  are  afterwards  seized, 
the  defence  must  be  pleaded  specially,  as  the 
statute  11  Greo.  2,  c.  19,  s^  21,  does  not  apply  to 


such  a  case.  Postman  v.  Harrell«  6  C.  db 
Tindal. 


946 


A  landlord  has  no  right  to  follow,  and  take 
under  a  distress  for  rent,  the  goods  of  a  lodger 
which  have  been  taken  off  the  premises,  but  only 
those  of  his  own  immediate  tenant.  Id. 

The  riffht  of  the  landlord  under  the  11  Geo.  2, 
c.  19,  s.  I,  to  follow  the  tenant's  goods  in  the  case 
of  a  firaudulent  and  clandestine  removal,  does  not 
attach,  unless  the  rent  has  actually  become  due 
before  the  removal  of  the  goods.  Rand  v.  yaughan, 
1  Scott,  670 ;  1  Bing.  N.  R.  767;  1  Hodges,  173. 

946 

It  is  not  necessary  that  a  party  seizing  goods 
fraudulently  removed  (under  statute  11  Geo.  2, 
e.  19,  s.  7),  should  first  call  to  his  assistance  an 
ordinary  peace  officer ;  it  is  sufficient  if  he  be  as- 
sisted by  a  person  appointed  a  special  constable 
for  the  occasion.  Cartwright  v.  Smith,  1  M.  & 
Rob.  284— Denman.  946 

An  adjudication  of  justices  under  11  Geo.  2^ 
c.  19,  s.  4,  (inflicting  penalties  for  fraudulently 
removing  goods  to  avoid  a  distress),  is  an  order 
and  not  a  conviction,  and  cannot,  therefore,  like 
a  conviction,  be  returned  to  the  sessions  in  an 
amended  form.  Rex  v.  Cheshire  (Justices),  5  B. 
<&  Adol.  439 ;  2  Nev.  <&  M.  827.  947 

After  notice  of  appeal  against  an  infbrmal 
order  of  two  justices  for  payment  of  double  the 
value  of  goods  frai^dulently  removed  to  prevent 
a  distress,  a  formal  order  is  drawn  up  and  filed, 
of  which  notice  is  given  to  the  appellant.  The 
court  of  quarter  sessions  is  bound  to  try  the  ap- 
peal as  an  appeal  against  the  original  order.    Id. 

An  order  of  justices  under  11  Geo.  2,  c.  19, 
s.  4,  adjudging  a  party  to  pay  double  the  value 
of  goods  fraudulently  and  clandestinely  removed 
to  prevent  a  distress,  must  show  on  tne  face  of 
it  uiat  the  party  removing  the  goods  was  tenant; 
and  this  is  not  sufficiently  shown  by  stating  that, 
on  complaint  duly  made,  the  party  was  cnarged 
with  having  fraudulently  removed  the  goods  ftom 
certain  premises  to  prevent  A.  B.  from  distrain*' 
injr  them  for  arrears  of  rent  due  to  him  for  the 
said  premises,  and  that  it  appearing  that  he  dkl 


[DISTRESS— DISTRIBUTION  OP  ESTATE] 


2453 


ao  remore,  &o.,  he  is  convicted  thereof.    Bex  v. 
Davis,  5  B.  ^  Adol.  551.  946 

Semble,  also,  that  the  order  should  state  that 
the  complaiDant  was  the  party's  landlord,  or  the 
bailiff^  servant,  or  agent  of  such  landlord.  Id. 

Wrangftd  Distress,'] — in  case  for  an  irregular 
^atreas,  it  is  necessarv  to  state  correctly  to  whom 
the  rent  distrained  for  is  due  \  and  a  variance  in 
this  respect  is  fatal.  Ireland  v.  Johnson,  1  Bing. 
N .  R.  162 ;  4  M.  ^  3cott,  706.  946 

In  an  action  for  an  irregular  distress,  the  only 
evidence  at  all  afiecting  K.,  the  landlord,  was, 
that  all  the  defendants  appeared  by  the  same 
attornev,  and  that  the  defendants'  attorney  had 
given  the  plaintiff  notice  to  produce  "  the  notice 
of  distress  for  rent  due  to  Mr.  K.  ^"  and  that  the 
managing  clerk  of  the  defendants'  attorney,  when 
he  served  it,  had  o^red  102.  to  settle  the  action: 
— Held,  that  this  was  not  evidence  to  go  to  the 
jury  as  against  K. ;  and  the  judge  therefore  di- 
rected the  acquittal  of  K.  Crabb  r.  Killick,  6  C. 
A,  P.  21&-Parke.  949 

If  A.<,  the  tenant  of  B.,  has  paid  all  his  rent, 
and  got  his  landlord's  receipt  for  it,  but  fearing 
that  his  ffoeds  will  be  taken  on  legal  process, 
agree  wim  his  landlord  to  destroy  the  receipt, 
and  that  the  latter  shall  put  in  a  distress  for  rent 
to  protect  the  goods,  and  the  landlord  do  so,  and 
sell  the  goods,  and  keep  the  proceeds : — This 
distress  is  good,  as  between  A.  and  B.,  though 
void  as  against  a  third  person,  and  A.  can  main- 
tain no  action  against  B.  for  it.  Sims  v.  Tuffs,  6 
C.  &  F.  207— Parke.  949 

BxAt  if  B.  sold  some  articles  not  included  in 
the  inventory  of  the  distress,  A.  may  maintain  an 
action  in  respect  of  these  articles.    Id. 

In  actions  for  irregnlar  distresses,  the  correct 
practice  is  to  make  either  the  landlord  alone,  or 
the  landlord  and  the  broker,  defendants,  and  not 
to  join  appraisers,  &c. ;  and  if  a  plaintiff  do  join 
them,  the  jndge  will  oblige  him  to  make  out  his 
eaae  bj  strict  rule,  and  not  allow  questions  to  be 
pot  to  a  witness  who  has  been  cross-examined, 
or  a  witness  to  be  called  back,  with  a  view  of 
fixing  such  appraisers,  Ac.  Child  v.  Chamberlain, 
6  C.  dk  P.  213;  3  Nev.  &  M.  520;  5  B.  &  Adol. 
1049.  949 

A  landlord  is  liable  to  some  damages  in  an  ac- 
tion OB  the  case  for  an  excessive  distress,  where 
the  excess  consists  wholly  in  seizing  growing 
crops,  the  probable  produce  of  which  is  capable 
of  being  estimated  at  the  time  of  the  seizure ;  but 
the  measure  of  damages  is  not  the  value  of  the 
en^ia,  but  the  inconvenience  and  expense  which 
the  tenant  sustains  in  being  deprived  of  the  ma- 
naigement  of  them,  or  which  he  is  put  to  in  pro- 
eonng  safeties  to  a  larger  amount  than  he  would 
otherwise  have  been  in  replevying  the  crops. 
^  Billies,  1  Mees.  &  Wels.  &1.  949 


Semble,  that  an  action  on  the  case  does  not  lie 
against  a  landlord  for  distraining  for  more  than 
me  actual  arrears  of  rent,  unless  the  distress 
taken  be  of  la^gf  r  value  than  will  satisfy  the 
actual  arrears.  Wilkinson  v,  Terry,  I  M.  db  Rob. 
377*Parke.  949 


In  an  action  for  a  vexatious  and  excessive  dis- 
tress, tlie  plaintiff  having  received  the  taxed  costs 
of  his  replevin  on  the  distress,  was  held  not  en- 
titled to  recover,  as  damages,  the  extra  costs  oc- 
casioned to  him  by  the  replevin.  Grace  v.  Mor- 
gan, 2  Bing.  N.  R.  534.  949 

If  goods  are  removed  by  the  landlord,  which 
were  not  taken  originally  under  the  distress,  nor 
included  in  the  inventory,  because  they  were  not 
discovered  at  the  time,  the  tenant  may  maintain 
trover.  Bishop  v.  Bryant,  6  C.  &  P.  484 — Tindal. 

949. 

In  an  action  of  tort  for  an  illegal  sale  of  goods, 
the  jury  are  not  bound  to  find  a  verdict  for  the 
gross  amount  produced  by  the  sale.  Clarke  v, 
Nicholson,  1  Gale,  21.  949 

In  an  action  wt  an  excessive  distress,  the  ques- 
tion is,  what  the  goods  seized  would  have  sold  for 
at  a  broker's  sale.  If  it  be  excessive,  the  plain- 
tiff is  entitled  to  recover  the  fair  value  of  them. 
Wells  V.  Moody,  7  C.  &  P.  59— Parke.  949 

Poufuf.] — If  a  hayward  take  cattle  which  are 
straying  in  a  common  or  lane,  and  they  are  res- 
cued as  he  is  takin?  them  to  the  pound,  tiiis  res- 
cue is  indictable  ;  but  if  the  hayward  take  cattle 
which  are  damage  feasant  in  the  inclosed  land 
of  any  private  occupier,  the  rescue  of  them 
before  they  get  to  the  pound  is  not  indictable ; 
as  in  the  latter  case,  till  the  cattle  get  to  the 
pound,  the  hayward  is  to  be  considered  the  mere 
servant  of  the  occupier.  Rex  v.  Bradshaw,  7  C. 
&  P.  23;^— Coleridge.  950 

By  5  &  6  Will.  4,c.  59,  s.  4,  persons  impound' 
ing  cattle  or  animtds  in  any  common  poundj  open 
pound f  or  dose  pound,  or  in  any  inclosed  place,  are 
to  supply  them  with  good  and  sufficient  aaily  food 
and  nourishment,  the  value  of  tohich  they  may  re- 
cover from  the  owner,  %0 

By  8.  5,  any  person  may  enter  a  pound  to  supply 
mcA  food  and  nourishment,  without  being  Uabu  to 
any  action  or  proceeding  of  any  hind  hy  reason  of 
such  entry. 


DISTRIBUTION  OF  feSTATE. 

Under  the  statute  1  Jac.  2,  c.  17,  brothers  and 
sisters  of  the  half  blood  of  an  intestate  are  equally 
entitled  with  brothers  and  sisters  of  the  whole 
blood  to  share  with  their  mother,  after  the  deaUi 
of  the  intestate's  father,  in  the  personal  property 
of  the  intestate  dying  without  wife  or  children. 
Jessopp  9.  Watson,  1  Mylne  &  K.  665.  £^ 

A.,  by  articles  previous  to  marriage,  covenants 
that  if  ne  should  die  in  the  lifetime  of  his  wife, 
his  executors  should,  within  three  months  after 
his  decease,  pay' to  her  3000Z.  A.  died  in  his 
wife's  lifetime,  and  by  his  will  gave  all  his  personal 
estate  to  his  four  executors,  and  directed  them 
at  the  end  of  three  years  after  his  death  to  divide 
his  property  in  such  ways,  shares,  and  proportions 
as  to  them  should  appear  right.  All  the  execu- 
tors either  died  or  renounced,  and  no  division 
was  made  by  them : — Held,  first,  that  the  property 
wee  divisible  according  to  the  statute  of  distribu- 


2454 


[DISTRIBUTION  OF  ESTATE— EASEMENT] 


tioiM,  as  in  «  case  of  abaolofe  intestacy;  and, 
secondlj,  that  the  widow's  distriiniti¥e  slnn,  be- 
in^rmore  than  30001.,  was  a  peifbnnance  of  the 
covenant  in  the  marriage  articles.  Goldsmid  v. 
Goldsmid,  1  Wik.  C.  C.  140.  951 


EASEMENT. 

in  trespass  for  catting  lines  of  the  plaintifT, 
and  throwing  down  linen  thereon  hanging,  de- 
fendant pleaded  that  he  was  possessed  <?  a  close, 
and  because  the  linen  was  wrongfoUj  in  and 
npon  the  close  he  remored  it  Replication,  that 
J.  £.,  being  seised  in  fee  of  the  close  and  of  a 
messoage  with  the  appurtenances  contiguous  to 
it,  by  lease  and  release  conyeyed  to  W.  H.  the 
messuage,  and  all  the  easements,  liberties,  pri- 
Tileges,  &c.  to  the  said  messuage  belonging,  or 
therewith  then  or  of  Ute  used,  »s  c. ;  that,  before 
and  at  the  time  of  such  couTeyance,  the  tenants 
and  occupiers  of  the  messuage  used  the  eas- 
ment,  &c.  of  fastening  ropes  to  the  said  mes- 
suage, and  across  the  close  to  a  wall  in  the  said 
close,  in  order  to  hang  linen  thereon,  and  of 
hanging  linen  Ihenion  to  dry,  as  often  as  they 
should  haye  occasion  so  to  do,  at  their  free  wifi 
andpleasure ;  and  that  the  plaintiff,  being  tenant 
to  W.  H.  of  the  said  messuage,  did  put  up  the 
Imes,  Ac.  Rejoinder  took  issue  on  the  rirfit  as 
alleged  in  the  replication  .—Held,  that  proof  of 
a  priTilege  for  the  tenants  to  hang  lines  acr(&8 
the  yard  for  the  purpose  of  drying  the  linen  of 
their  own  families  only,  did  not  support  the  al- 
J^d  right.  DreweU  v.  Towler,  3  B.  &  Adol. 
735.  951 

A  verbal  license  is  not  sufficient  to  confer  an 
easement  of  haying  a  drain  in  the  Und  of  another 
to  conyey  water,  and  such  license  may  be  reyoked 
though  it  has  been  acted  upon.  Cocker  v.  Cowper, 

1  C.ltf .  A  R.  418  J  5  Tyr.  103.  Si 

In  1815,  A.  cut  a  drain  in  the  land  of  B.  to  a 
spring,  the  water  from  which  he  appropriated,  as 
It  ran  through  his  own  land.  In  1^,  B.  stopped 
the  drain :— Held,  that  B.  was  entitled  so  to  do, 
nongbthaymgbeen  acquired  by  user  or  length 
of  possession.    Id.  ^ 

An  easenient  is  suspended  as  long  as  the  same 
person  haying  a  term  of  years  in  the  land  a  qua, 
and  a  fee-simple  in  the  land  in  qua,  is  in  powes- 
•ion  of  both ;  but  it  reyiyes  on  a  cessation  of  the 
unity  of  possession,  though  the  change  of  posses- 
sion be  not  accompanied  with  ao  alienation  of  the 
whole  of  either  of  the  estates.  Thomas  v.  Thomas, 

2  C.  M.  &  R.  34 ;  1  Gale,  61.  951 

An  user  of  the  subject  of  an  easement  for  90 
years  will  create  a  right,  though  interrupted  by 
mteryals  of  suspension  by  such  an  unity  of  pos- 
•ession,  such  interyals  being  excluded  from  the 
computetion.    Id. 

When  it  is  sought  to  esteblish  aright  to  an 
easement  by  user,  and  it  appears  that  the  user 
has  yaried,  it  is  for  the  jury  to  say,  whether  the 
user  has  been  commensurate  with  the  right  claim- 
ed.    Id. 

Though  a  party,  haying  an  easement  of  eayes 


droppings  fitm  a  thatch  resting  on  a  wall,  in* 
creases  the  bewfat  of  the  waU  and  the  projection 
of  the  thatch,  £e  may  maintain  an  action  against 
a  neighbor  who  does  an  act  which  not  only  pre- 
yento  the  enjoyment  of  the  extended  easement, 
but  which  would  also  interrupt  it  if  existing  with, 
in  ite  printer  limite.  Id. 

TrespssB  fer  breaking  and  entering  on  the  1st 
January,  1830,  and  on  diyers  other  days  and 
times,  &c.,  one  close  called  the  Railroad,  and 
one  other  close  formerly  used  as  a  railroad,  dec. 
Pleas  (amongst  others),  that  A.,  B.,  &  C.  were 
owners  of  the  closes  on  each  side  of  the  locus  in 
quo,  which  was  a  railway  made  by  the  pla'mti^ 
under  the  authority  of  an  act  of  parliament;  that 
the  adjoining  closes,  contained  minerals,  and  that, 
accoraing    to  the  custom  of  the  country,  the 
minerals  could  only  be  oonyeniently  conyeyed  by 
means  of  a  railway  across  the  locus  in  quo.    The 
plea  then  justified  Uie  trespasses  for  that  pur- 
pose, and  for  the  conyenient  and  necessary  oc- 
cupation of  the  adjoining  closes.     Replication, 
protesting  the  soil  and  freehold,  de  injuria  ab- 
sque residio  cause.    Another  plea  alleged  that 
the  occupiers  of  the  adjoining  closes  had,  for 
twenty  years,  as  of  right,  and  without  interrup- 
tion, used  and  been  accustomed  to  use  the  priyi* 
lege  and  easement  of  passing  and  repassing,  &«., 
and  laying  down  railroads  across  tne  plamtiff 's 
railroad.    Replication  to  this  plea,  trayersing  the 
claim  of  right,  new  assignment  of  other  and  dif- 
ferent purposes,  to  which  there  was  judgment  by 
default  The  particulars  complained  of  trespasses 
committed  by  the  defendante  in  April  and  May, 
1830,  in  a  close,  **  which  now  is  or  heretofore  waa 
a  rail  or'tramroad,"  and  destroying  the  plates  of 
the  same,  and  laying  down  others.    The  eyidence 
was,  that  the  defendants,  in  February,  1829,  took 
up  some  of  the  plates  of  the  plaintiff's  railway, 
and  altered  the  course  of  part  of  it,  carrying  it 
oyer  their  own  land,  and  made  a  transyerse  rail- 
road, which  crossed  the  site  of  the  old  railroad, 
and  also  the  new  railroad : — Held,  that  the  par- 
ticulars were  sufficient.    Monmouth  Canal  Co.  v. 
Harford,  1  C.  M.  &  R,  614 ;  5  Tyr.  68.  961 

Upon  the  issue  with  regard  to  the  more  con- 
yenient occupation  of  the  adjoining  closes,  there 
was  much  eyidence  on  both  sides,  the  plaintifi 
giying  eyidence  to  show  that,  in  constructing  the 
transyerse  railroad,  the  defendante  had  an  ulterior 
object  in  yiew.  The  judge  left  it  to  the  jury  to 
say,  whether  the  transyerse  railroad  was  con- 
structed bona  fide  for  the  more  conyenient  occu- 
Sition  of  the  closes,  or  for  some  other  object : 
eld,  that  this  direction  was  right.  Id. 

Upon  the  issue  with  regard  to  the  twenty  years' 
enjoyment  of  the  easement : — Held,  that  the  de- 
fendante were  bound  to  show  an  uninterrupted 
enjoyment,  as  of  ri^ht,  during  that  period ;  and 
that  the  plaintiffii  might  proye,  under  that  issue, 
applications  by  the  defendante  during  the  twenty 
years  for  leaye  to  cross  their  railroad,  and  that  it 
was  not  necessary  for  them  to  reply  to  such  li- 
cence specially,  under  2  &  3  WiU,  4,  c.  71,  s.  8. 
Id. 


[ECCLESIASTICAL  LAW] 


2455 


ECCLESIASTICAL  LAW. 

Adt€W9im.'] — The  commissioners  of  woods  and 
fbrestB  having  power,  under  the  statute  57  Geo. 
3,  c.  97,  to  ma!se  sale  of  any  royalties,  honors, 
hundreds,  manors,  lordships,  or  franchises,  **  or 
any  rights,  members,  or  appurtenances  thereof," 
beionging  to  the  crown,  within  the  ordering  and 
Bunrey  ol  tiie  Exchequer,  contracted  for  the  sale 
of  the  crown  manor  of  E.,  and  all  courts  baron, 
courts  leet,  and  all  fines,  reliefs,  rents,  profits, 
waifi,  strays,  deodands,  and  **all  other  rights, 
members,  emoluments,  and  appurtenances  there- 
unto l^lonffing  :*' — Held,  that,  this  being  in  effect 
a  contract  tor  sale  by ^ the  crown,  the  advowson  of 
£^  which  was  appendant  to  the  manor,  did  not 
peas  under  the  contract,  and  consequently,  that 
the  purchaser  was  bound  to  take  a  conveyance  of 
the  manor  without  the  advowson.  Att.  Gen.  v. 
SitweU,  1  Y.  &  Col.  559.  953 

Semble,  that  if  the  contract  had  been  between 
subject  and  subject,  the  advowson  would  have 
passed ;  although  at  the  time  of  the  contract,  it 
was  not  known  by  either  party  to  be  appendant 
to  the  manor,  and  therefore  the  sale  of  it  was 
not  in  their  contemplation.     Id. 

Where  a  contract  is  entered  into  for  the  sale 
of  an  estate,  and,  under  the  general  words,  pro- 
perty passes,  which  the  vendor  insists  he  did  not 
mean  to  sell,  but  the  purchaser  by  his  answer 
denies  or  does  not  admit  that  it  was  not  in  his 
eootemplation  at  the  time  of  the  purchase; 
•emble  that  the  vendor  cannot  sustain  a  bill 
agauut  the  purchaser  to  have  the  contract  recti- 
fied on  the  ground  of  mistake,  and  carried  into 
execution.    Id. 

OtrtUesand  CUrks.]— The  curacy  of  the  parish 
of  SL  T.  having  become  vacant,  the  vicar  (in 
whom  the  right  of  nomination  was  vested)  nomi- 
nated a  layman,  who  presented  himself  to  the 
aichbishop  of  D.,  for  the  purpose  of  bein^  ex- 
amined previous  to  ordination.  The  archbishop 
having  refused  to  examine  him : — Held,  that  his 
lefonl  was  discretionary,  and  that  the  court 
would  not  in  such  a  case  ^ant  a  mandamus  to 
the  aiehbishop,  requUing  nim  to  proceed  with 
the  examination.  Rex  v.  Dublin  (Archbishop),  1 
Alcock  &,  Napier,  244.  (Irish),  961 

If  a  parish  clerk  has  been  deprived  of  his  office, 
the  mandamus  to  restore  him  must  be  directed 
to  the  incumbent,  and  not  to  the  church  wardens. 
Ex  parte  Cirketh,  3  Dowl.  P.  C.  327.  963 

To  authorize  such  a  mandamus,  it  must  clearly 
appear  that  he  has  been  deprived  of  his  office. 

Id. 

Semble,  that  he  may  be  deprived  by  thd  in- 
cumbent for  cause.    Id. 

Where  a  vicar  after  summons  to  the  parish 
clerk  to  attend  and  answer  a  charge  of  intoxica- 
tion, amoves  him  upon  insufficient  evidence  of 
the  intoxication,  the  court  will  issue  a  mandamus 
requiring  the  vicar  to  restore  the  clerk.  Rex  v. 
Neale,  4  Nev.  &  M.  868.  And  see  Bowles  v. 
Neale,  7  C.  &  P.  262.  963 

Qoeze,  whether  it  would  be  sufficient  ^und 
to  amove  a  clerk,  that  amongst  his  neighbors 


he  was  notorious  as  a  drunkard,  without  proof  of 
particular  acts  of  intoxication  and  indecorum .' 
Id. 

If  one  act  of  intoxication  be  relied  on,  the  in- 
toxication and  consequent  incapacity  of  the  clerk 
to  perform  the  duties  of  his  office,  when  required 
to  do  so,  should,  at  all  events,  be  distinctly 
proved.    Id. 

Charge  of  Benefices.] — A  composition  with  a 
clergyman  in  consideration  that  his  future  in- 
come may  be  received  by  a  trustee,  and  applied 
in  liquidation  of  his  debts,  ailer  providing  for  a 
curate,  is  void  under  13  Eliz.  c.  20.  Alchin  v. 
Hopkins,  4  M.  &  Scott,  615;  1  Bing.  N.  R.  99. 

963 

A  warrant  of  attorney,  which  appears  upon  the 
face  of  it  to  be  to  secure  the  payment  of  an  an- 
nuity charged  upon  an  ecclesiastical  benefice,  is 
void  under  13  Eliz.  c.  20.  Saltmarshe  v.  Hewitt, 
and  Skrine  v.  Same,  3  Nev.  &  M.  656 ',  1  Adol. 
&  Ellis,  812.  964 

The  court  will  set  aside  a  warrant  of  attorney, 
judgment,  and  execution,  where  the  defeazance 
of  tne  warrant  of  attorney  recites  the  grant  of  an 
annuity  by  A.  to  B.,  rector  of  R.,  (cum  cura 
animarum),  intended  to  be  secured  by  an  inden- 
ture, "  whereby  A.  had  charged  the  annuity  upon 
the  rectory  of  R.  j"  and  that  it  bad  been  agreed 
that  such  annuity  should  also  be  secured  by  that 
warrant  of  attorney ',  and  that  no  execution  should 
issue  until  twenty-one  days'  default  in  payment 
of  the  annuity,  m  which  case  B.  might,  toties 
quoties,  sue  out  such  execution  as  he  should 
think  fit,  and  also  sequester  the  rectory,  to  the 
intent  that  B.  might  recover  the  arrears.    Id. 

Where  the  defeazance  of  a  warrant  of  attorney 
to  confess  judgment,  executed  by  A.,  a  beneficed 
cler&ryman,  stating  that  it  is  given  to  secure  to 
B.  the  payment  of  an  annuity  granted  by  A.  to 
B.  for  his  life,  described  in  a  certain  indenture  of 
even  date  between  the  said  A.  and  B.,  in  which 
indenture  it  was  agreed  that  judgment  should  be 
entered  up  on  the  warrant  of  attorney,  but  that 
no  execution  should  issue  until  the  annuity 
should  have  been  in  arrear  fourteen  days  after 
any  of  the  days  for  payment  expressed  in  the  in- 
denture ;  but  that  if  the  annuity  should  be  so  in 
arrear,  B.  might  sue  out  such  execution  upon  or 
by  virtue  of  Uie  judgment,  as  he  should  think  fit, 
for  the  recovery  of  the  arrears  and  all  costs ;  the 
court  cannot,  upon  a  question  as  to  the  validity 
of  a  sequestraton  granted  bv  the  bishop,  in  pur- 
suance of  a  writ  (3*  levari  mcias  issued  upon  the 
judgment  entered  up  on  the  warrant  of  attorney, 
look  at  the  indenture  for  the  purpose  of  deciding 
whether  it  operated  as  a  charge  upon  A.'s  bene- 
fice. Johnson  v.  Brasier,  3  Nev.  &  M.  653  >  1 
Adol.  &  Ellis,  624.  964 

A  judgment  entered  up  on  a  warrant  of  attor- 
ney, given  by  a  beneficed  clergyman  in  the 
North  Riding  of  Yorkshire,  to  secure  payment  of' 
an  annuity,  need  not  be  registered  under  8  Geo. 
2,  c.  6 ;  for  though  it  may  be  enforced  by  seques- 
tration, the  benefice  is  not  affected  by  the  judg- 
ment. Cottle  V,  Warrington,  5  B.  A  Adol.  447; 
2  Nev.  &,  M.  227.  .964 


52466 


[ECCLESIASTICAL  LAW] 


A  Ticar,  whilst  the  13  Eli«.  c.  20,  agaiiut 
eharging  benefices,  was  repealed,  choreed  his 
livinff  with  an  annuity,  ana  covenanted,  if  he 
should  exchange  his  living,  to  secure  the  annuity 
by  charging  and  demising  the  new  living,  and 
that  in  Uie  meantime  it  should  be  charged  with 
the  annuity.  He  afterwards  ezchanffed  his  living, 
but  did  not  execute  any  deed  until  ailer  the  re- 
vival of  the  13  Eliz. : — Held,  that  the  covenant 
was  a  subsisting  charge  on  the  new  living,  and  a 
receiver  was  appointed  to  provide  for  the  annuity. 
Metcalfe  v.  York  (Archbishop),  6  Simon,  224.  964 

Dilapidatioju,'] — ^The  incumbent  of  a  living  is 
bound  to  keep  the  parsonage  house,  buildings, 
and  chancel,  m  good  and  substantial  repair,  re- 
storing and  rebuilding,  when  necessary,  according 
to  the  original  form,  without  addition  or  modern 
improvement ;  but  he  is  not  bound  to  supply  or 
maintain  anything  in  the  nature  of  ornament,  as 
painting  (unless  necessary  to  preserve  exposed 
timber  from  decay),  and  whitewashing  and  paper- 
ing: and  in  an  action  for  dilapidations  by  the 
successor  against  the  representative  of  a  deceased 
rector,  the  damages  are  to  be  calculated  upon 
this  principle.    Wise  v.  Metcalfe,  5  M.  &,  R.  235. 

965 

Under  an  inclosure  act,  lands  are  fenced  in 
and  allotted  to  the  vicar  and  his  successors,  in 
lieu  of  tithes.  The  vicar  dies,  leaving  the  fences 
out  of  repair: — Held,  that  his  executors  were 
liable  to  be  sued  by  the  succeeding  vicar  for 
dilapidations.  Bird  v.  Relph,  4  Nev.  Sc  M.  878 ; 
a  Adol.  AEXl\B,m.  965 

Neglect  to  cultivate  the  glebe  land  in  a  hus- 
band-like manner,  is  not  a  duapidation  for  which 
an  incumbent  can  recover.  Bird  v,  Relph,  4  B. 
A  Adol.  826 ;  1  Nev.  &  M.  415.  966 

TUhes."] — Notwithstanding  an  endowment  of 
1374,  conferring  all  small  tiSies  on  a  vicar,  the 
court  refused  to  set  aside  a  verdict  finding  the 
right  to  potatoes  grown  in  fields  to  be  in  the  rec- 
tor, evidence  having  been  adduced  from  which  it 
might  be  presumed  that,  on  good  consideration, 
en  alteration  had  been  made  m  the  endowment 
previously  to  the  restraining  stat.  of  13  Eliz. 
Gilbert  v.  Towns,  4  M.  &  Scott,  735  ;  1  Bing.  N. 
R.  173.  968 

The  words  ^  white  tithes''  have  no  general 
meaning,  but  are  applicable  to  distinct  thmgs  in 
distinct  parishes.  The  meaning,  therefore,  of 
those  words,  as  applicable  to  a  particular  parish, 
is  to  be  ascertainea  only  from  the  usage  in  that 
parish.    Becher  v.  Claye,  1  T.  &  Col.  448.  966 

By  5  &  6  Will.  4,  c.  75,  turnips  severed  for  the 
convenienee  of  feeding  on  the  land  and  fed  off  are 
to  be  tUked  as  tf  they  had  been  eaten  tnUunU  bei 
severed. 


^ 


By  5  &  6  Will.  4,  e.  74,  faeiliHes  are  given  for 
the  recovery  of  tithes  under  102. 

A  new  mill  erected  on  the  site  of  an  ancient 
mill  is  exempt  from  tithes ;  but  if  it  is  built  partly 
on  an  ancient  mill  and  partly  on  a  new  site,  it  is 
not  exempt    Newcome  9*  Matlww,  5  Sim.  243. 

970 


In  a  suit  for  tithes  between  a  vicar  and  the 
occupier  of  a  mill,  an  old  map  of  the  parish,  be- 
longing to  the  lord  of  the  manor,  was  not  ad- 
mitted as  evidence  for  the  defendant.     Id. 

The  mere  non-payment  of  tithes  is  not  a  suffi- 
cient answer  to  a  claim  of  tithes  made  by  a  lay 
impropriator.  Andrews  r.  Drever,  2  Scott,  1 ;  2 
Bing.  N.  R.  1.  971 

The  decisions  against  raising  a  presumption  of 
a  release  or  a  grant,  as  against  a  lay  impropriate: 
of  tithes,  from  continual  non-payment  of  tithes, 
are  so  strong,  that  the  court  of  errors  in  the  Ex- 
chequer chamber  refused  to  overrule  them,  though 
dissatisfied  with  the  ground  upon  which  the  de- 
cisions rest,  and  referred  the  parties  to  their 
remedy  by  writ  of  error  in  parliament.  Bayley 
V.  Drever  (m  error),  3  Nev.  dk  M.  885;  1  Adol. 
&  EUis,  449.  971 

Perception  of  the  tithe  of  com  is  evidence  of 
title  to  other  rectorial  tithes,  as  hay.    Id. 

In  debt  for  not  setting  out  tithes,  it  is  com- 
petent to  the  plaintiff  to  give  evidence  of  the  per- 
ception of  the  tithes  to  the  land  in  question  by 
parties  not  shown  to  be  in  privity  of  estate  wita 
the  plaintiff,  and  to  produce  leases  of  the  tithes 

granted  by  those  persons  to  former  occupiers  of 
le  defendant's  land.    Id. 

Though  it  is  not  necessary  to  produce  the  ac- 
tual deed  creating  a  composition  real,  still  reason- 
able evidence  must  be  given  to  make  it  probable 
that  such  a  deed  once  existed ;  and  the  mere  cir- 
cumstance of  the  possession  of  a  piece  of  land 
mentioned  in  various  ancient  documents  as  hav- 
ing been  assigned  to  the  curate,  is  net  a  suffi- 
cient ground  for  any  such  presumption.  Dent  9. 
Rob,  1  Y.  dfcCol.  1.  972 

The  deanery-house,  or  residence  of  the  dean  of 
St.  Paul's,  is  liable  to  tithes  at  2s,  9d»  in  the 
pound,  on  the  full  value,  under  the  stat.  37  Hen. 
8,  c.  12.  St.  Paul's  (Warden,  &c.)  v.  St  Paul's 
(Dean),  1  Wils.  Exch.  1.  977 

On  a  bill  filed  to  enforce  the  paj^ment  of  cer- 
tain specified  sums  in  lieu  of  tithes,  it  was  proved 
that  tne  respective  occupiers  of  certain  hooses, 
either  ancient  or  built  upon  ancient  sites,  and 
situate  in  that  part  of  the  parish  of  St.  Andrew, 
Holborn,  which  is  without  the  city  of  London, 
had  for  the  last  100  years  uniformly  paid  certun 
specified  and  invariable  sums  in  respect  of  each 
house ;  but  such  payments  were  never  made  by 
the  owners  or  occupiers  of  houses  built  upon  new 
sites.  The  payments  varied  in  amount  on  dif- 
ferent houses,  and  were  not  in  any  distinct  rate 
or  proportion  to  the  value  of  the  houses  inter  se, 
ana  were  not  general  through  this  part  of  the 
parish : — Held,  first,  that  the  court  were  war- 
ranted in  inferring  from  these  facts,  that  tha 
payments  had  been  made  from  time  immemorial ; 
secondlv,  that  they  could  assign  a  legal  origin 
for  such  payments,  and  that  uey  comd  leguly 
be  enforced  by  the  rector  of  the  parish.  Beres- 
ford  V.  Newton,  1  C.  M.  &  R.  901 ;  5  Tyr.  432. 

976 

In  an  action  for  tithes,  the  p>laintiff  introduced 
two  counts  into  the  declaration;  one  for  the 
treble  value  of  tithes  not  set  out ;  the  other  for 
the  same  tithes  bargained  and  sold :— Held,  that 


[ECCLESIASTICAL  LAW— EJECTMENT] 


2457 


this  wu  a  Yiolation  of  the  rule  of  H.  T.  4  Will* 
4,  ng.  1, 8. 5,  and  the  court  ordered  the  last  count 
to  be  struck  out^  with  ooets ;  but  bound  the  de« 
fendant  to  aeree  not  to  set  up  a  eomposition  at 
the  trial,  or  that  if  he  did,  the  declaration  might 
be  amended.  Lawrence  v.  Stephens,  3  Dowl  P. 
C.  777.  1J77 


CkutdktMrden.^ — Where  a  meeting  for  the 
election  of  churchwardens  takes  place  in  the 
parish  church,  in  pursuance  of  a  notice  that  such 
meeting  would  be  held  at  the  narish  church,  and 
that  in  case  a  poll  should  be  demanded,  the 
meeting  would  be  immediately  adjourned  to  the 
town-hall,  the  chairman  may,  upon  a  poll  being 
demanded,  adjourn  the  meeting  to  the  town- 
hall,  although  a  majority  of  the  Yoters  present 
obJMt  to  such  adjournment.  Rez  v.  Chester 
(Archdeacon),  3  Nev.  &  M.  413.  978 

The  right  of  adjourning  the  business  in  pro- 
gress at  a  meeting  is  vested  in  the  persons  as- 
sembled, and  not  in  the  chairman.  Id. 

Where  ^wo  sets  of  persons  have  each  a  color* 
able  title  to  the  officer  of  churchwarden,  both 
ought  to  be  sworn  tn.  The  ordinary  is  bound 
to  swear  in  churchwardens  elect  immediately 
upon  their  applying  to  be  sworn  in,  notwith- 
standing an  usaee  not  to  swear  in  until  the 
first  visitation  aner  Easter.  Rez  v»  Middlesex 
(Archdeacon),  5  Nev.  &  M.  494.  978 

The  rule  fbr  a  mandamus  commanding  the 
ecclesiastical  authorities  to  swear  in  a  church* 
warden  dulv  appointed  is  absolute  in  the  first 
instance.    £z  parte  Lowe,  4  Dowl.  P.  C.  15. 

978 

The  property  of  the  bell  ropes  of  a  parish 
ehnrch  is  in  the  churchwardens  of  the  parish. 
Jackson  v.  Adams,  2  Scott,  599 ;  3  fiing.  N.  R. 
402;  1  Hodges,  339.  978 

A  churchwarden  has  no  authority  to  pledge 
tifee  credit  of  his  co-churchwardens  for  the  repairs 
to  the  church.  If  he  orders  such  repairs  witoout 
the  knowledge  of  the  other  churchwardens,  he  is 
liable  individually.  Northwaite  9.  Bennett,  2  C. 
&  M.  316 ;  4  Tyr.  236.  978 


Ckurek  Ratss."] — Semble,  that  justices  have  in 
no  ease  jurisdiction,  under  53  Greo.  3,  c.  127,  s.  27, 
to  make  an  order  for  the  payment  of  an  assess- 
ment to  a  church  rate,  the  validity  of  which  has 
al  any  time  been  questioned  in  we  Ecclesiastical 
court,  although  such  court  had  also  decided  in 
fiivor  of  the  rate.  Rex  e.  Sillifant,  5  Nev.  &  M. 
640.  979 

Where  magistrates  are  called  upon,  under  53 
Geo.  3,  c.  127,  to  enforce  a  church  rate  good  upon 
the  &ce  of  it,  it  is  no  ground  of  objection  berore 
tfaem  that  the  rale  was  m  fiict  made  for  the  reim^ 
hmrtemaU  of  the  churchwardens.    Id. 

Hie  court  will  not  call  upon  justices  to  make 
an  order  for  the  payment  or  a  church  rate  when 
there  is  any  ^oubt  whether  the  justices  have 
jurisdiction  t4>  make  such  order.    Id. 


Other  things.] — ^The  patron  of  a  benefice  with 
cure  of  souls,  under  the  value  of  81.  in  the  king's 
books,  being  also  incumbent  of  the  same  bene- 
fice, accepted  another  with  cure,  and  thereupon 
presented  a  clerk  to  the  proper  ordinary,  wha 
was  aflerwards  admitted,  instituted,  and  inducted, 
on  his  presentation,  to  the  former  living : — Held, 
that  the  first  benefice  thereby  became  actually 
void,  from  the  time  of  presentation,  within  the 
meaning  and  provisions  of  the  stat.  28  Hen.  8^ 
c.  11,  and  the  succeeding  incumbent  entitled  to 
the  tithes  from  such  presentation.  Betham  v, 
Gregg,  4  M.  &  Scott,  230 ;  10  Bing.  352.        956 

Where  the  incumbent  of  a  benefice  cannot  be 
found,  service  of  a  monition,  by  leaving  it  at  the 
parsonage-house,  is  sufficient,  notwithstanding- 
the  incambent  does  not  habitually  reside  in  it. 
Green  v.  Corden,  2  Bing.  N.  R.  eS7.  952 

Where  parishioners,  dwelling  within  a  cha- 
pelry,  contribute  to  the  repairs  of  the  parish 
church,  it  is  strong,  but  not  conclusive  evidence^ 
that  the  chapel  is  a  chapel  of  ease  to  the  inhabi- 
tants of  the  parish,  and  not  a  separate  and  dis- 
tinct chapelry.    Dent  v.  Rob,  1  T.  &  Col  1.  954 

If  an  incumbent  contract  to  let  lands  belong- 
ing to  the  benefice  for  a  term  of  years,  his  re- 
signation of  the^  living  during  tne  term  is  a 
breach  of  contrac{'.  Price  v.  WiOiams,  1  Mees.  ds 
Wels.  6.  962 

In  quare  impedit,  there  is  no  general  issue  in- 
volving the  question  of  the  right  to  present.  Meath 
(Bishop)  V.  Winchester  (Marquis),  1  Alcook  Sl 
Napier,  508.  (Irishy.  958 

Quare  impedit  against  three.  Two  of  the  de- 
fendants were  summoned  upon  a  writ  returnable 
on  the  8th  of  January,  1834,  and  appeared  on  the 
1 1th.  The  sheriff  having  received  nihil  as  to  the 
third^  defendant,  an  alias  quare  impedit  i6sue4 
against  him,  returnable  on  the  15tn  April,  on 
waich  he  was  summoned  and  appeared.  A  joint 
declaration  against  the  three  defendants  was  deli- 
vered on  the  10th  January,  1835  :-->Held,  that, 
as  to  two  of  the  defendants,  the  cause  was  out  of 
court.    Barnes  v.  Jackson,  1  Scott,  520.  968 

If  a  dissenting  minister  be  appointed  minister 
of  the  chapel  by  a  part  of  the  trustees  of  it,  he 
cannot  maintain  an  action  against  all  the  trustees 
for  his  salary ;  and  the  fact  of  all  of  them  having 
signed  a  notice  to  him,  demanding  the  possession 
of  the  chapel,  will  not  make  any  difference. 
Cooper  V,  Whitehouse,  6  C.  &  F.  545-— Alderson. 

963 


EJECTMENT. 

Lessor's  TitU.} — ^The  nominal  plaintiff  in  eject- 
ment cannot  recover  upon  a  joint  demise  by  per- 
sons who,  upon  the  evidence,  appear  to  be  ten- 
ants in  common.  Doe  d.  Poole  v.  £rrington,  3 
Nev.  &  M.  646 ;  1  Adol.  &  Ellis,  750.  985 

An  entry  to  avoid  a  fine  must  be  made  animo 
clamandi,  but  it  need  not  be  accompanied  with  a 
declaration  that  the  object  .in  the  entry  is  to 
avoid  the  fine.  Doe  d.  /ones  9.  Williams,  2  Nev. 
4&  M.  602 ;  5  B.  dt  Adol.  783.  966 

The  usual  entry  in  eases  of  vacant  poasessioa 


1458 


[EJECTMENT] 


win  in  cettiia  cues  be  dispensed  with.    Dot  d. 
Frith  V.  Roe,  2  Dowl.  P.  C.  431.  986 

Where  a  rentrchar^  is  gnmted  with  power  to 
the  giantee,  in  case  the  rent  shoold  be  in  arrear 
fiir  a  certain  spaoe  of  time,  to  enter  and  enjoj 
the  lands  charged,  and  to  receiTe  and  take  tlie 
rents,  iasoes,  and  pn^ts,  lor  his  own  nse  and 
benefit,  until  satisfaction  of  the  arrean  of  rent, 
with  all  costs ;  the  grantee  may,  npon  the  rent 
becoming  in  arrear,  maintain  ejectment  against 
the  ter-tenant,  withoat  proof  of  a  prerious  de- 
mand of  the  rent.  Doe  d.  Biass  v,  Horriej,  3 
Ner.  A.  M.  567.  9»7 

In  ejectment,  evidence  that  the  lessor  of  the 
plaintiff  received  rent  for  the  premises  from  A., 
who  formerly  occupied  them,  and  also  from  the 
parish  officers,  is  admissible,  although  the  de- 
fendant does  not  claim  under  A.  or  the  parish 
officers.  Doe  d.  Litchfield  (Earl)  e.  Stacey,  6  C. 
&  P.  130-Tindal.  968 

In  ejectment  on  the  sereral  demises  of  a  mortr 
gagor  and  mortgagee,  the  defendant  offered  to 
prove  that,  seven  or  eight  years  beck,  and  afler 
the  execution  of  the  mortgage,  he  brought  eject- 
ment against  the  mortgagor  (at  that  time  in  pos- 
session) ;  that  the  cause  was  referred  to  arbitra- 
tion; nid  that  the  award  was  in  favor  of  the 
now  defendant,  who  thereupon  entered  under  a 
writ  of  possession,  and  had  occupied  the  pre- 
mises ever  since  : — Held,  that  these  proceedings 
were  not  admissible  evidence  for  the  defendant 
against  the  mortgagee,  although  he  was  present 
at  one  meeting  before  the  arbitrator ;  it  not  ap- 
pearing that  he  took  any  part  in  the  proceedings. 
Doe  d.  Smith  v.  Webber,  1  Adol.  &  Ellis,  119. 

988 

The  moitffage  was  executed  in  1815.  From 
that  time  till  Uie  defendant  obtained  possession 
as  above  stated,  the  mortgagor  had  occupied  the 
premises : — Held,  that  this,  thouf  h  a  possession 
of  less  than  twenty  vears,  entitled  the  mortgagee 
to  recover  against  the  defendant,  the  latter  hav- 
ing adduced  no  admissible  evidence  in  support  of 
his  own  claim.  Id. 

Where  a  vicar  brings  ejectment  claiming  in 
right  of  his  vicara^,  a  letter  written  by  a  former 
vicar  is  admissible  m  evidence  for  the  aefendant ; 
and  a  witness  for  the  lessor  of  the  plaintiff  may 
4R  asked  as  to  what  is  inscribed  on  a  tablet  fixed 
up  in  the  church.  Doe  d.  Coyle  v.  Cole,  6  C.  & 
P.  359— Patteson.  988 

If  a  lessor,  who  has  only  an  equitable  title, 
grants  a  lease,  he  has,  as  against  his  lessee,  a 

ffood  title  by  estoppel ;  but  if,  aAer  the  lease,  the 
essor,  by  a  mortga^  deed,  grant  all  his  interest 
in  law  and  in  equity  to  a  mortgagee,  the  lessee 
may  give  in  evidence  this  deed,  and  thus  prevent 
the  lessor  from  recovering  in  ejectment  on  a  for- 
feiture of  the  lease.  Doe  d.  Marriott  v.  Edwards, 
6.C.  &.  P.  208— Parke.  988 

A  consent  rule  in  an  ejectment  for  lands  and 
mines,  by  which  the  party  appeared  to  defend  for 
*'a  certain  tinbouna  (setting  out  its  abuttals) 
containing  a  certain  mine,"  £c, ;  was  held  insuf- 
ficient, on  the  ground  that  ejectment  will  not  lie 
ibr  a  tinboond.     The  defence  should  be  for  the 


nnne  which  the  defendant  is  working  muler  the 
tinboQnd.  Fahnooth  (Earl)  e.  AUerMm,  1  Mees. 
&Wds.210;  4DowLF.  C.701.  964 


Between,  Lamdlord  and  7ai«if .]— If  a  landlord 
allow  his  tenant  to  hold  over  above  a  year,  with- 
out taking  any  step  to  recover  the  premises,  he 
is  not  entitled  to  the  benefit  of  the  1  Geo.  4,  c. 
87, 8. 1.  Doe  d.  Thomas  v.  Field,  2  DowL  P.  C. 
542.  990 

A  notice  gj^en  by  a  landlord  in  ejectment, 
under  the  1  Geo.  4,  cl  87,  s.  1,  signed  ^  A.  B., 
agent  for  the  plaintiff,"  is  sufficient  Such  a 
notice  is  sufficient,  ahhoogh  it  only  requires  the 
tenant  to  appear  and  be  maide  defendant,  and  find 
such  bail,  dec,  **  and  for  such  purposes  as  are 
specified  in  the  act  <»f  parliament,"  without  go- 
ing on  to  state  those  purposes  in  detail.  Beard 
v.  Aoe,  1  Mees.  &  Wels.  960.  969 

An  application  under  the  1  Geo.  4,  e.  87,  that 
the  defendant  in  ejectment  should  give  securi^, 
may  be  made  by  one  of  several  tenants  in  com- 
mon, and  it  is  not  necessary  that  the  attesting 
witness  should  depose  to  the  execution  of  the 
lease,  if  it  is  sufiiciently  proved  by  other  witness- 
es. Doe  d.  Morgan  or  Mayor  v.  Rotherham,  3 
Dowl.  P.  C.  690 ;  1  Gale,  157.  969 

The  statute  11  Geo.  4  d:  1  Will.  4,  c.  70,  s.  96, 

for  expediting  the  remedy  of  the  landlord,  where 
his  ri|^t  <^  entry  accrues  during  or  immediately 
after  an  iasuable  term,  does  not  apply  to  the  case 
I  of  a  tenancy  under  an  agreement,  expiring  the 
day  before  the  first  day  of  the  term.  Doe  d. 
Somerville  e.  Roe,  4  M.  &  Scott,  747.  .  991 

Dedaratian.'] — A  declaration  in  ejectment  must 
begin  and  conclude  with  the  quo  minus  clauses, 
as  liefore  the  2  Will.  4,  c.  ^,  the  Uniformi^  of 
Process  Act ;  the  general  rules  of  M.  T.  3  Will. 
4,  No.  15,  not  being  applicable  to  any  but  actions 
merely  personal.  Doe  d.  GiUett  e.  Roe,  4  TVr. 
649;  1  C.  M.  &  R.  19;  2  Dowl.  P.  C.  G90. 

991 

To  found  a  motion  for  judgment  against  the 
casual  ejector,  a  declaration  intituled  uus,  ^  In 
the  Common  Pleas,  June  12th,  1834,"  will  suf- 
fice, notwithstanding  the  15th  rule  of  M.  T.  3 
Will.  4,  does  not  apply  to  actions  of  ejectment. 
Doe  d.  Ashman  v.  Roe,  1  Scott,  166 ;  1  Bing.  N. 
R.  253.  991 

A  declaration  in  ejectment,  entitled  by  mis- 
take of  T.  T.  6  Will.  4,  instead  of  5  WiU.  4, 
dated  August  1st,  1835,  was  held  sufficient  to 
warrant  a  rule  for  judgment  against  the  casual 
ejector.  Doe  d.  Smithers  v.  Roci  4  Dowl.  P.  C. 
374.  991 

The  rule  of  court,  M.  T.  3  Will.  4,  that  every 
declaration  shall  be  entitled  of  the  day  of  the 
month  and  year  on  which  it  is  filed  and  delivered, 
does  not  apply  to  declarations  in  ejectment  The 
court  refused  to  set  aside  a  declaration  in  eject- 
ment in  which  the  notice  was  dated  of  a  day  ailer 
the  service  of  declaration.  Doe  d.  Evans  v.  Roe, 
1  Adol.  &  EUis,  11.  991 

The  statement  of  a  term  not  yet  arrived,  in 


[EJECTMENT] 


2459 


tntituling  m  declaration  in  ejectment,  is  immate- 
riali  if  sach  information  as  to  the  time  of  ap- 
peiranoe  is  ffiven  in  the  notice.  Doe  d.  Gore  v. 
Row,  3  Dowl.  P.  C.  5.  991 

The  yenue  in  the  margin  in  the  declaration  in 
ejectment  is  immaterial,  if  the  venue  in  the 
body  of  the  declaration  is  correct.  Doe  d.  Good- 
win V.  Roe,  3  Dowh  P.  C.  323.  992 

If  there  is  a  dispute  as  to  the  inheritance,  the 
court  will  not  compel  the  trustee  of  an  out- 
standinjr  term  attenaing  the  inheritance  to  lend 
his  name  to  either  party  in  an  action  of  eject- 
ment. Doe  d.  Proaser  v.  King,  2  Dowl.  P.  C.  580. 

992 

A  demise  in  ejectment  of  fifty  **  messuages,  one 
hundred  acres  of  land  in  all  those  one  moiety  or 
full  half  of  the  town  and  lands  of  C.  -."—Held  suf- 
ficiently certain.  Coyne  v.  Bartley,  1  Alcock  dt 
Napier,  310.  (ImA).  992 

A  declaration  in  ejectaient  on  the  demise  of 
the  churchwardens  and  overseers  of  a  parish,  to 
recover  parish  property,  containing  two  sets  of 
counts ;  one  specifying  the  names  of  the  indivi- 
duals, and  the  other  not.  The  court  ordered  one 
set  to  be  struck  out : — Held,  also,  that  a  motion 
for  that  purpose,  involving  a  point  of  law  and  the 
construction  of  an  act  of  parliament,  was  pro- 
perly brought  before  the  full  court.  Doe  d.  Llan- 
denlio  r.  Roe,  4  Dowl.  P.  C.  222.  992 

In  an  ejectment  for  non-payment  of  rent,  the 
declaration  described  the  premises  as  situate  in 
the  barony  of  M.  The  lease  described  them  as 
in  the  barony  of  Upper  M.,  and  it  was  conceded 
that  there  were  two  baronies  in  the  county,  one 
called  Upper  M.,  the  other  Lower  M. : — Held, 
that  the  defendant  could  not  object  to  this  am- 
biguity of  description  in  the  declaration.  Tyrrell 
V.  Quinlan,  1  Alcock  &  Napier,  135.  (Irish).  992 

Where  the  notice  at  the  foot  of  a  declara- 
tion in  ejectment  contains  the  names  of  many 
tenants,  it  is  sufficient  that  the  copy  served  on 
each  should  contain  the  name  of  that  one  only. 
Doe  d.  Field  v.  Roe,  1  Har.  &  WoU.  616.       992 

Where  the  Christian  name  in  the  notice  to  a 
declaration  in  ejectment  is  incorrect,  and  there 
is  an  afiidavit  that  the  person  served  is  the  per- 
son intended,  it  is  sumcient.  Doe  d.  Frost  v. 
Roe,  3  Dowl.  P.  C.  14, 563;  1  Har.  A  WoU.  217. 

992 

It  is  not  sufficient  to  state  in  the  notice  at  the 
foot  of  a  declaration  in  ejectment,  that  the  tenant 
is  '^  to  appear  in  due  time.'*  Doe  d.  Forbes  9. 
Roe,  2  Dowl.  P.  C.  420.  992 

If  the  service  is  regular,  the  substitution  of 
**  Jacob"  for  ^'  Sarah  in  the  notice  is  imma- 
terial.   Doe  d.  Folkes  v.  Roe,  2  Dowl.  P.  C.  567. 

992 

A  notice  at  the  foot  of  a  declaration  in  eject- 
ment, omitting  to  state  that  the  consequence  of 
the  action  not  being  defended  will  be  turning  the 
tenant  out  of  possession,  is  defective,  but  may  be 
amended  on  terms.  Doe  d.  Darwent  v.  Roe,  3 
Dowl.  P.  C.  336.  992 


Vol.  IV. 


24 


Service  on  Tenant.] — Service  on  an  under 
joint  tenant  is  good  service  on  him  and  a  joint 
tenant.  Doe  d.  ilutehinson  v.  Roe,  2  Dowl.  r .  C. 
418.  993 

Where  three  sisters  lived  together,  and  there 
was  service  of  a  declaration  in  ejectment  on  one 
of  them,  by  delivery  to  the  other  two  the  day 
before  the  term  commenced,  the  court  granted  a 
rule  nisi  for  judgment  against  the  casuiu  ejector. 
Doe  d.  Grimes  r.  Roe,  4  Dowl.  P.  C.  86,  591 ;  1 
Har.  and  WoU.  369.  993 

Service  an  Wife.'] — Service  in  ejectment  on 
the  wife  of  the  tenant  in  possession  on  the  pre- 
mises is  sufficient,  although,  from  the  conduct 
of  the  tenant  and  his  wife,  his  Christian  name  is 
not  stated  in  the  notice  at  the  foot  of  the  decla- 
ration. Doe  d.  Warne  v.  Roe,  2  Dowl.  P.  C.  517. 

994 

Where  there  was  service  of  a  declaration  in 
ejectment  on  the  wife  of  the  brother  of  the  ten- 
ant on  tlic  premises,  who  afler wards  said  she 
should  go  and  see  the  tenant,  and  she  next  day 
left  the  premises,  the  court  granted  a  rule  nisi 
for  judgment  against  the  casuS  ejector.  Doe  d. 
Hubbard  a.  Roe,  1  Har.  &•  WoU.  371.  994 

The  court  will  not  allow  a  wife's  declaration, 
with  respect  to  her  husband  being  out  of  the  wav, 
to  avoid  being  arrested  or  annoyed,  to  be  used  ror 
the  purpose  of  obtaining  judgment  against  the 
casual  ejector.  Doe  d.  Wikon  v.  Smith,  3  Dowl. 
P.  C.  379.  994 

Service  of  a  declaration  in  ejectment  on  the 
wife  of  the  tenant  at  her  husband's  residence,  is 
sufficient,  although  the  husband  does  not  reside 
on  the  premises  sought  to  be  recovered.  Doe  d. 
Southampton  (Lord)  v.  Roe,  1  Hodges,  24.      994 


Service  on  Children  and  Family.] — Service  on 
the  daughter  on  the  premises  willnot suffice,  un- 
less it  is  shown  that  the  declaration  came  to  the 
hands  of  the  father  with  proper  explanation. 
Doe  V,  Roe,  2  Dowl.  P.  C.  414.  994 

Rule,  that  the  service  of  a  declaration  in  eject- 
ment on  the  son  of  the  tenant  should  be  a  good 
service,  made  absolute,  where  the  affidavit  of  the 
tenant,  on  showing  cause,  did  not  deny  having 
received  the  declaration  from  his  son.  Doe  d. 
WatU  V.  Roe,  1  Har.  &  WoU.  199.  994 

Where  there  was  service  in  ejectment  on  the 
daughter  of  the  tenant  in  possession,  and  he  on 
the  first  day  of  term  acknowledged  the  receipt  of 
the  declaration,  but  not  that  he  had  received  it 
before  the  term : — Held,  that  it  was  not  suffi- 
cient Doe  d.  Harris  t?.  Roe,  1  Har.  (k  WoU. 
372.  '     994 

Service  of  a  declaration  in  ejectment  upon  the 
sister  of  the  tenant  in  possession,  who  says  that 
she  receives  it  on  behalf  of  her  sister,  wUl  not 
be  good  unless  agency  be  shown.  Doe  d.  Tibbs 
9.  Roe,  3  Dowl.  P.  C.  380.  994 

Service  on  the  daughter  on  the  premises  is 
insufficient,  even  for  a  rule  nisi,  although  there 
may  be  reason  to  believe  the  wife  is  awaie  of  the 
proceeding,  and  keeps  out  of  the  way  to  avoid 


2460 


[EJECTMENT] 


beinff  served.    Doe  d.  George  v.  Roe,  3  Oowl.  P. 
C.9.  994 

If  a  tenant  in  poeoeasion  is  clearly  keeping 
out  of  the  way  to  avoid  being  served,  the  court 
will  grant  a  rule  nisi  for  judgment,  if  the  son  is 
reguuLrly  served  on  the  premises.  Doe  d.  Luff 
©.Roe,  3  Dowl.  P.  C.  575.  994 

Service  of  a  declaration  in  ejectment  on  the 
daughter  of  the  tenant  in  possession  is  not  good 
service,  unless  it  be  shown  to  have  come  to  the 
hands  of  the  tenant.  Doe  d.  Brittlebank  v.  Roe, 
4  M.  <b  Scott,  562.  994 

Service  of  a  declaration  in  ejectment  on  the 
wife  of  the  son  of  the  tenant  of  the  premises : — 
Held,  to  be  sufficient  to  mnt  a  rule  nisi  for 
judgment  against  the  casual  ejector,  where  it  ap- 
peared that  the  tenant  was  in  America,  and  that 
his  son  managed  his  business.  Doe  d.  Potter  v. 
Roe,  2  Scott,  378 ;  1  Hodges,  316.  994 

A  declaration  and  notice  in  ejectment  were 
served  upon  a  servant  of  the  tenant,  whose  wife 
subsequentlv  admitted  that  she  had  received 
them,  and  had  given  them  to  her  husband  : — 
Held  insufficient.  Doe  d.  Tucker  v.  Rue,  4  M. 
&  Scott,  165 ;  2  Dowl.  P.  C.  775.  995 

Service  of  a  declaration  and  notice  in  eject- 
ment upon  a  servant  of  the  tenant  upon  the 
premises,  is  not  sufficient,  unless  the  servant 
makes  affidavit,  (or  it  otherwise  appears),  that 
they  came  to  the  tenant's  hand,  or  where  this 
cannot  be  procured,  unless  considerable  diligence 
is  shown  to  have  been  used  to  serve  the  tenant 
personally.  Doe  d.  Pugh  v.  Roe,  1  Scott,  464 ; 
1  Hodges,  6.  995 

Service  of  a  declaration  in  ejectment  on  the 
bailiff  of  the  tenant,  is  sufficient  foundation  for 
judgment  against  the  casual  ejector,  where  it 
appears  to  have  duly  come  to  the  hands  of  the 
tenant's  attorney,  who  promises  to  appear.  Jenny 
d.  MiUs  V.  Cutts,  1  Scott,  52.  996 


Premises  vatant.] — Where  premises  are  totally 
deserted,  and  there  is  no  one  on  whom  servioe 
can  be  efiected,  judgment  cannot  be  had  against 
the  casual  ejector,  but  the  proceeding-  must  be  as 
upon  a  vacant  possession.  Doe  d.  Norman  v. 
Rowe,  2  Dowl.  P.  C.  399,  428.  995 

An  affidavit  of  service  on  W.  D.,  tenant  in 
possession,  by  affixing  of  the  declaration  on  the 
door,  no  person  being  therein : — Held  to  be  in- 
sufficient for  judgment  against  the  casual  ejector. 
Doe  r.  Roe,  4  Dowl.  P.  C.  173.  996 

Rule  for  judgment  against  the  casual  ejector 
refused,  where  Uie  house  was  found  shut  up  three 
days  before  the  term,  and  the  declaration  was 
fi^d  on  the  door,  it  appearing  that  the  tenant 
was  in  the  habit  of  shutting  up  the  house  and 
staying  away  for  several  days  together.  Doe  d. 
Roupel  9.  Roe,  1  Har.  &  WoU.  2Sr.  996 

Where  part  of  the  property  for  which  an 
ejectment  was  brought,  consisted  of  three  un- 
finished houses  which  were  untenanted,  and 
there  was  no  property  in  them,  the  court  re- 
fused to  allow  the  service  of  the  declaration  by 
sticking  it  up  on  the  outer  door,  but  obliged  the 


lessor  of  the  plaintiff  to  proceed  as  opoii  a 
vacant  possession.  Doe  d.  Schovel  or  Showell 
V.  Roe,  3  Dowl.  P.  C.  691 ;  2  C.  M.  &  R.  42. 

996 

Other  Service.'] — Where  service  of  a  dedara- 
tion  in  ejectment  was  made  at  a  house  where  it 
was  sworn  it  was  believed  the  tenant  was,  but 
was  denied,  for  the  purpose  of  avoiding  the  ser- 
vice, the  court  granted  a  rule  nisi  for  judgment 
against  the  casual  ejector.  Doe  d.  Tumcroft  v. 
Roe,  1  Har.  &  WoU.  371.  996 

The  court  granted  a  rule  for  judgment  against 
the  casual  ejector,  where  the  service  had  b^n  by 
leaving  the  declaration  with  the  turnkey  of  tlie 
prison  m  which  the  tenant  in  possession  was  con- 
fined, with  directions  to  give  it  to  him ;  and  the 
tenant  had  acknowledged  that  he  had  received  it 
before  the  first  day  of  me  term.  Doe  d.  Harris  v. 
Roe,  2  Dowl.  P.  C.  607.  996 

An  affidavit  held  sufficient,  which  stated  that 
the  party  making  it  had  gone  to  the  premises, 
where  he  found  the  son  of  the  tenant  in  posses- 
sion, to  whom  he  explained  the  nature  of  the  dc?- 
claration,  and  left  a  copy  with  him,  having  learn- 
ed from  him  that  the  nitber  was  not  at  home,  and 
would  not  return  before  midnight;  and  that  he 
called  again  next  day  and  saw  the  wife,  who  in- 
formed nim  that  her  husband  had  eone  out,  but 
she  did  not  know  where.  Doe  d.  Wetherell  v. 
Roe,  2  Dowl.  P.  C.  441.  996 

So,  an  affidavit  was  considered  sufficient  for  a 
rule  nisi,  which  stated  that  the  deponent  went  to 
the  premises,  but  found  the  door  dosed,  and 
knocked,  but  gained  no  admission ;  that  he  looked 
through  a  window,  and  saw  the  niece  of  the  te- 
nant m  possession ;  that  he  again  knocked,  but 
could  not  get  in ;  that  he  then  explained  through 
the  door  the  nature  and  object  of  the  service,  and 
posted  the  declaration  against  the  door ;  that  two 
conversations  afterwards  took  place  between  the 
deponent  and  the  attorney  of  the  tenant,  from 
which  it  appeared  that  the  declaration  had  been 
brought  to  that  attorney.  Doe  d.  Mortlakc  v. 
Roe,  2  Dowl.  P.  C.  444.  996 

So,  an  affidavit,  which  stated  that  the  deponent 
had  gone  to  the  premises  and  seen  the  tenant, 
to  whom  he  offered  the  declaration,  but  who  re- 
fused to  take  it ;  that  he  then  laid  it  on  a  chair, 
and  explained  the  nature  and  object  of  the  ser- 
vice ;  that  the  tenant  then  left  tfaie  room,  saying 
that  he  would  not  take  any  paper  from  the  de- 
ponent or  any  other  person  on  tne  part  of  the  les- 
sor.   Doe  d.  Visger  v.  Roe,  2  Dowl.  P.  C.  449. 

996 

So,  where  the  deponent  had  on  the  premieee 
presented  the  declaration  to  the  wife,  upon  whose 
refusal  to  take  it  he  had  left  it  on  a  table,  after 
the  proper  explanation ;  that  the  wife  having 
thrown  it  after  him,  he  had  picked  it  up  and  J- 
fixed  it  on  the  most  conspicuous  part  of  the  pre- 
mises. Doe  d.  Courthorpe  v.  Roe,  2  Dowl.  P.  C. 
441.  996 

If  the  tenant  in  possession  by  fraud  prevents 
a  complete  and  regular  service  of  the  declaration 
in  ejectment,  judgment  may  still  be  obtained 


r" 


[EJECTMENT] 


2461 


a^nst  (he  casaal  ejector.    Doe  d.  Frith  v.  Roe, 

3  Dowl.  P.  C.  569.  996 

Where  a  tenant  in  possession  keeps  out  of  the 
way  to  avoid  bein^  served,  a  rule  nisi  for  judg- 
ment may  be  obtained  b^  a  service  on  the  agent 
of  the  tenant  on  the  premises.  Doe  d.  Morpeth  v. 
Roe,  3  Dowl.  P.  C.  577.  996 

Where  the  tenant  in  possession  has  absconded 
to  another  country,  the  service  of  the  declaration 
in  ejectment  may  be  effected  on  his  agents  on  the 
premises.  Doe  d.  Robinson  v.  Roe,  3  Dowl.  P. 
C.  11.  996 

In  ejectment,  if  the  tenant  resides  abroad,  ser- 
vice on  an  agent  who  resides  on  the  premises  is 
sufficient.  Doe  d.  Treat  v.  Roe,  4  Dowl.  P.  C 
273;  3  Har.  &.  WoU.  536.  996 

Where  a  tenant  in  possession  was  very  un- 
well, and  afterwards  died,  and  a  declaration  in 
ejectment  was  served  on  a  person  at  the  house 
where  he  was  staying  on  the  day  of  his  death,  it 
is  not  a  good  service.  Doe  d.  Hartford  v.  Roe,  1 
Uar.  &,  WoU.  352.  996 

Where    proceeding   are    taken    under    stat. 

4  Geo.  2,  c.  26^  affixing  the  declaration  in  eject- 
ment npon  the  door  of  the  demised  premises, 
wiU  not  be  allowed  as  good  service,  ii  there  is 
uy  probability  that  the  tenant  can  be  personally 
•erved.  Doe  d.  Pngh  v.  Roe,  1  Scott,  464 ;  1 
Hodges,  6.  996 

AeknowUdgnuni  of  Servict."] — An  acknowledg- 
ment bv  the  tenant  in  possession  of  the  receipt 
of  the  declaration  in  ejectment,  made  on  the  fint 
day  of  term,  12th  Januarv,  but  not  saying  when 
H  was  received,  is  not  su&cient  to  make  good  a 
service  on  his  son  on  the  10th  January  on  the 
premises.  Doe  d.  Martin  v.  Roe,  1  Har.  &  Woll. 
4&  996 

On  motion  for  judgment  against  the  ca- 
sual eiector,  if  the  service  of  declaration  is  to  be 
proved  bjr  the  tenant's  acknowledgment  made 
in  temL,  it  m^t  appear  by  such  acknowledg- 
ment thai  the  service  was  before  term.  Doe  d. 
Marshal  s.  Roe,  2  Adol.  &  £llis,  583;  4  Nev.  Sl 
M.563.  996 

Service  of  a  declaration  in  ejectment  upon  the 
tenant's  daughter  before  the  term,  and  an  ac- 
knowledgment by  the  tenant  within  the  term : — 
Held  sufficient  to  ground  a  motion  for  judgment 
sgminst  the  casual  ejector.  Doe  d.  Smith  v.  Roe, 
4  Dowl.  P.  C.  265.  996 


Jiyyimirfion.]— The  court  will  grant  a  rule 
isi  tor  judgment  against  the  casual  ejector, 
where  the  nature  and  object  of  the  process  has 
been  explained  to  the  tenant,  but,  in  consequence 
of  his  reitisal,  the  declaration  has  not  been  left 
with  him.    Doe  d.  Forbes  v.  Roe,  2  Dowl.  P.  C. 

997 


Where  it  became  necessary  to  employ  an  in- 
terpreter, in  order  to  explain  to  the  tenant  the 
object  of  the  declaration  m  ejectment,  but  who 
was  not  upon  oath  : — Held,  that  the  explanation 
wassoffieieiit  to  entitle  the  lessor  of  the  plaintiff 
to  sivD  judgment'  Doe  d.  Prebert  v.  Roe,  3 
I>»ifflP.Cr335.  997 


If  the  wife  on  the  premises  has  received  the 
declaration,  and  prevents  the  person  serving  it 
from  giving  an  explanation,  or  reading  it  over, 
the  service  is  sufficient.  Doe  d.  George  v.  Roe,  3 
Dowl.  P.  C.  541.  997 

The  court  granted  a  rule  nisi  for  judgment 
against  the  casual  ejector  on  an  affidavit,  merely 
stating  that  the  tenant  **  appeared  to  be  ac- 
quainted with  the  intent  of  the  declaration," 
without  stating  that  it  had  been  either  read  or 
explained  to  him.  Doc  d.  Downs  v.  Roe,  A 
Dowl.  P.  C.  665.  997 


Affidavit.'] — Judgment  against  the  casual 
eiector  may,  under  special  circumstances,  be 
obtained  on  an  affidavit,  swearing  the  service  to 
have  been  on  the  tenant  in  possession,  *^  as  the 
deponent  believes."  Doe  d.  George  v.  Roe,  3 
Dowl.  P.  C.  22.  997 

In  ejectment  on  a  vacant  possession,  the  affi- 
davit that  six  months'  rent  are  in  arrear,  may 
be  made  by  a  receiver.  Anon.  3  M.  &  Scott, 
751.  '  998 

The  affidavit  of  there  being  no  sufficient  dis- 
tress on  the  premises  must  he  positive;  the  de- 
ponent's belief  will  not  do.  Doe  o.  Roe,  2 
Dowl.  P.  C.  413.  998 

Title  of  affidavit.  Doe  v.  Roe,  3  Tyr.  602-,  2 
Dowl.  P.  C.  55.  998 

Where  the  affidavit  of  service  in  ejectment  ap- 
pears defective,  a  party  who  has  been  served  can- 
not take  advantage  of  the  defect  before  judgment 
is  marked.  Gabbott  s.  Ejector,  1  Alcock  &  Na- 
pier, 184.  (/mA).  998 

An  agent  of  the  lessor  of  the  plaintiff  may 
make  an  affidavit  of  rent  in  arrear,  required  in  eject- 
ment on  vacant  possession.  Doe  d.  Charles  v. 
Roe,2Dowl.  P.  C.752.  996 

Where  a  declaration  in  ejectment  was  served 
on  the  son  of  a  tenant  in  possession,  upon  an 
affidavit  that  the  father  was  in  the  house  at  the 
time,  the  court  refused  to  interfere,  on  counter 
affidavits  that  he  was  not  at  home,  but  was  ab- 
sent on  business,  and  not  to  avoid  service,  the 
affidavits  not  negativing  that  the  son  gave  the 
declaration  to  the  father  before  the  first  day  of 
term.  Doe  d.  Protheroe  o.  Roe,  4  Dowl.  P.  C. 
ooo.  «79d 

An  affidavit  of  the  service  of  declaration  in 
ejectment  must  state  that  the  party  served  is 
tenant  in  possession.  Doe  d.  Talbot  v.  Roe,  1 
Har.  &  Woll.  367.  998 

The  affidavit  of  service  of  a  declaration  in 
ejectment  on  an  administratrix,  must  call  her 
tenant  in  possession,  and  state  that  the  property 
was  leasehold.  Doe  d.  Rigby  s.  Roe,  1  Har  .k 
WoU.  369.  998 

The  affidavit  in  support  of  an  application  for 
judgment  against  the  casual  ejector  must  swear 
to  a  service  on  the  **  tenant  in  possession,"  the 
word  **  occupier"  not  being  sufficient.  Doe  d. 
Jackson  v.  Roe,  4  Dowl.  P.  C.  609.  998 

An  affidavit  of  service  of  a  declaration  inejectp 
msnt  upon  Hw  peison  in  poiwesrion  is  iasuffi- 


4403 


[EJECTMENT] 


eient    Doe  d.  Oldham  v.  Roe,  4  Dowl.  P.  C.  714. 

QQA 

A  memorandmn  at  the  back  of  a  declamtion 
in  eieetment  of  the  service  foor  yean  beck,  in 
the  handwriting  of  a  peraon  who  had  since  left 
the  country :  —Held,  not  sufficient  to  allow  jadg- 
ment  to  be  entered  up  against  the  casuid  ejector. 
Doe  d.  Twisden  v.  Roe,  I  Har.  6l  WoU.  218.  996 

Other  ProeeedimgM.)'~When  the  notice  at  the 
foot  of  a  declaration  in  ejectment  was  to  appear 
in  Michaelmas  term,  and  the  motion  for  jndg- 
ment  was  not  made  till  H.  T.,  the  court  refused 
to  grant  a  rule,  unless  the  defendant  had  an  op- 
portunity to  show  cause.  Right  d.  Jeffery  v. 
Wrong,  2  Dow|.  P.  C.  348.  996 

The  rule  of  C.  P.  of  T.  T.  32  Car.  2,  inquiring 
motions  for  judgment  against  the  casual  ejector, 
in  Middlesex  and  London,  to  be  made  in  one 
week  after  the  first  day  of  Michaelmas  and  Eaiter 
terras,  and  within  the  first  four  days  of  Hil  &  T. 
terms,  is  still  in  force.  Doe  d.  Lawford  v.  Roe, 
4  M.  &  Scott,  681 ;  1  Bing.  N.  R.  161.  998 

In  this  court  the  motion  for  judgment  against 
the  casual  ejector  must  be  made  in  conformiW 
with  the  rule  of  Michaelmas  term,  32  Car.  2. 
Doe  d.  Glynn  v.  Roe,  2  Dowl.  P.  C.  332.       998 

If  a  regular  aerrioe  is  efibcted  before  the  term 
in  which  the  appearance  is  to  be  made,  and 
which  elapses,  a  motion  for  judgment  may  be 
made  in  the  following  term  on  the  same  service. 
Doe  d.  Thomson  v.  Roe,  3  Dowl.  P.  C.  575.  998 

Rule  for  judgment  against  the  casual  ejector 
must  be  to  show  cause,  it  not  moved  for  until  the 
second  term  after  service  of  the  declazation. 
Doe  d.  Reeve  r.  Roe,  1  ^e,  15.  998 

The  practice  of  allowing  judgment  to  be  signed 
aijrainst  the  casual  ejector,  where  the  term  in  which 
the  appearance  is  required,  and  before  which  the 
service  has  been  efiected,  has  elapsed,  in  the 
following  term  only  applies  to  country  causes. 
'  Doe  d.  Greaves  v.  Roe,  4  Dowl.  P.  C.  88.        998 

If  one  term  is  allowed  to  lapse  in  a  town  cause 
between  the  service  of  the  declaration  in  eject- 
ment and  the  motion  for  judgment  against  the 
casual  ejector,  the  notice  to  appear  being  in  the 
former  term,  a  rule  nisi  only  for  judgment  will 
be  allowed  in  the  C.  P.  Doe  d.  Wilson  v.  Roe, 
4  Dowl.  P.  C.  124.  996 

Where  a  judgment  and  execution  in  ejectment 
was  regularly  obtained  without  collusion  with 
the  tenants  in  possession,  the  court  refused  to  set 
it  aside,  at  the  instance  of  a  party  who  stated 
that  he  was  landlord  of  the  premises,  and  had 
not  received  any  notice  of  the  oeclaration  in  eject- 
ment. Doe  d.  Martin  v.  Roe,  1  Hodges,  223 :  S. 
C.  nom.  Doe  d.  Thompson  v.  Roe,  2  Scott.  181 ; 
4  Dowl.  P.  C.  115.  ^^996 

In  order  to  entitle  a  defendant,  tenant  in  pos- 
session in  an  action  of  ejectment,  to  enter  into 
the  consent  rule,  without  confi»ssiiig  ouster,  it  is 
not  sufficient  to  show  that  he  holds  under  a  te- 
nant in  common.  Doe  d.  Willis  o.  Roe,  4  Dowl. 
P.  C.  628.  1001 

Twelve  dt&ndanU  in  ejeotment  enlend  into  I 


a  general  joint  consent  rule,  not  spectAring  the 
premises  for  which  they  severally  defenoed.  At 
the  assises  the  judge  made  an  order  that  the  re- 
cord should  be  amended,  by  allowing  two  of  the 
defendants  to  withdraw  their  plea,  and  sufier 
judgment  by  default,  but  no  express  order  was 
made  as  to  any  amendment  of  the  consent  rule. 
The  trial  proceeded;  these  two  defendants  did 
not  appear,  but  the  other  ten  made  a  complete 
defence : — Held,  that  the  order  did  not  virtually 
operate  as  an  amendment  of  the  consent  ruie 
also,  and  that  the  plaintifiT  was,  notwithstanding 
the  order,  entitled  to  a  verdict  against  all  the 
defendants.  But  the  court  directed  that  the  ten 
defendants  who  went  to  trial  should  be  allowed 
the  costs  of  their  defence  on  taxation.  -  Doe  d. 
fiishton  V.  Hughes,  2  C.  M.  &  R.  281 ;  4  Dowl. 
P.  C.  412.  1001 

In  ejectment,  judgment  was  signed  by  the 
plaintin  as  for  want  of  a  plea,  and  writs  of  posses- 
sion were  sued  out  and  executed.  The  defen- 
dant had  left  a  plea  at  the  judge's  chambers. 
The  defendant  M>tained  a  judge^s  order  to  set 
aside  the  judgment  and  writs  m  possession,  and 
commanding  the  sheriff  to  restore  possession : — 
Held,  the  order  ou^ht  not  to  have  been  on  the 
sheriff,  and  that  writs  of  restitution  issued  upon 
the  order  were  irregular.  Doe  d.  Williams  v, 
Williams,  4Nev.  &M.  259;  2  Adol.  &  Ellis, 
381.  1002 

Whether  it  is  a  valid  objection  to  a  writ  of 
restitution,  that  no  precipe  had  been  issued,  or 
that  the  writs  themselves  were  only  sealed  and 
not  signed,  quere  ?    Id. 

After  execution  in  an  action  of  ejectment,  the 
court  will  not  set  the  proceedings  aside  on  pay* 
ment  of  the  rent  due  and  costs  of  the  action, 
if  there  are  other  grounds  of  forfeiture  besides 
the  non  payment  of  rent ;  and  if  such  an  appli- 
cation be  made,  the  court  will  dismiss  it  with 
costs.    Doe  d.  Lambert  v.  Roe,  3  Dowl.  P.  C.  557. 

1003 


Mesru  Prtfts.l — ^In  an  action  for  mesne  profits, 
the  plaintifiT  is  entitled  to  receive  only  the  taxed 
costs  of  the  ejectment,  and  not  the  extra  costs. 
Doe  V.  Hare,  2  Dowl.  P.  C.  245 ;  2  C.  &  M.  145 ; 
4  Tyr.  29.  1004 

Where  A.  took  possession  of  premises  on  the 
2nd  of  June,  and  a  sum  of  money  beqame  due 
for  ground  rent  on  the  24th  for  the  quarter  end- 
ing on  that  day,  which  A.  paid  : — Held,  in  an 
action  for  mesne  profits  against  A.,  that  he  was 
entitled  to  deduct  the  money  so  paid  from  the 
damages.    Id. 

Where  there  is  judgment  by  de&ult  in  an 
ejectment  the  plaintin  may,  in  the  action  for 
mesne  profits,  recover  all  the  expenses  he  has 
been  necessarilv  put  to  in  the  ejectment,  and  is 
not  limited  to  toe  taxed  costs  as  between  par^ 
and  party.  Doe  e.  Hoddart,  2  C.  M.  dt  R.  316; 
4  Dowl.  P.  C.  437 ;  1  Gale,  260.  1004 

A  judgment  in  ejectment  is  not  conclusive  evi- 
dence of  title  in  thie  action  for  mestfe  profits,  un- 
less it  be  pleaded  by  way  of  estoppel.  Therefore, 
under  a  plea  (to  a  decfauration  in  the  ordinaiy 


[EJECTMENT— ERROR] 


2403 


ionn),  that  the  premiaefl  in  the  declaration  men- 
tioned were  not  the  premisei  of  the  plaintiff;  it 
was  held,  that  the  defendant  might  ffive  evidence 
of  title  in  himself,  though  he  had  let  jadgment 
go  by  default  in  the  ejectment    id. 

To  a  declaration  in  trespass  by  John  Doe,  as 
plaintiff,  the  defendant  pleaded,  that  the  premises 
were  not  the  premiaes  of  the  plaintiff: — Held, 
that  under  this  plea  the  defendant  was  at  liberty 
to  proTe  title  in  himself,  the  judgment  in  eject- 
ment not  being  conclusive  against  the  defendant, 
nnleas  shown  upon  record.    Id. 

Where  an  action  of  trespass  for  mesne  profits 
is  brought  against  a  party  who  has  a  cross  claim 
against  the  plaintiff  at  law,  for  money  expended 
on  land,  the  court  will  grant  an  iniunction  to  re- 
strain the  proceedings  at  law,  tnere  beinf  no 
rif  ht  of  set-off  in  such  an  action.  Cawdor  (Earl) 
V.  Lewis,  1  Y.  dL  Col.  427.  1004 


ERROR. 

Where  a  defendant  gives  a  co^rnovit,  and  ex- 
pressly agrees  not  to  bring  a  writ  of  error,  but 
notwithstanding  does  so,  the  allowance  of  such 
writ  of  error  is  no  supersedeas,  and  will  not  pre- 
vent the  plaintiff  from  charging  him  in  execution. 
fievt  V.  Gompertx,  2  Dowl.  P.  C.  395;  2  C.  &  M. 
427 ;  4  Tyr.  280.  1007 

Semble,  that  there  is  a  distinction  between  a 
release  of  errors,  and  an  agreement  not  to  bring  a 
writ  of  error.     Id. 

The  plaintiff  and  defendant  by  their  respective 
attomies  aeieed  that  a  question  at  issue  between 
them  sfaooJd  be  raised  on  demurrer,  in  order  to  a 
more  speedy  adjustment  of  it ;  and  it  was  further 
agreed,  that,  whatever  the  decision  of  the  court 
on  the  argament  of  the  demurrer  might  be,  "•  each 
party  should  pay  his  own  costs  and  charges  in 
and  about  the  cause,  and  that  such  decision 
■hoold  bind  the  parties."  Judgment  having 
been  given  for  the  plaintiff  on  the  demurrer : — 
Held,  that  it  was  not  competent  to  the  defendant 
to  sue  out  a  writ  of  error  thereon.  Brown  v. 
Granville  (Lord),  4  M.  &  Scott,  333;  2  Dowl.  P. 
C.  796.  1007 

The  court  of  Exchequer  Chamber  has  juris- 
diction under  11  Geo.  4  Oe.  1  Will.  4,  c.  70,  s.  8, 
to  correct  errors  in  judgments  in  K.  B.  in  cri- 
minal cases.  Wright  v.  Rex  (in  error),  3  Nev.  A 
M.  892 ;  1  Adol.  dt  Ellis,  434.  1006 

Qosre,  whether  the  court  of  Exchequer 
Chamber  can  grant  a  repleader  ?  Paddon  v. 
BarUett,  5  Nev.  dt  M.  383.  1006 

The  want  of  a  panel  to  the  distringas  is  error, 
and  the  defect  is  not  cured  by  the  statutes  of 
jeo&ils.  Rogers  r.  Smith,  3  Nev.  ^  M.  760 ; 
1  Adol.  A  Efiis,  772.  1005 

In  a  case  where  the  point  stated  in  the  notice 
of  an  allowanoe  of  a  writ  of  error,  had  been  ar- 
gued and  decided  on  a  rule  granted  to  arrest  the 
judgment,  the  court  refVised  to  allow  execution 
to  issue  as  ftpon  a  frivolous  ground  of  error. 
Gardiner  v.  Williams,  3  Dowl  P.  C.  796 ;  1  Gale. 
91.  1008 

A  notiee  of  the  aUowaace  of  a  writ  of  error  in 


an  action  of  slander,  stating  the  grounds  of  error 
to  be,  that  the  declaration  and  every  count  thereof 
is  bad,  the  words  not  being  actionable  without 
special  damage,  and  the  innuendoes  bad  in  law, 
sufficiently  complies  with  9  Reg.  Gen.  H.  T.  4 
WiU.  4.    Robinson  v.  Day,  2  Dowl.  P.  C.  501. 

1010 

An  infant  suing  by  prochein  ami  was  non- 
suited, and  then  sued  out  a  writ  of  error,  but  al- 
lowed tiie  return  day  to  pass  without  taking  any 
steps  towards  the  prosecution  of  it.  The  c&fen- 
dant  then  issued  execution  against  him  for  the 
costs  of  the  nonsuit : — Held,  that  the  execution 
was  regular,  tliough  the  writ  of  error  was  not 
nonprossed ;  and  that  it  was  the  plaintiff's  dut^ 
to  have  prosecuted  it,  and  not  to  have  allowed  it 
to  expire.  Dow  v.  Clarke,  2  Dowl.  P.  C.  302 ; 
3  Tyr.  866.  1011 

The  House  of  Lords  will  not  postpone  the 
hearing  and  decision  of  any  appeal  on  account  of 
the  absence  of  counsel,  but  will  call  on  the  coun- 
sel on  either  side  in  attendance  to  proceed  with  the 
argument.  Mellish  v.  Richardson,  1  Ciark  dc 
Fm.  224.  1011 

A  court  of  law  has  authority  over  its  own  re- 
cord, which  it  may  amend,  even  after  error  is 
brought    Id. 

A  court  of  error  will  not  inquire  into  the  pro- 
riety  of  amendments  made  in  the  court  below ; 
ut  though  such  amendments  be  made  after  er- 
ror is  brought,  will  consider  them  as  part  of  the 
orijfinal  record  subjected  to  their  revision.    Id. 

A  court  of  error  is  bound  by  the  transcript  of 
a  record  which  is  sent  up  under  the  rule  to  cer- 
tify the  record.    Salter  v,  Slade,  3  Nev.  &  M. 


E; 


717 ;  1  Adol.  A  Ellis,  608. 


1011 


Such  transcript  is  to  be  considered  in  the  court 
of  error,  as  the  record  of  the  court  below.    Id. 

The  court  of  error,  cannot  amend  such  tran- 
script.   Id. 

Afler  allowance  of  a  writ  of  error,  the  plaintiff 
in  error  neglected  to  transcribe  the  record  within 
the  time  limited  by  Reg.  10  H.  T.  4  WiU.  4, 
whereupon  the  defendant  applied  to  the  officer  of 
the  court  to  sign  judgment  ef  nonpros  which  he 
was  at  liberty  to  do.  The  officer  refused,  and 
then  the  transcript  was  removed.  The  court  be- 
low afterwards  refused  to  allow  the  defendant  in 
error  to  sign  judgment  of  nonpros  nunc  pro  tunc, 
though  the  fault  was  in  the  officer  of  tne  court. 
Pitt  V.  Williams,  4  Dowl.  P.  C.  70 ;  1  Har.  A 
WoU.363.  1011 

In  debt  for  goods ;  sold  plea  nil  debet,  except 
as  to  II.  129.  53. ;  and  as  to  that  tender,  the  jury 
in  a  county  court  having  found  that  the  defen- 
dant did  not  owe  any  thing  except  as  to  the 
1/.  12s.  bd.,  and  as  to  that,  certain  facts  upon 
which  they  prayed  the  judgment  of  ther  court, 
which  was  given  for  the  defendant  in  the  court 
below  and  reversed  on  error : — Held,  that  upon 
plaintiff  releasing  damaxres,  the  court  of  error 
might  enter  judgment  tor  the  plaintiff  for  11, 
12s.  5d.,  with  the  costs  of  the  proceeding,  in  the 
court  below.    Finch  v.  Brook,  2  Bing.  N7R.  325. 

1012 

The  court  is  bound  ex  officio  to  reverie  a  judg- 


3464 


[ERROR— ESTATE] 


ment  fbr  erron  of  law  apparent  on  the  record, 
though  not  assigiied  as  errors  by  the  plaintift  in 
error.    Castledine  v.  Mundy,  1  Nev.  dt  M.  635. 

1013 

The  Honse  of  Lords  will  not  receive  from  the 
agent  of  the  plaintiff  in  error  a  petition  to  refer 
to  the  judges  the  legal  points  in  the  case.  Rick- 
ets b.  Lewis,  1  Bing.  N.  R.  196.  1013 


ESCAPE. 

In  an  action  brought  against  a  sheriff  for  a 
permissive  escape,  it  is  an  essential  fact  to  be 
established  by  the  plaintiff,  that  at  the  time  of 
the  escape  the  defendant  in  the  Writ  was  in  the 
legal  custody  of  the  sheriff  at  tho  suit  of  the 
plaintiff  under  the  writ.  Duffy  v.  White,  1  Al- 
cock  &  Napier,  1.    (Irish).  1014 

The  absence  of  an  allegation  to  that  effect 
would  render  the  declaration  bad  on  general  de- 
murrer.   Id. 

A  return  of  cepi  corpus  .coupled  with  evidence 
of  an  answer  receivea  at  a  sheriff's  office,  that 
no  bail-bond  was  executed,  is  evidence  to  go  to 
the  jury  in  an  action  against  the  sheriff  for  the 
escape.  Neek  •.  Humphrey,  4  Nev.  &  M.  707 ; 
3  Adol.  dt  EUis,  130 ;  1  Uar.  &  WoU.  419.    1014 

Jn  an  action  against  a  sheriff  for  escspe  of  a 
prisoner  arrested  on  mesne  process,  the  plaintiff 
fMTOved  the  arrest  by  producing  the  sheriff's  re- 
turn of  eepi  corpus  et  varatum  habeo : — Held,  that 
the  latter  words  of  tne  return  produced  by  the 
plaintiff  did  not  conclude  him  from  proving  the 
escape  by  parol  evidence,  that  the  prisoner  was 
at  large  after  the  return,  and  no  bul-bond  lodged 
with  Uie  sheriff.    Id. 


ESCHEAT. 

Vpon  felony  committed  by  the  surrenderor  be- 
fore admittance  of  surrenderee,  the  copyhold  es- 
cheats to  thelord.  Rez  v.  Mildmay,  2  iNev.  &>  M. 
778.  1016 

So,  although  the  surrender  be  by  way  of  mort^ 
gage.    Id. 

ESTATE. 

Devise  to  A.,  B.,  C,  and  D.,'  successively,  in 
strict  settlement  Proviso  that,  if  the  title  of 
Earl  of  S.  shall  come  to  A.,  B.,  C,  and  D., 
(devisees  for  life),  or  their  sons,  within  the  pe- 
riod of  the  lives  of  the  said  A.,  B.^^  C,  or  D.,  or 
within  the  term  of  twen^-two  years  after  the 
decease  of  the  survivor  of  tnem,  then,  and  in  such 
case,  as  and  when  the  title  of  the  said  Earl  of  S. 
shall  come  and  fall  into  possession  to  him  or 
them,  the  estate  which  he  or  they  then  shall  be 
entitled  unto,  in  all  and  every  the  manors  here- 
inbefore devised,  shall  cease  and  determine,  and 
become  void ;  and  the  same  manors  shall  imme- 
diately thereupon  |^  to  the  person  or  persons 
who,  under  the  limitations  aforesaid,  shall  then 
be  next  in  remainder  expectant  on  the  decease 
and  failure  of  issue  male  of  the  person  to  whom 
the  title  shall  so  descend  or  come,  in  the  same 
manner  at  such  penons  w  in  remainder  as  afore* 


said  would  take -the  same  by  virtue  of  the  devise, 
in  case  he  or  they,  to  whom  the  title  shall  cohm 
and  fall  in  possession  as  aforesaid,  was  or  were 
actually  dead  without  issue  : — Held,  that  al- 
though the  words  **•  from  time  to  time"  are.  not 
inserted,  yet  the  proviso  attached  to  each  of  the 
estates  created  by  the  will,  as  they  should  suc- 
cessively vest  in  possession.  Doe  d.  Lumley  v. 
Scarborough,  4  Nev.  &  M.  724 ;  3  Adol.  <&  Ellis, 
2.  1017 

The  effect  of  this  proviso,  in  the  event  of  the 
title  descending  on  a  tenant  for  life,  is  not  to  let 
in  the  son  of  such  tenant,  but  to  carry  the  estate 
over  to  the  next  branch  of  the  family.    Id. 

The  will  in  which  the  above  proviso  was  in- 
serted, contained  a  devise  to  A.  for  life ;  remain- 
der to  trustees  during  his  life,  to  preserve  con- 
tingent remainders ;  remainder  to  F.,  the  son  of 
A.,  in  tail ;  remainders  over.  A.  and  F.  suffered 
a  recovery.  The  title  of  Earl  of  S.  descends 
upon  A. : — Held,  that  the  uses  to  arise  under  the 
proviso  are  not  barred  by  this  recovery.    Id. 

Semble,  that  the  remainders  over,  snbee- 
quent  to  the  estate  tail  limited  to  F.,  are  barred* 

Gross  error  in  judgment,  without  positive 
proof  of  impartiality,  is  sufficient  to  enaole  the 
court  to  set  aside  an  adjudication  made  by  com- 
missioners of  partition.  Story  v.  Johnson,  1  Y. 
dt  Col.  538.  1018 

An  allegation  that  A.  is  tenant  fbr  the  life  of 
M.  is  supported  bv  proof  that  A.  and  B.,  being 
joint  tenants  for  the  life  of  M.,  conveyed  their 
estate  by  lease  and  release  to  A.  without  an  in- 
termediate party.  Avery  e.  Cheslyn,  3  Adol.  dk 
Ellis,  75 ;  5  Nev.  dt  M.  ^2 ;  1  Har.  db  W<41. 283. 

1018 

Livery  of  seisin  is  not  rendered  void  by  the 
fact  of  a  child  having  remained  on  the  premises 
at  the  time,  even  though  such  child  were  the 
descendant  of  a  party  having  title,  unless  the 
child  was  placed  there  for  the  purpose  of  repre- 
senting that  party.  If  there  be  several  co-parce- 
ners, and  one  only  be  in  actual  possession,  a 
feoffinent  executed  by  her  to  a  stranger,  of  the 
whole  premises,  will  oust  ,the  other  co-paroenera. 
Doe  d.  Reed  v.  Taylor,  S  B.  Sl  Adol.    575. 

1019 

In  the  absence  of  evidence  to  the  contrary,  the 
entry  of  such  co-parcener  will  be  presunaed  to 
have  been  a  general  entry,  and  not  for  herself 
alone,  or  for  herself  and  the  other  co-parceners. 
Id.  X 

A  devisee  in  fee  may  by  deed  disclatm  the 
estate  devised,  and  after  such  disclaimer  has  no 
interest  in  the  estate.  Begbie  v.  Crook,  2  Binff. 
N.R.  70;  2  Scott,  128.  1019 

The  father  of  the  defendant,  and,  after  his 
death,  the  defendant,  had  held  lands  by  the  per- 
mission of  and  under  the  father  of  the  lessor  of 
the  plaintiff;  the  defendant  continued  to  hold 
the  lands.  To  show  that  the  tenancy  was  de- 
termined, the  lessor  of  the  plaintiff  ofibred  in 
evidence  the  following  letters.  The  first  was  a 
letter  written  by  the  defendant  to  the  plaintiff,  in 


[ESTATE— EVIDENCE] 


3465 


which,  after  aeknowledging  the  receipt  of  «  letter 
from  the  plaintiff  bn  the  sabject  of  the  premiKs 
in  question,  he  saya — "  As  the  circumstances  in 
it  are  not  within  my  knowledge,  I  have  placed  it 
in  the  hands  of  Messrs.  F.,  and  have  requested 
them  to  communicate  with  you."  The  second 
letter,  which  was  from  Messrs.  F.  to  the  defend- 
ant, was  as  follows — **  £arl  C.  (the  defendant) 
has  given  us  a  letter  from  you  on  the  subject  of 
some  ground  vou  state  to  have  been  let  by  the 
late  Mr.  L.,  (the  father  of  the  lessor  of  the  plain- 
tiff) in  1813,  and  which  has  ever  since  been  in 
the  pooBCsoion  of  his  lordship's  fiimily.  We  will 
thank  you  to  let  ns  have  the  proofs  that  it  was 
not  the  late  EarPs  own."  Another  letter  from 
Messrs.  F.  requested  further  information  ^*  as  to 
the  late  Mr.  L.  having  a  right  to  let  the  piece 
of  ground  in  question  to  Earl  C,  as  it  appears  to 
us  that  the  mere  fact  mentioned  in  your  letter,  at 
the  utmost  only  shows  that  Mr.  L.  might  claim 
it,  and  does  not  at  all  aver  that  Lord  C.  admitted 
it,  even  on  the  representation  of  his  own  agent :" 
— Held,  that  those  letters  did  not  amount  to  a 
disclaimer.  Doe  d.  Lewis  v.  Cawdor,  1  C  M.  dr 
R.  308 ;  4  Tyr.  852.  1019 

A  disclaimer  in  such  case  must  be  before  the 
date  of  the  day  of  the, demise.    Id. 

An  admission,  made  after  the  day  of  the  de- 
mise, of  a  disclaimer,  must,  to  have  the  effect 
of  determining  a  tenancy,  amount  to  an  admis- 
sion that  such  disclaimer  took  place  before  the 
day  of  demise.    Id. 

Held  also,  that  the  letter  of  the  defendant 
did  not  confer  on  the  agent  any  authority  to  bind 
the  defendant  to  make  a  disclaimer.  Id. 

In  an  ejectment  by  a  landlord  against  his  te- 
nant, the  landlord  relied*  on  a  disclaimer.  It 
was  proved  that^  the  tenant  disclaimed  in  March, 
1833 ;  in  November,  1833,  the  landlord  put  in  a 
distress  for  rent: — Held,  a  waiver  of  the  dis- 
claiaier.  Doe  d.  David  v,  Williams,  7  C.  &  P. 
ass— Patteson.  1019 

An  action  of  debt  by  a  covenantee  against  the 
devisees  of  a  covenantor  will  not  lie  under  the 
Stat  3  Will.  &,  Mary,  c.  14,  where  the  covenantor 
is  only  a  surety,  and  the  breach  of  covenant  did 
not  take  place  m  his  lifetime.  Farley  v.  Briant, 
5  Nev.  &,  M.  42;  1  Har.  &  WoU.  m  1022 

In  debt  against  the  heir  and  devisee  under  3 
(or  3  dk  4)  Will.  &  Mary,  c.  14,  if  the  declaration 
does  not  show  that  the  cause  of  action  accrued 
in  the  lifetime  of  the  devisor,  and  the  defendant 
pleads  that,  J>efore  the  cause  of  action  accrued, 
the  devisor  died,  and  the  plaintiff  demurs,  the 
defendant  is  entitled  to  jud^ent,  on  the  ground 
that  either  the  declaration  is  defective  in  not  al- 
leging that  the  cause  of  action  accrued  in  the  life- 
time of  the  devisor,  or  that,  if  such  an  allegation 
is  to  be  implied,  the  allegation  is  material,  and  it 
will  be  traversed  by  the  plea.    Id. 

In  a  sei.  fa.  to  revive  a  judgment  against  the 
heir  and  certain  terre-tenants  of  the  lands  of  the 
eonnsor,  where'  the  heir  of  the  conusor  is  not  re- 
tnmed  as  terre-tenant,  a  plea  by  the  heir  alleging 
non-seisin  of  the  ancestor  of  the  particular  lands 
of  whidi  A.  K'  aad  J.  W.  are  letnmed  as  terre- 


tenants,  is  bad  on  demurrer.    Henry  o.  Jones,  1 
Aloock  &,  Napier,  14.  (Irish),  1029 

Where  the  interest  which  the  heir  seeks  to 
protect  by  pleading  does  not  appear  on  the  sci. 
fa.,  it  must  be  disclosed  in  the  plea.    Id. 

Sci.  fa.  against  the  heir  upon  a  judgment 
against  the  ancestor,  of  Easter  Term,  1797. 
Plea  of  payment  by  the  heir  in  1823,  he  having 
become  heir  in  that  year : — Held,  that  this  was  a 
valid  plea  within  the  8  Geo.  1  (Irish),  c.  4,  s.  2, 
and  did  not  throw  upon  the  defendant  the  onus  of 
proving  an  actual  payment— Burton,  J.,  dubi- 
tante.  Dunn  v,  Currin,  1  Alcock  &  Napier,  400. 
(Irsk).  loaa 


EVIDENCE. 


I.  Matters  judicially  noticed. 

Semble,  that  the  courts  will  not  take  judicial 
notice  of  a  plaintiff  being  an  Irish  peer.  Nugent 
(Lord)  t;.  Harcourt,  2  Dowl.  P.  C.  578.        1026 

The  court  will  take  judicial  notice  of  the  day 
of  the  week  on  which  a  certain  day  of  the  month 
was.  Hanson  v.  Bhackelton,  4  Dowl.  P.  C.  48 ; 
1  Har.  i&  WoU.  542.    >  1026 


II.  Admissiohs. 

Generally] — Upon  a  judgment  by  deftult  or 
on  demurrer,  the  contract  or  contracts  are  ad- 
mitted as  stated  in  the  declaration,  and  evidence 
to  contradict  them,  which  would  be  good  under 
the  general  issue,  ought  not  to  be  admitted. 
Stephens  v.  Pell,  2  Dowl.  P.  C.  ij29.  1027 

QuoBre,  whether  defendant,  by  demurring  to  a 
declaration  for  a  libel,  stated  to  have  been  pub* 
lished  with  intent  to  cause  certain  matters  to  be 
believed,  admits  particular  words  in  the  libel  to 
have  been  published  with  that  intent  ?    Digby  v, 

"  ^'      ~  "  "  'S.m. 

1027 


Thompson,  1  Nev.  dt  M.  485 ;  4  B.  ^b  Ado] 


The  setting  out  a  judge's  order  in  ]ileading  ia 
not,  upon  demurrer,  to  w  taken  as  an  admission 
of  the  facts  stated  in  the  order.  M'Cormick  v. 
Melton,  1  C.  M.  &  R.  525 ;  5  Tyr.  147.        1027 

Qnoere,  whether  circumstances  not  denied  on 
the  record  can  be  assumed  to.  be  true  in  point  of 
fact,  or  whether  they  are  admitted  only  so  far  as 
to  exclude  them  from  the  issue  ?  Noel  v.  Boyd, 
1  Gale,  2S3,  1027 

An  admission  on  the  face  of  one  plea  cannot 
be  made  use  of  to  prove  or  disprove  another  plea. 
Stracy  v.  Blake,  1  Mees.  A  Wels.  168.  1027 

But  where  it  appears,  from  the  whole  conduct 
of  a  cause,  that  a  particular  fact  is  admitted  be- 
tween the  parties,  the  jury  have  a  right  to  draw 
the  same  conclusion  as  to  that  fact  as  if  it  had 
been  proved  in  evidence,  and  to  draw  such  con- 
clusion as  to  all  the  issues  on  the  record ;  and 
the  court  refused  to  grant  a  new  trial,  on  the 

g'onnd  that  the  judge  had  stated  to  the  jury  a 
ct  so  admitted  between  the  parties  as  being  ad- 
mitted on  the  record,  and  applied  such  supposed 
admission  jn  support  of  another  issue.    Id. 


S466 


[EVIDENCE] 


/ 


AdmusioHMky  Judge's  Ord&r.'\ — ^The  court  has 
not  jurisdiction,  under  r.  20of  H.  T.  4  Will  4, 
to  order  the  admission  of  documents ,  and  if  a 
judge  at  cHambers  desires  parties  coming  before 
him  under  that  rule  to  go  before  the  court,  they 
will  be  heard  ;  but  the  court  will  pronounce  no 
judgment,  leaving  that  to  be  done  by  the  judfe 
at  chambers.  Smith  v.  Bird,  3  Dowl.  r.  C. 
641;  1  Hodges,  96  1027 

On  the  plaintiff  paying  the  defendant  the  ex- 
penses of  examining  a  judgment  and  other  do- 
cuments abroad,  an  order  was  made  for  the 
defendant  to  pay  the  expenses  of  proving  them 
at  the  trial,  (such  proof  being  satisfiictory  to  the 
judge,  and  so  certified  by  him,)  whatever  might 
be  the  result  of  the  case,  if  after  such  examina- 
tion the  defendant  did  not  admit  them.    Id. 

Previously  to  the  trial  of  an  ejectment,  the 
defendant's  then  attorney  gave  admissions,  com- 
mencing, ^  We  hereby  afipree  to  admit,  on  the  trial 
of  this  cause,"  &c.  The  court  of  K.  B.  after- 
wards granted  anew  trial,  and  the  attorney  for  the 
defendant  died.  The  second  trial  took  place  on 
the  17th  of  February,  and  on  the  7th  of  Febru- 
ary the  defendant's  then  attorney  ffave  notice  to 
the  lessor  of  the  plaintiff  that  he  should  make  no 
admissions ;  and  the  latter  sent  back  an  answer, 
stating  that  the  admissions  already  made  were 
binding: — Held  that,  on  the  second  trial,  these 
admissions  were  receivable  in  evidence.  Doe  d. 
Wetherell  v.  Bird,  7  C.  &  P.  6— Denman.      1027 

If,  on  a  summons  to  admit  the  handwriting  of 
the  defendant,  his  attorney  refuse  to  admit  it, 
and  the  usual  order  be  made,  the  judge  at  the 
trial  will  certify  for  the  costs  of  a  witness  who  is 
called  to  prove  the  handwriting,  if  such  witness 
m  his  examination  in  chief  deposes  to  no  other 
fact     Stracey  v.  Blake,  7  C.  &  P.  404— Abinger. 

r027 

In  an  action  for  running  down  a  ship,  tried  at 
Newcastle-upon-Tyne,  the  plaintiff  having  ob- 
tained a  verdict,  the  Master  refused  to  allow  him 
the  expense  of  proving  certain  documents,  being 
the  registers  and  transfers,  &c-,  of  the  ship,  upon 
the  ground  that  reasonable  notice  had  not  been 
^ven  to  the  defendant  to  allow  copies  to  be  given 
in  evidence.  The  commission  day  was  the  4th 
of  March  ;  notice  of  trial  had  been  given  en  the 
21st  of  February,  ond  the  notice  to  admit  the 
documents  was  not  served  till  Saturday  the  26ih 
of  February,  on  the  London  a^nt.  He,  how- 
ever, refused  to  admit  the  copies,  and  another 
application  was  made  on  the  following  Monday, 
and  the  copies  were  produced  to  him;  but  he 
again  refused,  and  a  summons  was  then  taken 
out,  Teturnable  the  next  day,  but  not  attended. 
On  the  cMrevious  evening  the  agent  sent  off  the 
briefs.  The  court  ordered  the  master  to  review 
his  taxation.  Tynn  v.  Billingsley,  3  Dowl.  P.  C. 
dlO;  2C.M.&R.253.  1027 


111.  Prbbumptxoits. 

In  all  questions  upon  the  existence  of  life  at  a  | 
particular  time,  the  presumption  in  favor  of  life  j 
roost  be  governed,  and  the  weight  that  is  to  be  I 
attached  to  it,  regulated  by  the  circumstances  (^' 


each  particular  case :  and  the  ^determination  of 
the  question  is  for  a  jury  or  the  sessions.  Rex  v. 
Harborne,  4  Nev.  &  M.  341 ;  2  Adol.  &  Ellis, 
540 ;  1  Har.  &  WoU.  36.  1028 

The  sessions  were  justified  in  presuming  that 
a  first  wife  was  alive  at  the  time  of  a  second 
marriage  of  the  husband,  on  evidence  being  given 
of  a  letter  from  her,  dated  at  Van  Dieman's  Land, 
25  days  before  the  time  of  the  second  marriage. 

A  case  established  by  prima  facie  evidence, 
may  be  answered  by  another  prima  fiicie  case  of  a 
stronger  character.  Rex  v.  St.  Mary,  Leicester, 
5  Nev.  6l  M.  215 ;  1  Har.  A  Well.  330.  1028 


IV.  Want  of  Reason  in  Witnesses. 

Before  a  child  is  examined  as  a  witness,  the 
judge  must  be  satisfied  that  the  child  feels  the 
binding  obli^tion  of  an  oath  from  a  general 
course  of  religious  education  ;  and  the  e%ct  of 
the  oath  on  the  conscience  of  the  child  should 
arise  from  religious  feelings  of  a  permanent  na- 
ture, and  not  from  instruction  recently  communi- 
cated for  the  purposes  of  a  trial.  Therefore, 
where  it  appeared,  that,  up  to  a  very  recent  pe- 
riod, a  girl  aged  eight  years  was  totally  ignorant 
of  religion,  out  had  some  religious  mstruction 
given  to  her  with  a  view  to  her  being  examined, 
but  at  the  trial  showed  that  she  had  no  real  un- 
derstanding on  the  subject  of  religion  or  a  future 
state,  the  judge  would  not  allow  fafer  to  be  ex 
amined.  Rex  v.  Williams,  7  C.  &  P.  320--Pat. 
teson.  1029 

A  lunatic  may  be  brought  up  hy  habeas  cor- 
pus ad  justificandum,  on  a%davit  tnat  he  is  not 
a  dangerous  lunatic,  and  is  in  a  fit  state  to  be 
brought  up.  Fennell  v.  Tait,  6  Tyr.  218;  1  C. 
M.  A  R.  584.  1039 


V.  Infamy  of  Witnesses. 

If  an  affidavit  be  made  by  a  convicted  felon, 
the  court  will  grant  a  rule  to  take  it  off  the  file, 
but  it  must  be  shown  by  affidavit,  that  his  com- 
petency has  not  been  restored.  Holmes  v.  Grant, 
I  Gale,  59.  1029 

VI.  Parties  on  the  Record. 

In  assumpsit  against  several  defendants,  a  state- 
ment made  by  one  is  receivable  in  evi(jenoe,  aa 
the  plaintiff  may  proceed  by  steps  to  fix  each  of 
the  defendants  separately.  Whitford  v.  Tutin,  6 
C.  diiP.  228;  4  M.&  Scott,  166;   lOBing.  395. 

1031 

The  rule,  with  respect  to  defendants  not  fixed 
by  the  evidence,  is,  that  the  verdict  in  their  favor 
is  to  be  given  at  the  close  of  the  plaintiff's  case. 
Russell  V.  Rider,  6  C.  &  P.  416 — Bosanquet. 

1031 

Where  in  tort  there  are  several  defendants,  if 
there  be,  at  the  close  of  the  case  for  the  plvn- 
tiff,  no  evidence  against  some  of  the  defendants, 
the  judges  have  resolved  that  those  defendants, 
against  whom  there  is  no  evidence,  shall  be  im- 
mediately acquitted,  and  that  their  acquittal 
shall  not  be  delayed  till  the  case  of  the  other  de- 


[EVroENCE] 


24IB7 


Ibndanti  is  gone  mto.    Child  v.  Chamberlain,  6 
C.  A,  P.  213 ;  3  Nev.  &  M.  580.  1031 

In  replevin,  the  defendant  makes  cognisance, 
firat,  nnder  a  demise  by  A.  to  B. ;  aecondly,  un- 
der a  demise  from  B.  to  the  plaintiff.  Plea  in 
bar  to  each  cognizance,  non  tenant.  The  de- 
fendant may,  at  the  trial,  abandon  the  second 
cognimnce,  and  examine  B.  in  support  of  the 
fint  iasae,  B.  stating  on  the  voir  dire  that  he  did 
not  employ  the  attorney.  King  v.  Baker,  4  Ney. 
A  M.  238.  1031 

Where  a  local  act  empowers  the  directors  and 
cryerseers  of  the  poor  of  a  parish  to  sue  and  be 
sued  in  the  name  of  their  clerk ;  in  an  action  for 
goods  supplied  to  the  directors,  a  person  who  was 
one  of  the  directors  at  the  time  when  the  goods 
were  supplied,  is  a  competent  witness  for  the  de- 
fendant. Fletcher  v.  Green  well,  1  C.  M.  ^  R. 
754 ;  5  Tyr.  316;  1  Gale,  34.  1031 

In  aaanmpstt  on  five  promisaory  notes,  one  for 
1002.,  two  of  50L,  and  two  of  20^  each ;  on  issue 
joined  on  a  plea  that  the  action  did  not  accrue 
within  six  years,  the  plaintiff  proyed  an  appli- 
eation  to  the  defendant  for  interest  oq  a  debt 
of  2001. ;  the  defendant  said  his  wife  would 
haye  called  to  make  a  payment  on  account  of  it, 
Imt  she  had  been  preyented;  the  wife  called 
shortly  after  and  made  a  small  payment,  without 
saying  anything: — Held,  that  the  admission  of 
the  £fendant  was  receiyable  in  eyidence,  and 
was  Bofficient  to  ffo  to  the  jury,  and  to  warrant 
them  in  finding  Uiat  the  payment  by  the  wife 
was  by  the  defendant's  authority,  and  on  the 
three  notes  which  amounted  to  2002.  Waters  v. 
Tompkins,!  Gale,  323.  1031 

Vn.  Partus  substavtially  interestsd. 

In  an  action  by  a  landlord,  who  is  a  tenant  for 
life,  against  a  tenant  from  year  to  year  for  waste, 
the  remainder-man  in  tail  is  a  competent  witness 
for  the  plamtiff.  Leach  v.  Thomas,  7  C.  &  P.  328 
—Patteson.  1032 


iX.  Parishioners. 

In  an  action  a^nst  an  oyerseer,  defending  on 
tiehalf  of  the  parish,  an  inhabitant  is  not  rendered 
«  competent  witness  for  the  oyerseer  by  the  sta- 
tute 54  Geo.  3,  c.  170.  Tothill  v.  Hooper,  1  M. 
A  Rob. — Denman.  1036 

Upon  the  trial  of  an  ejectment  brought  by 
chnrchwardens  and  oyerseers  to  recoyer  albouse, 
sieged,  on  the  part  of  the  lessors  of  the  plaintiff, 
to  K  a  parish  house,  a  rated  inhabitant  of  the 
pariah  is  a  competent  witness  for  the  plaintiff 
under  the  statute  54  CSeo.  3,  e.  170,  s.  9.  Doe  d. 
Higgs  V.  Cockell,  6  C.  d&  P.  525— AMerson.  1036 

If  a  riffht  of  way  be  pleaded  for  the  inhabitant 
booseholders  of  M.  to  fetch  water,  an  inhabitant 
householder  of  M.  may  be  examined  as  a  witness 
in  support  of  this  plea,  under  the  stat.  3  d:  4  Will. 
4,  c.  42,  s.  26.  Knight  v.  Woore,  7  C.  &  P.  258 
— W'dliams.  1036 

Inhabitants  rated,  or  liable  for  the  highways, 
are  incompetent  witnesses  for  the  district  indict- 
ed lor  the  non-repain    of  a  highway.    Rex  v. 

Vol.  IV.  25 


bishop  Auckland,  1  Adol.  A  Ellis,  744 ;  I  M.  ^k 
R.  28e--BoUand.  1036 


XI.  Partners. 

In  an  action  by  A.,  a  banker,  against  B.  a  ca»> 
tomer,  for  the  balance  of  an  account,  part  of 
which  arose  whilst  C.  was  a  partner  with  B. : — 
Held,  that  C,  after  whose  secession  from  the 
partnership  B.  and  C.  executed  mutaal  releases 
of  all  demands,  is  a  competent  witness  to  disproye 
an  item  charged  by  A.  m  the  account,  although 
debts  due  to  and  by  the  firm  of  B.  &  C.  are  still 
unsettled,  and  although,  since  the  dissolution  of 
the  partnership,  B.,  as  continuing  partner,  has 
asked  his  creditors  for  time.  Wilson  v.  Hirst,  1 
Ney.  4&  M.  742 ;  4  B.  &  Adol.  760.  1039 

In  assumpsit  for  work  and  labor,  the  defen- 
dant pleadea  that  *'  the  promise  was  made  to'  the 
plaintiff  and  J.  S.,  and  not  to  the  plaintiff  alone ;" 
replication,  that  the  promise  was  made  to  the  plain- 
tiff alone,  and  not  to  the  plaintiff  and  J.  S. : — Held, 
that  J.  S.  was  a  competent  witness  for  the  defen- 
dant, to  prove  that  the  contract  was  entered  into 
by  the  defendant  with  the  plaintiff  and  himself 
jointly.    Dayies  v.  £yans,  6  C.  &  P.  619— Parke. 

1039 


Xll.  Agbhts. 

Payments  were  made  by  A.  purporting  to  be 
on  account  of  the  defendant,  who  took  credit  in 
account  for  tiiem.  A  letter  was  written  by  the 
plaintiff  to  the  defendant,  which  was  answered  by 
A.  in  a  letter  stating  that  the  defendant  had 
handed  the  plaintiff's  letterto  him.  A.^s  letter 
contained  an  admission  of  the  debt : — Held,  that 
there  was  eyidence  of  A.'s  authority  to  make 
the  admission.  Morell  v.  Harborough  (Lord),  1 
Gale,  146.  1039 

A.  haying  assigned  his  stock  in  trade  and 
business  to  two  trustees,  one  of  them  directed 
the  plaintiff  to  go  to  Brussels  to  procure  the  li- 
beration of  A.,  who  was  detained  there  as  a 
prisoner  for  debt,  and  it  was  arranged  that  Mr. 
L.  should  remit  the  plaintiff  money  while  there. 
The  plaintiff  went  there,  and  Mr.  L.  sent  a  letter 
to  him  there,  announcing  that  he  had  done  so : — 
Held,  that,  in  an  action  by  the  plaintiff  against 
the  itrustees  for  a  compensation  for  going  that 
journey,  the  statements  in  Mr.  L.'s  letters  were 
not  eyidence  ;  and  also,  that  the  declarations  of 
a  person  whom  the  trustees  had  placed  at  the 
house  of  business  to  manage  the  shop,  were  also 
not  eyidence  to  show  that  the  plaintiff  was  en- 
titled to  be  paid  for  taking  an  account  of  the 
stock.  Lawrence  r.  Thatcher,  6  C.  &  P.  669-^ 
Denman.  1039 


XIII.  Attorities. 

An  ofier  made  by  the  attorney  of  the  defen- 
dant's father,  is  no  eyidence  against  the  defendant, 
and  the  feet  of  the  defendant  afterwards  employ- 
ing the  same  attorney,  makes  no  difference. 
Burghart  v.  Angerstein,  6  C.  &  P.  690— Alderson. 

1041 

A  cleik  of  an  attorney  was  asked  whether  A. 


' 


3408 


[EVIDENCE] 


tnd  B.  did  not,  as  ezeeuton,  employ  his  master  as 
their  attorney.  Beckwith  v.  Benner,  6  C.  &  P. 
681— Gumey.  1042 

Communications  made  to  an  attorney  by  his 
client  respectinff  the  sale  of  estates  are  privileged ; 
the  rule  is  not  limited  to  suits  existing  or  expect- 
ed.   Mvnn  V.  Jolifie,  1 M.  &  Rob.  326— LitUedale. 
^  '1042 

What  a  mortgagor,  in  treaty  to  raise  money, 
says  to  the  attorney  of  the  mortgagee,  is  not  a 
privileged  communication.  Marston  v.  Downes, 
6  C.  &  P.  381 ;  1  Adol.  &  Ellis,  31.  1044 

In  an  action  against  a  mortgagor,  the  attorney 
of  the  mortgagee,  who  has  the  mortage  deed, 
cannot  be  compelled  to  produce  it,  it  he  objects 
to  do  so,  nor  can  he  be  compelled  to  five  evidence 
of  its  contents ;  but  he  may  be  asked  for  what 
purpose  the  money  was  raised ;  and  secondary 
eviaence  may  be  given  of  the  contents^ of  the 
mortgage  deed.    Id. 

If  an  attorney  for  a  person  not  a  party  to  an 
action,  having  refused  at  the  trial  to  produce,  a 
deed  belonging  to  his  client,  be  directed  by  the 
judge  to  give  parol  evidence  of  the  contents,  the 
parties  to  the  action  have  no  right  to  object  to 
such  evidence  going  to  the  jury,  even  upon  the 
supposition  that  the  judge  acted  erroneously.  Id. 

Scmble,  that  the  knowledge  acquired  by  an 
attorney,  as  to  the  right  of  his  client  to  grant 
freehold  leases,  is  of  uiat  privileged  nature  that 
he  would  not  be  bound  to  disclose  it  if  called  on 
as  a  witness.  Moore  v.  Terrell,  4  B.  ^  Adol  871 ; 
1  Nev.  &,  M.  559.  1044 

A  witness  may  be  called  upon  by  the  plaintiff 
ta  state  a  conversation,  in  wnich  the  defendant 
proposed  a  compromise  to  the  plaintiff,  although 
the  witness  attended  on  that  occasion  as  attorney 
for  the  defendant.  Griffith  v.  Davies,  5  B.  & 
Adol.  502.  1044 

A  prisoner  was  in  custody  on  a  charge  of  for- 
gery, but  was  not  allowed  to  see  his  wife :  he 
wrote  to  a  friend  *^  to  ask  Mr.  G.,  or  some  other 
solicitor,  whether  the  punishment  was  the  same 
whether  the  names  forged  were  those  of  real  or 
fictitious  persons."  Mr.  G.  was  not  his  solicitor  : 
— Held,  that  this  was  not  a  privileged  communi- 
cation.     Rex  v.  Brewer,  6  C.  &  P.  363— Park. 

1044 

It  seems,  generally,  that  a  solicitor  cannot  be 
compelled,  at  the  instance  of  a  third  party,  to 
disclose  matters  which  have  come  to  his  know- 
led^  in  the  conduct  of  professional  business  for 
a  wiient,  even  though  such  business  had  no  refer- 
«iice  to  lo^al  proceedings,  either  existing  or  in 
contemplation.  Greenough  r.  Gaskell,  1  Mylne 
&,  K.  96.  1044 

In  supnort  of  a  plea  of  payment  the  defendant 
proved  the  payment  of  IIZ.  to  H.,  tlie  plaintiff's 
attorney,  on  the  plaintifTs  account.  In  answer 
to  this  the  plaintiff  tendered  H.  as  a  witness,  to 
prove  that  the  defendant  afterwards  called  upon 
him  and  got  the  money  back  again,  but  his  evi- 
dence was  rejected  on  the  ground  of  his  being 
interested,  and  the  defendant  obtained  a  verdict : 
—Held,  that  the  witness   was  competent,   and  ' 


that  the  evidence  ought  to  have  been  reoeived. 
Bowers  v.  Evans,  1  Mees.  Sl  Wels.  214.        1044 

Vendor  had  a  draft  of  conveyance  made  by  his 
own  attorney,  from  which  the  deeds  were  after- 
wards prepared.  The  attorney  was  paid  for  this 
business  by  the  vendor  and  purchaser  in  moieties, 
by  agreement,  but  the  latter  employed  an  attor- 
ney on  his  own  part  to  look  over  the  draft.  It 
remained  afterwards  with  the  vendor's  attonmr : 
— Held,  that  such  draft  was  confidentially  de- 
posited with  the  latter,  by  the  purchaser  as  well 
as  the  vendor,  and  could  not  be  produced  on  trial 
against  the  interest  of  the  purchaser's  devises, 
though  with  the  consent  of  the  vendor  and  his 
attorney.  Doe  d.  Strode  «.  Seaton,  2  Adol.  &• 
Ellis,  171 }  4  Nev.  &>  M.  81.  1044 


XVI.   ISTKRXST    OF    WiTIfCSSKS. 

SiaUU  3  4r  4  WiU.  4,  c.  42.]— The  stat  3  dk  4 
Will.  4,  c.  42,  s.  26,  does  not  make  the  drawer 
of  an  accommodation  btU  a.  competent  witness 
for  the  defendant  in  an  action  by  the  indorsee 
against  the  acceptor.  The  defendant,  therefore, 
cannot  examine  him  without  a  release.  Burgess 
V,  Cuttill,  6  C.  &  P.  282;  1  M.  dk  Rob.  31&— 
Lyndhurst.  1047 

In  an  action  by  the  indorsee  a^nst  (he  accep- 
tor of  a  bill  of  exchange,  alleged  to  be  an  accom- 
modation bill,  the  drawer  was  called  as  a  witness 
for  the  defendant.  The  judge  allowed  him  to  bo 
examined  uqder  the  stat  4  &  5  Will.  4,  e.  42, 
s.  27,  iiis  name  having  been  indorsed  on  tlio 
postea  under  the  provision  of  the  statute.  Faith 
V.  Mlntyre,  7  C.  &  P.  44— Parke.  1047 

In  an  action  by  A.  against  B.  for  use  and  oeeu* 
pation,  C,  who  was  called  as  a  witness  for  the 
plaintiff,  stated,  that  A.  had  let  the  premises  to 
nim,  and  that  his  (C.'s)  tenancy  was  still  undeter- 
mined It  was  proposed  on  the  part  of  the  plain- 
tiff to  ask  C.  wnetoer  he  had  not  let  the  defen- 
dant into  possession  : — Held,  that  this  could  not  be 
asked,  unless  C.  were  released  by  A., 'and  that  the 
Stat.  3  dk  4  Will.  4,  c.  42,  ss.  26,  27,  did  not 
apply  in  the  case.  Hodson  v.  Marshall,  7  C.  dk  P. 
16--Denman.  1047 

In  an  action  for  damage  done  to  the  plaintiff^s 
horse  and  cart,  by  the  negligent  driving  of 
the  defendant's  servant,  the  plaintiff's  servant, 
who  was  driving  his  cart  at  tlie  time  of  the  acci- 
dent, is  not  a  competent  witness  for  the  jplaintiff 
witiiout  a  release ;  and  the  stat.  3  &  4  Will.  4,  c. 
42,  s.  26,  has  made  no  alteration  in  the  law  on 
this  point.  Harding  r.  Cobley,  6  C.  A.  P.  664 — 
Denman.  1047 

In  an  action  on  the  case  for  injuring  the  plain- 
tiffs wall  by  digging  a  cellar  near  it,  the  work- 
man who  dug  it  is  not  made  a  competent  witness 
for  the  defendant  by  the  stat.  3  &  4  Will.  4,  c.  42, 
8.  26,  and  therefore  must  be  released  by  the  de- 
fendant before  he  can  be  examined.  Mitchell  v. 
Hunt,  6  C.  ^k  P.  351— Patteson.  1047 

In  an  action  against  a  carrier  for  negligence  in 
carrying  a  parcel,  the  carrier's  servant  is  not 
made  a  competent  witness  for  the  defendant,  by 
Uie  statute  3  A  4  Will.  4,  c.  42,  s.  26,  and  cannot 


[EVIDENCE] 


3409 


be  examined  without  n  r^ease.    Harrin^n  v. 
CasweU,  6  C.  &  P.  352— Patteaon.  1047 

The  sUt.  3  &  4  Will.  4,  c.  42,  s.  26,  does  not 
render  a  man,  who  was  sworn  before  the  act,  a 
competent  witness  afterwards.  Barnes  v.  Stuarl, 
lY.*  Col.  119.  1047 

QnsBre,  whether  that  act  extends  to  equitable 
proceedings  P  Id. 

Other  fFUnssses.^^A  partjf[  who  is  directly  in- 
tereated  in  the  event  of  an  action  or  suit,  by  being 
liable  for  the  costs,  cannot  be  rendered  a  com- 
petent witness  under  the  provisions  of  the  stat. 
2  &  3  Will.  4,  c.  42,  s.  26.  Jesus'  College  v. 
Gibbs,l  T.  &  Col.  145.  1047 

A  witness  cannot  be  rejected,  unless  he  has  a 
direct  and  immediate  interest  in  the  result  of  the 
ease  in  which  he  is  called  to  give  evidence,  nor 
iinleai  the  verdict  in  that  case  can  be  ffiven  in 
evidence  for  him  m  another  suit.  Ruston  v. 
Sowat,  1  Clark  &  Fin.  424.     .  1047 

The  rules  of  law  in  England  and  Scotand  are 
the  same  on  this  subject.  Id. 

If  a  witness  is  incompetent  on  the  ground  that 
he  has  made  himself  liable  to  pay  the  attorney,  a 
lelease  to  him  by  the  attorney  of "  all  fees,  costs, 
and  charges"  is  sufficient  to  render  him  compe- 
teoL  Doe  d.  Dully  v.  Allbntt,  6  C.  dt  P.  131^ 
Gurney.  1048 

In  an  action  against  executors,  an  unpaid  le- 

Kitee  IS  a  competent  witness  for  the  defendants. 
oweU  V.  Davis,  2  Nev.  &  M.  745 ;  5  fi.  &  Adol. 
368.  1049 

The  interest  of  an  auctioneer  from  his  commis- 
non  does  not  defeat  his  evidence.  Buckmaster  v. 
B^Jiop,  13  Ves.  jun.  474.  1050 

A.  had  let  a  horse  and  gig  to  B.  for  a  journey. 
B.  afterwards  desired  C.  to  drive  it  back  for  him, 
and  return  it  to  A. ;  as  C.  was  doing  so,  the  de- 
fendant negligently  drove  his  ffig  against  the 
horse  of  A.,  and  killed  it : — Held,  that  in  an  ac- 
tion brought  by  A.  for  the  injury  to  his  rever- 
sionary interest  in  the  horse,  C.  was  not  a  com- 

E»tent  witness  for  the  plaintin  without  a  release, 
eming  v.  English,  6  C.  &  P.  542— Williams. 
^  1050 

Peacock  having  conveyed  a  close  to  SimjMon, 
who  built  a  house  thereon,  conveyed  it  a^ain  to 
Pickering,  who  pulled  down  the  bouse  and  then 
nortffaged  the  property  to  Peacock  as  a  security 
for  the  purchase  money.  Simpson  having  sued 
Pickering  for  trespass  to  the  close : — Held,  that 
as  only  a  possibility  appeared  that  Peacock  might 
be  a  partv  interested,  he  was  a  competent  witness 
for  the  defendant  Simpson  v.  Pickering,  1  C. 
M.  a&  R.  527 ;  5  Tyr.  143.  1059 

A  person  liable  by  bond  for  the  costs  of  the  ac- 
tion, may  be  rendered  competent  by  depositing 
the  penaUy  of  the  bond,  as  a  security  for  the  costs, 
with  the  officer  of  the  court.  Lees  v.  Smith,  1 
M.  &>  Rob.  329— Denman.  1047 

B.  F.,  being  employed  bv  the  plaintiff  to  pro- 
cure a  bill  to  oe  discounted  for  him,  placed  it  in 
the  hands  of  the  defendant  for  that  puipoae  Twith- 
oQt  notice} ;  the  defendant  detainea  the  bill  as  a 


set-off  against  a  debt  due  to  liim  from  H.  F.  and 
another :— Held,  that  H.  F.,  having  an  equal  in- 
terest in  the  event  of  the  suit,  either  way,  was  a 
competent  witness  to  prove  these  facts  in  an  ac- 
tion of  trover  brought  by  the  plaintiff  for  the  bill. 
Faincourt  v.  Bull,  1  Scott,  645.  1050 

Persons  who  have  refused  to  pay  toll  traverse, 
or  a  market-toll,  are  competent  witnesses,  ex  ne- 
cessitate, for  the  defendant,  in  an  action  of  debt 
by  the  lessee  of  such  tolls,  to  which  the  general 
issue  is  pleaded.  Lancum  v.  Lovell,  6  C.  dt  P. 
457— Tindal.  1050 

Exammation  and  removal.] — ^If  a  witness  on  the 
voir  dire  be  asked  whether  he  is  liable  to  pay  the 
attomev,  and  he  say  that  he  is  not,  a  letter  writ- 
ten by  nim  may  be  put  into  hi^  hands,  and,  after 
he  has  looked  at  it,  the  question  may  be  put 
again.  Homan  v.  Thompson,  6  C.  &  P.  71/ — 
Arke.  1050 

The  defendant  executed  a  release  to  one  of  his 
witnesses  in  the  usual  manner,  and  gave  it  to  his 
attorney.  At  the  trial  it  appeared  that  another 
witness  would  require  to  be  released.  His  name 
was  accordingly  inserted  in  the  release,  and  the 
defendant  re-executed  it  before  it  had  been  de- 
livered to  either  witness : — Held,  that  this  re- 
execution  did  not  make  a  fresh  stamp  necessary. 
Spicer  v.  Burgess,  1  C.  M.  &  R.  129 ;  4  Tyr.  598 ; 
2  Dowl.  P.  C.  719.  1051 

Qu89re  whether  one  stamp  is  sufficient  on  a 
release  to  two  witnesses  ?  Id. 

Where  a  defendant  suffered  an  incompetent 
witness  to  be  examined,  on  the  undertakmg  of 
the  plaintiff's  attorney  to  execute  a  release  to 
him  after  the  trial,  and  the  plaintiff  obtained  a 
verdict;  it  is  no  ground  for  a  new  trial  that  the 
release  was  not  ffiven,  but  the  witness  has  a  re- 
medy on  the  undertaking.  Hemming  v.  English, 
1  C.  M.  4k  R.  568;  3  Dowl.  P.  C.  155;  6C.  &  P. 
542;  5  Tyr.  185.  1051 

XVII.  Attendaitcb  of  Witnkbsxs. 

Process.] — A  subpoena  duces  tecum,  without 
being  ad  testificandum  also,  held  good  ;  and  the 
party  is  bound  to  obey  it  by  producing  the  docu- 
ment, and  is  not  thereby  mads  a  witness.  Evans 
q.  t.  V,  Moseley,  2  Dowl.  P.  C.  364.  1052 

A  habeas  corpus  ad  testificandum  issued  to 
brinff  up  a  prisoner  to  give  evidence  before  an 
election  committee  of  tne  House  of  Commons, 
on  affidavit  of  service  of  a  rule  to  show  cause,  on 
the  different  persons  concerned,  and  no  cause 
shown.    In  re  Price,  4  East,  587 ;  1  Smith,  284. 

1053 

The  rule  for  bringing  up  a  defendant  from 
criminal  custody  on  a  habeas  corpus  ad  test,  is 
nisi  only  in  the  fir«t  instanoe.  Rex  v.  Pilgrim,  4 
Dowl.  P.  C.  89.  1053 

A  rule  nisi  was  granted  for  a  habeas  corpus  ad 
testif.  to  bring  up  a  prisoner  in  custodv  on  the ' 
commitment  of  a  magistrate,  to  give  evidence  be- 
fore an  election  committee  of  the  House  of  Com* 
mons ;  but  the  court  intimated  doubts  as  to  the 

g»wer  of  making  it  absolute.    Jn  re  Pilgrim,  1 
ar.  dk  Woll.  319.  1053 


2470 


[EVIDENCE} 


The  ctfurt  has  no  power  to  compel  a  penon  to 
appear  and  give  evidence  before  the  master. 
M*Dou?al  V.  Nichols,  4  Dowl.  P.  C.  76 ;  1  Har. 
&  Woll.  341.  1053 

In  the  statute  45  Geo.  3,  o.  92,  a.  3,  for  en- 
forcing the  appearance  of  persona  served  with 
subpesna  in  one  part  of  the  united  kingdom,  to 
give  evidence  in  another,  the  ^'parts''  signified 
are  England,  Scotland,  and  Ireland.  Kex  v. 
Brownell,  1  Adol.  Sl  Ellis,  5!)8.  1053  J 

Where  a  person  has  been  served  with  a  sub- 
pcena,  not  issued  from  the  crown  office,  to  appear 
and  give  evidence  at  quarter  sessions,  and  makes 
default,  the  court  of  Kinfr's  Bench  cannot  attach 
him  for  contempt,  either  by  its  general  authority, 
or  by  virtue  of  the  above  statute.    Id. 


Expeiues.'] — No  conduct  money  need  be  ten- 
dered to  a  witness  in  town  in  a  town  cause.  Jacob 
v.  Hungaie,  3  Dowl.  F.  C.  457.  1053 

A  witness  is  entitled  to  her  reasonable  expenses 
for  travelling  in  the  mode  suited  to  her  station  in 
life,  and  the  particular  circumstances  in  which 
she  may  be  placed;  and,  therefore,  where  the 
wife  of  an  innkeeper  was  subpoenaed  to  attend  a 
trial  at  Lancaster,  which  was  sixty  miles  distant 
by  the  high  road,  and  fifty  by  a  more  direct 
one,  and  she  was  tendered  22.  It.  (the  outside  fare 
by  the  coach  by  the  latter  road  bein|r  only  11#.  6d.), 
but  it  appeared  that  she  had  a  sick  child  who 
must  have  travelled  with  her,  and  the  money  ten- 
dered was  insufficient  if  she  travelled  inside,  a 
rule  for  an  attachment  against  her  was  discharg- 
ed, but  without  costs,  as  she  took  the  money 
tendered  and  made  no  objection  at  the  time. 
Dixon  V.  Lee,  3  Dowl.  P.  C.  259;  1  C.  M.  &  R. 
645 ;  5  Tyr.  180.  1053 

A  master  of  a  vessel  detained  here  aa  a  necessary 
witness,  was  allowed  in  the  taxation  of  costs  the 
expenses  of  his  living  here,  and  his  travelling  ex- 
penses, and  disallowed  a  claim  of  71.  per  month 
tor  wages,  which,  if  he  had  sailed,  he  would  have 
been  entitled  to  : — Held,  that  the  allowance  was 
proper.    White  v.  Brazier,  3  Dowl.  P.  C.  499. 

1053 

In  order  to  review  a  taxation  by  the  master  for 
disallowing  the  expenses  of  detention  of  a  foreign 
witness  in  this  country,  it  should  be  shown  that 
the  master  did  not  exercise  his  discretion  on  the 
subject,  after  special  ffroonds  for  the  allowance 
had  been  laid  before  nim.  White  r.  Mayor,  5 
Tfr.  487.  1053 

The  master,  in  taxing  the  expenses  of  wit- 
nesses according  to  a  certain  scale,  cannot  allow 
more  than  is  actually  paid  for  their  travelling 
expenses.    Radcliffe  v.  Hall,  3  Dowl.  P.  C.  802. 

1053 


Remedy  by  Jletion.'] — An  action  will  lie  against 
a  witness  for  non-attendance  in  pursuance  of  a 
Bubpcnna,  although  the  plaintiff  was  not  nonsuited, 
bat  withdrew  his  record  in  consequence  of  the 
absenoe  of  the  witness.  Mnllett  t?.  Hunt,  1  O.  dt 
M.  752;  3  Tyr.  875.  1053 

A  witness  who  was  snbpoBnaed  by  the  plaintiff 
in  an  action  for  use  and  ocoupation,  and  oould 


have  given  evidence  as  to  the  use  and  oocnpalionv 
and  could  also  have  rebutted  a  set-off  which  waa 
expected  to  be  insisted  on  as  a  defence,  did  not 
appear  in  pursuance  of  his  subpoena.  There  waa* 
another  witness  as  to  the  use  and  occupation. 
When  the  cause  was  called  on,  the  counsel  on  both 
sides  were  absent.    The  attorney  for  the  plaintiff' 

Craved  that  he  could  have  handed  over  the  draft 
rief  to  other  counsel  who  were  in  attendance,  and 
that  he  withdrew  the  record  solely  on  account  of 
the  absence  of  the  witness  who  did  not  appear  : 
— Held,  that  the  witness  was  liable  in  an  action 
for  not  appearing  in  pursuance  to  his  subpoena.  Id. 

In  a  declaration  in  case  for  not  attending  as  a 
witness  in  pursuance  of  a  subpoena,  there  was  no 
distinct  allegation  of  a  good  cause  of  action  ia 
the  original  suit ;  but  it  was  stated,  that  the  de- 
fendant cpnld  have  given  material  evidence  for 
the  plaintiff,  and  that  without  his  evidence  the 
plaintiff  could  not  safely  proceed  to  trial,  and 
that  bv  reason  of  his  non-attendance,  and  because 
the  plaintiff  conld  not  safely  proceed  to  trial 
without  his  testimony,  he  was  forced  and  obliged 
to  and  did  withdraw  the  Nisi  Prins  reoord :-~ 
Held,  sufficient  ailer  verdict.    Id. 

The  same  declaration  alleged,  tl^at  the  sub- 
poena was  made  known  and  shown  to  the  defen- 
dant. The  evidence  was,  that  the  subpoena  was 
made  known,  and  conduct-money  was  taken  bj 
the  witness,  but  the  original  subpoena  was  not 
shown : — Held,  that  it  was  not  necessary  for  the 
purposes  of  such  action,  that  the  original  subpoena 
should  be  shown,  (unless,  perhaps,  where  the 
part^  demanded  to  see  it),  and  that  the  part  of 
the  allegation  as  to  showing  the  subpoena  might 
be  rejected.  Id.  « 


AUachmenl.'] — On  a  rule  for  an  attachment  for 
not  obeying  a  subpoena  to  attend  as  a  witness,  it 
must  appear  that  the  party  was  called  in  court  on 
his  subpoena.    In  re  Jacoos,  1  Har.  &  Woll.  123. 

1053 


It  is  a  sufficient  excuse  that  he  was  too  ill 
attend.  Id. 


to 


On  a  motion  for  an  attachment  against  a  wit- 
ness for  not  obeying  a  subpoena : — ileld,  no  eX' 
cuse  that  (he  witness  would  have  been  in  time,  if 
a  previous  cause  on  the  list  had  not  unexpectedly 
gone  off.  In  re  FeBn,3  Dowl.  P.  C.  546 :  1  Har. 
dL  WoU.  200.  1053 

Nor  that  another  person  had  answered  for  him, 
and  would  have  fetcned  him  in  a  few  minutes.  Id. 

The  court  of  K.  B.  has  no  power  to  grant  an 
attachment  against  a  witness  for  disobeying  a 
subpoena  issued  out  of  the  court  of  quarter  ses- 
sions.   Rex  V.  Room,  3  Nev.  &  M.  725.        1053 

In  order  to  subject  a  witness  to  an  attachment 
for  not  obeying  a  subpoena,  it  must  appear  that 
be  was  called  on  it.  Kex  v.  Stretch,  3  Dowl.  P. 
C. 368.  1053 

A  motion  for  an  atttachment  for  not  obeying  a 
subpoena  should  be  made  at  the  earliest  possible 
opportunity  afler  the  contempt  has  occulted. 
The  court,  on  the  ground  of  delay^  discharged  a 
rule  for  an  attachment  for  not  obe^n^  asubpcaiB 
to  give  evidence  at  the  trial  of  an  indtcttaient  for  n 


[EVIDENCE] 


2471 


miadeiiietnor  on  lltb  December,  when  the  ap- 
plication was  not  made  until  the  following  Trin. 
Term.  Hex  v.  Stretch,  4  Dowl.  P.  C.  30 ;  5  Nev. 
AM.  178;  1  Har.  &  Woll.  332.  1053 

it  is  not  indispensablj  necessary,  that  when  a 
witness  is  called  on  his  subpoena,  Ine  officer  of  the 
court  should  hold  the  writ  m  his  hand ;  it  is  suffi- 
cient that  the  writ  should  be  exhibited  in  court, 
and  the  officer  call  him  three  times.  Rex  v. 
Fenn,  3  Dowl.  P.  C.  546;  1  Har.  &  Woll.  200. 

1053 

Upon  a  motion  for  an  attachment  against  a 
witness,  (for  disobedience  to  a  subpoena),  in  not 
attending  at  the  trial,  an  affidavit  that  she  was 
called  three  times  in  open  court  is  sufficient, 
without  alleging  that  she  was  called  upon  the 
subpoena.  Dixon  v.  Lee.  3  Dowl.  P.  C.  259 ;  1 
C.  M.  &  R.  645 ;  5  Tyr.  IdO.  1053 

The  court  will  not  grant  an  attachment  against 
a  witness  lor  contempt  in  not  obeying  a  subpoena, 
if  the  circumstances  are  fully  before  them,  and  it 
appears  his  evidence  could  not  have  been  mate- 
rial.    Dicas  V.  Brougham  (Lord),  1   Gale,  14. 

1053 

Where  it  appears  from  the  notes  and  informa' 
tion  of  a  judge,  who  tried  a  cause,  that  the  at- 
tendance of  a  witjiess  who  has  been  subpoenaed 
would  be  wholly  immaterial  to  the  event,  no  at- 
tachment for  contempt  in  not  attending  will  be 
Kuted.  Dicas  v.  Lawson,  1  C.  M.  &R.  934 ;  3 
wL  P.  C.  427 ;  5  Tyr.  5f35.  1053 

A  rale  for  an  attachment  against  a  witness 
will  be  discharged  with  costs,  if  it  is  denied^  that 
tiie  original  was  rfhown  at  the  time  of  service. 
Jacobs  V.  Hungate,  3  Dowl.  P.  C.  456.  1053 

Since  the  11  Geo.  4  &  1  Will.  4,  c.  70,  s.  4,  it 
is  no  objection  to  an  affidavit  to  ground  an  at- 
tachment against  a  witness  for  contempt,  that  it 
is  sworn  beiore  a  judge  of  a  difibrent  court  from 
that  to  which  the  oontempt  was  shown.  Phil- 
lips V.  Drake,  2  Dowl.  P.  C.  45.  1053 

XVIII.  Examination  or  Witnesses. 

Where  a  witness  for  the  prosecution,  in  a  case 
of  felony  at  the  Old  Bailey,  on  being  asked  to 
repeat  an  answer  Which  she  had  previously  given, 
belbfe  the  whole  of  it  had  been  taken  down, 
omittM  what  the  prisoner's  counsel  thought  an 
important  part  of  it,  and  denied  that  she  had 
ever  nttered  such  part,  the  judge  allowed  the 
ahort^hand  writer  of  the  court,  who  had  taken 
down  the  answer,  to  be  examined  as  a  witness,  to 
show  whether  the  words  had  been  used  or  not. 
Rex  V.  Slater,  6  C.  &  P.  334.  1054 

A  judge  has  a  discretion  whether  or  not  a 
witness  shall  be  recalled  ailer  the  party  ^ho 
ealled  him  has  closed  his  case.  Adaois  v.  Bank< 
art,  1  C.  M.  &  R.  661 ;  5  Tyr.  425;  1  Gale, 48. 

1054 

If  a  defendant's  counsel,  in  cross-examining  a 
witness,  put  a  letter  into  his  hand,  and  afteir  ask- 
ing him  if  he  wrote  it,  desire  him  to  read  it,  and 
then  pnt  qnestions  upon  it,  the  defendant's  coun- 
sel is  not  bound  to  have  the  letter  read  till  after 
he  has  addressed  the  jury.  Holland  «.  Reeves, 
7  C.  &  P^  3&— Alderaon.  1045 


A  defendant's  attorney,  who  has  been  sub- 
poenaed on  the  part  of  the  plaintiff,  may,  at  the 
desire  of  his  counsel,  remain  in  court  during  the 
trial  of  the  cause,  although  an  order  has  been 
made  for  the  witnesses  on  both  sides  to  with- 
draw. Everett  r.  Lowdham,  5  C.  ^  P.  91 — Bo- 
sanquet.  1055 

If  a  witness  come  into  court,  and  hear  some 
of  the  evidence  afler  the  witnesses  have  been 
ordered  out  of  court,  it  is  entirely  in  the  dis- 
cretion of  the  judge  whether  he  shall  be  ex- 
amined or  not ;  and  this  is  so  in  the  Exchequer 
as  well  as  in  other  courts,  the  only  difference  in 
that  court  bein^  confined  to  revenue  cases,  in 
which  the  rule  is  strict,  that  such  witness  can- 
not be  examined.  Thomas  v.  David,  7  C.  &  P. 
350— Coleridge.  1055 

It  is  no  ground  for  rejecting  a  witnesses'  evi- 
dence, that  he  remained  in  court  after  an  order  for 
all  th<Y  witnesses  to  leave  the  court ;  it  is  merely 
matter  of  observation  on  his  evidence.  Cook  v. 
Nethercote,  6  C.  &  P.  741^Alderson.  1055 

If  a  witness  refresh  his  memory  from  entries 
in  a  book,  the  opposite  counsel  may  cross-exa- 
mine on  those  entries,  without  making  them  his 
evidence,  and  the  jury  may  see  the  entries  \€ 
they  wish  to  do  so;  but  if  the  opposite  counsel 
cross-examine  as  to  the  other  entries  in  the  same 
book,  he  makes  them  his  evidence.  Gregory  v.. 
Tavernor,6C.  &  P.  881— Gurney.  105& 

Held,  that  a  clerk  mieht  refresh  his  memory 
as  to  the  deliveries  of  goods,  by  looking  at 
entries  made  in  his  presence  by  his  master  in  a 
ledger,  from  entries  made  by  the  clerk  in  a 
waste  book,  such  entries  in  the  ledger  having 
been  checked  by  the  clerk  while  the  facts  iwere 
fresh  in  his  memory,  and  that  the  waste  book 
need  not  be  produced.  Burton  v.  Plummer,  4 
Nev.  &  M.  315;  2  Adol.  &  EUis,  341.  1055 

Per  Patteson,  J.,  the  rule  that  the  best  evi- 
dence must  be  produced,  precludes  a  witnesa 
from  refreshing  his  memory  with  a  copy  of  an 
instrument  which  might  itself  be  used  for  re^ 
freshing  his  memory,  as  much  as  it  precludes: 
the  admission  of  evidence  of  the  copy  of  an  in-^ 
strument,  which  would  be  evidence  in  itself.  Id,. 

To  prove  a  settlement  by  renting  a  tenement,^ 
under  stat.  59  Geo.  3,  c.  50,  the  tollowing  evi- 
dence of  the  taking  was  given : — A  witness  pnK 
dnced  a  book  containing  this  entry,  unstamped^ 
in  his  handwriting,  "agreed  with  T.  S."  (the 
pauper)  "  to  have  me  house  in  P.,  now  occupied 
by  W.,  at  *11L  per  annum,  to  be  paid  quarterly,^ 
quarter's  notice  to  be  on  either  side,  to  leave  in 
same  repair  as  found  it."  The  witness  stated  that 
he  let  the  house  as  agent  to  the  owner,  and  that 
the  terms  were  reduced  to  writing  to  prevent 
mistake,  and  signed  by  the  pauper's  wife  to  bind 
her  husband  who  was  not  present;  but  there  was 
no  other  signature.  The  pauper  occupied,  and 
appeared  to  have  paid  rent  quarterly  for  some 
time,  at  the  rate  mentioned  : — Held,  that  the  ses- 
sions not  having  found  that  the  wife  was  author^ 
ized  by  the  pauper,  the  above  entry  was  not 
an  agreement  for  a  lease,  and  the  witness  might 
look  at  it  to  refresh  his  memory,  without  ita 
being  produced  iaevidence.    The  witness  stated 


[EYTDESCET^ 


W  a  foffM  Mtun^  wrjy/vl  Uk:mt  tJ>? 
ihff  ewtaj,    tUt  r.  St.  Marty's    L«: 

luA  mm  kcwi  the  ^rp  C,  aa<  bj 
MiM  aft«T  fer,  wTQie  to  a»    , 

descried  kim  if  he  reeevredf  the  letler  beibre 
the  C.  arrnred,  to  vmit  thirtr  days  n  order  to 
fire  ererf  ehaaee  fer  her  armrd,  sad  then  e4ect 

<»  the  foods.  The  letler  ra  ite- 
the  amtml  hiMwmg  waited  ontv  than 
Ihiftj  day*  effected  aa  oMsnaee  throo«li  the  in- 
terfeBtMMi  of  a  broker,  mho  told  the  aodervnters 
whea  the  C.  aasled,  aad  wfaea  the  letter  orderm^ 
the  mawaaee  waa  vrittea,  botdid  aoiitate  vhni 
It  waa  leceifed  aor  the  order  to  wait  thirty  dars 
after  the  receipt  of  it,  before  etStctinw  the  io- 
aavaace.  abc  li/-  aewei  arrfreu.  loe  aaanreo 
bioiifht  aa  actioa  oo  the  polie^  agaiaat  the  io- 
avrera,  but  failed  ooaeeoooioi  the  aoppmnoo 
of  the  6eta  by  the  broker.  la  aa  action  by  the  aa- 
awed  afaiaat  the  broker,  ibr  ne^igeace  ia  effect- 
iaf   the  policy  :—Heid,    that   the   eridenee  of 

raa  aol  adonaeible  to  show,  that  in 
opiaioB  the  matten  aoC  commaniealed 
were  maleriaL  Campbell «.  Ridnida,  5  B.  & 
AdoL840.  1055 


de 

the 

tne^T  different 

trial^Per  L4vd 

Bollaad,  B.)  Wright  r 

—Dei 


^  ipieftioiia  mar  always  be  pot  in  croae* ; 
ezaminalMm,  whether  the  witaeaa  he    a  willing 
or  aa  adrerae  one  for  the  party  calling  him.    Par-  i 
kin  V,  Moon,  7  C.  &  P.  40H~Alderaon.  1058  ' 

Where  a  witaeae  on  eroaa^zamination  prorea 
the  handwriting  of  the  opponle  party  to  a  paper, 
the  eoonael  for  aoch  parU  baa  no  right  to  aee  the 
paper,  to  enable  him  to  found  an  examination  as 
to  whether  it  was  really  the  writing  of  his  client 
or  not  Roasell  v.  Rider,  6  C.  &  P.  416— Bo- 
Mnquet.  1058 

Collateral  qneations,  trying  the  troth  of  a  ma- 
terial part  of^  the  witoeas's  story,  mar  be  put. 
£x  parte  Bardwell,  1  Mont  Sl  Ayr.  206.       1059 

If  a  witness  is  called,  and  haa  only  anaweied 
an  immaterial  question  when  his  examination  is 
•topped  by  the  judge,  the  opposite  party  haa  no 
right  to  cross-examine  him.  Creevy  v.  Carr,  7 
C,(k,?.  64— Gnmey .  1059 

The  judge  will  allow  the  defendant's  counsel 
to  cross-examine  as  to  facte  which  appear  to  be 
irrelerant,  as  relating  to  a  third  person,  if  the 
defendant's  counsel  undertake  that  it  shaU  be 
shown  by  other  evidence  that  these  facto  are  re- 
lerant  to  the  iasue.  Haigh  v.  Belcher,  7  C.  &  P. 
389— Coleridge.  1059 

On  the  trial  of  an  action  for  a  nuisance,  a  wit- 
ness  may  be  asked  whether  he  haa  not  heard  the 
plaintiff'^ say  that  he  bad  preferred  eight  indict- 
mente  against  the  proprietors  of  the  works,  which 
in  the  present  action  were  charged  to  be  a  nui- 
nnoet^Held,   alio,  that  a  witness  might  be 


of 
,  the  party 
ae  his  en- 
the  trial  given  to 
•fthe  tfasaactMB  ea- 
tohr  hiaatthe 
C.   J,  (diaspntieate, 
fiecketl,  I  M.  Roh.  414 

1059 


If  a  witaeas  called  lor  the  plaiatiff'be  asked,  <m 
the  part  of  the  defeadaat,  whether  the  plaintiff* 
had  any  eoBTersatioa  with  him  on  a  particalar 
snbject,  and  the  witneas  state  anything  that  the 
plamtJir  said  on  that  snbiect,  the  plaiatiff"s 
connael  may  examine  as  to  erery  part  of  the 
same  conTemtion  ;  bat,  if  the  witaeas  state  that 
the  plaintiff  had  no  such  conversation  with  him, 
this  d«jes  not  let  in  the  plaintiff's  .coansel  to  ex- 
amine as  to  any  thing  else  that  the  plaintiff  said. 

Dicas  r.  finmgham(Lord),6  C.  &  P.  219— Lynd- 
hnrst  K        V        /.  J^^ 


A  witness  waa  aaked,  on  cross  examination, 
whether  he  had  not  become  bail  Ibr  a  witneaa 
nreviooaly  examined.  He  replied,  yes  \  and  that 
be  believed  it  waa  on  a  charge  of  keeping  a 
gaming-house,  lu  order  to  prevent  any  im- 
presaion  against  the  character  of  the  party  ao 
aecoaed,  tlv  court,  at  the  aoggeation  of  counsel, 
allowed  aoch  party  to  be  oQled  up  again,  and 
asked  whether  the  charge  waa  in  fact  true  or  feJae. 
Rex  V.  Noel,  6  C.  &  P.  336.  1061 

In  ejectment  by  heir  against  devisee,  the  so- 
licitor who  drew  the  vrill  was  called  to  prove  ite 
execution  by  the  testetor.  On  croas^xamina- 
tion  it  waa  aought  to  impeach  hia  character  :— 
Held,  that  the  ctfendant  could  not  be  allowed  to 
call  witnesses  to  prove  his  good  character,  such 
evidence  being  only  allowable  where  the  attorney 
who  prepared  the  will  ia  dead.  Doe  d.  Reed  v. 
Harris,  7  C.  ^  P.  330— Coleridge.  1061 

In  an  action  against  the  maker  of  a  promissory 
note,  one  of  the  subscribing  witnesses  waa  aaked 
if  she  did  not  constantly  u^p  with  her  master, 
the  plaintiff.  She  said  that  ahe  did  not : — Held, 
that  a  witness  might  be  called  for  the  defendant  to 

Iirove  that  she  did  so,  and  that  this  was  not  col- 
Qteral  to  the  issue ;  though,  if  the  question  had 
been,  whether  the  witness  had  walked  the  streete 
as  a  prostitute,  that  would  have  been  so,  and  had 
the  witness  denied  it,  other  witnesses  could  not 
have  been  called  to  contradict  her.  Thomaa  o. 
David,  7  C.  &  P.  350— Cokridgo.  1061 


[EVIDENCE] 


2479 


XIX.  ExAMiiTATioir  vpoir  Iitterrooatoriks. 

An  application  under  the  1  Will.  4,  c.  22,  for 
the  examination  of  a  witness  resident  out  of  the 
jurisdiction  of  the  court,  mast  be  made  as  early 
as  possible  after  issue  joined.  Brydges  v.  Fisher, 
4  M.  &  Scott,  458.  1062 

The  court  of  Exchequer  has  the  same  power 
as  the  court  of  King's  ^nch,  since  the  13  Geo. 
3,  c  63,  s.  44,  to  issue  a  mandamus  or  a  commis- 
sion for  the  examination  of  witnesses  abroad. 
Savage  v,  B'mny,  2  Dowl.  P.  C.  643.  1062 

A  witness  for  the  defendant  was  examined  on 
a  commission  granted  under  the  stat.  1  Will.  4, 
seas.  2,  c.  22,  s.  4  :  on  his  cross-examination  a 
paper  signed  by  him  was  produced  to  him,  and  a 
portion  of  his  cross-exammation  and  re-examina- 
tion related  to  it  and  was  founded  on  it ;  the  pa- 
per was  annexed  to  the  deposition  : — Held,  that 
this  paper  was  not  to  be  read  as  a  part  of  the 
cross-examination  of  the  witness,  but  that  if  the 
plaintiff's  counsel  wished  it  to  be  read  before  the 
croaa-examination  was  read,  it  must  be  read  as 
his  CTidence,  so  as  to  entitle  the  defendant's 
counsel  to  observe  on  it  in  a  special  reply. 
Stephens  v.  Foster,  6  C.  &  P.  289-~Lyndhurst. 

1062 

The  court  will  not  stay  the  issuing  of  a  com- 
misBion  to  examine  witnesses  abroad,  on  the 
ground  of  the  plaintiff  being  indebted  to  the  de- 
fendant for  certain  costs  in  equity.  Oughan  v. 
Parish,  4  Dowl.  P.  C.  29.  1062 

Under  1  Will.  4,  c.  22,  s.  4,  the  courts  there 
named  may  order  a  commission  to  issue  for  the 
examination  of  witnesses  abroad,  omitting  the 
usual  clause,  requiring  the  commissioners  to  take 
an  oath  as  such,  where  it  is  shown  that  such 
omission  is  requisite  for  the  purpose  of  rendering 
the  commission  effectual.  Clay  v.  Stephenson,  5 
Ner.  A  M.  31b>  1  Har.  &.  WoU.  409.  1602 

Where,  therefore,  it  appeared  that  witnesses 
lesiding  at  Hamburgh,  whose  testimony  was  ne- 
cessary to  the  case  of  a  plaintiff  suing  in  this 
cooft,  refund  to  give  evidence  voluntarily  before 
<»dinary  commissioners,  and  by  the  law  of  Ham- 
burgh could  not  in  any  manner  be  compelled  to  do 
so,  and  that  the  judges  of  the  court  of^  commerce 
there  would  have  power  to  compel  the  attendance 
and  examination  of  witnesses  upon  oath,  under  a 
commission  directed  to  them  by  this  court,  and 
would  be  willing  to  render  it  effectual,  provided 
they  were  not  called  upon  to  take  any  special 
oath  as  commissioners,  this  court  ordered  a  com- 
mission to  be 'directed  to  them,  omitting  the 
clause  requiring  the  usual  oath.    Id. 

The  court  refused  to  make  any  special  order 
respecting  the  costs  of  a  rule  for  such  a  commis- 
noMLf  leaving  them  to  be  costs  in  the  cause.    Id. 

A  mandamus  cannot  be  issued  into  Scotland 
under  the  1  Will.  4,  c  22,  s.  1,  for  the  examina- 
tion of  witnesses  there ;  but  a  commission  may 
be  issued  for  that  purpose  under  the  4th  section. 
Wunwnghiv.  Bland,  3  Dowl.  P.  C.  653;  1  Gale, 
103.  1C62 

Where  it  is  sworn  that  a  witness  is  in  a  pre- 
carious  state  of  health,  and  cannot  attend  the' 


trial  with  safety,  he  may  be  examined  before  the 
officer  of  the  court.  Pond  v.  Dimes,  2  Dowl.  P. 
C.  730.  1062 

A  rule  for  a  mandamus  to  examine  witnesses 
in  India,  under  the  13  Geo.  3,  c.  63,  s.  45,  is 
nisi  in  the  first  instance.  Doe  d.  Grimes  v.  Pat- 
tison,  3  Dowl.  P.  C.  35.  1062 

A  commission  to  examine  witnesses  may  be 
granted  for  the  trial  of  an  issue  directed  by  the 
court  of  Chancery.  Bourdeaux,  Bourdieu,  or 
Bordieu  v.  Rowe,  1  Bing.  N.  R.  721 ;  I  Scott, 
608 ;  1  Hodges,  93.  1062 

A  motion  for  such  a  commission  is  properly 
made  to  the  court  in  which  the  trial  is  to  be  had. 
Id. 

Where  a  witness  resides  abroad  at  such  a  great 
distance  that  a  commission  sent  out  to  examine 
him  would  necessarily  occasion  great  delay,  it  is 
not  a  matter  of  course  to  grant  such  a  commis- 
sion on  the  application  of  the  defendant,  but  it 
must  be  made  out  to  the  satisfaction  of  the  court 
that  the  evidence  of  the  witness  would  be  admis- 
sible, and  of  service  to  the  defendant  when  ob- 
tained ;  and  therefore,  where  in  an  action  on  a 
bill  by  the  indorsee  against  the  acceptor,  the 
defendant  applied  for  a  commission  to  examine 
the  drawer  in  Upper  Canada,  to  show  that  there 
was  nothing  due  from  the  defendant  to  him,  and 
it  was  sworn  that  it  was  believed  that  the  plaintiff 
had  not  ^iven  value,  but,  upon  a  former  nearing 
before  a  judge  at  chambers,  it  appeared  to  him 
that  the  plaintiff  had  given  value,  the  court  re> 
fused  to  interfere.  Lloyd  r.  Key,  3  Dowl.  P.  C. 
253.  1062 

On  an  application  by  the  defendant  for  a  com- 
mission to  examine  witnesses  abroad,  the  court 
refused  to  make  it  a  part  of  the  rule  to  call  upon 
the  plaintiff  to  produce  a  bill  of  exchange  in  his 
possession  at  the  time  of  executing  the  commis- 
sion.   Cunliffe  v.  Whitehead,  3  Dowl.  P.  C.  634. 

1062 

By  the  stat.  1  W.  4,  c.  22,  the  court  has  power 
to  issue  a  mandamus  to  examine  a  witness  in 
India,  wheresoever  the  cause  may  have  arisen. 
Bain  v.  De  Vetry,  2  Dowl.  P.  C.  516;  1  Gale, 
52.  1062 

A  rule  of  court  for  the  examination  of  wit- 
nesses on  interrogatories  in  a  foreign  country,  is 
not  an  absolute  stay  of  proceedings,  but  only  a 
limited  one.  Forbes  v.  Wells,  3  Dowl.  P.  C. 
318.  ,  1062 

If  it  appear  to  the  court  that  a  mandamus  or 
commission  to  examine  witnesses  abroad  is 
moved  for  to  delay  the  plaintiff,  the  court  will 
grant  the  writ  only  on  bringing  the  money  into 
court.    Dalton  v.  Lloyd,  1  Gale,  102.  1062 

The  affidavit  on  which  to  ground  a  motion  for 
a  commission  to  examine  witnesses  abroad,  must 
either  specify  the  names  of  the  witnesses  pro- 
posed to  be  examined,  or  in  some  other  way  de- 
scribe them.  Gunter  v.  M'Tear  or  M'Kear,  1 
Mees.  &  Wels.  201 ;  4  Dowl.  P.  C.  722.        1062 

It  is  not  necessary  that  the  affidavit  in  sup- 
port of  a  motion  for  a  commissioner  to  examine 
witnesses  abroad,  should  state  either  the  names 
of  the  witnesses  or  the  matters  to  which  they  are 


2474 


[EVIDENCE] 


to  be  examined,  in  a  case  where  it  is  evident  that 
sach  examination  is  necewary.  Carbonell  v. 
BeaseU,  5  Simon,  636.  1062 

Where  an  affidavit  in  f  upport  of  an  application 
for  a  commiasion  to  examine  witnesses  abroad, 
stated  that  the  facts  alleged  in  the  pleadings,  took 
place  in  the  presence  of  the  witnesses,  that  they 
were  resident  abroad,  and  that  their  evidence  was 
material  and  necessary : — Held  sufficient ;  and  that 
the  affidavit  need  not  state  that  the  evidence  was 
admissible,  or  that  the  application  was  bona  fide 
and  not  for  delay ;  and  also  that  no  affidavit  of 
merits  was  necessary.  And  the  court,  in  grant- 
ing such  an  application,  will  not  impose  terms 
upon  the  party  applying.  Baddely  v.  Gilmore,  1 
Mees.  &  Wels.  50.  1062 

The  discretion  as  to  the  costs  of  a  commission 
for  the  examination  of  witnesses  out  of  the  ju- 
risdiction, ^iven  to  the  courts  by  the  statute  1 
Will.  4,  c.  22,  s.  3,  will  be  regulated  by  the  same 
principles  upon  which  the  courts  of  equity  pro- 
•ceedea  in  like  cases  before  the  passing  of  that 
4rtatute,  or  by  the  practice  that  obtained  with 
respect  to  the  costs  of  a  mandamus  under  the 
13  Geo.  3,  c.  63,  s.  44.  Brydges  v.  Fisher,  1 
Scott,  485;  1  Bing.  N.  R.  610;  1  Hodges,  36. 

1062 

Where  a  commission  issued  at  the  instance  of 
the  defendant  for  the  examination  of  a  witness 
4Lbroad,  under  stat.  I  Will.  4,  c.  22,  s.  3,  and  the 
defendant  obtained  a  verdict : — Held,  that  he  is 
not  entitled  to  the  costs  of  the  commission.    Id. 

Commi^ioners  for  the  examination  of  wit- 
nesses ought  not  to  be  paid  according  to  the 
number  or  office  folios  of  the  depositions,  but 
■according  to  the  number  of  days  on  which  they 
4bctually  sit.    Small  v.  Attwood,  1  Y.  &  Col.  53. 

1062 


XX.  Acts  of  Parliaksnt. 

A  local  act,  with  a  clause  declaring  it  to  be  a 
public  act,  and  that  it  shall  be  taken  notice  of  as 
.such  without  bein^  specially  pleaded,  need  not 
ibe  proved  either  to  nave  been  examined  with  the 
iparliament  roll,  or  to  have  been  printed  by  the 
f[ing's  printer.  Woodward  v.  Cotton,  1  C.  M.  & 
A.  44;  6  C.  &  P.  457;  4  Tyr.  689.  1064 

An  act  for  the  legulatibn  of  the  affitirs  of  an 
insurance  company  contained  a  clause  directing 
t^at  it  should  be  deemed  and  taken  to  be  a  public 
-act,  and  should  be  judicially  taken  notice  of  as 
•such  by  all  judges,  justices,  and  others,  without 
being  specially  pleaded : — Held,  that  the  act  was 
sufficiently  proved  for  all  legal  purposes,  by  the 
production  of  a  copy  purchased  at  the  office  of  the 
^King's  printer.  Beaumont  v.  Mountain,  4  M.  & 
Scott,  177;  10  Bing.  404.  1064 


XXI.  JuDGMXirrs  and  Vxrdicts. 

An  allegation,  that  '*  on,  &c.,  at,  &c.,  a  certain 
indictment  was  preferred  at  the  quarter  sessions 
of  the  peace,  then  and  there  holden  in  and  for  the 
said  county  of  W.,  against  the  defendant  and  one 
T.  £.,  which  said  indictment  was  then  and  there 
found  a  true  bill" — 'u  not  supported  by  the  pro- 


duction of  the  original  indictment  with  the  wonb 
*'  true  bill"  indorsed  on  it,  it  being  necessary 
that  a  regular  record  should  be  drawn  up,  and 
proved,  either  by  its  production  or  by  an  exa- 
mined copy.  Porter  v.  Cooper,  6  C.  &  P.  354 — 
Patteson.  1066 

On  an  indictment  for  perjury,  committed  in  the 
hearing  of  a  parish  appeal  at  the  quarter  sessions, 
the  production  of  tlie  sessions  book  is  not  suffi- 
cient proof  tliat  the  appeal  came  on  to  be  heard ; 
and  a  regular  record  must  be  made  up  on  parch- 
ment, the  same  as  on  a  return  to  a  certiorari,  and 
that  record  or  an  examined  «opy  must  be  pro- 
duced.   Rex  V.  Ward,  6  C.  &  P.  367— Park. 

1066 

In  an  action  brought  by  A.  and  B.,  for  divertin|^ 
water  from  their  works,  it  appeared  that  A.,  when 
in  the  sole  possession  of  the  same  works,  bad 
brought  a  former  action  for  a  similar  injury, 
against  the  same  defendants,  in  which  he  had  re- 
covered a  verdict  and  judgment  against  them  ; 
and  it  being  proved  that  A.  and  B.  were  now  in 
possession  of  the  same  works : — Held,  that  this 
was  abundant  prima  facie  evidence,  that  the  pre- 
sent plaintiffs  were  privy  in  estate  to  the  former 
plaintiff,  and  that  the  verdict  and  judgment  in 
the  former  action  were  admissible  in  evidence 
against  the  same  defendants  in  this  action. 
Blakemore  v.  Glamorganshire  Canal  Comp.,  2  C. 
M.  &  R.  133;  1  Gale,  78.  1066 

Held,  also,  that  the  circumstances  of  B.'s 
having  been  examined  as  a  witness  in  the  former 
action,  when  he  was  disinterested,  did  not  render 
such  verdict  and  judgment  inadmissible.    Id. 

In  an  action  for  use  and  occupation,  a  jnd|g- 
mcnt  in  a  former  action  for  use  and  occupation 
between  the  same  parties,  given  in  favor  of  the 
plaintiff,  is  evidence  of  the  defendant's  havings 
occupied,  but  is  not  conclusive;  and  the  jury 
ought  to  take  into  their  consideration  all  the  cir- 
cumstances under  which  that  judgment  was  ob- 
tained. Jones  V,  Reynolds,  7  C.  &  P.  33&— Cole- 
ridge. 1066 

A  judgment  in  ejectment  is  evidence  to  go  to 
the  jury  in  a  subsequent  ejectment  brought  upon 
the  demise  of  the  same  lessor  against  the  same 
defendant.  Doe  d.  Strode  v.  Seton  or  Seatoa,  3 
C.  M.  <&  R.  728;  1  Tyr.  &  G.  19;  1  Gale,  303. 

1066 

In  ejectment  against  A.,  on  the  demise  of  B., 
a  mortgagee,  a  recovery  in  a  former  ejectment 
subsequently  to  the  mortgage,  on  the  (demise  of 
A.,  against  C.  the  mortgagor,  is  inadmissible  in 
evidence  for  the  defendant.  Doe  d.  Smith  v. 
Webber,  3  Nev.  &  M.  746.  1066 

So,  although  on  the  first  action  B.  was  exa- 
mined as  a  witness  on  behalf  of  C.    Id. 

So,  although  the  second  action  is  brought  on 
the  several  demises  of  B.  and  C,  if  the  plaintiff 
elects  to  rely  on  the  demise  of  B.  only.    Id. 

In  an  action  of  debt  by  the  lessee  of  the  corpo- 
ration of  N.  for  toll  traverse  for  a  waegon|  and 
a  market  toll  for  cattle,  it  was  held,  that  an  in- 
formation quo  warranto  by  the  attorney-general 
of  Queen  Elizabeth  against  the  corporation,  in 
respect  of  the  castoms  they  claimed  and  need. 


[EVIDENCE] 


2476 


not  receiTable  in  evidence,  as  it  did  not  ap- 
pear that  it  was  proaecuted,  such  an  information, 
like  an  indictment,  not  being  evidence,  unless 
theie  be  the  findin|rof  a  jurv  upon  it: — Held, 
also,  that  an  exemplification  of  a  judgment  in  an 
action  of  trespass  by  the  corporation,  for  setting 
ap  a  stall  in  a  market,  with  a  justification  pleaded 
of  such  right  without  paying  toll,  was  not  inad- 
raiMible,  as  it  might  connect  itself  with  the  issue 
in  the  progress  oi  the  cause.  Lancum  v.  Lovell, 
6  C.  &  P.  437--Tindal.  1066 


XXII.  Procsedihos  15  Chancery. 

A  bill  in  Chancery  filed  by  A.  against  B.  and 
others,  the  answer  of  B.  and  his  co-defendants, 
an  order  of  the  Master  of  the  Rolls  directing  an 
issue  of  devisavit  vel  non,  that  being  the  question 
in  controversy  between  the  parties,  and  the  Nisi 
Frius  record  with  the  postea  thereon,  containing 
the  finding  of  devisavit,  and  judgment  accordingly , 
being  admitted  and  read  upon  the  trial  of  an 
ejectment  by  Doe  on  the  demise  of  A.  against 
B.,  in  which  the  same  Question  arose,  are  not 
even  prima  facie  proof  of  the  due  execution  of  the 
will.  Wright  v.  Doe  d.  Tatham,  9  Nev.  Sl  M. 
2SS ;  1  Adol.  &  Ellis,  3.  1068 

On  a  trial  touching  the  right  to  lands,  decrees 
in  Chancery  between  other  parties  concerning 
the  flame  lands,  were  held  admissible  in  evidence, 
to  show  the  character  in  which  the  possessor  en- 
joyed the  lands.  Davis  dem.,  Lowndes  ten.,  2 
Scott,  71 ;  1  Bing.  N.  R.  606.  106» 

The  admissions  in  a  joint  answer  by  the  hus- 
band and  wife  are  no  evidence  against  the  wife, 
such  joint  answer  being  considered  as  the  answer 
of  the  husband  alone.  £lston  v.  Wood,  2  Mylne 
&  K.  678.  1068 


XXIV.  Other  judicial  Documents. 

Evidence  is  admissible  to  add  to  the  examina- 
tion of  a  party  before  a  magistrate,  though  taken 
in  writing.  Venafra  «.  Johnson,  1  M.  dt  Rob. 
316— Gaselee.  1069 

A  cognovit  which  is  filed,  may  be  proved  by 
putting  in  an  examined  copy,  without  producing 
the  original ;  and  the  subscribing  witness  may 
prove  that  he  saw  the  party  sign  a  cognovit,  of 
which  the  paper  produced  is  a  copy.  Scott  v. 
Liewis,  7  C.  &  P.  347— Coleridge.  1070 

The  defendant  in  evidence  read  a  part  of  a  re- 
cord roll  of  presentments  before  justices  in  eyre, 
and  it  appearing  that  there  was  one  roll  for  each 
hnndreo,  and  Uiat  reference  was  made  in  one 
part  to  another  part  of  the  same  roll ;  it  was  held 
that  the  plaintiff  was  entitled  to  have  read  such 
parts  as  he  thought  proper.  Lancum  v.  Lovell,  6 
C.  &  P.  455— Tindal.  1 070 

A  horse  having  been  killed  by  failing  down 
an  old  shaft  of  a  mine  which  had  not  been  suffi- 
ciently covered  over,  the  owner  of  the  horse 
charged  a  person  who  was  in  the  possession  of  a 
mine  near  to  the  spot  with  being  also  in  posses- 
sion of  that  shafl.  The  latter  denied  that  the 
shaft  was  his,  but  said  that  if  a  miner's  jury 
were  called,  and  that  they  should  say  that  the 

Vol.  IV.  26 


shaft  was  his,  he  would  pav  for  the  horse.  A 
miner's  jurjir  was  accordingly  called,  and  they 
found  in  writing  that  the  snafl  was  his  : — Held, 
that  this  finding  of  the  jury,  coupled  with  his 
declaration,  was  admissible  in  evidence  against 
him  in  an  action  on  the  case,  to  recover  com- 
pensation for  the  loss  of  the  horse : — Held, 
also, .  that  as  the  document  in  question  did 
not,  on  the  face  of  it,  appear  to  be  an  award, 
it  need  not  be  stamped  as  an  award.  Sybray  v. 
White,  1  Mees.  &  Wells.  435.  1070 

XXV.  Noif-JUDiciAL  Documents. 

Land-tax  assessments  are  not  evidence  of 
seisin,  where  it  is  shown  to  be  usual  to  retain  the 
name  of  deceased  proprietors  oq  the  books  until 
the  estate  is  sold  to  a  different  family.  Doe  d. 
Stansbury  v.  Arkwright,  1  Nev.  &  M.  731 ;  2 
Adol.  <&  Ellis,  182.  1077 

Assessments  of  commissioners  of  the  land-tax, 
by  which  it  appears,  that  at  a  certain  time  pro- 
perty was  assessed  in  the  name  of  S.  (the  family 
surname  only),  are  evidence  to  show,  in  connex- 
ion with  other  facts,  that  at  such  time  the  pro- 
perty was  occupied  by  a  particular  individual  of 
the  fiimily.  Doe  d.  Strode  r.  Seaton,  2  Adol.  & 
EUis,  171 ;  4  Nev.  &  M.  81.  1077 

The  manors  of  R.  and  of  S.,  the  parishes  of 
C.  and  of  Y.,  and  the  counties  of  S.  and  of  G. 
were  to  terminate  : — Held,  in  an  action  for  dis- 
turbance of  common,  in  which  the  boundaries  of 
the  two  manors  came  in  question,  a  county  his- 
torjT  of  the  coanty  of  B.,  which  stated  the  boun- 
daries of  the  counties  at  this  spot,  was  not  re- 
ceivable in  evidence.  Evans  v.  Getting,  6  V.  & 
P.  586— Alderson.  1074 

An  ancient  survey  of  a  manor  made  before 
commissioners  appointed  by  the  lord  of  the  ma- 
nor, and  a  jury  of  the  tenants  of  the  manor,  is 
admissible  as  evidence  to  show  the  boundaries  of 
the  manor ;  but  is  not  admissible  as  evidence  of 
the  lord's  title  to  wreck.  Talbot  v,  Lewis,  6C.A 
P.  603— Parke.  1074 

An  entry  in  the  baptismal  register,  that  the 
defendant  was  bom  on  a  day  there  mentioned,  is 
no  evidence  of  that  fact.  Burghart  v.  Anger- 
stein,  6  C.  &  P.  690— Alderson.  1075 

If  the  vicar  of  a  parish  be  applied  to  for  an 
extract  of  a  parish  register  of  a  particular  date, 
and  he  state  that  there  is  no  register  book  of  that 
vear,  this  is  not  sufficient  proof  of  loss  of  the 
book  to  let  in  secondary  evidence  of  the  contents 
of  the  register  without  calling  the  vicar ;  but  if 
the  vicar  had  produced  to  the  applicant  a  book 
as  the  original  re^rister,  the  iuage  at  the  trial 
would  have  held  it  to  have  been  so,  unless  the 
contrary  was  shown.  Walker  v.  Beauchamp 
(Countess),  6  C.  &  P.  552— Alderson.  1075 

Semble,  that  the  returns  made  annually  of 
transcripts  of  parish  registers  to  the  registry  of 
the  diocese,  under  the  70th  canon,  are  not  re- 
ceivable in  evidence  instead  of  the  original  re- 
gister, or  an  examined  copy  of  it,  without  proof 
of  the  loss  of  the  original  register ',  but  semble, 
that  if  the  original  be  proved  to  have  been  lost, 


2476 


[EVIDENCE] 


CTMiunsd  copies  ot  tboB  setanM  would  be  ad- 
niMnUe.    Id. 

But  if  the  ivtonie  were  nade  under  the  ■!»• 
tute  53  Geo.  3,  e.  14<i,  as.  6,  7 ;  eemUe,  that 
examined  copies  of  them  would  be  eridence, 
without  proof  of  the  loni  of  the 
Id. 


onpnal  re- 


If  an  ori|final  pariah  register  be  produeed  on  a 
trial,  that  certain  entries  in  it  should  be  read,  the 
jury  mar  look  at  the  book  to  see  whether  the  en- 
tries woich  have  been  read  are  in  their  proper 
places  or  not,  but  fiir  no  other  purpose.    lo. 


XXVI.  DocruErrs  or  a  «»m  Natumb. 

A  record  on  the  record  book  of  a  manor,  of 
admittance  to  a  copjbold,  reciting  a  surrender  of 
the  same  copjhold  to  the  use  of  a  will,  is  admis- 
sible eridence  of  the  surrender,  the  steward  not 
being  able  to  find  the  surrender  iteelf  on  the  roll 
or  elsewhere,  and  the  surrender  being  irregularly 
kept  in  the  manor,  although  all  the  other  sur- 
renders were  either  preserved  or  recorded  on  the 
roll.    Rex  v.  Thruscross,  1  Adol.  &  Ellis,  126. 

loeo 

Upon  a  bill  of  discovery  in  aid  of  an  action  to 
try  whether  the  plaintiff's  house  waa  within  the 
limits  of  a  certain  parish,  and  therefore  liable  to 
the  parochial  rates,  the  court  ordered  the  defen- 
dants, the  parish  officers,  to  produce  Sot  his  in- 
spection the  rate-books,  account-books,  minute- 
books,  orders,  and  other  documents,  which  related 
to  the  matter  in  question,  and  were  admitted  by 
th«*fr  answer  to  be  in  their  posiession.  Burreil 
V.  Nicholson,  ]  Mylne  A  K.  680.  1082 

A  local  pavinff  act  authorizes  commissioners, 
at  a  meeting  to  be  called  for  that  purpose,  to  or- 
der footpaths  to  be  raised,  &c.,  and  airects  that 
the  entriea  in  the  commissioners'  imoks  may  be 
read  in  evidence.  An  entry  in  the  books,  statins 
that  such  an  order  was  made  at  a  meeting  held 
by  public  notice,  does  not  prove  that  the  meet- 
ing was  duly  holden,  ao  as  to  legalize  the  order. 
It  should  appear  by  the  entry,  or  be  shown 
aliunde,  that  notice  was  given  of  the  purpose  for 
which  the  meetinir  was  called.  Heysnam  v.  For- 
ater,  5  M.  &  R.  277.  1081 

Where  a  canal  act  gives  the  control  over  the 
company's  affairs  to  a  committee,  and  authorizes 
every  proprietor  to  inspect  the  books  in  which 
the  committee  are  directed  to  enter  accounts, 
&c.,  a  mandamus  will  not  be  granted  to  compel 
the  company  to  permit  a  proprietor  to  inspect 
the  books,  where  tliere  has  been  no  refusal  by 
the  corarnittPe,  although  there  has  been  a  direct 
refusal  by  the  clerk,  in  whose  possession  the 
books  are.  Rex  v.  Wiltshire  Canal  Comp.,  5 
Nev.  &  M.  344.  1081 

So,  although  upon  an  application  to  the  com- 
mittee, they  say  that  they  must  consider  of  the 
application,  as  it  is  a  novel  one,  and  inspection 
is  afterwards  positively  refused  by  the  clerk.    Id. 

Before  the  court  will  grant  a  mandamus,  there 
must  be  a  direct  refusal  by  the  proper  parties  to 
do  the  act.     Id. 

In  trespass  by  the  lord  of  a  manor  for  wreck, 
a  document,  dated  in  163D,  was  offered  in  evi- 


tohetiiei 

oftfeaHwir,toa< 
by  the  lofd  of  the  namw,  fiw 
in  which  docomeat  it  wa 
entitled  to  wreck  :—BeU,  that  thi 
inadmissibie,  the  title  of  the  lord  not  being  a  mai- 
ler of  public  eoneerm,  and  the  juror  having  no 
peculiar  means  of  knowledMe.  Talbot  r.  Lewis, 
IC.iLAtL  495.  lOoO 

If  an  applicataon  to  inspect  the  eonrt  rolls  of  a 
manor  is  made  when  no  cause  is  pending,  the 
rule  is  nisi  in  the  first  instance.  £x  parte  Best, 
3  DowL  P.  C.  38.  1061 

A  canal  act  provided,  that  **  proprietors,  la&d- 
ownen,  and  others  interested  in  the  said  narign- 
tion,"  should  have  a  riffat  to  inspect  the  books  of 
the  company  : — Held,  that  a  creditor  by  bond  was 
a  person  interested  in  the  navigation,  within  the 
spirit  of  the  above  enactment.  Pootet  v.  Basing- 
stoke Canal  Comp.,2Bing.  N.  R.370;  2  Scott, 
543.  1061 


XXVU.  PjAOL  ExPLAsanoif  of  Documkbts. 

Ambiguity  in  description  of  thing  eiven.    Doe 
d.  Templeman  v.  Martin,  4  B.  A,  Adcd.  771 ;  1 


Nev.  A  M.  512. 


1066 


Ambiguitr  in  descri  ption  of  thin?  given.  Rich- 
ardson r.  Watson,  4  B.  &  Adol.  7^;  1  Nev.  dk 
M.  567.  1066 


The  effect  of  an  instrument  under  seal  cannot 
be  altered  by  a  memorandum  not  under  seal. 
Wenham  v.  Fowle,  3  Dowl.  P.  C.  43.  1063 

On  appeal  against  an  order  of  removal,  when 
the  respondents  produce  a  deed  of  feoffment  for 
the  purpose  of  showing  a  settlenient  by  estate  in 
the  appellant  parish,  but  the  lands  are  described 
in  the  deed  as  situate  elsewhere,  the  respondents 
(not  being  parties  to  such  deed)  may  give  parol 
evidence  to  show  that  the  lands  reallv  were  with> 
in  the  appellant  parish.  Rez  «.  Wickam,  4  Nev. 
&  M.  406 ;  1  Adol.  &  Ellis,  517.  1063 

Ejectment  for  a  forfeiture.  A.,  by  an  agree- 
ment in  writing,  let  to  B.  a  house  at  the  rent  of 
601.  a  year,  to  be  paid  quarterly ;  and  B.  agreed, 
within  three  calendar  months,  to  erect  a  shop- 
front,  and  otherwise  repair,  paint,  paper,  and 
whitewash  the  house.  And  it  was  further  agreed, 
that,  if  B.  did  not  erect  the  shop-front  within 
three  months,  it  should  be  lawful  for  A.  or  his 
agents  to  retake  possession  of  the  premises,  and 
the  agreement  should  be  null  and  void.  B.  con- 
tinned  in  the  possession  of  the  premises,  and  en- 
larged the  window ;  but,  as  tne  plaintiff  con- 
tended, did  not  erect  a  shop-front.  It  appeared 
also,  that,  afler  a  quarter's  rent  had  become  due, 
and  afler  the  expiration  of  three  months  from  the 
date  of  the  agreement,  A.'s  son,  the  father  bein^ 
too  ill  to  attend  to  business,  made  a  demand  of  a 
quarter's  rent,  which  B.  offered  to  pay,  if  he 
would  indemnify  him  for  a  sum  which  he  had 
paid  as  a  penalty  to  A.'s  lessor  for  carrying  on  a 
trade  in  the  premises,  which  was  refuseif.  At  the 
trial,  B.,  the  defendant,  contended  that  he  had 
made  a  shop-front  which  answered  the  purposee 


[EVIDENCE] 


2477 


ol  his  trade ;  and  he  ofiered  to  show  that  A.  held 
the  premises  under  a  leaie  from  C,  which  con- 
tained a  clause  imposing  a  penalty  upon  the 
lessee,  if  he  allowed  a  trade  to  be  carried  on  upon 
ike  premises  ;  from  which  it  was  to  be  inferred 
that  tike  words  ^  shop-front,"  in  the  agreement 
were  used  in  a  peculiar  sense ;  but  this  evidence 
was  rejected  ; — Held,  that  such  evidence  was 
dearly  inadmissible  to  explain  the  meaning  of 
the  words  ** shop-front"  m  the  agreement: — 
Held  also,  it  not  having  been  proved  that  A. 
himself  had  had  notice  of  the  nature  of  the  altera- 
tioDS,  that  the  son  had  not  sufficient  authority  to 
waive  the  forfeiture.  Doe  d.  Nash  v.  Bircn,  1 
Mees.  &  Wels.  402.  1083 

Where  an  expression  used  in  a  written  instru- 
ment has  a  teciinical  meaning,  parol  evidence  is 
admissible  to  show  that  it  had  been  used  in  that 
sense,  and  not  in  its  ordinary  meaning  in  common 
parlance,  although  that  may  be  perfectly  clear  and 
unambignous  in  itself;  therefore,  where  the  les- 
iKe  of  a  eoal-mine  covenanted  to  get  the  whole 
of  the  mines  ^  not  deeper  than  or  below  the  level 
of  the  bottom  of  the  mme  at  a  particular  point:" 
— Heldf  that  parol  evidence  or  the  understand- 
ing amonffst  miners  wad  admissible  to  show  thai 
the  word^  **  level"  had  a  particular  technical 
meaning,  different  from  its  ordinary  signification 
«r**  bonzontal  line."  Clayton  v.  Gieyson,  4  Nev. 
&  M.  602 ;  1  Har.  Sl  Woll.  159.  1089 

QusBre,  whether  a  previous  agreement  between 
the  parties  for  a  lease  of  the  same  mine,  and  for 
which  the  lease  was  substituted,  was  also  admis- 
■ble  in  evidence  for  the  same  purpose  ?    Id. 

On  an  application  to  a  creditor  to  enter  into  a 
composition,  he  was  requested  to  write  down  what 
he  was  willing  to  do ;  he  ailerwards  wrote — *^  1 
hereby  agree,  on  payment  of  10s.  in  the  pound, 
to  frive  a  full  dischar^^  :" — Held,  that  evidence 
of  me  conversation  with  the  creditor  was  admis- 
sible to  show  the  purpose  for  which  the  writing 
was  given.  Reay  v.  Richardson,  2  C.  M.  &  R. 
422;  1  Gale,  219.  1088 

Where  a  plaintiff  relies  upon  a  mercantile  cus- 
tom to  support  his  claim  for  commission  to  a 
oertnin  amount,  the  defendant  may,  without  any 
special  plea,  produce  evidence  to  show  that  un- 
der certain  circumstances  the  custom  is  to  pay 
but  half  that  amount  The  evidence  being  of- 
fiacd  to  show  that  the  contingent  reduction  was 
part  of  the  original  contract,  and  not  that  it  was 
a  sabse<iuent  iQteration,  so  as  to  create  anew  con- 
tract Broad  v.  M'Aylmer,  5  Nev.  &  M.  413; 
1  Har.  A  Woll.  532.  1088 

Aflsampsit  by  the  drawer  against  the  acceptor 
of  two  bills  of  exchange,  payable  respectively  six 
and  twelve  months  afler  aate.  The  plea  set  forth 
aa  agreement  (not  stated  to  be  in  writing)  be- 
tween the  plaintiff  and  defendant,  by  which,  before 
the  making  of  the  bills,  it  was  agreed  that  the 
defendant  should  be  discharged  from  all  liability 
in  aa  action  commenced  against  him  by  the  plain- 
tiff on  a  promissory  note,  on  his  paying  the  plain- 
tiff the  costs  of  such  action,  and  a  certain  sum  of 
money,  and  accepting  the  bills  of  exchange  in 
question,  in  case  the  plaintiff  should  recover  in 
mother  aetioii  brought  by  him  against  another 


party,  on  a  promissory  note  given  under  similar 
circumstances  to  the  defendants ;  and  that  until 
he  should  so  recover,  or  if  he  should  not  so  re- 
cover, he  should  not  call  for  payment  of  the  bills 
of  exchange  ;  and  the  plea  averred  that  the  4m 
fendant  accordingly  paid  the  costs  and  money 
agreed  for,  and  accepted  the  bills  of  exchange  la 
question ;  and  that  tlie  action  against  such  thirrf 
party  was  still  undetermined : — Held,  on  de- 
murrer, that  the  plea  was  bad,  inasmnch  as  the 
defendant  could  not  vary  the  absolute  contract 
entered  into  by  the  bills  of  exchange  by  a  con- 
temporaneous oral  contrast  inconsistent  with  it. 
Adams  v,  Wardley,  1  Mees.  &,  Wels.  374.      1068 

A.  sent  to  B.'s  agent  a  list  of  prices  at  which 
he  would  do  work.  B.  wrote  a  letter  to  his  agent, 
stating  that  he  would  agree  to  the  prices,  if  A. 
would  consent  to  be  paid  at  stated  periods,  the 
first  payment  to  be  "  in  November."  The  agent 
showed  this  letter  to  A.,  and  said  to  him  that  he 
might  consider  the  1002.  to  be  payable  on  the 
^  Ist  of  November."  A.  afterwards  did  the  work 
for  B.  It  was  left  to  the  jury  to  say  whether 
that  which  the  agent  said  to  A.  formed  a  part  of 
the  actual  contract  between  the  parties,  or  whe- 
ther it  was  a  mere  observation  by  the  agent  him- 
self.   Knapp  V.  Harden,  6  C.  &,  r.  745— Gumev. 

1068 

A  broker  gave  the  following  bought  and  sold 
notes: — 1.  **  We  have  this  day  bought  for  your 
use,  from  J.  O.  B.,  100  tons  dry  palm  oil^  at 
31/.  10s.  per  ton  to  be  taken  from  the  quay  at 
landing  weights  with  customary  allowances,  &c., 
in  cash,  at  fourteen  days  from  delivery,  less  2^ 
per  cent,  discount :  tlie  above  oil  to  be  delivered 
from  the  Speedy  or  Charlotte,  expected  to  arrive 
about  November  or  December  next."  2.  "  We 
have  this  day  sold  for  your  use,  payment  in  four- 
teen days  by  cash,  less  2|  per  cent,  discount  from 
delivery,  100  tons  of  dry  palm  oil,  at  3H.  10s. 

ST  ton,  ex  Speedy  and  Charlotte,  to  arrive  :" — 
eld,  that  evidence  of  merchantile  usage  was  ad- 
missible to  explain  all  the  variances  between 
these  notes ;  and  that,  being  so  explained,  the 
variances  were  not  material,  and  did  not  avoid 
the  contract.  Bold  v.  Rayner,  1  Mees.  A,  Wels. 
343.  1088 


XXVIIl.  Proof  bt  subscribing  Witness. 

Evidence  must  be  given  of  identity  of  the 
obligor  of  a  bond  with  the  party  sued  thereon, 
where  the  subscribing  witness  proves  that  he 
never  saw  the  defendant  before  or  afler  he  saw  it 
executed.  Whitelock  v.  Musgrave,  3  Tyr.  557 ;  1 
C.dbM.  511.  1090 

Where  a  title  deed  under  which  both  parties 
in  ejectment  claim,  comes  out  of  the  possession 
of  the  defendant  upon  notice  to  produce,  it  may 
be  read  against  him  on  behalf  of  the  plaintiff, 
without  calling  the  atttesting  witnesses.  Doe  d. 
Williams  V.  WiUiams,  5  Nev.  ib  M.  434  ;  1  Har. 
<&  Woll.  574.  1089 

In  an  action  against  A.  upon  a  promissory 
note  more  than  six  years  old,  and  which  purport- 
ed to  be  the  joint  and  several  note  of  A.  &  B., 
and  the  signature  of  B.  to  which  purported  to  be 


2478 


[EVIDEXCE] 


to  tab 


■X  jcsn  by  0. 

the  camt  out  of  tfcr  sUtole  ol , 

C.  m  called,  ahfaoofli  it  appew  that  jft.  stfiwd 
tlie  note  as  snretj  for  B^vboae  Bamevaaalmdr 
salwCTibrd  to  the  note.  Wjlde  r.  Potter,  3  Ner. 
d^  M,  5ed;  1  Adol.  &  EUts,  742  Idt^ 

Where  the  defendants  claimed  title  to  certain 
goods  under  an  asMgnment,  and  in  pamunce  of 
naUee  prDdaeed  it  at  the  trial  wb^n  called  for  bj 
the  plaintjffii : — Held,  that  the  plain t:£»  were  en> 
titled  to  read  it  in  evidence  without  c^in^  the  at- 
testing witness  to  prove  the  execution,  aithoash 
they  impugned  the  Taliditj  of  the  assi jnioent  on 
the  ground  of  fiand.  Carr  r.  Burdtsa,  1  C.  M. 
&R.7d2;  5Tjr.309.  l(h»j 


In  aasompsit  by  indorsee  against  acceptor  of 
an  English  bill  of  exchange,  to  show  that  the 
plaintiff  had  leoeiTed  the  bill  when  it  was  over- 
due ;  a  protest,  which  had  been  made  of  it  by  the 
plaintiff's  immediate  indoisor,  being  in  the  hands 
ol'  the  plaintiff,  was  called  for  by  the  defendant  at 
the  trial  on  notice  to  produce.  On  its  produc- 
tion it  appeared  to  be  attested  by  a  subscribing 
witness  : — Held,  that  the  mere  cirenmstances  that 
the  protest  came  out  of  the  hands  of  the  plaintiff, 
as  he  did  not  claim  title  under  it,  was  not  sufficient 
to  dispense  with  the  necessity  of  calling  the  sub- 
scribing witness;  but  it  being  proTed  that  on 
two  occasions  the  paper  had  been  produced  by  the 
,  plaintiff's  attorney  to  the  defendant's  attorney,- 
as  the  protest  applying  to  the  bill  in  question,  it 
was  aamitted  in  evidence  withont  proof  of  the  - 
attestation.  Marin  v.  Palmer,  6  C.  &  P.  466  j 
— Tindal.  1069 


XXIX.  Proof  bt  skcohdart  Eviokrck. 

The  muniment  chest  of  the  lesMr  and  his  _ 
si^ns  is  the  proper  custody  for  an  expired  lease 
Pkxton  V.  Dare,  5  M.  &  R.  1.  1095 

Where,  on  the  second  trial  of  the  cause,  a  wit- 
ness stated  that  he  had,  on  the  argument  for  the 
new  trial,  handed  a  document  to  one  of  the  learned 
judges,  and  had  not  since  seen  it,  or  had  been 
able  to  find  it,  secondary  evidence  was  received  of 
its  contents  without  any  search  for  it  having  been 
made  at  the  chambers  of  the  learned  judge ;  the 
presumption  beinff  that  his  lordship  had  returned 
It  to  the  party  who  produced  it.  Deacon  v.  Ful- 
ler, 6  C.  &P.  74— LyndhuiBt.  1006 

There  are  no  degrees  in  secondary  evidence ; 
therefore,  where  a  defendant  has  given  notice  to 
the  plaintiff  to  produce  a  letter,  of  which  he  kept 
a  copy,  he  may,  if  the  letter  is  not  produced,  give 
parol  evidence  of  iu  contents,  and  is  not  bound 
to  put  in  the  copy ;  but,  if  there  had  been  a  du- 
plicate original,  it  might  be  otherwise.  Brown 
V.  Woodman,  6  C.  &  P.  206— Parke.  1096 

The  mere  refusal  of  a  witness  to  produce  a  do- 
cument where  he  is  not  justified  in  witholding  it, 
is  not  a  ground  for  going  into  secondary  evidence 
of  that  document.    Jesus  Collese  v.  Gibba.  1  Y. 


&  Col.  145. 


1094 


In  replevin  the  defendants  avowed  for  a  distress 
for  poor's  rates  :^HeId,  that  one  of  the  defen- 


haroig  aded  as  overseer  of  the  poor  was 
&aa  evidenee  that  he  was  so : — Held,  also, 
that  to  let  in  secondary  evidence  of  his  appoint- 
ment, it  was  sufficient  proof  of  loss  that  a  witness 
stated  that  he,  at  the  oesire  of  the  attorney,  had 
applied  to  the  defendant  for  his  appointment,  and 
that  be  said  that  he  had  lost  it,  without  provinff 
anr  search  made.  Bristol  (Governor,  &c.  of  poog 
r.  'Wait,  6  C.  &.  P.  591— Alderson.  1094 

Appellants  against  an  order  of  removal  relied 
upon  toe  settlement  of  a  deceased  party  by  apr 
prentic«*»ti.p :  and,  to  let  in  parol  evidence  of  the 
inoentuie,  they  called  the  widow  of  the  deceased, 
who  5Uted  that  her  husband,  in  his  last  illness, 
told  her  that  he  received  his  indentures  from  his 
master  at  the  end  of  his  apprenticeship,  and  wore 
them  out  in  his  pocket.  The  sessions  confirmed 
the  order,  subject  to  the  opinion  of  the  court  as 
to  the  admissibility  of  the  evidence.  The  court 
held,  that  without  further  proof  of  inquiry  afler 
the  indenture,  evidence  of  this  conversation  was 
not  admissible  ;  and  they  refused  to  send  the  case 
back  to  be  re-stated.  Rex  r.  Rawden,  2  Adol.  & 
EUis,  156 ;  4  Nev.  &  M.  97.  1094 

In  assumpsit  for  money  had  and  received, 
where  it  is  shown  that  the  defendant  admitted 
that  he  had  received  a  bill  drawn  on  a  third  party, 
to  which  the  plaintiff  was  entitled,  and  that  he  had 
paid  it  into  his  banker's  on  his  own  account,  the 
banker^s  clerk  cannot  be  called  to  prove  that  the 
defendant  received  benefit  Grom  a  bill  of  similar 
descnption,  the  bill  itself  not  being  produced, 
nor  its  absence  accounted  for.  Atkins  v.  Owen, 
4  Nev.  &  M.  123 ;  2  Adol.  &  EUis,  35.  1094 

The  production  of  an  entry  of  the  minutes  .of 
a  contract  made  by  a  third  party,  in  the  presence 
of  and  by  the  direction  of  two  contracting  parties, 
but  not  signed  by  either  of  them,  is  not  the  only 
medium  m  |»ovmg  the  contract,  unless  there  is 
evidence  that  the  writing  in  fact  constituted  the 
agreement,  and  was  taken  to  be  so,  and  assented 
to  as  such  by  the  parties  :  parol  evidence  of  the 
terms  of  the  contract  is,  therefore,  admissible 
without  accountingfor  the  non-production  of  the 
written  minutes.  Itezv.  Wrangle,  4  Nev.  A  M. 
375 ;  2  Adol.  dk  EUis,  314 ;  1  Har.  &  WoU.  41. 

1096 

What  is  a  siifficient  search  for  witnesses  to 
prove  handwriting  to  aUow  secondary  evidence 
to  be  given,  must  depend  on  the  circumstances 
of  each  case.  Miller  dera.,  Miller  ten.,  2  Scott, 
123 ;  2  Bing.  N.  R.  76 ;  1  Hodges,  187.        1094 

In  order  to  dispense  with  the  prodxiction  of  an 
attesting  witness  to  a  will,  bearing  date  the  15th 
May,  ]b06,  it  was  proved  that  applications  had 
beeu  made  by  letter  to  the  attorney  in  whose 
office  the  witness  was  at  the  time  a  clerk ;  in  the 
first  place,  for  general  information  respecting  the 
will,  and  afterwards  for  information  respecting 
the  witnesses  by  whom  it  was  attested,  and  that 
advertisements  for  their  discovery  had  a  week 
before  the  trial  been  inserted  in  three  daily  and 
one  weekly  newspapers,  but  without  success : — 
Held,  that  sufficient  had  been  done  to  entitle  the 
party  to  have  the  will  read  on  proof  of  the  hand- 
writmg  of  the  witnesses,  although  the  attorney  of 


[EVIDENCE] 


2479* 


whom  the  inquiriefl  had  been  made  stated  that  1 
one  of  ttie  wilnesaeB  was  examined  in  a  cause  { 
touching  the  property  in  1815,  a  fact  which  he 
had  forgotten  to  communicate  at  the  time  he  was 
asked  tor  information,  but  which  (it  was  sug- 
gested) he  could  not  fail  to  have  remembered 
had   any  strict  inquiry  been  instituted.  Id. 

The  architect  gave  an  order  to  the  parties  by 
whom  he  was  employed  to  pay  a  particular  sum 
out  of  his  commission  to  -a  creditor : — Held,  on 
tlie  trial  of  an  issue,  directed  under  the  Inter- 
pleader Act,  between  the  creditor  and  the  archi- 
tect, to  try  the  right  to  the  money,  that  a  copy 
of  an  affidavit  sworn  by  the  architect  in  another 
action  against  the  parties  by  whom  he  was  em- 
ployed, in  which  the  order  was  set  out,  and 
"which  copy  his  attorney  had  admitted  to  be  cor- 
rect, was  good  secondary  evidence  for  the  plain- 
tiff* of  the  order  which  was  lost: — Held  also,  that 
in  tlie  absence  of  any  evidence  to  the  contrary, 
the  order  must  in  such  an  issue  be  presumed  to 
have  been  duly  stamped.  Pooley  v.  Goodwin,  5 
Kev.  &.  M.  466 ;  1  Har.  &  Wolf.  567.  1096 

A.  had  purchased  at  an  auction  an  under- 
lessee's  interest  in  a  house,  and  refused  to  pay  a 
check  which  he  had  given  for  the  deposit,  because 
the  ground  rent  payable  to  the  superior  landlord 
was  greater  than  it  was  stated  to  be  at  the  sale  : 
—Held,  that  the  superior  landlord's  solicitor  was 
not  compellable  to  produce  the  counterpart  of 
the  original  lease;  and  that  a  person  who  had 
advanced  money  on  that  lease,  and  held  it  as 
equitable  mortgage,  could  also  not  be  compelled 
to  produce  the  Tease  itself;  but  that,  if  both 
these,  on  being  called  as  witnesses,  refused  to 
produce  the  lease  and  counterpart,  secondary 
evidence  might  be  given  of  the  contents  of  the 
lease,  by  calling  a  person  who  had  seen  it,  and 
who  neither  claimed  under  it  as  one  of  his  own 
title  deeds,  nor  was  privileged  as  an  attorney  or 
solicitor.     Mills  v.  Oddy,  6  C.  &  P.  728— Parke. 

1096 


XXX.  Proof  after  Notice   to  produce. 

In  an  action  on  an  attorney's  bill,  it  is  not  ne- 
cessary to  give  notice  to  produce  the  original 
hill  delivered  the  party,  but  the  production  of 
a  duplicate  thereof  is  sufficient.  Fyson  v.  Kemp, 
6C.   &.  P.71— Gurney.  1097 

Nor  is  it  necessary  that  the  parties  examining 
8fao«dd  read  the  two  hills  alternately.  Id. 

Where  notice  of  the  dishonor  of  a  bill  of  ex- 
change has  been  given  in  writing,  it  is  not  neces- 
sary to  give  a  notice  to  produce  that  writing  to 
let  in  parol  evidence  of  its  contents.  Swam  v. 
Lewis,  2  C.  M.  &  R.  261 ;  4  Dowl.  P.  C.  261 ; 
1  Gale,  182.  1097 

In  ejectment  by  the  heir  of  A.,  the  defendant 
sets  up  a  will  of  A.,  whereby  he  devises  all  his 
property  in  fee  to  B  ,  through  whom  the  defen- 
dant claims.  One  of  the  attesting  witnesses 
stated  that  he  had  prepared  this ;  that  a  fortnight 
afterwards  he  prepared  another  will  for  A.,  which 
A.  executed  and  delivered  to  him,  and  which  the 
witness  opon  A.'s  death  delivered  to  B.  No 
notice  to  produce  the  last-mentioned  instrument 


had  been  given  : — Held,  that  the  plaintiff's  coun- 
sel could  not  ask  the  witness,  **  whether,  at  the 
time  of  executing  the  instrument,  A.  declared  it 
to  be  his  last, will ;  and  if  so,  whether  it  was  at- 
tested by  three  witness."  Doe  d.  Philips  v. 
Morris,  4  Nev.  &  M.  598;  3  Adol.  &  Ellis,  46; 
1  Har.  &  WoU.  226.  1097 

QuaBre,  whether,  if  the  second  instrument  \w 
this  case  could  have  been  shown  to  have  been 
duly  executed,  published,  and  attested,  as  the 
last  will  of  A.,  the  plaintiff  would  have  been  en- 
titled to  recover  as  heir  at  law,  without  showing 
its  contents  or  application  ?    Id. 

Semble,  that  an  instrument  which  has  been 
traced  to  the  hands  of  an  opposite  party  can  in. 
no  case  be  presumed  to  have  been  lost  or  destroy- 
ed, unless  such  party  has  had  notice  to  produce 
it.  Id. 

Notice  to  produce  an  agreement,  served  upon 
the  defendant's  attorney  at  5  o'clock  on  the  com- 
mission day  of  the  assizes,  held  too  late,  the 
attorney  having  then  left  home  for  the  assize 
town,  which  was  nine  miles  distant  from  his 
office,  and  the  opposite  party  refusing  to  furnish 
him  with  a  conveyance.  George  v.  Thompson,  4 
Dowl.  P.  C.  656.  1098 

A  notice  to  produce  a  tradesman's  books,  serv- 
ed upon  the  pmintifi^s  attorney  at  7  o'clock  of  the 
evenmg  previous  to  the  trial,  is  too  late.  Atkins 
r.  Meredith,  4  Dowl.  P.  C.  658.  1098 

The  plaintiff  had  been  employed  as  secretary 
to  a  charitable  institution  ;  his  appointment  was 
made  in  pursuance  of  a  resolution  of  the  commit- 
tee for  managing  the  affairs  of  the  societv  which 
was  entered  in  a  book  remaining  in  the  piaintiff^a 
hands  as  secretary,  but  to  which  entry  the  plain- 
tiff was  no  party,  nor  did  it  appear  to  have  been 
expressly  brought  to  his  notice ;  the  society  dis- 
solving, the  plaintiff  quitted  the  employ,  leaving' 
this  book  in  the  office ;  in  an  action  against  three 
of  tlie  committee  for  arrears  of  salary  : — Held,, 
that  the  plaintiff  was  bound  to  produce  the  book,, 
inasmuch  as  it  would  show  the  terms  on  which 
he  had  been  engaged ;  and  that  a  notice  to  the- 
defendants  to  produce  it  was  not  sufficient  to  en- 
title him  to  give  secondary  evidence  under  the 
quantum  meruit ;  the  book  appearing  not  to  be 
in  the  possession  of  the  defendants,  but  in  that  or 
another  member  of  the  committee,  without  the 
knowledge  or  control  of  the  defendants.  Whit- 
ford  V,  Tutin,  4  M.  &  Scott,  166 ;  10  Bing.  395 ; 
6  C.  &  P.  228.  1099 

Proof  of  the  possession  of  books  by  a  member 
of  a  committee  which  he  has  in  his  custody,  not 
as  such  member  but  as  tenant  of  the  premises 
previously  occupied  by  such  committee,  is  not 
sufficient,  in  an  action  against  other  members  of 
the  committee,  to  let  in  parol  evidence  of  the 
contents  on  notice  and  non-production.  Id. 

In  debt  for  rent  by  the  assignee  of  the  rever- 
sion against  the  assignee  of  the  term,  the  plain- 
tiff^s  attorney  was  called  by  his  client  to  prove 
the  execution  of  a  deed ;  on  cross-examination  he 
admitted  that  there  had  been  another  deed  be- 
tween the  same  parties,  relating  to  the  demised 
premises,  executed  after  the  former,  and  that  he 


2480 


[EVIDENCE] 


had  that  deed  in  court ;  but  be  lefased  to  produce 
it,  relying  on  his  privilege  ;  the  defendant  then 
offered  to  produce  parol  evidence  of  the  contents 
of  the  deed,  (without  stating  what  evidence) ;  no 
notice  to  produce  had  been  given : — Held,  that 
the  parol  evidence  was  rightly  rejected.  Bate  v. 
Kinsey,  1  C.  M.  &  R.  3^ ;  4  Tyr.  .662.        1099 

Secondary  evidence  of  a  document,  to  produce 
which  notice  has  been  given,  is  not  admissible 
where  the  document  is  held  by  a  stakeholder, 
between  the  partf  in  the  cause  and  a  third  per- 
son. Parry  v.  May,  1  M.  &.  Rob.  279 — Little- 
dale.  1099 

In  an  action  against  A.  db  B.,  as  executors, 
A.  had  suffered  judgment  by  default.  The  pro- 
bate of  the  will  was  produced,  and  notice  had 
been  given  to  both  the  defendants  to  produce  a 
receipt  which  had  been  gijen  to  A.  as  one  of  the 
executors : — Held,  that  if  it  was  not  produced, 
secondary  evidence  might  be  given  of  its  con- 
tents, and  that  A.'s  having  suffered  judgment  by 
default  made  no  difference.  Beckwith  v.  Benner, 
6  C.  d^D  F.  681— Gumey.  1099 

If  the  opposite  party  be  called  on  to  produce  a 
paper  (under  a  notice  to  produce),  he  must  either 
produce  it  when  called  for,  or  not  at  all ;  and  he 
cannot,  after  having  refused  to  produce  it,  put  it 
into  a  witness's  hand  at  a  later  period  of  the 
cause,  to  ask  him  at  what  time  an  interlineation 
was  made  in  it.  Doe  d.  Higgs  v.  Cockell,  6  C.  «& 
P.  525— Alderson.  1099 


XXXI.  Proof  under  Subpoena  ducxs 

TECUM. 

A  witness  who  appears  to  produce  a  document, 
under  a^subpOBna  duces  tecum,  may  be  compelled 
to  produce  it  without  being  sworn.  Perry  v. 
Gibson,  3  Nev.  &M.4I62;   1  Adol.  &  Ellis,  4H. 

1100 

Where  a  person  called  only  to  produce  a  do- 
cument is  sworn  as  a  witness  by  mistake,  and  a 
Suestion  is  put  to  him  which  he  does  not  answer, 
be  opposite  party  is  not  entitled  to  cross-examine 
him.  Rush  v.  Smith,  1  C.  M.  &  R.  94 ;  2  Dowl. 
P.  C.687;  4  Tyr.  675.  1100 

In  an  action  on  a  promissory  note,  the  defen- 
dant wished  to  give  in  evidence  a  composition 
deed  executed  by  him  and  the  plaintiff,  and  also 
by  various  of  the  defendant's  creditors,  but  not 
by  the  defendant  himself;  it  was  in  the  hands  of 
a  trustee,  who  was  willing  to  produce  it,  but  the 
plaintiff's  counsel  objected :  —  Held,  that  the 
trustee  ought  not  to  produce  it,  but  that  the  de- 
fendant might  give  in  evidence  an  extract  which 
had  been  furnished  by  the  trustee,  and  which  he, 
the  trustee,  proved  to  be  a  correct  extract.  Cocks 
V,  Nash,  6  C.  &  P.  154— Gumey.  1100 

A  party  served  with  a  subpoena  duces  tecum 
is  bound  to  produce  the  required  document  in 
court,  and  need  not  be  sworn ;  thus,  in  an  action 
against  a  sheriff,  upon  32  Geo.  2,  c.  28,  for  a 
penalty  incurred  by  the  act  of  his  officer  in  taking 
a  party  arrested  under  mesne  process  to  a  tavern 
without  his  free  and  voluntaiy  consent ;  it  was 
held  that  the  officer,  afler  being  served  with  a 


subpoena  duces  tecum  on  the  part  of  the  plaintiff, 
must  produce  his  warrant  in  court  without  its 
being  necessary  to  swear  him  as  a  witness.  Sum* 
mers  v.  Moseley,  2  C.  &  M.  477 }  4  Tyr.  158. 

1100 

An  attorney  and  steward  of  a  lord  of  a  borough 
is  bound  to  produce  under  a  subpoena  duces 
tecum  public  documents  relating  to  the  borough, 
but  he  is  not  bound  to  produce  documents  re- 
lating to  the  lord's  interest  in  the  borough.  Rez 
V,  Woodley,  I  M.  &,  Rob.  390— Denman.      1100 

It  is  not  competent  for  a  person  perved  with  a 
subp.  due.  tec.  to  show  that  the  instrument  he 
was  required  to  produce  was  immaterial  in  the 
cause,  in  answer  to  a  rule  for  an  attachment. 
Doe  d.  Butt,  V.  KeUy,  4  Dowl.  P.  C.  273.    1100 

Where  there  are  several  actions  against  the 
same  party,  grounded  on  the  same  document,  and 
the  document  is  in  the  custody  of  an  officer  of 
a  court  of  equity,  in  a  suit  instituted  by  the  de- 
fendant at  law  to  restrain  proceedings  m  one  of 
the  actions,  the  court,  upon  the  application  of  the 
defendant  at  law,  will  order  the  production  of 
that  document  at  the  trial  of  another  of  the  ac- 
tions, though  the  plaintiff  in  the  latter  action  is  not 
a  party  to  Uie  suit  in  equity.  Taylor  v.  Sheppard, 
1  Y.  &  Col.  264.  1100 

Subpoena  duces  tecum  granted  to  enforce  at- 
tendance of  an  officer  of  the  customs  with  entries 
and  warrants.  Anon.  1  Alcock  &.  Napier,  112. 
{Irish.)  1100 

The  court  of  Review  will  not  order  the  reeis- 
trar  to  attend  with  the  proceedings,  at  the  trial  of 
an  action,  on  behalf  of  a  party  who  is  a  stranger 
to  the  commission.  Ex  parte  Munk,  3  Deac.  d& 
Chit.  233.  1100 

The  court  of  Review  in  bankruptcy  has  no 
jurisdiction  to  order  a  commissioner  to  compel  a 
witness  to  produce  a  document  which  the  com- 
missioner thinks  he  ought  not  to  produce.  £z 
parte  Groom,  2  Mont.  &  Ayr.  143.  1100 


XXXll.  Inspection  or  private  Docu- 
ments. 

Where  there  is  an  agreement  between  the 
plaintiff  and  defendant,  M  which  there  is  only 
one  part,  the  party  who  has  the  agreement  in  his 
possession  ought,  when  applied  to,  to  give  the 
other  party  a  cop^ ;,  and  he  has  no  right  to  impose 
terms  as  a  condition  for  so  doing.  Reid  or  Read 
V.  Coleman,  2  C.  &  M.  456;  2  Dowl.  P.  C.  354 ; 
4  Tyr.  274.  1101 

An  application  for  a  copy  of  an  agreement 
ought  to  be  made  to  a  judge  at  chambers,  and  not 
to  the  full  court  Id. 

The  plaintiff,  assignee  of  A.,  who  had  become 
bankrupt,  sued  B.  in  respect  of  certain  contracts 
alleged  to  have  been  entered  into  by  A.  with  the 
plaintiff  on  the  joint  account  of  A.  and  B. ;  the 
court  allowed  B.  to  inspect  the  books  of  A.,  in 
the  hands  of  the  plaintiff,  as  his  assignee,  in  order 
that  he  might  discover  what  the  alleged  contracts 
were.   Whitbourne  v.  Pettifer,  4  M.  d^  Scott,  182. 

1103 


[EVIDENCE] 


3481 


On  an  application  for  liberty  to  inspect  a  pri- 
vate instrament  in  the  han<u  of  the  opposite 
party,  it  muat  appear  to  the  court  that  the  instru- 
ment is  held  in  the  possession  of  the  latter,  upon 
aa  implied  or  expressed  trust  for  the  benefit  of  the 
partj  making  the  application.  Alexander  v.  Al- 
exander, 1  Alcock  &  Napier,  109.    (Irish).    1102 

On  an  application  by  the  defendant,  who  was 
sued  as  the  acceptor  of  a  bill  of  exchange,  the 
court  will  order  the  bill  to  be  lodged  with  the 
officer,  for  the  personal  inspection  of  the  defen- 
dant, when  it  appears  upon  his  affidavit  that  the 
cause  of  his  refusal  to  pay  is  a  reasonable  suspi- 
cion of  the  acceptance  having  been  forffed. 
Richey  v.  Ellis,  1  Alcock  &,  Napier,  111.  (Irish). 

1102 

In  an  action  by  an  attorney  for  his  work  and 
labor  as  such  against  a  corporation  of  which  he 
was  a  burgess,  the  court  refused  to  grant  him 
inspection  of  the  books  of  the  corporation.  Ste- 
vens V.  Berwick  (Mayor),  4  Dowl.  P.  C.  227 ;  1 
Har.  &.  Woll.  517.  1100 

Where  an  agreement  for  a  lease  was  in  the 
bands  of  an  attorney,  and  it  was  doubtful  whether 
he  acted  as  attorney  for  both  the  parties  to  the 
agreement,  in  drawing  it  up ;  the  court  allowed 
one  of  the  parties  to  inspect  and  take  a  copy  of  it. 
£z  parte  Bretter,  1  Har.  &,  WoU.  212.  1100 

Certain  books  of  the  plaintiff  had  come  into 
the  defendant's  possession  as  his  agent.  It 
became  necessary  for  the  plaintiff  to  inspect 
them.  The  court  ordered  the  defendant  to  allow 
an  inspection,  but  would  not  order  him  to  deliver 
them  up.     Jones  v.  Palmer,  4  Dowl.  P.  C  447. 

1102 

Rule  calling  on  the  directors  of  an  insurance 
office  to  deliver  up  a  policy  refused,  where  they 
had  refused  to  make  good  a  loss,  and  the  party 
insured  could  not  declare  without  it,  there  being 
no  action  pending.  £x  piurte  Partridge,  1  Har. 
&  WoU.  350.  1102 

Where  a  lease  is  executed  bv  both  the  lessor 
and  lessee,  and  the  lessee  assigns  it  by  way  of 
roortgafe,  the  lessor,  having  no  counterpart,  is 
entitfeo,  on  an  ejectment  brought  for  a  forfeiture, 
to  compel  the  mortj^agee  to  allow  an  inspection, 
and  give  a  copy  of  the  lease.  Doe  d.  Morris  v. 
Roe,  1  Mees.  du  Wels.  207.  1102 


Glanricarde  family,  by  proper  averments,  firom 
Richard,  fourth  Earl  of^  Glanricarde ;  to  prove 
possession  under  this  title,  the  plaintiff  below 

Sve  in  evidence  two  documents  found  at  the 
nily  mansion  of  the  descendants  of  Anthony 
Dopping,  bishop  of  Meath,  in  16B1 ;  these  docu' 
ments  were  found  amongst  the  family  papers ;  it 
appeared  by  the  evidence  of  the  rej^strar  of  the 
diocese,  that  no  diocesan  records  (with  the  excep- 
tion of  one  roll)  anterior  to  1717  were  to  be 
found  in  the  diocesan  registry ;  one  of  the  two 
documents  was  a  parchment  deed,  purporting  to 
be  a  grant  from  Ulick,  fifth  Earl  of  Glanricarde, 
to  £.  D.,  of  the  next  avoidance  of  the  rectory 
and  vicarage  of  Rathweir;  it  bore  date  28tli 
March,  1(>37 : — Held,  that  as  this  deed  related  to 
the  patronage  of  the  diocese,  and  there  were  not 
any  such  documents  in  the  registrv  anterior  to 
1717,  a  proper  place  to  search  for  such  documents 
was  amongst  the  Dopping  family  papers,  and 
being  found  there  it  was  properly  admitted  as 
evidence  for  the  plaintiff  below  :  the  other  docu- 
ment purported  to  be  a  case  for  the  opinion  of 
counsel,  prepared  on  the  part  of  the  bishop,  but 
not  proved  to  be  in  his  handwriting,  ana  bore 
date  on  the  28th  February,  1695  ;  in  this  it 
was  stated,  that,  in  1637,  Ulick,  fifth  Earl  of 
Glanricarde,  granted  to  £.  D.,  incumbent  of 
Rathwier,  his  executors  and  administrators,  the 
next  presentation  to  the  rectory  and  vicarage  of 
Rathweir,  dated  28th  March,  1637 ;  that,  in  1642, 
both  rectory  and  vicarage  being  void  by  the 
death  of  £.  D.,  his  widow  and  executrix  presented 
pro  hac  vice  tantum  William  Barry  to  both,  who 
was  thereupon  instituted  and  afterwards  inducted  r 
— Held,  that  as  this  was  the  statement  of  a  fact, 
the  knowledge  of  which  might  have  been  acquir- 
ed by  the  bishop  from  documents  within  his 
reach,  and  was  made  against  his  own  interest,  it 
was  admissible  in  evidence  against  his  successor. 
Meath  (Bishop)  v.  Winchester  (Marquis),  1  Al- 
cock d&  Napier,  508.    {Irish.)  1105 

Accounts  of  the  receipts  of  tolls  of  a  market, 
signed  by  a  person  since  deceased,  styline  himself 
managing  clerk  of  a  deceased  steward  of  the 
claimant^  ancestor,  are  not  evidence  of  title^ 
although  such  accounts  are  found  among  the 
family  muniments.  De  Rutzen  v.  Farr,  5  Nev. 
<&  M.  617.  1105 

A  private  book  kept  by  a  decea^d  collector  of 
taxes,  not  as  a  matter  of  duty,  but  for  his  own 
convenience,  containing  entries  by  him,  acknow- 
ledging the  receipt  of  sums  of  money  in  his 
character  of  collector,  is  admissible  in  evidence 
in  an  action  against  his  surety;  although  the 
parties  who  had  made  the  payments  were  alive^ 
and  might  have  been  called  as  witnesses.  Mid- 
dleton  V.  Melton,  5  M.  &  R.  264.  1105 

An  entry  of  the  dishonor  of  a  bill  of  exchange, 
made  in  the  usual  course  of  business,  at  the  time 
of  the  dishonor,  in  the  book  of  a  notary,  by  his 
clerk,  who  presented  the  bill,  may  be  given  in 
evidence  in  an  action  on  the  bill,  upon  proof  of 
the  death  of  the  clerk  who  made  the  entry. 
Poole  V.  Dicas,  1  Scott,  600 ;  1  Ring.  N.  R.  649; 
7  G.  &  P.  79 ;  1  Hodges,  162.  1105 

The  plaintiff  below  deduced  title,  under  the       In  ejectment,  it  appeared  that  the  lessor  of  th» 


XXXIU.  pRoor  or  private  Documents. 

Entries  signed  by  a  deceased  aeent,  but  not  in 
hb  handwriting,  but  by  which  sucn  agent  charges 
himself,  are  receivable  in  evidence.  Doe  d. 
Litchfield  (Earl)  v.  Stacey,  6  G.  &  P.  139— 
Tmdal.  1105 

Declarations  respecting  the  subject-matter  of 
a  cause  by  a  person  who,  at  the  time  of  making 
them,  had  the  same  interest  in  such  matter  as 
one  of  the  parties  now  has,  are  admissible  in  evi- 
dence against  that  party,  though  the  maker  of 
them  is  alive,  and  might  be  called  as  a  witness. 
Woolway  v.  Rowe,  3  Nev.  d^  M.  849;  1  Adol.  & 
Ellis,  114.  1105 


S483 


[EVIDENCE] 


plainttfT,  to  entitle  himaelf  to  the  property  as  heir 
at  law,  must  deduce  title  through  £.  The  title 
relied  upon  by  the  defendants  was  that  of  a  party 
to  whom  £.  had  devised  his  remainder  in  the 

Property,  which  remainder  had  been  devised  by 
.  to  £.  Amoog  other  evidence  to  identify  the 
property  in  (question  witli  that  devised  by  J.,  a  book 
was  offered  m  evidence,  containing  entries  of  re- 
ceipts of  rent  of  the  property  in  question  by  a  de- 
ceased steward  of  £. : — Held,  that  the  defendants 
were  entitled  to  produce  these  entries  in  evidence 
against  the  plaintiffs,  each  party  claiming  under  or 
through  £.  The  defendants  claimed  by  purchase 
from  the  heir  of  a  devisee  under  £.'&  will.  The 
estate  purchased  was  only  a  part  of  the  property 
devised,  and  to  which  the  steward's  entries  related: 
— Held,  that  the  defendants,  although  not  enti- 
tled to  the  possession  of  the  book,  might  insist 
upon  having  it  prodaced  in  evidence  as  to  that 
part  of  the  property  which  had  come  to  their 
hands.  Doe  d.  Strode  v.  Seaton,  2  Adol.  &  £Uis, 
171;  4Nev.  «&M.81.  1105 

A  written  memorandtim  of  an  arrest,  and  the 
-place  where  it  occurred,  made  by  a  sheriff's  offi- 
cer contemporaneously  with  effecting  the  arrest, 
sent  immediately  to  the  sheriff's  office,  and  there 
filed  in  the  course  of  business,  is  not  admissible 
evidence  of  the  place  at  which  the  arrest  took 
place,  afler  the  death  of  the  officer,  in  an  action 
between  third  persons.  Chambers  v.  Bemasconi, 
I  C.  M.  &  R.  347 ;  4  Tyr.  531.  1105 

In  ejectment  by  an  heir  against  devisee,  evi- 

'dence  may  be  given  on  the  part  of  the  heir,  of 

•declarations  made  by  the  testator,  that  he  had 

-attempted  to  destroy  his  will.    Doe  d.  Reed  v. 

Harris,  7  C.  &  P.  330— Coleridge.  1105 

In  an  action  on  a  covenant,  in  a  colliery 
lease,  the  lessee  covenanted  to  keep  true  accounts 
of  all  coal  daily  raised,  and  to  make  and  deliver 
true  copies  thereof  to  the  lessor.  D.  J.,  who  was 
the  account-keeper  appointed  by  the  persons 
-who  worked  the  colliery,  but  who  was  since  dead, 
Tendered  to  the  lessor  (the  plaintiff)  accounts 
of  coals  sold  by  him  : — Held,  that  these  accounts 
■were  re^ivable  in  evidence  against  the  lessee; 
iirst,  as  being  entries  made  by  D.  J.,  charging 
)iimself ;  and,  secondly,  as  being  admissions  made 
^  the  lessee's  agent.  Edwards  v.  Rees,  7  C.  & 
rP.  340— Coleridge.  1105 

A  letter  is  to  be  presumed  to  be  written  on 

Tthe  day  on  which  it  is  dated,  until  the  contrary  is 

rshown  to  be  the  fact.    Hunt  v.  Massey,  3  Nev. 

&M.  109.  1107 

Upon  a  question  as  to  the  general  sanity  of  a 
•devisor,  letters  addressed  to  him  in  his  life-time, 
by  persons  since  dead,  who  were  well  acquaintr 
ed  with  him,  and  found  amongst  his  papers  afler 
his  death,  with  the  seals  unbroken,  and  in  which 
he  is  addressed  as  a  person  of  sound  mind,  are 
not  evidence,  unless  it  be  shown  that  the  de- 
visor answered  such  letters,  or  did  some  other  act 
in  relation  to  them.  Doe  d.  Tatham  v.  Wright, 
6  Nev.  dk  M.  132 :  S.  C.  noni.  Wright  v.  Doe  d. 
Tatham,  3  Nev.  &.  M.  260 ;  1  AdoL  &.  Ellis,  3. 

1107 


The  last  act  done  by  the  devisor  in  relation  to 
such  letters  would  have  rendered  them  admissi- 
ble.   Id. 

On  a  qaestion  whether  certain  land  be  part  of 
the  plaintiff's  estate  or  waste  of  the  manor,  a 
perambulation  of  such  manor  by  the  lord,  inclu- 
ding the  land  in  question,  is  evidence,  as  showing 
an  assertion  of  ownership  by  the  lord,  though  it 
be  not  proved  that  any  person  on  behalf  of  the 
plaintiff  was  present  at  the  perambuiation,  or 
knew  of  it.  Woolwav  v.  Rowe,  1  Adol.  Sl  Ellis, 
114;  3Nev.  <&M.64k  1106 

A  counterpart  of  a  feoffment  by  the  corpora- 
tion to  an  inaividual  of  land,  &c.,  in  the  town  of 
N.,  produced  from  among  the  corporation  muni- 
ments, was  held  inadmissible  in  an  action  of  debt 
by  the  lessee  of  the  corporation,  for  tolls;  it 
appearing  that  no  rent  was  received  in  respect  of 
the  property.  Lancum  v.  Lovell,  6  C.  dt  P.  441 
— Tindal.  1103 

It  was  proved  that  it  had  been  the  practice,  as 
long  as  the  witness,  who  was  conversant  with  the 
subject,  could  remember,  for  the  town  treasurer 
to  nirnish  the  town  clerk  with  information,  from 
which  he  made  out  his  (the  treasurer's)  accounts, 
and  also  for  the  treasurer  to  attend  before  the 
auditors,  unless  prevented  by  illness  or  accident, 
and  produce  vouchers  verifying  the  town  clerk's 
statement.  Entries  in  books  of  that  description, 
commencing  with  the  year  1766,  were  tendered 
in  evidence.  Some  of  them  were  signed  by  the 
auditors  as  allowed,  and  to  some  of  them  ap- 
peared only  an  unsigned  entry  of  their  having 
been  examined: — Held,  that  those  which  were 
signed  by  the  auditors  were  admissible  without 
proof  of  any  attendance  by  the  particular  treasurer 
before  the  auditors,  or  of  any  entry  in  his  writ- 
ing, charging  himself,  partly  on  the  ground  that 
there  was  reasonable  evidence  of  his  having  -made 
the  town  clerk  his  agent  for  the  making  out  of 
the  accounts.    Id. 


XXXIV.  Proof  of  Handwriting. 

Assumpsit  against  the  drawer  and  indorser  of 
a  bill  of  exchange.  Plea  denying  the  drawing 
and  indorsement.  At  the  trial,  a  witness  for  the 
plaintiff  stated  that  he  had  received  letters  from 
the  defendant's  place  of  business  in  the  same 
handwriting  as  that  in  which  the  bill  was  drawn 
and  indorsed.    An  offer  to  the  defendant  to  com- 

fromise  afler  action  brought  was  also  proved, 
'or  the  defence,  three  witnesses  swore  positively 
that  the  writing  was  not  the  defendant's  : — Held, 
that  though  the  three  witnesses  for  the  defence 
rebutted  the  inference  that  the  writing  upon  the 
bill  was  the  defendant's,  yet  the  offer  to  compro- 
mise was  evidence  recognizing  the  handwriting 
upon  the  bill,  whether  that  of  the  defendant 
or  of  some  other  person,  sufficient  to  go  to  a 
jury.      Harding  v.  Jones,  1   Tyr.  dt  u-.^}35. 

1106 

m 

A  question  arising  at  N.  P.  from  the  obscurity 
of  the  handwriting,  what  the  ^words  of  a  written 
instrument  produced  in  evidence  really  were,  the 
Lord  Cliier  Justice  decided  it,  and  refused  to 


[EVIDENCE] 


aes 


have  it  put  to  the  jary.    Remon  v.  Hmyward,  2 
Adol.  Sl  EUii,  666.  1108 


XXXV.  Hearsat  Evidence. 

In  ejeetment,  where  the  question  is  devisavit 
vel  non,  evidence  of  the  ezunination  and  croas- 
ezunination  of  one  of  the  attesting  witnesses  to 
the  will,  who,  upon  the  trial  of  an  issue  out  of 
Chancery  between  the  same  parties,  and  upon 
the  same  question,  proved  the  execution  of  the 
will,  and  is  since  dead,  is  admissible ;  and,  beii#^ 
admitted,  is  entitled  to  the  same  degree  of 
weight  as  the  viva  voce  evidence  of  an  attesting 
witness.  Wright  v.  Doe  d.  Tatham,  3  Nev.  & 
M.  268  ;  1  Adol  &  Ellis,  3.  1110 

Therefore,  a  will  was  held  to  be  sufficiently 
proved  by  evidence  of  such  examinations,  where 
It  appeared  at  the  second  trial  that  another  at- 
testing witness  was  alive,  and  within  the  juris- 
diction of  the  court.  Id. 

In  order  to  let  in  evidence  of  the  examination 
of  a  deceased  witness,  upon  a  former  trial  upon 
the  same  question,  it  is  sufficient  if  the  parties 
be  substantially  the  same.  Id. 

Therefore  it  is  sufficient,  if,  in  the  former 
action,  a  party  is  plaintiff  or  defendant,  and,  in 
the  otlier,  lessor  of  the  plaintiff  in  ejectment. 
Id. 

Nor  is  it  material  that  one«  of  the  parties  to 
the  second  action  was  in  the  former  action  joined 
with  several  others  who  are  not  parties  to  the 
second  action.  Id. 

Nor  that  the  former  evidence  was  ^ven  upon 
the  trial  of  an  issue  arising  out  of  a  bill  in  Chan- 
cery, which  has  been  dismissed  upon  the  motion 
of  the  plaintiff  in  equity  himself.  Id. 

Where,  by  a  rule  of  court,  made  by  consent  of 
parties  previously  to  the  trial  of  an  ejectment,  it 
IS  ordered  that  the  short-hand  writer's  notes  of 
the  evidence  on  the  trial  of  an  issue  out  of  Chan- 
cery shall  be  read  in  evidence  as  to  such  wit^ 
nesses  ac  might  be  dead  or  beyond  sea,  evidence 
given  by  the  short-hand  writer  of  the  examination 
at  the  former  trial  of  an  attesting  witness  since 
dead,  who  proved  the  execution  of  a  will,  the 
due  execution  of  which  was  in  controversy  on 
both  occasions,  is  not  only  admissible  in  evidence 
on  the  ground  of  the  agreement  in  the  rule,  but, 
being  admitted,  is  not  secondary  evidence,  but  is 
evidence  of  as  high  a  nature  as  that  of  a  living 
attesting  witness.  Id. 

A.,  being  possessed  of  filackacre  and  Whiteacre 
by  the  same  title,  conveys  Blackacre  to  B.  Evi- 
<fence  given  by  witnesses  since  dead,  in  an  action 
between  C.  and  A.  respecting  the  title  to  W., 
brougfat  subsequently  to  the  conveyance  from  A. 
to  B.,  is  not  admissible  in  an  action  between  C. 
and  B.,  as  to  the  title  to  Blackacre.  Doe  d.  Fos- 
ter V.  Derby  (Earl),  3  Nev.  A;  M.  782 ;  1  Adol. 
A  Ellis,  783.  1110 

Where  two  ejectments  depending  upon  the 
same  title  ars  brought  by  A.  against  B.  and  C. 
setpeetively,  at  the  same  time,  and  eome  on  for 

Vol.  TV.  27 


trial  on  the  same  day;  and  that  of  Doe  d.  A.  «. 

B.  having  been  decided  against  B.,  C.'s  counsel 
consents  that  a  verdict  shall  pass  against  him  in 
Doe  d.  A.  V.  C,  on  the  ground  that  the  evidence 
is  the  same  in  both  cases ;  the  evidence  given  in 
Doe  d.  A.  V.  B.  cannot  be  admitted  on  Mhalf  of 
A.  in  an  action  subsequently  brought  respecting 
the  same  title  by  C.  against  A.,  unless  A.  proves 
clearly  that  it  was  agreed  between  himself  and 

C,  on  the  former  occasion,  that  the  evidence 
given  in  Doe  d.  A.  v.  B.  should  be  considered  as 
repeated  in  the  action  of  Doe  d.  A.  v.  C.  Id. 

The  proper  course  for  a  party  who  wsnts  a  trans- 
cript of  the  evidence  adduced  at  the  former  trial, 
appears  to  be  to  apply  to  the  clerk  of  the  judge 
who  presided,  for  a  copy  of  such  judge's  notes ; 
and  the  expense  of  obtaming  such  copy  would,  it 
seems,  be  allowed  in  costs.  Crease  v,  Barrett,  1 
Tyr.  AG.  112.  1110 

An  entry  by  a  deceased  person,  charginff^him- 
self,  is  admissible  against  strangers,  even  ulough 
it  appears  that  the  facts  stated  in  that  entry  were 
not  known  to  him  of  his  own  knowledge.  Crease 
V.  Barrett,  1  C.  M.  ^b.  R.  919 ;  5  Tyr.  458.     1110 

Ancient  answers  of  conventionary  tenants  of  a 
manor,  stating  the  rights  of  the  lord  of  the  ma- 
nor, are  admissible  in  evidence,  even  against  the 
freeholders  of  the  manor ;  but,  if  they  state  fiicts 
only,  e.  g.  that  **  the  commons  of  the  said  manor 
do  belong  to  the  tenants  of  the  said  manor  un-  ' 
stinted,  wno  have  always  enjoyed  the  same  under 
the  yearly  rent  of  33^.  45.,  ss  by  the  records 
thereof  remaining  with  the  auditor  of  the  duchy 
appeareth ;  unto  which,  for  the  more  certain^, 
we  refer  ourselves ;''  they  are  not  admissible  in 
evidence.  Id. 

Declarations  of  a  deceased  lord  of  a  manor,  as 
to  the  extent  of  his  rights  over  the  wastes  of  a 
manor,  are  not  admissible  in  evidence.  Aliter,  if 
spoken  of  the  extent  of  wastes  only.  Id. 

Reputation  is  admissible  in  evidence,  thon^ 
unsupported  by  usage.  Id. 

A  lease  of  tin  mines  and  toll  tin  was  surren- 
dered in  1810,  and  another  lease  taken,  on  pay- 
ment of  a  fine,  part  of  which  was  a  compensation 
for  the  surrender  of  a  former  lease.  A  statement 
in  a  lease  of  the  surfiice  made  by  the  same  lessor, 
during  the  existence  of  the  former  lease,  is  ad- 
missible in  evidence  against  the  lessee  in  that 
second  lease  of  the  mines  and  toll.  Id. 

A.,  in  the  year  1798,  died  possessed  of  pro- 
perty, which,  many  years  afterwards,  B.  com- 
menced a  suit  to  recover.  In  the  year  1799,  a 
relation  of  B.  made  a  declaration,  the  effect  of 
which  wss  to  show  that  B.  wss  the  heir  and  next 
of  kin  of  A. : — Held,  that  this  declaration  was  not 
receivable  in  evidence :  as  the  lis  motie,  or  com- 
mencement of  controversy,  must  be  taken  to  be 
the  arising  of  that  state  of  facts  on  which  the 
claim  is  founded,  without  any  thing  more.  Walk- 
er V.  Beauchamp,  6  C.  aP.  SSz — ^Alderaon. 

1110 

Statements  of  a  deceased  occupier  touching 
^  his  title,  are  admissible  in  evidence  genenlly, 


2484 


lEVroENCE] 


without  reiereoce  to  the  particular  effect  they 
may  produce  in  the  cause.  Came  dem.,  NicoU 
ten.,  1  Bing.  N.  R.  430  j  I  Scott,  466.  1110 

On  an  issue  to  try  whether  a  farm  modus  of 
211.  Ids.  Qd.  was  payable  for  a  certain  farm,  a 
former  occupier  of  the  farm  cannot  be  asked 
what  he  has  heard  his  deceased  father  say  re- 
specting  this  modus,  although  his  father  haa  also 
occupied  the  farm,  because  this  would  be  eyi- 
dence  of  reputation  of  a  fact.  Wells  v.  Jesus 
College,  Oxford,  7  C.  &  P.  2d4~Alder8on.  1110 

On  an  issue  joined,  whether  a  certain  place 
situate  on  the  bank  of  a  riyer  is  a  public  landing- 
place  for  all  the  kind's  subjects,  eyidence  may  be 
giyen  of  reputation  uat  it  is  not  a  pablic  lanmng- 
place.  Dnnkwater  v.  Porter,  7  C.  &,  P.  181 — 
Coleridge.  1112 

Eyidence  of  reputation  is  not  admissible  upon 
a  question  whether,  by  custom,  the  sheriff  of  a 
county  or  of  a  city  is  bound  to  do  execution  upon 
criminals  condemned  to  death  by  a  judge  of  gaol 
deliyery,  at  the  assizes  for  the  county.  Rex  v. 
Antrobus,  4  Ney.  A;  M.  565:  2  Adol.  &  Ellis, 
796 ;  6  C.  &  P.  784 ;  1  Har.  &  WoU.  96.      1112 

Upon  an  information  against  a  sheriff  for  re- 
fusing to  execute  prisoners  upon  whom  sentence 
of  death^as  been  passed  by  justices  of  gaol  deli- 
yery sitting  in  his  county,  eyidence  was  received 
for  the  crown  of  an  orcfer  of  the  Court  of  Gaol 
Deliyery,  requiring  a  former  sheriff  to  hang  a 
criminal  in^  chains,  and  an  examined  copy  of  the 
crayings  of  that  sheriff  filed  in  the  Exchequer, 
wherein  he  crayes  to  be  allowed  his  expenses  of 
^bbeting  such  criminal,  which  expenses  were  al- 
lowed by  the  then  Chancellor  of  the  Exchequer. 
Id. 

Whether,  upon  a  question  as  to  the  liability  of 
the  mayor  and  citizens  of  an  incorporated  city 
to  perform  a  certain  public  duty,  declarations  of 
deceased  citizens,  in  fayor  of  the  eiistence  of 
such  liability,  are  admissible  in  eyidence,  quere  ? 
Id. 


XXXVIl.  Production  of  EyiDENcx. 

If,  in  an  action  for  goods  sold,  the  nuestion  be 
whether  the  credit  was  given  to  tlie  defendant's 
wile  or  to  her  father,  eyidence  that  other  persons 
had  given  credit  to  the  father  is  not  receivable. 
SmiUi  V.   Wilkins,  6  C.  &  P.  180— Tindal. 

ni4 

Where  issue  is  taken  on  a  plea  which  would 
be  bad  on  demurrer,  because  inconsistent  with 
the  admission  of  the  party  on  the  record,  evi- 
dence in  support  of  it  cannot  be  rejected  at  nisi 
prius.  Bowman  r.  Rostrow,  4  Nev.  &  M.  551 ; 
1  Har.  &  WoU.  221.  1114 

If,  during  the  cross-examination  of  one  of  the 
plaintiff's  witnesses,  the  defendant's  counsel,  un- 
der a  notice  to  produce,  call  for  a  book  wh^ch 
the  plaintiff's  counsel  producer — the  defendant's 
counsel,  if  he  looks  over  the  book,  so  as  to  see 
the  contents  of  several  pages  of  it,  will  be  bound 
to  put  it  in  as  his  evidence.  Calvert  r.  Flower, 
7  C.  &.  P.  366— Denman.  1114  ( 


Upon  a  trial  under  the  writ  of  trial  act,  in  as 
action  on  a  promissory  note,  semble  that  the  note 
should  be  produced :  but  if  the  objection  was  not 
taken  at  the  time,  the  non-production  of  the  note 
is  ground  afterwards  for  a  new  trial.  Henn  «. 
Neck,  3  Dowl.  P.  C.  163.  11 14 

In  an  action  to  recover  the  amount  of  a  oheck, 
where  the  defendant  does  not  deny  giving  the 
check,  but  pleads  that  it  was  given  for  a  gam- 
bling transaction,  the  plaintiff  is  not  bound  to 
make  it  part  of  his  case,  nor  to  produce  it  for  the 
purpose  of  the  defendant  giving  it  in  eyidence, 
unless  he  has  received  notice  to  produce  it. 
Reeves  v.  Gambell,  5  Nev.  &  M.  433 ;  1  Har.  A 
Woll.567.  1114 

On  the  trial  of  an  issue  directed  under  the 
Interpleader  Act  to  be  in  the  form  of  an  action 
for  money  had  and  received,  evidence  may  be 
received,  which  in  an  ordinary  case  would  only 
strictly  be  admissible  under  a  special  connL 
Pooley  V.  Goodwin,  5  Nev.  &  M.  466 ',  1  Har.  Sl 
WoU.  567.  1114 

In  an  action  for  work  and  labor,  the  defen- 
dant, on  a  judgment  bj  default,  is  at  liberty  to 
cross-examme  the  plamtiff  's  witnesses,  who  are 
caUed  to  prove  the  work  done,  as  to  whether  the 
work  was  done  on  the  defendant's  retainer  or  not. 
WUliams  v.  Cooper,  3  Dowl.  P.  C.  204.         1114 

In  an  action  by  A.  against  Q^,  B.  cannot  object 
to  the  production  of  tlie  title  deeds  of  C.  Marston 
V.  Downes,  3  Nev.  &  M.  861.  1114 

Nor,  if  C.  refuses  to  produce  them,  can  B.  ob- 
ject to  the  reception  of  parol  evidence  of  their 
contents.    Id. 

Where  in  an  action  it  is  required  to  be  proved 
that  L.  had  commiited  a  felony  by  hiring  a  piano 
forte,  and  selling  it  immediately : — Held,  that  ev- 
idence could  not  be  given  respecting  optical  in- 
struments which  were  alleged  to  have  been  ob- 
tained by  L.  from  another  tradesman.  WUton  v. 
Edwards,  6  C.  <9k  P.  677— LyndhursL  1114 

In  trespass  for  taking  a  piano  forte,  which  the 
plaintiff  nad  bought  of  L.,the  de^ndant  pleaded 
that  it  belonged  to  him,  and  had  been  feloniously 
stolen  from  him  by  L.,  and  that  he  retook  it : — 
Held,  that  whatever  would  be  eyidence  a^nst 
L.  if  he  were  on  his  trial  for  the  felony,  is  evi- 
dence to  proye  the  felony  to  Iiave  been  commit- 
ted by  L.    Id. 

If  A.  and  B.  rent  a  ready  furnished  bed-room 
jointly,  and  both  are  taken  into  custody  in  the 
bed-room,  charged  with  joinUy  stealing  fi^athers 
from  the  bed,  and,  on  a  search,  pawnbrokers' 
duplicates  are  found  on  one  of  them  : — Held,  that 
these  duplicates  are  receivable  in  evidence  against 
the  other,  on  a  plea  of  justification  to  any  action 
for  false  imprisonment  brought  by  that  other. 
Atkinson  v.  Warne,  6  C.  &  P.  687— Gumey .  1114 

Where  special  damage  is  alleged,  that  C.  de- 
clined to  deal  with  the  plaintiff,  because  his  bill 
was  dishonored,  the  letter  C.  received,  announc- 
ing to  him  the  dishonor  of  the  bill,  may  be  read 
in  evidence  to  show  that  he  received  such  a  letter, 
but  is  no  proof  of  the  statements  contained  in  it: 
— Held,  also,  that  C  might  be  asked  questions, 
to  show  that  other  causes  in  addition  to  the  letter 


[EVIDENCE— EXECUTION] 


3485 


bidoGed  him  to  cease  from  dealing  with  the 
phuDtiff,  and  that  other  witnesaes  miffht  be 
asked  whether  other  bills  of  the  plaintiiTs  had 
not  been  dishonored,  but  that  they  could  not  be 
asked  as  to  any  particular  bill  wiUiout  its  being 
produced.  Whitaker  v.  £ngland  (Bank  of),  6  C. 
&  P.  700— Parke.  1114 


XXXVIII.  Dkmcrrer  to  Evidence. 

Quere  whether  the  defendant  can  demur  tn 
eTidenoe  after  money  has  been  paid  into  court  ? 
Jenkins  v.  Tucker,  I  H.  Black.  90.  1116 


XXXIX.  Bills  of  Exceptions. 

Where  a  bill  of  exceptions  is  taken  at  the  trial 
of  a  cause,  it  most  be  set  down  for  argument 
within  the  first  four  days  of  the  ensuing  term. 
Hill  V.  Watts,  1  Alcock  &  Napier,  130.    (Irish). 

1116 

Where  exceptions  are  not  properly  taken,  (n» 
where  they  appear  upon  the  record  after  the 
finding  of  the  jury),  the  court  of  error  cannot 
fire  judgment  thereon.  Armstrong  v-  Lewis 
fm  error),  4  M.  ^t  Scott,  1 ;  2  C.  &  M.  274. 

1116 


EXECUTION. 

Praetiee  on  issuing  Execution  ] — After  posteas 
have  been  left  with  the  clerk  of  the  judgments, 
conformably  with  the  rule  of  court  made  in  Tri- 
nity term,  13  Geo.  2,  it  will  be  lawftil  for  the 
clerk  of  the  judgments  to  permit  tlie  same  to  be 
taken  out  of  the  office  for  the  purpose  of  being 
produced  to  the  sealer  of  the  writs,  in  order  to 
obtain  a  writ  of  exepution.  And  the  attorney,  or 
agent,  who  procures  such  posteas  or  inquisitions 
from  the  office  of  the  clerk  of  the  judgments, 
must  cause  the  same  to  be  returned  again  to  the 
same  office  during  the  office  hours  of  that  day. 
Beg.  Gen.  C.  P.  E.  T.  2  Will.  4.  Ili9 

A  BUg^stion  of  the  reason  for  directing  a  writ 
of  execution  to  the  coroner,  instead  of  the  sheriff, 
need  not  be  made  upon  the  roll  previously  to  the 
writ  being  issued.  Bastard  or  Barston  v.  Gutch 
or  Truteh,  5  Ner.  dk  M.  109;  4  Dowl.  P.  C.  6 ; 
3  Adol.  A  Ellis,  451 ;  1  Har.  &,  Woll.  321. 

1119 

The  3  db  4  Will.  4,  c.  67,  s.  2,  as  to  making 
writs  of  execution  returnable  immediately,  applies 
to  executions  issued  on  judgments  obtained  both 
before  and  since  it  passed.  Rex  r.  Sheriff  of 
Surrey,  3  Dowl.  P.  C.  82.  1119 

Where  judgment  was  entered  up  by  consent, 
and  a  written  agreement  made  to  pay  a  certain 
anm,  and  refer  the  balance  in  dispute  to  arbitra- 
tion, the  court  refused  to  allow  the  execution  to 
be  taken  out  for  the  balance,  on  affidavit  of  a 
difl^rent  arrangement  having  been  subsequently 
oome  to  in  conversation.  Batsey  v.  Day,  1  Har. 
dk  Woll.  114.  1119 

The  plaintiff  obtained  a  verdict  at  the  Spring 
assises ;  the  defendant  died  on  the  18th  of  April ; 
oorts  were  taxed  on  the  2lBt,  final  judgment  signed 


on  the  22nd,  and  a  fi.  fa.  issued  on  the  same  day, 
tested  on  the  first  day  of  the  term.  The  court 
refused  to  set  aside  the  fi.  fa.  for  the  irregularity. 
Watson  r.  Maskell  or  Marshall,  2  Dowl.  P.  C. 
610;  4M.  &  Scott,  461.  1119 

Uppn  a  trial  under  the  3  &  4  Will.  4,  c.  42,  the 
plaintiff  having  obtained  a  verdict,  got  his  costs 
taxed,  and  signed  judgment  on  tlic  same  day : 
— Held,  upon  the  construction  of  section  18,  that 
the  judgment  was  regular.  Nicolls  v.  Chambers, 
2  Dowl.  P.  C.  693.  1119 


Judgment  in  Inferior  Courts.'] — Under  stat.  4 
&,  5  Will.  4,  c.  62,  s.  31,  where  a  judgment  has 
been  obtained  in  the  court  of  C.  r .  Lancaster, 
and  it  is  sworn  that  the  defendant  has  removed 
his  person  out  of  the  jurisdiction,  but  nothing  is 
said  as  to  his  goods,  the  court  of  K.  B.  will 
grant  execution  against  the  person  only.  Lord 
V.  Cross,  2  Adol.  6l  Ellis,  81 ;  4  Nev.  d^  M.  30 ; 

3  Dowl.  P.  C.  4.  1119 

In  order  to  obtain  execution  on  a  judgment 
from  the  court  of  C.  P.  at  Lancaster,  under,  the 
4^5  Will.  4,  c.  62,  s.  31,  it  is  necessary  not 
only  to  have  the  certificate  of  the  prothonotary, 
but  also  an  affidavit  that  the  defendant  has  re- 
moved his  person  or  goods,  or  both,  out  of  the 
jurisdiction.  Duckworth  v.  Fogg,  4  Dowl.  P-  C. 
396;  2C.  M.dtR.  736.  ^        1119 

The  court  will  remove  a. judgment  from  an 
inferior  court,  in  order  to  issue  execution  thereon, 
pursuant  to  19  Creo.  3,  c.  70,  s.  4,  though  part  of 
the  debt  has  been  levied  by  process  from  the 
inferior  court.    Knowles  v.  Lynch,  4  Tyr.  477. 

1119 

Semble,  that  the  19  Geo.  3,  c.  70,  s.  4,  im- 

{cowering  the  removal  of  judgmento  from  the  in- 
erior  courts  of  record,  does  not  apply  to  judg- 
mente  obtained  by  defendante.    Batten  v.  Squires* 

4  Dowl.  P.  C.  53.  1119 


Several  Writs  of  Execution.] — Where  a  plain- 
tiff from  mistake,  has  token  out  a  fi.  fa.  for  less 
than  the  sum  for  which  he  has  obtained  judg- 
ment, the  court  will,  on  conditions,  allow  him  to 
take  out  a  fi.  fa.  for  the  residue.  Hunt  v.  Pass- 
more,  2  Dowl.  P.  C.  414.  1119 

A  fi.  fa.  having  been  delivered  at  the  sheriff's 
office  on  the  23rd  of  April,  on  the  following  day 
the  officer  wrote  a  letter,  stating  that* the  <fefen- 
dant  was  only  a  lodger,  and  had  no  efiecte ;  in 
consequence  of  which  letter  the  plaintiff,  on  the 
succeeding  day,  lodged  a  ca.  sa.  with  the  sheriff's 
deputy  in  London.  On  the  29th,  the  plaintiff 
having  heard  that  the  defendant  had  goods,  and 
that  the  letter  of  the  officer  was  fidse,  wrote  to 
the  officer,  directing  him  not  to  arrest  the  defisn- 
dant,  but  to  teke  his  goods ;  and,  on  the  1st  of 
May,  obteined  a  side  har  rule  for  the  return  of 
the  writ  of  fi.  fa.  The  sheriff  applied  to  discharge 
that  rule,  on  the  ground  that  the  fi.  fa.  was  super- 
seded by  the  ca.  sa.  subsequently  issued : — Held, 
that,  whether  it  was  so  or  not,  the  plaintiff  had  a 
right  under  the  ciroumstanoes  to  have  a  return  to 
the  fi.  fa.    Smith  v.  Johnson,  4  Dowl.  P.  C.  208. 

U19 


3486 


[EXECUTION] 


Two  write  of  €Mm  ML  wtn  iMwd  it  one  time 
into  Aogleiea  and  CamarTonshire.  The  debtor 
waa  aiTMled  in  Angleaea  oo  lat  Norember,  and 
liaTiog  paid  debt  and  coate  to  the  aheriff,  waa 
diacharged.  The  next  day  be  waa  arreated  in  Car- 
nanr.onahire  on  the  other  ca.  aa.,  and  waa  detained 
in  cnatody  till  the  15th,  when  the  debt  and  coats 
were  paid  over  to  the  creditor's  attorney  aeTeral 
daya  after  he  had  been  acquainted  with  the  pre- 
▼iooa  &ct  The  debtor  then  sued  the  creditor 
and  her  attorney  in  caae  for  malicioua  non- 
ieazance,  in  not  giving  notice  to  the  aberiff  of 
Camanronahire  fluit  the  writ  isaued  into  Anglesea 
had  been  executed,  or  the  judgment  satisfied,  and 
that  the  writ  directed  to  him  was  not  to  be  exe- 
cuted : — Held,  in  the  absence  of  proof  that  be- 
fore the  second  arrest  any  notice  had  reached 
the  creditor  or  her  attorney  of  the  first  arrest,  or 
of  the  payment  of  the  debt  and  costs,  or  that  at 
any  time  before  his  discbarge  the  plaintiff  had 
applied  to  either  for  a  countermand  of  hia  im- 
prisonment, which  had  been  thereupon  mali- 
ciously withheld,  he  could  not  maintain  the  ac- 
tion. Lewia  v.  Morris,  2  C.  A  M.  712;  4  Tyr. 
907.  1119 

Semble,  the  discharge  by  the  sheriff  of  Angle- 
sea  without  consent  oi  toe  plaintiff  was  illegal. 

Semble,  also,  that  the  second  arrest  might  have 
been  aet  aside  on  application  to  a  judge.    Id. 


Capiat  ad  mtisfaciendum.} — A  fi.  fa.  sued  out 
by  the  plaintiff  proving  ineffectual,  by  reason  of 
defendant's  goods  being  already  in  custodia  levis, 
and  assigned  under  a  bill  of'^aale: — Held,  £at 
plaintiff  might  issoe  a  ca.  sa.  before  the  return 
of  the  fi.  &.  Dicas  v.  Wame,  10  Bing.  341 ;  3 
M.  A  Scott,  814 ;  2  Dowl.  P.  C.  762.  1121 

As  soon  as  a  writ  of  fi.  fa.  is  returned,  a  writ 
of  ca.  sa.  may  be  issued  for  the  sum  remaining 
unsatisfied.    Gardner  v.  Cover,  1  Gale,  45.  1121 

Semble,  that  the  court  will  not  receive  affida- 
vits to  negative  the  truth  of  the  sheriff's  return 
of  the  execution  of  the  fi.  fa.    Id. 

The  court  of  C.  P.  will  not  discharge  a  defen- 
dant from  custody  under  a  ca.  sa.,  on  the  ground 
that  he  has  been  before  irregularly  taken  and 
diacharged  under  a  criminal  process  at  the  in- 


>mg 
1121 


stance  of  the  plaintiff.    Mackie  v.  Warren,  5  Bin 
176;  2M.  &P.279. 

After  the  lapse  of  two  terms,  the  court  will 
not  discharge  a  defendant  out  of  custody  on  the 
ground  that  his  addition  and  place  of  abode  are 
not  indorsed  uoon  the  writ  of  ca.  sa.  Constable 
V.  FotfaergiU,  2  Dowl.  P.  C.  591.  im 

A  ca.  sa.  is  irregular,  if  it  is  tested  before  the 
time  of  signing  judgment.  Peacock  v.  Day,  3 
Dowl.  P.  C.  291.  1121 

The  eourt  will  not  discharge  a  defendant  out 
of  CDSftody  on  a  testatum  ca.  sa.,  on  the  ground 
of  the  want  of  an  indorsement  on  the  ca.  sa.  pur- 
suant to  the  rule  of  Hil.,  2  &  3  Geo.  4.  David- 
son V.  Dunne,  4  Dowl.  P.  C.  119.  1121 


the  gfooad  of  the  sheriff  beiBg 
not  recite  that  &ct,  nor  need  any  soggeation  to 
that  effect  be  entered  on  record  previons  to  suing 
out  such  a  writ.  Bastard  or  Banlon  t.  Fmtch  or 
Gutch,  5  Nev.  AiL  109;  4  DowL  P.  C.  6;  1 
Har.A;WoU.321.  1121 

Plaintiff  having  recovered  33/.,  arrested  the 
defendant  on  a  ca.  sa.  for  34/.  The  court  refused 
to  discharge  the  defendant  out  of  custody,  and 
allowed  the  process  to  be  amended  by  inserting 
the  true  sum,  it  not  being  shown  that  the  va- 
riance was  intentional,  or  that  the  defendant  was 
damnified.  M'Cormack  v.  Melton,  1  Add.  & 
Ellis,  331 ;  3  Nev.  &  M.  B81.  1121 

A  capias  ad  satisfaciendum  in  the  body  of  it 
stated  the  sum  recovered  to  be  lOOL,  but  was  in- 
dorsed for  68/.  onlv,  that  being  the  real  amount 
of  the  damages  ana  costs ;  and  tlie  defendant  waa 
actually  taken  in  execution  for  the  amaller  sum. 
After  rule  obtained  to  set  aside  the  ca.  sa.  and 
discharge  the  defendant  out  of  custody,  a  rule 
was  obUined  to  amend  the  ca.  sa.  The  court  set 
aside  the  first  rule  with  costs,  and  made  the 
second  absolute  on  payment  of  costs.  Amull  v. 
Weatherby,  5  Tyr.  485.  1121 

Where  a  defendant  waa  charged  in  execution 
upon  a  writ  indorsed  to  satisfy  188/.  9#.,  and  in- 
terest of  15^.  until  paid : — Held,  that  it  was  not 
such  a  misi'ndorsenient  as  to  entitle  the  defen- 
dant to  his  discharge  ;  but  the  proper  course  was 
for  the  defendant  to  have  moved  to  have  the  in- 
dorsement set  right.  Williams  v.  Waring,  2  C. 
M.  &  R.  354 ;  4  Dowl.  P.  C.  200;  1  Gale,  268. 

1121 

A  plaintiff  taking  a  bill  of  exchange  in  pay- 
ment of  the  debt  and  costs  of  an  action,  may, 
upon  the  bill  being  dishonored,  arrest  the  de- 
fendant on  a  ca.  sa.  without  delivering  up  the 
bill.  ,  Kemp  v,  Gadderer,  4  Dowl.  P.  C.  676. 

1121 

A  writ  of  ca.  sa.  set  aside  for  irregularity  is  a 
nullity,  and  the  taking  of  the  defendant  under  it 
is  no  satisfaction  of  the  judgment.  M*Cormick 
or  M'Comish  v.  Melton,  1  C.  M.  d^  R.  525 ;  3 
Dowl.  P.  C.  215 ;  5  Tyr.  147.  1121 

A  variance  between  a  aheriff's  warrant  and 
a  ca.  sa.  lodged  in  his  office  is  immaterial.  Rose 
V.  Tomblinson,  3  Dowl.  P.  C.  49.  1121 

Where  a  party  is  in  execution,  and  a  third 
person  engages  that  if  he  is  discharged,  he  will 
have  him  forthcoming  at  any  future  period,  in 
case  it  should  appear  necessary  to  the  plaintiff  to 
issue  another  execution,  and  an  action  is  after- 
wards brought  for  the  non-performance  of  such 
an  agreement,  the  defendant  cannot  set  up  the 
tllegiUity  of  the  first  execution  as  an  answer  to 
the  action.  Atkinson  v.  Baynton,  1  Scott,  404 ; 
1  Hodges,  7.  1121 

In  such  an  action,  if  the  plaintiff  avers  gene- 
rally that  the  defendant  had  notiee  of  the  issuing 
of  the  second  execution,  the  defendant  cannot 
object  on  general  demurrer,  that  the  time  and 
place  when  and  where  he  was  required  to  render 
the  party,  is  not  set  out  in  the  declaration.    Id. 


A  writ  of  ca.  sa.  directed  to  the  coroner,  on  I     Plaintiffii  having  obtained  a  verdict  agaiut 


[EXECUTION— EXECUTORS  AND  ADMINISTRATORS]       2487 


defendant  under  an  award  in  a  caum  in  K.  B., 
tbe  Court  of  Chancery,  upon  bill  filed,  and  mat- 
ter appearing  on  the  award  itself,  granted  an  in- 
junction to  stay  farther  proceedings.  Plaintiffs, 
nevertheless,  signed  judgment  and  took  defen- 
dant in  execution.  On  application  to  this  court 
Ibr  a  rule  nisi  to  discharge  defendant  out  of  cus- 
tody, (it  being  stated,  among  other  things,  that 
the  plaintiffs  could  not  be  met  with  for  the 
purpose  of  attaching  them  by  process  out  of 
Chancery),  this  court  refused  to  interfere.  Fore- 
man V.  ^yes,  5  B.  <&  Adol.  835.  1121 


Fieri  facias.] — A  fi.  fa.  on  a  judgment  signed 
after  a  defendant's  death,  in  vacation,  may  be 
tested  on  the  last  day  of  the  preceding  term, 
notwithstanding  the  3  &.  4  Will.  4,  c.  &,  s.  2. 
Brocber  r.  Pond,  2  Dowl.  T.  C.  472.  1122 

If  a  defendant  dies  in  execution,  a  fi.  fa.  tested 
and  returnable  while  he  was  alive  and  in  execu- 
tion,  and  returned  by  the  plaintifi"s  attorney,  will 
support  a  testatum  issued  under  the  21  Jac.  1 , 
c.  S^,  8.  2,  into  a  foreign  county.  Famcombe  v. 
Kent,  2  Dowl.  P.  C.  4S4.  1122 

In  an  action  of  trespass,  where  the  defendants 
justi^  under  a  fi.  fa.,  and  the  plaintiff*  replies  de 
injuria  abseque  residuo  causffi,  and  new  assigns 
that  the  defendants  committed  the  trespasses  on 
another  occasion,  and  for  other  purposes  than 
those  in  the  plea  mentioned,  the  judge  may  leave 
it  Id  the  jury  to  say  whether  the  execution  was 
bona  fide  or  colorable.  Lucas  v.  Nockels,  1 
Clark  &  Fin.  438.  1122 

If  judgment  ia  obtained  against  a  defendant  in 
custody  on  mesne  process,  the  plaintiff"  in  the  ac- 
tion may  issue  execution  against  the  goods  with- 
out discharging  him.  Jones  v.  Tye,  1  Dowl.  P. 
C.  181.  1122 

Where  a  testatum  fi.  Sn.  appeared  on  a  judg- 
ment-roll to  be  founded  on  an  irregular  writ  of 
fi«  fii.,  that  aAer  the  testatum  writ  had  been  exe- 
cuted without  any  application  made  to  set  it 
aaide,  no  objection  could  be  raised  upon  an  action 
being  brought  on  the  judgment.  Leonard  v. 
Simpson,  2  Scott,  335;  2  B'mg.  N.  R.  176;  1 
Hodges,  251.  1122 

Qnasre,  whether  the  delivery  of  a  writ  to  the 
deputy,  under  the  3  &4  Will.  4,  c.  42,  bindd 
the  |rood8  as  if  the  writ  had  been  delivered  to  the 
shenff  himself.  Brackenbury  v.  Laurie,  3  Dowl. 
P.  C.  180.  1122 

In  an  action  by  a  landlord  against  the  sheriff', 
the  court  refused  to  allow  the  proceeds  of  the 
sale  to  be  paid  into  court  with  the  costs  of  the 
action,  though  it  was  sworn  that  the  sale  was  re- 
gularly conducted.  Groombridge  v.  Fletcher,  2 
Dowl.  P.  C.  353.  1128 


Eltgil  ] — By  inquisition  taken  under  an  elegit, 
it  was  stated  that  G.,  the  defendant,  was  pos- 
lewed  of  a  term  in  lands  as  mortgagee.  The 
term  had  been  bequeathed  by  words,  upon  which 
a  question  arose,  whether  such  term  was  vested 
in  6.  or  in  the  executrix.  The  court  refused  to 
decide  on  motion  at  the  instance  of  the  mortga- 


gor or  of  the  executrix  whether  G.  had  an  in- 
terest in  the  inouisition  and  liable  to  V  extended. 
Cooper  V.  Gardner,  3  Adol.  6l  Ellis,  211.       1129 


bishop 

rule  catling  upon  a  piamun,  lo  wnom  uie  oisnop 
has  granted  a  sequestration,  to  show  cause  why 
such  sequestration  should  not  be  set  aside  ?  Bishop 
V.  Hatch,  and  Chuter  v.  Same,  3  Nev.  &  M.  498 ; 

1  Adol.  &.  Ellis,  171.  1131 

A  judg'ment  on  a  warrant  of  attorney  was  for 
1800/. ;  the  defeazance  provided,  that  on  the  death 
of  the  defendant,  and  full  payment  of  arrears  of 
the  annuity,  satisfaction  should  be  entered  on  the 
record.  A  second  judgment  having  been  signed 
by  a  different  creditor,  who  sued  out  a  sequestrari 
facias  thereupon,  it  appeared  that,  at  that  time, 
the  former  creditor  had,  by  sequestrations,  levied 
more  than  1800Z.  for  arrears  of  his  annuity,  and 
there  were  arrears  still  due.  The  court  ordered 
that  satisfaction  should  be  entered  on  the  roll  oT 
the  former  judgment,  as  of  the  date  when  judg- 
ment was  signed  by  the  second  creditor ;  and  that 
the  sums  levied  since  should  be  paid  over  to  him. 
But  they  refused  to  order  pavment  to  this  cre- 
ditor of  the  surplus  over  1800/.,  levied  before  Uie 
signing  of  his  judgment.    Cottle  v.  Warrington, 

2  Nev.  ^  M.  ^ ;  5  B.  &  Adol.  447.  1131 

A  sequestration  obtained  by  tlie  assignees  of 
an  insolvent  incumbent,  operates  only  from  the 
time  of  publication,  and  does  not  entitle  the  as- 
kignees  to  the  arrears  of  composition  for  tithes 
due  before  publication.  Waite  v.  Bishop,  1  C. 
M.  &  R.  505 ;  3  Dowl.  P.  C.  234 ;  5  Tyr.  90. 

1131 

Lodging  a  writ  of  levari  facias  with  the  regrig. 
trar  of  the  bishop  of  the  diocese,  does  not  bind 
the  property  of  the  incumbent  from  the  time  of 
such  lodging.  Id. 

Where  a  sheriff  returned  to  a  writ  of  capias 
utla^atum  that  the  defendant  had  no  goods,  nor 
any  lay  fee  in  his  bailiwick,  but  that  he  was  pos- 
sessed of  a  rectory,  the  court  awarded  the  writ  of 
sequestration,  although  the  sheriff*  did  not  return 
that  he  had  seized  the  rectory  into  his  hands. 
Rex  v.  Armstrong,  2  C.  M.  d&^  R.  205 ;  3  DowL 
P.  C.  760.  1131 

To  a  writ  of  capias  utlagatum,  the  sheriff  re- 
turned that  the  defendant  had  no  goods,  ikot  any 
lay  fee  within  his  bailiwick,  but  that  he  was  a 
beneficed  clergyman ;  not  stating  the  name  or 
situation  of  \&  benefice.  The  court  refused  a 
writ  of  sequestration,  but  suggested  a  motion  for 
a, rule  calling  upon  the  sheriff  to  amend  his 
return.    Rex  v,  Powell,  1  Mees.  &,  Wels.  321. 

1131 


EXECUTORS  AND  ADMINISTRATORS. 

GraiU  of  Administration.} — Where  a  canal  ia 
situate  in  the  provinces  of  Canterbury  and  York, 
but  the  office  for  transacting  the  business  of  the 
canal  is  in  the  former  provmce,  it  is  sufficient  iT 
the  will  of  a  shareholder  be  proved  in  the  Pre- 
rogative Court  of  Ca.i  >tbury.  Smith  v.  Staffiird,. 
2  Wils.  C.  C.  16f4^  113a 


2478 


[EVIDENCE] 


attested  by  C,  eridence  of  payments  of  interest  ] 
within  six  yean  by  B.  is  not  sufficient  to  take 
the  case  out  of  the  statute  of  limitations,  unless 
C  is  called,  although  it  appears  that  A.  signed 
the  note  as  surety  ior  B.,  whose  name  was  already 
subscribed  to  the  note.  VVylde  v.  Porter,  3  Nev. 
&;  M.  585 ;  1  Adol.  &.  Ellis,  742.  1089 

Where  the  defendants  claimed  title  to  certain 
goods  under  an  assignment,  and  in  pursuance  of 
notice  produced  it  at  the  trial  when  called  for  by 
the  plaintiffs  : — Held,  that  the  plaintiff's  were  en- 
titled to  read  it  in  evidence  without  calling  the  at- 
testing witness  to  prove  the  execution,  although 
they  impugned  the  validity  of  the  assignment  on 
the  ground  of  fraud.  Carr  v.  Burdiss,  1  C.  M. 
&R.782;  S  Tyr.  309.  1089 

In  assumpsit  by  indorsee  against  acceptor  of 
an  English  bill  of  exchange,  to  show  that  the 
plaintiff  had  received  the  bill  when  it  was  over- 
due ;  a  protest,  which  had  been  made  of  it  by  the 
plaintiff^ 's  immediate  indorsor,  being  in  the  hands 
of  the  plaintiff',  was  called  for  by  the  defendant  at 
the  trial  on  notice  to  produce.  On  its  produc- 
tion it  appeared  to  be  attested  by  a  subscribing 
witness  : — Held,  that  the  mere  circumstances  that 
the  protest  came  out  of  the  hands  of  the  plaintiff*, 
as  he  did  not  claim  title  under  it,  was  not  sufficient 
to  dispense  with  the  necessitjr  of  calling  the  sub- 
scribing witness;  but  it  being  proved  that  on 
two  occasions  the  paper  had  been  produced  by  the 
jpiaintifi''s  attorney  to  the  defendants  attorney, 
as  the  protest  applying  to  the  bill  in  question,  it 
was  aamitted  in  evidence  without  proof  of  the 
attestation.  Marin  v.  Palmer,  6  C.  &  P.  466 
— Tindal.  1089 


XXIX.  Proof  by  secordart  Evideucb. 

The  muniment  chest  of  the  lessor  and  his  as- 
signs is  the  proper  custody  for  an  expired  lease. 
Flaxton  v.  Dare,  5  M.  &  R.  1.  1095 

Where,  on  the  second  trial  of  the  cause,  a  wit^ 
ness  stated  that  he  had,  on  the  argument  for  the 
new  trial,  handed  a  document  to  one  of  the  learned 
judges,  and  had  not  since  seen  it,  or  had  been 
able  to  find  it,  secondary  evidence  was  received  of 
its  contents  without  any  search  for  it  having  been 
made  at  the  chambers  of  the  learned  judge ;  the 
presumption  being  that  his  lordship  had  returned 
it  to  the  party  who  produced  it.  Deacon  v.  Ful- 
ler, 6  C.  &P.  74— Lyndhurst.  1095 

There  are  no  degrees  in  secondary  evidence ; 
therefore,  where  a  defendant  has  given  notice  to 
the  plaintiff  to  produce  a  letter,  of  which  he  kept 
a  copy,  he  may,  if  the  letter  is  not  produced,  give 
parol  evidence  of  its  contents,  and  is  not  bound 
to  put  in  the  copy  ;  but,  if  there  had  been  a  du- 
plicate original,  it  might  be  otherwise.  Brown 
V.  Woodman,  6  C.  &  P.  206— Parke.  1096 

The  mere  refusal  of  a  witness  to  produce  a  do- 
cument where  he  is  not  justified  in  witholding  it, 
is  not  a  ground  for  going  into  secondary  evidence 
of  that  document.  Jesus  College  v.  Gibbs,  1  Y. 
&,  Col.  145.  1094 

In  replevin  the  defendants  avowed  for  a  distress 
for  poor's  rates : — ^Held,  that  one  of  the  defisn- 


dants  having  acted  as  overseer  of  the  poor  was 
prima  facia  evidence  that  he  was  so : — Held,  also, 
that  to  let  in  secondary  evidence  of  his  appoint- 
ment, it  was  sufficient  proof  of  loss  that  a  witness 
stated  that  he,  at  the  desire  of  the  attorney,  had 
applied  to  the  defendant  for  his  appointment,  and 
that  he  said  that  he  had  lost  it,  without  proving 
any  search  made.  Bristol  ( Grovernor,  dec.  of  poor) 
V.  Wait,  6  C.  &  P.  591— Alderson.  1094 

Appellants  against  an  order  of  removal  relied 
upon  the  settlement  of  a  deceased  party  by  apr 
prenticeship;  and,  to  let  in  parol  evidence  of  the 
indenture,  they  called  the  widow  of  the  deceased, 
who  stated  that  her  husband,  in  his-  last  illness, 
told  her  that  he  received  his  indentures  from  his 
master  at  the  end  of  his  apprenticeship,  and  wore 
them  out  in  his  pocket.  The  sessions  confirmed 
the  order,  subject  to  the  opinion  of  the  court  as 
to  tlie  admissibility  of  the  evidence.  The  court 
held,  tliat  without  further  proof  of  inquiry  after 
the  indenture,  evidence  of  this  conversation  was 
not  admissible  ;  and  they  refused  to  send  the  case 
back  to  be  re-stated.  Rex  v.  Rawden,  2  Adol.  & 
Ellis,  156 ;  4  Nev.  &  M.  97.  1094 

In  assumpsit  for  money  had  and  received, 
where  it  is  shown  that  the  defendant  admitted 
that  he  had  received  a  bill  drawn  on  a  third  party, 
to  which  the  plaintiff  was  entitled,  and  that  he  had 
paid  it  into  his  banker's  on  his  own  account,  the 
banker's  clerk  cannot  be  called  to  prove  that  the 
defendant  received  benefit  from  a  bill  of  similar 
description,  the  bill  itself  not  being  produced, 
nor  its  absence  accounted  for.  Atkins  r.  Owen, 
4  Nev.  &  M.  123 ;  2  Adol.  &  Ellis,  35.  1094 

The  production  of  an  entry  of  the  minutes  .of 
a  contract  made  by  a  third  party,  in  the  presence 
of  and  by  the  direction  of  two  contracting  parties, 
but  not  siraed  by  either  of  them,  is  not  the  only 
medium  of  proving  the  contract,  unless  there  is 
evidence  that  the  writing  in  fact  constituted  the 
agreement,  and  was  taken  to  be  so,  and  assented 
to  as  such  by  the  parties  :  parol  evidence  of  the 
terms  of  the  contract  is,  therefore,  admissible 
without  accounting^for  the  non-production  of  the 
written  minutes.  Rex  v.  Wrangle,  4  Nev.  d^  M. 
375;  2  Adol.  <&  Ellis,  314;  IHar.  <&Woll.  41. 

1096 

What  is  a  sufficient  search  for  witnesses  to 
prove  handwriting  to  allow  secondary  evidence 
to  be  given,  must  depend  on  the  circumstances 
of  each  case.  Miller  dem..  Miller  ten.,  2  Scott, 
123 ;  2  Bing.  N.  R.  76 ;  1  Hodges,  187.         1094 

In  order  to  dispense  with  the  production  of  an 
attesting  witness  to  a  will,  bearing  date  the  15th 
May,  1806,  it  was  proved  that  applications  had 
been  made  by  letter  to  the  attorney  in  whose 
office  the  witness  was  at  the  time  a  clerk ;  in  the 
first  place,  for  general  information  respecting  the 
will,  and  afterwards  for  information  respecting 
the  witnesses  by  whom  it  was  attested,  and  that 
advertisements  for  their  discovery  had  a  week 
before  the  trial  been  inserted  in  three  daily  and 
one  weekly  newspapers,  but  without  success : — 
Held,  that  sufficient  had  been  done  to  entitle  the 
party  to  have  the  will  read  on  proof  of  the  hand- 
writmg  of  the  witnesses,  although  the  attorney  of 


[EVIDENCE] 


2479* 


wbom  the  inquiries  had  been  made  stated  that  j 
one  of  the  witnesses  was  examined  in  a  cause 
touching  the  property  in  1815,  a  fact  which  he 
had  forgotten  to  communicate  at  the  time  he  was 
asked  tor  information,  but  which  (it  was  sug- 
gested) he  could  not  fail  to  have  remembered 
had   any  strict  inquiry  been  instituted.  Id. 

The  architect  gave  an  order  to  the  parties  by 
whom  he  was  employed  to  pay  a  particular  sum 
out  of  his  commission  to  a  creditor : — Held,  on 
the  trial  of  an  issue,  directed  under  the  Inter- 
pleader Act,  between  the  creditor  and  the  archi- 
tect, to  try  the  right  to  the  money,  that  a  copy 
of  an  affidavit  sworn  by  the  architect  in  another 
action  against  the  parties  by  whom  he  was  era- 
ployed,  in  which  the  order  was  set  out,  and 
which  copy  his  attorney  had  admitted  to  be  cor- 
lect,  was  good  secondary  evidence  for  the  plain- 
tiff of  the  order  which  was  lost : — Held  also,  that 
in  the  absence  of  any  evidence  to  the  contrary, 
the  order  must  in  such  an  issue  be  presumed  to 
have  been  duly  stamped.  Fooley  v.  Goodwin,  5 
Nev.  &  M.  466 ;  1  Har.  &  Wolf.  567.  1096 

A.  had  purchased  at  an  auction  an  under- 
lessee's  interest  in  a  house,  and  refused  to  pay  a 
check  which  he  had  given  for  the  deposit,  because 
the  ground  rent  payable  to  the  superior  landlord 
was  greater  than  it  was  stated  to  bs  at  the  sale  : 
—Held,  that  the  superior  landlord's  solicitor  was 
not  compellable  to  produce  the  counterpart  of 
the  original  lease;  and  that  a  person  who  had 
advanced  money  on  that  lease,  and  held  it  as 
equitable  mortgaee,  could  also  not  be  compelled 
to  produce  the  Tease  itself;  but  that,  if  both 
these,  on  being  called  as  witnesses,  refused  to 
produce  the  lease  and  counterpart,  secondary 
evidence  might  be  given  of  the  contents  of  the 
lease,  by  calling  a  person  who  had  seen  it,  and 
who  neither  claimed  under  it  as  one  of  his  own 
title  deeds,  nor  was  privileged  as  an  attorney  or 
•ohcitor.    Mills  v.  Oddy,  6  C.  &  P.  728— Parke. 

1096 


XXX.  Proof  after  Notice   to  produce. 

In  an  action  on  an  attorney's  bill,  it  is  not  ne- 
cessary to  give  notice  to  produce  the  original 
bill  delivered  the  parly,  but  the  production  of 
a  duplicate  thereof  is  sufficient.  Fyson  v.  Kemp, 
6  C.   &.  P.  71— Gurney.  1097 

Nor  is  it  necessary  that  the  parties  examining 
should  read  the  two  bills  alterhately.  Id. 

Where  notice  of  the  dishonor  of  a  bill  of  ex- 
change has  been  given  in  writing,  it  is  not  neces- 
sary to  give  a  notice  to  produce  that  writing  to 
let  in  parol  evidence  of  its  contents.  Swam  v. 
JLewis,  2  C.  M.  &  R.  261 ;  4  Dowl.  P.  C.  261 ; 
1  Gale,  182.  1097 

In  ejectment  by  the  heir  of  A.,  the  defendant 
sets  up  a  will  of  A.,  whereby  he  devises  all  his 
property  in  fee  to  B.,  through  whom  the  defen- 
dant claims.  One  of  the  attesting  witnesses 
stated  that  he  had  prepared  this ;  that  a  fortnight 
aAerwards  he  prepared  another  will  for  A.,  which 
A.  executed  and  delivered  to  him,  and  which  the 
witness  upon  A.'s  death  delivered  to  B.  No 
notifce  to  produce  the  last-mentioned  instrument 


had  been  given : — Held,  that  the  plaintiffs  coun- 
sel could  not  ask  the  witness,  **  whether,  at  the 
time  of  executing  the  instrument,  A.  declared  it 
to  be  his  last  will ;  and  if  so,  whether  it  was  at- 
tested by  three  witness."  Doe  d.  Philips  v. 
Morris,  4  Nev.  &.  M.  598 ;  3  Adol.  &  Ellis,  46 ; 
1  Har.  &  Woll.  226.  1097 

Quaere,  whether,  if  the  second  instrument  in> 
this  case  could  have  been  shown  to  have  been 
duly  executed,  published,  and  attested,  as  the 
last  will  of  A.,  the  plaintiff  would  have  been  en- 
titled to  recover  as  iieir  at  law,  without  showing 
its  contents  or  application  ?    Id. 

Semble,  that  an  instrument  which  has  been 
traced  to  the  hands  of  an  opposite  party  can  in. 
no  case  be  presumed  to  have  been  lost  or  destroy- 
ed, unless  such  party  has  had  notice  to  produce 
it.  Id. 

Notice  to  produce  an  agreement,  served  upon 
the  defendant's  attorney  at  5  o'clock  on  the  com- 
mission day  of  the  assizes,  held  too  Iste,  the 
attorney  having  then  left  home  for  the  assize 
town,  which  was  nine  miles  distant  from  his 
office,  and  the  opposite  party  refusing  to  furnish 
him  with  a  conveyance.  George  v.  'Thompson,  4 
Dowl.  P.  C.  656.  1098 

A  notice  to  produce  a  tradesman's  books,  serv- 
ed upon  the  plaintiff's  attorney  at  7  o'clock  of  tlie 
evening  previous  to  the  trial,  is  too  late.  Atkins 
r.  Meredith,  4  Dowl.  P.  C.  658.  1098 

The  plaintiff  had  been  employed  as  secretary 
to  a  charitable  institution  ;  his  appointment  was 
made  in  pursuance  of  a  resolution  of  the  commit- 
tee for  managing  the  affiiirs  of  the  society  which 
was  entered  in  a  book  remaining  in  the  plaintiff's, 
hands  as  secretary,  but  to  which  entry  the  plain- 
tiff was  no  party,  nor  did  it  appear  to  have  been 
expressly  brought  to  his  notice ;  the  society  dis- 
solving, the  plaintiff  quitted  the  employ,  leaving 
this  book  in  tne  office ;  in  an  action  against  three 
of  the  committee  for  arrears  of  salary  : — Held,, 
that  the  plaintiff  was  bound  to  produce  the  book^ 
inasmuch  as  it  would  show  the  terms  on  which 
he  had  been  engaged ;  and  that  a  notice  to  the 
defendants  to  produce  it  was  not  sufficient  to  en- 
title him  to  give  secondary  evidence  under  the 
quantum  meruit ;  the  book  appearing  not  to  be 
in  tiie  possession  of  the  defendants,  but  in  that  of 
another  member  of  the  committee,  without  the 
knowledge  or  control  of  the  defendants.  Whit- 
ford  V.  Tutin,  4  M.  &  Scott,  166 ;  10  Bing.  395  j 
6  C.  &  P.  228.  1099 

Proof  of  the  possession  of  books  by  a  member 
of  a  committee  which  he  has  in  his  custody,  not 
as  such  member  but  as  tenant  of  the  premises 
previously  occupied  by  such  committee,  is  not 
sufficient,  in  an  action  against  other  members  of 
the  committee,  to  let  in  parol  evidence  of  the 
contents  on  notice  and  non-production.  Id. 

In  debt  for  rent  by  the  assignee  of  the  rever- 
sion against  the  assignee  of  the  term,  the  plain- 
tiff's attorney  was  called  by  his  client  to  prove 
the  execution  of  a  deed ;  on  cross-examination  he 
admitted  that  there  had  been  another  deed  be- 
tween the  same  parties,  relating  to  the  demised 
premises,  executed  afVer  the  former,  and  that  he 


[EZEcrrofts  and  administrators] 


1^ 

per  lard  Denmu^  C.  J.  M. 

9M  aaaoitT  is  ■ecttscJ  br  m 

paid,  the  cout  wui  not  restraa  tbe  e 

wotd  tkey  lave  art  apart  a  fba4  to 


.  — Held,  tint  the  i^reement  of  6.,  as 
tor  de  aoo  tort,  did  not  conclode  him  aa  rigfatfbl 
adminwtiator,  nor  give  a  right  of  poaaeaiioQ  to 

.  tbe  landlord  who  haid  entered  under  the  a^iee- 
■lemt,  bat  who  had  not  made  any  formal  claim  in 
respeet  of  the  forfeiture,  nor  taken  a  regular  sur- 
of  the  lease.    Id. 


^& 


tke  aerrioe  of  a  writ  aT 
SWUL4,c   2»,  in  which  an 

in  nia  n  pcuenfeatiTi 
to  him  of  the  coaatienoenent  of  an 
against  Mhi  in  that  chararler«  ao  as  to  ren- 
him  baUe  to  a  deTastavit,  if  he  paj  debts  of 
degiee  with  that  aoc^  lor,  between  the 
of  the  writ  of  snmmoBf  and  the  filing  the 
Reea  r.  Morgan^  3  Ner.  &  M.  906 ; 
&Adol.  103&.  1144 


A^  haTing  proved  the  will  of  B.,  in  which  she 
sappoaed  herself  to  be  appointed  executrix,  em- 
j^oys  C^  an  auctioneer,  to  sell  the  goods  of  B. 
Thej  are  aold  to  O.,  who,  as  an  inducement  toC. 
to  let  him  remove  them  without  payment,  ex- 
pfcasly  |ttomises  to  pay  C.  as  soon  as  the  bill 
shall  be  made  out  Probate  is  aflerwards  grant- 
ed to  £.,  the  real  executrix,  who  gives  D.  notice 
not  to  pay  the  price  to  C.  Notwithstanding  the 
expresa  promise,  G.  cannot  sue  D.  for  the  price. 
Oichenaon  «.  Maule,  1  Nev.  ^k  M.  721.  1146 


If  an  executor  or  administiator  pay  into  court, 
an  order  in  a  cause,  money  which  he  had 
JBceiwed  liom  the  deceased's  e«tate,  his  right  to 
4letain  a  debt  due  to  him  ftom  the  deceued  is 
JK»t  pRjodioed.    Langton  r«  Higgs^  5  Sim.  2^. 

1143 

Assumpsit  against  executrixes  ^  work  and 
labor  done  for  the  testator.  Plea,  that  a  jud^> 
ment  had  been  obtained  against  the  testator  in  his 
lifetime,  and  that  the  dotendants  had  fully  ad- 
ministered, &c.,  except  as  t«»  chattels  of  small 
value,  not  sufficient  to  satisfy  the  judgment.  Re- 
plication, that  the  testator  paid  a  lai^  sum,  to 
wit,  2UH^  in  full  satisfaction  and  discharge  of 
the  debt  recovered,  and  of  the  judgment ;  and 
that  the  defendants,  deceitfully  and  with  intention 
to  defraud  the  plaintiff  of  his  damages,  have  de- 
ferred and  still  do  defer  procuring  acknowledge 
jnent  or  satiafection  to  be  entered  up  of  the-  said 
^bt,  or  to  be  released  therefrom,  and  still  per- 
mit the  said  judgment  thereon  to  remain  in  full 
ibroe.  Rejoinder,  traveraiog  the  payment  of  the 
:naid  sum  in  full  satisfaction  and  discharge  of  the 
«debt  recovered,  and  of  the  judgment,  was  held 
iiad  on  demurrer ;  for  the  material  fact  to  be  tra- 
«vened  was  the  keeping  on  foot  the  judgment  by 
£rand :  whereas  the  payment  in  satisfaction  was 
immaterial  and  not  traversable,  being  mere  in- 
<hiceinent  Jones  v.  Roberts,  4  Tyr.  4d;  2  C.  & 
M.2i9.  1145 


Spentfor  is  son  fort.]— An  executor  de  son  tort, 
*to  whom  administration  is  subsequently  grant- 
ed, mav  repudiate  an  agreement  made  by  him  to 
-surrenoer  a  term  foryears  vested  in  the  intestate. 
Doe  d.  Hornby  v.  Glenn,  3  Ncv.  &  M.  837 :  1 
Adol.  d:,  EUis,  49.  1146 

Lessee  of  premises,  und  er  a  covenant  of  re- 
-entry if  the  rent  should  be  in  arrear  twenty-eight 
days,  died  in  bad  circumstances,  and  his  brother 
administered  de  son  tort.  B.,  the  brother,  agreed 
with  the  landlord  to  give  him  possession,  and 
suffer  the  lease  to  be  cancelled,  on  his  abandoning 
the  rent,  which  was  twenty-eight  days  in  arrear. 
B.  ailerwards  took  out  letters  of  administration : 


To  make  a  man  liable  as  executor  de  son  tott, 
!  it  is  not  essential  that  the  dealing  with  the  chat- 
tels of  the  deceased  should  be  in  the  character  of 
'  executor ;  therefore,  where  a  party  had  received 
I  puuutjuion  of  goods  from  the  widow  of  a  deceased 
I  person,  being  aware  at  the  time  that  they  were 
i  the  property  of  the  deceased : — Held,  that  it  was 
I  sufficiently  an  intermeddling  to  make  him  liable 
I  as  an  executor  de  son  tort.  Seally  v,  Powis,  1 
i  Har.  dk  WoU.  2.  1146 

I     A  posaesaion  of  goods  which  the  defendant  had 
I  received  from  the  deceased  in  his  lifetime  unde 
;  a  colorable  sale,  may  be  sufficient  to  charge  him 
:  as  an  executor  de  son  tort    Id. 

A.  had  pledged  goods  to'B.  for  a  debt  B. 
died,  and  tne  parish  officers  took  the  goods,  and 
gave  them  to  J.,  the  carpenter  who  made  the 
I  coffin  of  fi.,  on  condition  of  his  paying  B.'s  rent 
I  and  the  funeral  expenses : — Held,  that  by  taking 
I  these  goods,  the  parish  officers  became  executors 
de  son  tort ;  and  that,  if  they  sold  the  goods  to 
J.,  they  would  be  liable  to  A.  in  trover,  oecauae 
such  a  sale  was  so  inconsistent  with  the  bailment 
as  to  revest  the  right  of  possession  in  A.  But, 
if  the  parish  officers  merely  relinquished  their 
possession,  and  let  J.  take  possession,  this  would 
not  make  the  pariah  officers  liable  in  trover,  as^ 
in  this  case,  a  mere  seizure  of  the  goods  by  a 
stranger,  who  afterwards  relinqoiraed  them, 
would  not  be  a  conversion.  Samuel  v.  Morris,  6 
C.  A  P.  eaO^Alderson.  1146 


^^ttions  by  and  against.'] — ^Where  the  vendor 
of  an  estate  (the  vendee  having  made  a  deposit 
in  part  payment  of  the  purchase  monev)  fails  to 
nwke  out  a  good  title  by  the  time  stipulated,  and 
the  vendee  dies,  the  personal  representative  of  the 
vendee,  and  not  his  heir,  is  entitled  to  maintain 
an  action  to  recover  damages  for  loss  of  interest 
on  the  deposit,  and  for  expenses  incurred  by  the 
vendee  in  endeavoring  to  procure  a  title,  the 
injury  accruing  to  the  personal  estate.  Oime  v. 
firooghton,  4  M.  db  Scott,  417.  1147 

In  ejectment  by  an  administrator,  the  de- 
mise may  be  laid  on  the  day  afler  the  intestate's 
death,  but  before  the  grant  of  the  letters  of  ad- 
ministration. Patten  V.  Patten,  1  Alcock  &>  Na- 
pier, 493.  (irish).  1148 


[EXECUTORS  AND  ADMINISTRATORS] 


2491 


In  the  eenenl  indebitatai  count  it  was  stated, 
that  the  defendant  was  indebted  to  the  plaintiff 
as  exeentrix  for  money  let  by  the  plaintiff  to 
the  defendant.  The  other  considerations  in  the 
saus  count  were  alleged  to  move  from  the  plain- 
tiff as  executrix  ;  the  promise  was  alle^d  as 
made  **  to  the  plaintiff  executrix  as  aforesaid :" — 
Held,  on  special  demurrer,  that  the  declaration 
was  vitiated  by  this  misjoinder  of  different  consi- 
derations in  different  rights,  but  that  if  they  had 
all  appeared  to  have  beien  in  the  same  right,  it 
would  be  sufficient  if  any  one  considei'ation  were 
properly  averred,  as  the  remaining  considerations 
might  be  rejected.  M'Cleiland  «.  M'Adam,  1  Al- 
eocl  &  Napier,  488.  (Frisk).  1149 

Parties  in  actions.     Peorson  v.  Pearson,  5  B. 
'   &  Adol.  8^9  ',  2  Nev.  &  M.  471.  1149 

A  demurrer  to  a  declaration  by  executors  com- 
mencing in  the  debet  and  detinet,  was  overruled. 
CoUett  V.  CoUett,  3  Dowl.  P.  C.  211.  1149 

An  executrix  pleaded  in  assumpsit,  that  she 
had  not,  nor  at  the  commencement  of  the  action 
nor  since,  had  any  goods,  which  were  of  the  tes- 
tator at  the  time  of  nis  decease,  in  her  hands  to 
be  administered ;  and  the  plaintiff  replied  that  the 
defendant  before  and  at  the  time  of  the  com- 
mencement of  the  action,  had  divers  ^oods  of 
the  testator  to  be  administered ;  upon  which  issue 
was  joined.  At  the  trial,  the  plaintiff  having 
shown  that  the  defendant  received  certain  as- 
sets, the  defendant  proved  payment  to  a  greater 
amount,  and  a  verdict  was  found  in  her  favor : — 
.  Held,  first,  that  the  evidence  of  payment  was 
properly  received ;  and,  secondly,  that  the  plain- 
tiff was  not  entitled  to  judgment  non  obstante 
veredicto,  upon  the  ground  niat  the  introductory 
put  of  the  plea  did  not  state  that  the  execubrix 
liad  fully  administered  the  testator's  goods. 
Reeves  v.  Ward,  2  Scott,  390  ;  2  Bing.  N.  R.  235 ; 
1  Hodges,  300.  1149 

Whether  such  an  omission  is  ground  for  spe- 
cial demurrer,  que  re  ?  Id. 

Plene  administravit  and  no  assets  at  the  time 
of  the  exhihiimff  of  the  bill^  pleaded  afler  the 
Uniformity  of  Process  Act,  2 'Will.  4,  c.  39,  was 
held  after  verdict  to  refer  to  the  commencement 
of  the  suit.  Rees  «.  Morgan,  3  Nev.  d^  M.  205 ; 
5  B.  &  Adol.  1035.  1151 

On  a  plea  of  plene  administravit  pneter,  the 
plaintiff  is  entitled  to  judgment  of  assets  in  futuro 
for  debt  and  costs.  Cox  v.  Peacock,  2  Scott,  125 ; 
4  Dowl.  P.  C.  134 ;  1  Hodges,  272.  1151 

On  such  a  plea  he  is  entitled  to  judgment  both 
fer  debt  and  costs.  Id. 

In  debt  upon  a  judgment  by  default  against 
the  defendant  as  executor,  suggesting  a  devasta- 
vit, the  plaintiff  gave  in  evidence  the  record  in 
the  original  action,  and  a  testatum  ia.  fa.  with 
the  sheriff's  return  that  he  had  caused  to  be 
levied  the  costs  de  bonis  propriis  of  the  defen- 
dant, and  that  the  defendant  had  no  goods  or  chat^ 
tels  of  the  testator  in  his  luinds  to  be  adminis- 
tered : — Held,  that  this  was  prima  facie  evidence 
of  adevastavit.  Leonard  v,  Simpson,  2  Scott,  335 ; 
a  Bing.  N.  R.  176  ',  1  Hodges,  251.  1151 

Vol.  IV.  28 


Reg.  Gen.  H.  T.  4  Will.  4,  does  not  apply  to 
judgments  in  other  cases  pleaded  by  an  executor. 
Power  V.  Fry,  3  Dowl.  P.  C.  140.  1151 

A  rule  nisi  to  revive  a  judgment  against  the 
executors  of  a  deceased  defendant  must  be  served 
on  all  the  executors  who  have  proved  the  will. 
Panler  v.  Seaman,  5  Nev.  &  M.  679  1151 


EXTENT. 

The  court  refused  to  allowed  a  writ  of  immediate 
extent  to  be  antedated.  Rex  v.  Maberly,  2  Dowl. 
P.  C.  383;  2  C.  &  M.  536 ;  4  Tyr.  345.        1157 

Right  to  extent  in  aid.  Rex  e.  Bingham,  3 
Tyr.  938  J  2  Dowl.  P.  C.  128;  2  C.  &  JT131 ;  1 
C.  &M.8e2.  1159 

Proceedings  on  extents  in  aid.  Pennell  v. 
Thompson,  I  C.  &  M.  857 ;  3  Tvr.  823 ;  1  Dowl. 
P.  C.  127.  1160 

Semble,  that  the  court  of  Exchequer  has 
power  to  refer  it  to  the  Master  to  take  an  ac- 
count of  the  rents  and  profits  of  land  extended 
to  the  plaintiff,  and  to  order  him  to  refund  the 
overplus,  if  it  shall  appear  that  he  has  been  over 
paid.  Brookbank  v.  Miers,  4  Dowl.  P.  C.  179. 
^  1161 

An  extent  having  issued  against  the  defen- 
dant, certain  freehold  property  was  seized  and 
sold  under  tlie  25  Geo.  3,  c.  3d.  The  purchaser 
having  paid  the  purchase  money  into  the  bank, 
aflerwards,  and  before  any  conveyance  was  exe- 
cuted, sold  the  property  to  another  person  for  a 
less  sum,  and,  in  order  to  avoid  the  necessity  of 
paying  the  ad  valorem  duty  on  two  conveyances, 
applied  to  the  court  that  the  sub-purchaser's 
name  might  be  substituted  in  the  conveyance  for 
that  of  3ie  original  purchaser.  The  court  de- 
clined to  grant  the  application  unless  with  the 
consent  of  all  parties,  which  was  aflerwards  ob- 
tained, and  an  order  made.  Rex  v.  Rawlings,  4 
Dowl.  P.  C.  407 ;  2  C.  M.  &  R.  471.  1161 

FENCES. 

Where,  upon  the  diversion  of  a  turnpike  road 
after  the  new  road  had  been  completed,  but  be- 
fore the  old  road  was  stopped  up,  the  trustees  by 
permission  of  B.  broke  down  his  fence  to  make 
a  passage  from  the  new  road  to  the  close  of  A., 
but  did  not  put  up  a  gate  or  fence  to  protect  the 
latter  close :— Held,  that  the  trustees  were  wrong- 
doers, and  that  B.  was  responsible  for  their  acts. 
Winter  v.  Charter,  3.Y.  db  J.  308.  1163 

FINE  AND  RECOVERY. 
A  husband  alone  may  make  a  tenant  to  the 

{>recipe,  in  a  recovery  to  be  suffered  of  the  wife's 
ands ;  and  such  recovery  will  bind  the  wife  and 
her  heirs,  unless  reversed  within  twenty  years 
after  coverture  determined.  Doe  d.  Smith  v.  Bird, 
2  Nev.  &  M.  679;  5  B.  &  Adol.  695.  1167 

Devise  of  lands  to  A.  for  life,  remainder  to 
the  children  of  B.  living  at  the  time  of  A.'s 
death.  B.  left  one  daughter,  who,  with  her  hus- 
band,  in  the  lifetime  of  A.,  levied  a  fine  to  the 
use  of  C.  The  fine  operates  by  estoppel  only 
during  the  life  <A  A.,  but  afler  A.'s  death  it 


2492 


[FINE  AND  RECOVERY— FIXTURES] 


opentteg  apon  the  eetate,  Teitiiig  the  right  of 
posBession  in  C.  Doe  d.  Christmu  «.  Ohver,  5 
M.  A  R.  202.  1166 

A  fine  can  be  levied  only  by  a  penon  having 
the  freehold  either  by  riffht  or  by  money.    Doe 
d.  Parker  v.  Gregory,  4  Nev.  AM.  206;  2  Adnl 
&  ELliB,  14.  '         1164 

A  tvidow,  tenant  for  life  of  landi  eettled  upon 
her  for  jointure,  (such  settlement  being*  made  in 
execution  of  a  power  granted  to  the  deceased 
huaband),  married,  and  levied  a  fine  of  the  lands 
jointly  with  her  second  husband.  She  died,  and 
the  second  husband  held  for  more  than  twenty 
years  after  her  death : — Held,  that  the  fine  was 
void,  but  that  the  possession  of  the  second  hus- 
band, after  the  wife's  death,  was  a  bar  to  eject- 
ment brought  by  the  party  on  whom  the  rever- 
sion in  fee  had  descended  daring  the  estate  for 
life.  Id. 

If  a  tenant  in  tail  suffers  a  recovery  and  de- 
clares uses  which  are  void,  he  does  not  take  back 
an  estate  tail,  but  an  estate  in  fee.  Tanner  v. 
Radford,  6  Simon,  21.  1165 

Where  the  acknowledgment  of  a  party  to  a 
fine  was  taken  before  commissionert  who  were 
aware  of  the  fact  of  her  being  a  married  woman, 
and  of  the  non-concurrence  of  her  huaband,  but 
the  parties  were  living  separate  under  a  deed  by 
which  the  husband  covenanted  not  to  interfere 
with  his  wife's  property,  the  court  refused  to  re- 
verse the  fine  at  the  instance  of  the  husband,  but 
lefl  him  to  his  common  law  remedy.  Check  v. 
Rootle,  4  M.  &  Scott,  460.  1168 

Where  luch  parts  of  *  the  a£5davit,  verifying 
the  certificate  or  acknowledgment,  taken  in  pur- 
suance of  the  late  act  of  parliament  respecting 
fines  and  recoveries,  as  state  "  the  deponent? 
knowledge  of  the  party  making  the  acknowledg- 
ment, and  her  being  of  full  age,"  cannot  be  de- 
posed to  by  a  commissioner,  or  by  an  attorney  or 
solicitor,  the  same  may  be  deposed  to  by  some 
other  person,  whom  the  person  before  whom  the 
affidavit  shall  be  made  snail  consider  competent 
so  to  do.    Reg.  Gen.  T.  T.  4  WiU.  4,  C.  P.    1171 

Where  more  than  one  married  woman  shall  at 
the  same  time  acknowledge  the  same  deed,  re- 
specting the  same  property,  the  fees  directed  by 
the  said  rules  to  be  taken  shall  be  taken  for  tfaie 
first  acknowledgment  only.  And  the  fees  to  be 
taken  for  the  other  acknowledgment,  or  ackow- 
ledgments,  how  many  soever  the  same  may  be, 
shall  be  one  half  of  the  original  fees  ;  and  so  also, 
where  the  same  married  woman  shall  at  the  same 
time  acknowledge  more  than  one  deed  respecting 
the  same  property.  And  where,  in  either  of  the 
above  cases,  there  shall  be  more  than  one  ac- 
knowledgment, all  such  acknowledgments  may 
be  included  in  one  certificate  and  affidavit.  In 
every  case  the  acknowledgment  of  a  lease  and 
release  shall  be  considered  and  paid  for  as  one 
acknowledgment  only.  Reg.  Gren.  T.  T.  4  Will. 
4,  C.  P.  1171 

Where  the  form  of  certificate  to  be  made  by 
commissioners  for  taking  the  acknowledgments 
of  married  women  to  deeds  prescribed  hy  the 
84th  section  of  the  ZAA  Will.  4,  c.  74,  did  not 


suit  the  pecnliar  circnmstances  of  the  case,  the 
court  of  u.  P.  will  make  a  special  order  for  the 
alteration  of  the  form  in  that  case.  In  re  Luke, 
3Dowl.  P.  G.  112;  1  Scott,  80;  I  Ring.  N.  R. 
256.  1171 

To  meet  the  special  circumstances  of  the  csse^ 
the  court  directed  the  commissioners  for  taking 
the  acknowledgment  of  a  married  woman  (an 
infant)  in  their  certificate,  made  in  pursuance  of 
3  4&  4  WiU.  4,  c.  79,  s.  84,  to  omit  "  of  full  age.'* 
In  re  Luke,  1  Scott,  80.  1171 

The  affidavit  verifying  the  certificate  of  the 
acknowledgment  of  a  fine  must  be  sworn  before 
a  judge  or  commissioner  of  the  C.  P.  in  England; 
therefore,  where  the  affidavit  was  sworn  before  a 
commissioner  of  the  C.  P.  in  Ireland,  the  court 
refused  to  receive  the  acknowledgment  Rogers 
V.  Fry,  4  Dowl.  P.  C.  641.  1171 

The  affidavit  verifying  the  certificate  of  a  mar- 
ried woman's  acknowledgment,  must,  even  in 
Ireland,  be  made  before  a  commissioner  of  the 
court.  In  re  Anderson,  2  Ring.  N.  R.  435 ;  3 
Scott,  626.  1178 

The  affidavit  verifying  the  certificate  of  the 
acknowledgment  of  a  married  woman  taken  by- 
commission  under  the  3  A  4  Will.  4,  c.  74,  s.  83, 
may  be  filed  subsequently  to  the  filing  the  certi- 
ficate.   Anon.  1  Scott,  s&.  1171 

Under  6  Geo.  4,  c  87,  s.  20,  a  Rritish  eonsol 
has  the  same  power  as  a  notarv  public  to  certify 
that  the  affidavit  in  support  or  the  certificate  of 
a  married  woman's  acknowledgment  was  sworn 
before  a  commissioner  duly  appointed.  In  re 
Rarber,  2  Ring.  N.  R.  268;  2  Scott,  436;  4 
Dowl.  P.  C.  6A ;  1  Hodges,  318.  117S 

The  conusance  of  two  conusors  to  a  fine  was 
taken  in  India,  and  the  conusance  of  a  third 
conusor  was  afterwards  taken  in  this  country ; 
the  conusee  died  a  few  days  before  the  last  conu- 
sance was  taken ;  and  under  the  circumstances 
of  the  case  the  fine  was  allowed  to  pass  as  to  the 
two  conusors  in  India.  Griffith's  fine,  1  Scott, 
711 ;  1  Ring.  N.  R.  724 ;  1  Hodges,  161.        1172 

The  date  of  the  chirograph  of  a  fine  was  two 
days  later  than  the  day  of  tne  first  proclamation, 
both  days  being  in  the  same  term  ;  thi«e  other 

f proclamations  were  duly  made  in  the  three  fol- 
owing  terms: — Held  to  be  a  good  fine  with 
proclamations.  Doe  d.  Fleming  v.  Ford,  1  Adol. 
&.  Ellis, 758;  3  Nev.  A  M.  813.  1177 


FISH. 

The  prohibition  contained  in  the  10  Car.  1, 
(Irish),  c.  14,  extend  to  Scotch  weirs  erected  in 
rivers  between  high  and  low  water  mark,  and  also 
to  places  in  rivers  where  the  water  is  perfectly  salt. 
M'Adam  q.  t.  v.  Halliday,  1  Alcock  A  Napter, 
459,  n.  {Irish) :  S.  P.  Devonshire  (Duke)  v. 
Smith,  1  Alcock  A  Napier,  442.  {Irish).         1177 


FIXTURES. 

A  tenant  for  years  of  a  garden  has  no  right  to 
remove  a  border  of  a  box  planted  by  himself. 


[FIXTURES] 


2493 


EmpMn  V.  Soden,  1  Nev.  A.  M.  720 ;  4  B.  &.  Adol. 
(w5.  1160 

In  January,  1797,  several  persons  carried  on 
business  in  partnership  as  calico  printers ;  and  in 
the  same  month  certain  premises  on  which  their 
works  were  principally  carried  on  were  conveyed 
to  one  of  the  partners  in  fee.  The  conveyance 
mentioned  the  premises  to  consist,  besides  land, 
of  dwellingr-honses,  machine-house,  and  other 
buildings  and  erections,  and  stated  them  to  be 
then  in  the  possession  of  the  partner  to  whom 
the V  were  conveyed,  and  another  partner.  Various 
buildings  and  machines  were  afterwards,  from 
time  to  time,  erected  on  the  premises  by  the  firm, 
for  the  purpose  of  extending  the  works.  The 
whole  was  firmly  fixed  to  the  fireehold,  and  stood 
on  that  part  of  the  land  which  was  conveyed  to 
one  of  the  partners  in  1797,  but  the  part  in  ques- 
tion could  be  removed  without  material  injury  to 
the  buildings.  In  the  different  stock  takings  of 
the  firm,  the  land  and  buildings  were  always 
Taloed  and  classed  separately  from  the  machinery 
and  fixtures.  In  the  part  of  the  country  where 
the  premises  were  situated,  machinery  of  this  de- 
scription was  constantly  bought  and  sold  dis- 
tinctly from  the  freehold.  The  freehold  in  the 
premises  having  been  subse<^uentlyconveyed  to 
two  of  the  partners,  thej,  m  1^,  mortgaged 
them  to  the  plaintiff's  wife,  under  the  description 
of  all  the  messuages,  dwelling-houses,  lands  and 
buildings  therein  mentioned  ;  **  and  also  all  that 
and  those  the  steam-engine,  mill-gearing,  heavy 
gear  to  millwright  work,  fixed  machinery,  and 
other  matters  and  things,  ^c,  then  standing  and 
being  in  and  upon  the  thereby  demised  buildings, 
works  and  premises,  which  in  any  manner  con« 
slituted  fixtures  and  appendages  to  the  fireehold 
of  the  same,  or  any  part  thereof"  All  the  ma- 
chinery, fixtures,  &c.,  appeared  to  have  been  in 
the  reputed  ownership  or  the  partners  who  carried 
on  the  works  until  lc3t,  when  they  become  bank- 
rupt, and  the  defendants  were  appointed  their  as- 
signees. The  plaintiff,  who  was  the  husband  of 
the  mortgagee,  had  inspected  statements  of  the 
affairs  of  the  partners,  which  treated  the  ma- 
chinery as  not  included  in  the  mortgage,  and  had 
made  no  objections  to  such  statements.  In  the 
month  of  April,  1831,  the  assignees  sold  all  the 
machinery  and  fixtures,  with  the  exception  of  two 
steam-engines,  two  water-wheels,  an  iron  floor- 
imr  and  other  small  articles,  and  the  greater  part 
or  them  were  removed  by  the  purehasers.  The 
articles  claimed  by  the  mortgagee  were  all  firmly 
fiixed  to  the  freehold,  in  such  a  manner,  however, 
that  they  might  easily  be  removed  without  ma-' 
terial  injury  to  themselves  or  to  the  buildings  : — 
Held,  tliat  the  machinery  did  not  belong  to  the 
mheritance,  but  was  part  of  the  personal  estate 
of  the  bankrupts ;  and  that  it  passed  to  the  as- 
signees, and  that  the  machinery  in  question  was 
not  intended  to  pass,  and  did  not  oass  to  the 
mortgagee,  under  the  mortgage  deea.  Trappes 
V.  Barter,  2  C.  A  M.  153 ;  3  Tyr.  604.  1181 

A  plea  to  an  action  of  trespass  by  a  landlord 
against  his  tenant  for  removing  a  cornice,  stated, 
tSit  it  was  the  property  of  the  defendant,  that  it 
was  fixed  up  by  him  with  screws  only,  for  the 
purpose  of  onuunent ;  that  he  carefully  removed 


it  during  the  terra,  doing  no  unnecessary  damage ; 
and  that  he  repaired  all  the  damage  done.  The 
replication  staled  that  it  was  affixed  to  the  free- 
bold  of  the  house,  and  was  not  removable  by 
law.  Issue  on  that  question  : — Held,  that  it  was 
not  a  misdirection  to  leave  it  to  the  jury  to  say 
whether  they  were  of  opinion  that  the  cornice 
was  ornamental,  and  was  so  affixed  to  the  free- 
hold that  it  could  be  removed  without  substantial 
injury ;  and  that  if  they  thought  so,  and  that  it 
had  been  so  removed,  the  tenant  had  a  right  to 
remove  it.  Avery  v.  Cheslyn,  5  Nev.  A  M.  372 ; 
3  Adol.  ^  Ellis,  75 ;  1  Har.  A  WoU.  283.     11»1 

The  question  whether  removable  by  law  or 
not,  is  a  mixed  question  of  law  and  fact.    Id. 

The  question  whether  a  fixture  can  be  removed 
by  a  tenant  without  substantial  injury  to  the  pre- 
mises, is  a  question  proper  for  the  jury,  upon  an 
issue  whether  the  fixture  is  removable  or  not  by 
law.    Id. 

An  outgoing  tenant  may  remove  an  ornamental 
chimney-piece  put  up  by  himself  during  his 
tenancy,  but  not  a  chimney-piece  which  is  not 
ornamental.  An  outgoing  tenant^has  no  right  to 
remove  pillars  of  brick  and  mortar  built  on  a 
dairy  floor  to  hold  pans,  although  such  pillan  are 
not  let  into  the  ground.  Leach  v.  Thomas,  7  C. 
&,  P.  32d~Patteson.  1 181 

Under  bequests  of  fixtures  and  fixed  fundture 
to  A.,  and  of  household  goods,  fvmUurey  plate, 
&c.,  to  B.,  A.  is  entitled  to  chimney-elasses  and 
book-cases  fastened  by  screws  and  brackets  to  the  , 
wslls  of  the  house  as  fixed  furniture.  Birch  v. 
Dawson,  4  Nev.  &  M.  22 ;  2  Adol.  A  Ellis,  37 ; 
6  CAP.  658.  1181 

Under  a  bequest  of  a  leasehold  house,  "  with 
the  grates,  stoves,  coppen,  locks,  bolts,  keys, 
bells,  and  other  fixtures  and  jiz«2  furniture  there- 
in,*' chimney-glasses  and  book-cases  fastened  to 
the  wall  by  means  of  brackets  and  screws  do  not 
pass.    Id. 

Quaere,  whether  a  carpet  tacked  to  the  floor  is 
fixed  furniture  ?    Birch  v.  Dawson,  6  C.  &  P.  653. , 

1181 

The  lessee  of  a  house  containingfixtures  execut- 
ed an  assignment  of  the  premises  oy  way  of  mort- 
gage, not  mentioning  the  fixtures.  He  afler- 
wards  assigned  the  premises,  and  all  his  estate 
and  effects  to  trustees.  The  trustees  being  in 
treaty  for  a  sale  of  the  fixtures,  the  mortgagee, 
whose  principal  and  interest  were  due,  took  for- 
cible possession  of  the  house,  and  refused,  on 
demand,  to  deliver  the  fixtures  up.  The  trus- 
tees brought  trover : — Held,  that  uiey  could  not 
recover  for  the  fixtures.  Longstaff  v,  Meagoe,  2 
Adol.  Sl  EUis,  167.  1181 

A.  having  occupied  a  bouse  as  tenant  to  B.,  in 
which  there  were  certain  fixtures  which  A.  had 

Purchased  on  entering  the  house,  and  which  he 
ad  a  right  to  remove  during  his  tenancy,  agreed 
at  B.'s.  request,  a  few  days  before  the  expiration 
of  his  tenancy,  to  forbear  to  remove  his  nxtures, 
B.  agreeing  to  take  them  at  a  valuation  of  two 
broken.  A.,  at  the  expiration  of  his  tenancy, 
delivered  up  possession  of  the  house  to  B.,  leav- 


2494 


[PIXTURES--FOREIGNER] 


ing  the  fiztnres  on  the  premiteB.  On  the  follow- 
ing day  the  fixtares  were  valued  by  two  brokers 
at  the  ram  of  40Z.  lO^.,  and  the  yaluation  waa 
signed  by  them  accordingly.  A.  having  brought 
indebitatus  assumpsit  for  the  price  ana  value  of 
fixtures,  &c.,  bargained  and  sold,  and  for  fixtures 
sold  and  delivered  : — Held,  that  the  action  was 
maintainable,  and  that  this  was  not  a  sale  of  an 
interest  in  land  within  the  4th  section  of  the 
Statute  of  Frauds. 

And  semble,  that  a  note  or  memorandum  in 
writing  was  not  necessary  within  the  17th  sec- 
tion ol  that  statute,  relating  to  the  *^sale  of 
fK>d8"  above  the  value  of  IQL  Hallen  v.  Runder, 
C.  M.  &  B..  W6,  1181 


FOREIGNER. 

Ireland  is  still  a  plaoe  beyond  the  seas,  within 
4  Anne,  c.  16,  s.  19,  notwithstanding  the  Act  of 
Union,  and  the  3  &  4  Will.  4,  c.  42,  s.  7.  Lane 
V.  Bennett,  1  Mees.  &  Wels.  71. 

Under  the  48  Geo.  3,  c.  12,  (the  Bristol  Dock 
Act>,  Ireland  is  in  parts  beyond  the  seas,  with 
respect  to  the  duties  imposed  by  that  act  on 
goods  imported.  Battersby  v.  Kirk,  2  Bing.  N. 
R.  584.  1182 

A  party  cannot  be  held  to  bail  for  arrears  of  a 
fee-farm  rent  issuing  out  of  premises  situate  in 
Scotland.    M'Kenzie  v.  Johnson,  1  Scott,  694. 

1163 

A  defendant  may  be  held  to  bail  in  this  coun- 
try, notwithstanding  proceedings  had  for  the 
same  cause  of  action  in  Scotland,  such  proceed- 
ings not  enuring  to  deprive  the  party  or  liberty 
there,  and  the  debt  being  unfinished.  Sharpe  v. 
Johnston,  2  Scott,  407.  1182 

Where  a  contract  is  made  between  persons 
domiciled  in  a  foreign  country,  and  in  a  form 
known  to  the  law  of  that  country,  the  court,  in 
administering  the  rights  of  parties  under  it,  will 

J  rive  it  the  same  construction  and  e^ct  as  the 
oreign  law  would  have  given  to  it    Anstruther  v. 
Adair,  2  Myhie  &  K.  513.  1182 

If,  therefore,  a  domiciled  Scotchman  would  be 
held  entitled  in  Scotland,  by  virtue  of  a  mar- 
riage contract  executed  there,  in  the  Scotch 
form,  to  receive  whatever  property  accrued  dur- 
ing coverture  to  his  wife,  this  court  will  enforce 
his  right,  as  against  any  such  property  coming 
within  its  jurisdiction,  and  will  not  raise  an 
equity  for  a  settlement  in  &vor  of  the  wife, 
in  opposition  to  the  provisions  of  the  contract. 
Id. 

The  rule  applicable  to  contracts  made  in  one 
country,  and  put  in  suit  in  the  courts  of  law  of 
another,  is  this : — ^The  interpretation  of  the  con- 
tract must  be  governed  by  the  law  of  the  country 
where  the  contract  was  made,  and  the  mode  of 
suing,  and  the  time  within  which  the  action  must 
be  brought,  by  the  law  of  the  country  in  which 
it  is  sought  to  be  enforced.  Trimby  v.  Vignier, 
4  M.  &  Scott,  695 ;  1  Bing.  N.  R.  151 ;  6  C.  & 
F.  25.  1182 


Therefore,  where  a  promisioiy  note  was  made 


bv  the  defendant  in  France,  and  indorsed  in 
blank  by  the  payee  in  that  country,  the  maker 
and  payee  both  at  the  times  of  making  and  in- 
dorsing the  note  being  domiciled  there : — Held, 
that,  as  no  action  could  have  been  maintained 
upon  the  French  courts  of  law,  in  the  name  of 
the  indorsee,  the  indorsement  according  to  the 
law  of  France  operating  as  a  procuration  only, 
and  not  as  a  transfer,  so  no  action  could  be  main- 
tained by  him  in  our  courts.     Id. 

By  the  French  law  of  prescription  relating  to 
bills  of  exchange,  the  debt  is  not  extinguished, 
but  the  remedy  only  is  taken  away.  Huber  v. 
Steiner,  2  Scott,  304  ;  2  Bing.  fi.  R.  208 ;  2 
Dowl.  P.  C.  781 ;  1  Hodges,  206.  1182 

Where  a  personal  contract  made  in  a  foreign 
country  is  sought  to  be  enforced,  so  much  of  Vte 
law  as  afiects  the  rights  and  merits  of  the  con- 
tract is  adopted  from  the  foreign  country,  and  all 
which  affects  the  remedy  is  taken  from  the  lex 
fori  of  the  country  where  the  action  is  brought. 
Id. 

The  distinction  between  that  part  of  the  law  of 
the  foreign  countrv  where  a  personal  contract  is 
made  which  is  adopted,  and  that  which  is  not 
adopted  by  our  courts,  is,  that  bo  much  of  the  law 
as  afiects  the  rights  and  merits  of  the  contract, 
all  that  relates  ad  decisionem  litis,  is  adopted 
from  the  foreign  country — so  much  of  the  law 
as  afiects  the  remedy  onlv,  all  that  relates  ad  litis 
ordinationem,  is  taaen  u-oni  the  lex  fori  of  that 
country  where  the  action  is  brought.  In  the  in- 
terpretation of  this  rule,  the  time  of  limitation  of 
the  action  is  governed  by  the  law  of  the  country 
where  the  action  is  brought,  and  not  by  the  lex 
loci  contractus. 

By  the  19th  article  of  the  Code  de  Commerce, 
it  is  declared,  that  ^*  all  actions  relative  to  mat- 
ters of  exchange  and  to  bills  to  order,  subscribed 
by  merchants,  tradesmen,  or  bankers,  or  for 
matters  of  commerce,  are  prescribed  (see  pre- 
scrivent)  by  five  years,  if  the  debt  has  not  bieen 
acknowledged  by  an  *  acte  s^par6 :'  nevertheless, 
the  suppowd  debtors  shall  be  held,  if  required, 
to  affirm  upon  oath  that  they  are  no  longer  in- 
debted ;  and  their  widows,  he'irs,  or  representa- 
tives, that  they  bona  fide  believe  that  there  is 
nothing  more  due :" — Held,  first,  that  this  pre- 
scription merely  operates  in  bar  of  the  remedy, 
and  not  as  an  extinguishing  of  the  right  or  con- 
tract itself— seconcQy,  that  a  special  plea  setting 
up  this  prescription  as  an  absolute  bar,  without 
qualification,  was  bad,  the  article  containing  an 
exception  that  the  debt  is  not  acknowledged  by 
an  acte  separ6.  Id. 

The  court  will,  on  terms,  on  an  action  on  a 
foreign  nromissory  note,  even  after  issue  joined, 
allow  a  defendant  to  put  in  a  plea,  showing  that 
by  the  foreign  law,  the  plaintiff's  right  of  action 
is  tolled  by  lapse  of  time.  Id. 

On  A.  and  B.  entering  into  an  agreement  in 
France,  a  copy  of  it  was  deposited  by  A.  with  a 
notary  at  Paris.  In  an  action  against  B.  on  the 
agreement,  evidence  was  eiven  tiwt,  by  the  usage 
of  France,  a  document  deposited  with  a  notary 
cannot  be  moved: — Held,  that  the  agreement 
was  sufficiently  proved  by  production  of  a  copy 


[FOREIGNER— G  A  ME] 


3495 


of  the  document  bo  deposited ;  there  being;  no 
satiflfactor}'  evidence  of  the  fact,  that  two  dupli- 
cate originals  had  been  made.  Alivon  v.  Fur- 
nival,  1  C.  M.  &  R  277 ;  4  Tyr.  751 ;  3  Dowl. 
P.  C.  202.  1162 

By  agreement  between  A.  and  B.  made  in 
France,  any  disputes  which  might  arise  between 
them,  was  to  be  submitted  by  them  to  two  ar- 
bitrators, merchants,  (negotiants),  respectively 
named  by  them,  who,  in  case  of  disagreement, 
were  to  have  power  to  name  an  umpire.  The 
two  or  the  three  referees  might  also  be  named  by 
a  particular  conrt,  at  the  request  of  either  party : 
— Held,  that  the  court  might  appoint  an  arbitra- 
tor who  was  not  a  merchant ;  and  also  that  an 
act  by  which  it  annulled  B.*s  nomination  of  an 
arbitrator,  on  the  ground  that  he  was  a  foreigner, 
and  appointed  not  two  other  arbitrators,  bnt  one 
a  Frenchman,  and  not  a  merchant,  to  act  as 
referee  with  the  nominee  of  A.,  must  he  taken  to 
be  legal  according  to  the  French  law,  till  the  con- 
trary was  distinctly  proved.     Id. 

Where  on  breach  of  an  a|rreement  entered  into 
in  France,  and  to  be  performed  there,  French 
arbitrators  awarded  a  sum,  including  the  profits 
which  the  plaintiff  would  have  made  had  the 
agreement  been  fulfilled: — Held,  that  the  sum 
might  be  recovered  in  an  action  here  on  the 
award,  as  not  being  shown  to  be  contrary  to 
French  law.    Id. 

ft  was  deposed  that  two  out  of  three  provi- 
sional  syndics  may,  by  the  law  of  France,  sue  to 
recover  debts  due  to  a  bankrupt,  and  without  the 
previous  authority  of  the  Judge  Commissaire : — 
Held,  that  they  may  so  sue  in  this  country  unless 
the  French  law  be  shown  to  be  contrary: — Held, 
also,  that  the  act  of  the  two  syndics  sufficiently 
implied  the  absence  or  want  of  consent  of  the 
third,  without  showing  his  absence  or  want  of 
consent.    Id. 

Evidence  was  given  that,  by  French  law,  two 
oat  of  three  provisional  syndics  may  sue  for  the 
debts  doe  1o  the  bankrupt,  and  no  contradiction 
being  oflfered: — Held,  that  they  may  sue  so  in 
this  country.    Id. 

The  declaration  averred,  that  a  party,  a  French- 
roan,  was  a  bankrupt.  The  evidence  was,  that 
he  was  only  "en  ctat  de  faillitc,'*  or  insolvent : — 
Held,  no  variance,  as  ihe  English  **  bankrupt" 
does  not  appear  identical  with  the  French  "banque- 
ronte."     Id. 

By  5  ^  6  Will.  4,  c.  41 ,  »>  jnuch  of  the  45  Geo. 
3,  e.  72,  as  enacts  that  any  note,  bill,  or  mortgage 
shall  be  void  by  reason  of  being  given  for  the  ran- 
som of  shin  or  goods,  is  repealed  ;  and  it  is  enacted 
instead,  tkat  such  securities  shall  be  deemed  and 
taken  to  have  been  made,  draicny  accepted,  given, 
or  executed,  for  an  Ulegal  consideration  only. 

1166 


FRIENDLY  SOCIETY. 

Where  deposits  are  made  in  a  savings  bank 
by  a  benefit  society,  of  whom  a  part  have  since 
beea  expelled  by  an  order  of  a  magistrate  who 
had  BO  aatbohty  to  interpose,  the  masagen  of 


the  bank  are  not  compellable,  upon  the  applica-* 
tion  of  the' members  so  illegally  expelled,  to  ap- 
point an  arbitrator  to  settle  disputes  as  between 
such  managers  and  the  depositors.  Rex  r.  Wi- 
tham  Savings  Bank  (Trustees),  3  Nev.  ^-  M.  416. 

1195 

Nor,  in  any  case  where  deposits  have  been 
made  on  behalf  of  the  society,  are  the  managers 
compellable  to  appoint  an  arbitrator  upon  the 
^applfeation  of  individual  members,  not  being  the 
representatives  of  the  whole  or  of  a  majority  of 
such  society.    Id. 

JVIagistrates  have  no  autliority,  under  49  Geo. 
3,  c.  125,  to  make  orders  enforcing  rules  of  a 
benefit  society,  which  have  not  been  duly  inroll- 
cd.    Id. 


GAME. 

Free  warren  cannot  be  parcel  of  a  manor,  and 
therefore  will  not  pass  by  a  grant  of  the  manor, 
with  the  appurtenances,  though  it  be  held  with 
the  manor.  Morris  v.  Dimes,  3  Nev.  A  M.  671 ; 
1  Adol.  A  Ellis,  654.  1196 

A  warren  can  be  appertaining  to  a  manor  only 
by  prescription.    Id. 

Free  warren  in  gross,  of  which  a  grantor  i» 
seised,  will  not  pass  bv  a  grant  of  a  manor  and 
the  appurtenances.    la. 

Nor  by  a  grant  of  a  manor  and  all  free  warrea 
(or  other  term  comprehending  free  warren)  **  be- 
longing to  or  in  anywise  appertaining  to  the 
manor,  or  therewith  or  at  any  time  tMretofore 
usually  held,  and  occupied  or  enjoyed,  or  ac- 
cepted, reputed,  deemed,  taken,  or  known  as- 
part,  parcel,  or  member  thereof."    Id. 

'  Trespass  against  two  for  assaulting  -plaintiff, 
and  tearing  his  clothes.  The  fourth  plea  stated, 
that,  before  the  commitiins  those  trespasses, 
plaintiff  was  found  by  defendant  on  the  land  of 
W.  S.  in  search  of  game,  without  the  license  and 
against  the  will  of  W.  S.^  and  that  plaintiff  had 
in  his  possession  a  hare,  which  appeared  to  have* 
been  recently  killed.  Whereupon  one  defendant,, 
as  servant  of  and  bv  command  of  W.  S.,  de> 
manded  the  hare,  which  plaintiff  refused  to  de^ 
liver.  That  afterwards,  and  just  before  commit- 
ting the  trespasses,  the  said  defendant  demanded 
the  hare  from  the  plaintiff,  and  because  he  re- 
fused to  deliver  it,  and  kept  it  in  his  possession, 
both  defendants,  as  such  servants,  and  by  such 
command,  in  order  to  take  the  same  for  the  use 
of  W.  S.,  seized  the  plaintiff,  and  took  it  from 
him  according  to  the  form  of  the  statute  (viz.  1 
<&  2  Will.  4,  c.  32,  s.  36.)  The  fifth  plea  stated, 
that,  just  before  the  trespasses,  the  plaintiff  had 
in  his  possession  a  dead  hare  belongm^  to  W.  S. 
without  fhis  leave  or  license,  wjiereiore  defen- 
dants did,  as  his  servants,  and  b^  his  c(»nnnurd, 
demand  the  same  from  the  plamtiff,  which  he 
refused  to  deliver,  and  which  he  detained,  where- 
upon the  defendants,  as  such  servants,  &e.,  seized 
the  plaintiff  (conclading  as  in  the  former  plea.) 
The  replication  to  the  fourth  plea  stated,  that,  at 
the  several  times  of  the  demands  of  the  deftn- 
,  dant  and  refusal  by  thepluntiff,  the  plaintiff  ^itt 


2496 


[GAME— GAMING] 


lawfallr  os  the  highway.  A  similar  replication 
to  the  demand  and  refoBal  in  the  fiflh  plea.  On 
demurrer  to  the  replication  it  waa  held,  that  the 
fourth  plea  waa  >had  for  not  sufficiently  showing 
when  the  second  demand  was  made,  or  that  it 
was  made  on  the  land  of  W.  S. )  and  that  the  fiflh 
plea  was  also  bad,  for  not  stating  that  the  defen- 
dants gently  laid  their  hands  on  the  plaintiff  in 
order  to  take  the  game,  and  that  because  he  re- 
sisted, they  necessarily  committed  the  trespasses 
complained  of,  doing  as  little  damage,  and  using 
as  little  violence  to  Uie  plaintiff,  as  Uiey  could  on 
that  occasion.     Wisdom  v.  Hodson,  3  Tyr.  811. 

1199 

Where  there  was  an  agreement  in  writing,  but 
not  under  seal,  to  4et  a  messuage,  together  with 
full  and  free  and  exclusive  license  and  leave  to 
hnnt,  hawk,  course,  shoot,  and  sport  over  a  ma- 
nor, and  the  tenant  entered  and  waa  possessed 
during  the  term  granted : — Held,  in  assumpsit 
on  the  agreement  Tor  the  rent,  on  demurrer  to  a 
plea,  that  not  bein^  by  deed,  the  agreement  was 
void,  because  an  mcorporeal  here^itlment  was 
agreed  to  be  let,  that  the  plaintiff  was  not  entitled 
to  recover  in  respect  of  the  actual  enjoyment  of 
the  premises  let  by  the  defendant,  of  which  he 
had  taken  possession.  Bird  v.  Higginson,  2  Adol. 
Sl  EUis,  696;  4  Nev.  dt  M.  505;  1  Har.  <&  Woll. 
61.  1197 

To  justify  the  apprehension  of  a  person  under 
3tst  sect,  of  the  Oame  Act,  1  &  2  Will.  4,  c.  32, 
he  must  have  been  required  to  quit  the  land,  and 
to  tell  his  name;  and  the  '*  wilfully  <  continuing  or 
returning  upon  the  land,"  to>  justify  an  appre- 
hension, must  be  upon  the  same  land,  and  for 
the  purpose  of  pursuing  game  there.  Rex  v. 
Long,  7  C.  &  P.  314.~Wiiriam8.  1 199 


GAMING. 

Legality  of  cricket  Hodson  v.  Terrill,  3  IVr. 
929;  1  C.  &  M.  797.  12G4 

A  game  at  cricket  for  above  101.  is  illegal, 
though  the  game  was  not  finished  in  one  day.    Id. 

By  5  &  6  WiU.  4,  e.  41,  so  nutek  of  the  16 
Car.  2,  c.  7,  and  the  9  j^nne,  c.  14,  as  enacts  that 
any  note,  bUl,  or  mortgage  shall  be  void  by  reason 
ef  gaming,  is  rej^eaUd;  and  it  is  enacted  in^ead, 
that  stuh  securities  shad  be  deemed  and  taken  to 
have  been  made,  drawn,  accepted,  given  or  executed, 
for  an  illegal  consideration  only.  1204 

To  an  action  on  a  promissory  note  for  1002. 
made  by  the  defendant  on  the  12th  September, 
1833,  payable  six  months  after  date  to  tne  order 
of  K.,  and  by  K.  indorsed  to  the  plaintiff,  the 
defendant  pleaded  that  on  the  23rd  July,  1833, 
he  lost  money  at  play  to  one  A.,  and  that  the 
note  was  given  to  secure  the  money  so  lost. 
The  evidence  waa,  that,  in  July  1333,  the  defen- 
dant gave  A.  a  bill  of  exchange  for  87L  nayable 
■ix  months  after  date,  for  money  won  by  him 
f^om  the  latter  at  haxard,  which  bill  the  defen- 
dant  indorsed  to  K.,  and  that  in  December,  1833, 
the  promissory  note  declared  upon  was  substi- 
tuted for  the  Dill : — Held,  that  the  evidence  did 
not  support  the  plea.  Boulton  v.  Coghlan,  1  Scott, 
688 ;  1  Bing.  N.  R.  640 ;  1  Hodges,  145.       1204  ^ 


Semble,  that  the  infirmity  of  the  bill  would 
also  avoid  the  substituted  note,  upon  a  plea  pro- 
perly framed.    Id. 

A  declaration  in  assumpsit  stated,  that  by  the 
usage  of  racing  it  was  regulated  that  in  all  races 
to  TO.  run  for,  all  stakes  for  sweepstakes  should  be 
made  before  the  hour  of  starting  for  the  first 
race  of  the  day,  in  cash,  bank  bills,  or  bankers' 
notes,  payable  on  demand,  and  be  placed  in  the 
hands  of  the  person  appointed  bv  the  stewards  to 
receive  the  same ;  and  in  default  thereof  by  any 
person,  he  should  pay  the  whole  stake  aa  a  loser. 
The  declaration  then  stated,  that,  it  being  so  re- 
gulated, certain  races  were  appointed  to  be  run, 
and  were  run  at  L.,  of  whicn  one  R.  B.  was 
steward,  snd  one  J.  J.  clerk  of  the  races;  and 
that  there  were  at  the  races  certain  produce 
stakes  to  be  run  for,  &c.,  and  that  a  certain  filly 
of  the  plaintiff,  and  a  certain  colt  of  the  defen- 
dant had  been  nominated  for  the  stakes ;  that, 
by  a  regulation  of  the  races  at  L.,  it  was  pro- 
vided that  all  stakes,  &c.,  should  be  paid  to  the 
clerk  of  the  races  before  11  o'clock  on  the  day 
of  running,  or  the  owner  should  not  be  entitled, 
though  a  winner.  The  declaration  then  alleged 
that  the  plaintiff  had,  before  the  hour  of  starting, 
and  before  the  hour  of  1 1  o'clock  on  the  day  of 
running,  made  and  paid  his  stake  into  the  hands 
of  the  clerk  of  the  races ;  that  the  defendant's 
colt  ran,  and  came  in  first,  and,  but  for  the  defen- 
dant's fkult,  according  to  the  usage  of  racing, 
would  have  been  entitled  to  the  sweepstakes ;  but 
that  the  defendant  did  not,  before  the  hour  of 
starting  for  the  first  race  of  the  day,  or  before  11 
o'clock  on  that  day,  being  the  day  of  running, 
make  his  stake,  or  pay  the  same  into  the  hands 
of  the  clerk  of  the  races.  It  then  averred  that 
the  plaintiff's  filly  did  run,  and  came  in  second 
only  to  the  defenaant's  colt,  whereby  the  defen- 
dant became  liable  to  pay  the  whole  of  the  stake, 
Ac.  Plea,  that  before  the  defendant  had  notice 
of  the  regulation  of  the  races  at  L.,  and  before 
the  hour  of  starting  for  the  first  race  of  the  day, 
and  before  the  running  for  the  race  for  the  said 
sweepstakes,  the  defendant  was  ready  and  wil- 
ling, and  offered  to  make  his  stake  for  his  said 
colt,  for  the  said  sweepstakes,  in  bankers'  notes, 
payable  on  demand,  and  then  tendered  and  of- 
fered to  pav  the  said  stakes  in  such  bankers' 
notes,  into  tne  hands  of  the  said  J.  J.,  but  that 
the  said  R.  B.  then  refused  to  allow  the  said  J.  J. 
to  accept  or  receive  the  said  stake,  or  to  allow 
the  defendant's  colt  to  run  for  the  sweepstakes, 
on  the  ground  that  the  defendant's  colt  was  dis- 

aualified  to  run  for  the  said  sweepstakes ;  and 
\ifX  the  said  J.  J  did  in  pursuance  of  such  re- 
fusal of  the  said  R.  B.,  refuse  to  accept  or  re- 
ceive from  the  defendant  his  stake,  ana  to  allow 
his  colt  to  run  for  the  said  sweepstakes,  on  the 
ground  and  for  the  reason  aforesaid,  and  on  no 
other  ground  whatsoever. — Replication,  that  the 
defendant  did  not  tender  or  offer  to  make  his 
stakes  for  his  said  colt  for  the  said  sweepstakes, 
or  to  pay  the  same  into  the  hands  of  the  said 
J.  J.,  until  long  afUr  11  o'clock  on  the  day  of 
running  for  the  said  sweepstakes,  (although  be- 
fore and  at  that  hour  he  had  notice  of  the  legii- 
lation  of  the  said  noes  at  L.) : — Held,  on  special 


[GAMING— GUARANTIE] 


2497 


demuner,  thst  the  replication  was  ill,  and  that 
if  it  was  not  a  departure  from  the  declaration,  at 
all  eTents  that  the  replication  did  not  show  any 
cause  of  action.  JLiacey  v.  Umbers,  2  C.  M.  <& 
R.  112.  1206 


GRANT. 

King  Edward  4th,  before  his  accession  to  the 
tlirone  of  England,  and  in  right  of  the  earldom 
of  Msfch,  was  fleised  in  fee  of  the  manor  of 
Rath  weir,  with  the  advowson  of  the  church  of 
Rath wier,  otherwise  Killucan,  appendant  thereto. 
King  Edward  afterwards,  in  tne  ninth  year  of 
his  reign,  granted  the  said  advowson  by  name  to 
Sherwood,  bishop  of  Meath,  and  bis  successors. 
By  an  act  passed  in  the  10th  year  of  the  reign  of 
rienry  7th,  all  advowsons  of  churches  in  Ireland, 
whereof  the  said  king  or  any  oi  his  noble  proge- 
nitors,  kings  of  England,  was  or  were  at  any 
time  seised  in  fee  simple  or  fee  tail,  from  the 
last  day  of  the  reign  of  King  Edward  2Dd  to  the 

E Basing  of  that  act,  were  resumed  into  the  king's 
ands.  And  also,  all  grants,  &c.,  made  by  let- 
ters patent  under  the  great  seal  of  England  or 
Ireland  to  any  person  or  persons  jointly  or  seve- 
rally  from  the  said  day,  were  revoked  or  avoided : 
>^Held,  that  this  act  reappended  the  advowson 
of  Rathweir  to  the  manor,  and  revested  the  said 
advowson  in  the  crown,  as  the  words  in  the  act 
included  property  of  which  Edward  4th  was 
seised,  eitner  by .  private  or  regal  right,  and 
which  descended  to  Edward  5th.  And  also, 
that  the  word  "  progenitors,"  was  tantamount  to 
**  predecessors,"  and,  therefore,  extended  to  Ed- 
ward 4th;  and  the  general  words  in  the  first 
Inanch  of  the  enactment,  *'all  advowsons  of 
churches,*'  included  advowsons  howsoever  grant- 
ed ;  and,  therefore,  that  it  was  immaterial  under 
what  seal  the  grant  was  made.  Meath  (Bishop) 
«;  Winchester  (Marquis),  1  Alcock  &  Napier,  508. 
{high).  1208 


Although  the  Kinjop  can  never  be  put  out  of 
possession  in  point  of  law  by  the  wrongful  entry 
of  a  subject ;  yet  there  may  be  an  adverse  pos- 
session in  fact  against  the  crown.  Therefore, 
after  such  an  adverse  possession  by  a  subject  for 
twenty  years,  the  crown  could  only  recover  the 
land  by  an  information  of  intrusion;  conse- 
auently  ejectment  would  not  lie  at  the  suit  of 
tne  grantee  of  the  crown,  notwithstanding  the 
rights  of  the  crown  are  not  barred  by  the  Statute 
Of  Limitations.  Doe  d.  Wall  or  Watt  v.  Morris, 
2  Scott,  276 ;  I  Hodges,  215.  1206 


GUARANTIE. 

A.  introduced  B.  to  C  ,  an  upholsterer,  and  A., 
in  B.'s  premises,  asked  C.  if  he  had  any  objec- 
tion to  supply  B.^with  some  furniture,  and  that 
if  be  would,  he  would  be  answerable.  C.  asked 
A.  how  long  credit  he  wanted,  and  A.  replied, 
^  he  would  see  it  paid  at  the  end  of  six  months." 
C.  agreed  to  it,  and  A.  gave  him  the  order,  and 
the  goods  were  sapplied  accordingly.  At  the 
end  of  six  months,  B.  not  having  paid  the 
amount,  C  applied  to  A.  for  payment,  and  he  paid 


the  money.  The  entry  in  C.'s  books  was,  **  Mr. 
B  per  Mr.  A. :" — Held,  that  the  jury  were  war- 
ranted in  finding  that  the  undertaking  on  the 
part  of  A.  was  not  a  collateral  undertaking. 
Simpson  v.  Penton,  2  C.  &  M.  430 ;  4  Tyr.  315. 

J  210 

The  defendant,  in  consideration  of  the  plain- 
tiff's withdrawing  a  distress  for  rent,  undertook 
to  pay  the  sum  due  for  rent  out  of  the  sale  of  the 
produce  of  the  effects : — Held,  that  it  was  a  po- 
sitive engagement  to  pay,  if  the  goods  were  suf- 
ficient ;  and  therefore,  in  an  action  on  the  gua- 
rantie,  proof  that  the  goods  produced  the  amount 
of  rent,  entitled  the  plaintiff  to  recover,  although 
these  were  prior  claims.  Stephens  v.  Pell,  2  C. 
&,  M.  710 ;  4  Tyr.  6.  1210 

The  declaration  stated,  that  H.  was  emploved 
to  do  work  on  certain  houses,  and  that  the  de&n- 
dant  was  employed  as  surveyor  over  him,  and  to 
receive  monies  to  be  paid  to  H.  for  such  work  > 
that,  in  consideration  that  the  plaintiff  would 
provide  and  deliver  to  H.  such  materials  as 
should  be  required  to  enable  him  to  do  the  work» 
the  defendant  promised  the  plaintiff  to  pay  him 
for  them,  out  of^such  monies  received  by  him  as 
should  become  due  to  H.  for  that  purpose.  The 
declaration  then  averred  that  H.  gave  the  defen- 
dant such  order,  and  that  he  rec^uired  certain  ma- 
terials which  the  plaintiff  delivered  to  him,  to 
the  value  of  1000^,  and  that  the  sum  became  due 
to  H.  for  the  work ;  of  all  which  the  defendant 
had  notice,  and  was  requested  by  the  plaintiff  to 
pa^  him  for  the  materials  out  of  such  monies  re- 
ceived by  him  as  were  due  to  H.  for  the  work. — 
Breach,  that  though  the  defendant  had  received 
the  lOOOZ.  to  be  paid  and  then  due  to  H.,  and 
though  the  said  order  had  not  been  revoked,  the 
defendant  refused  to  pay  the  plaintiff.  Plea, 
that  the  promise  in  the  declaration  mentioned 
was  a  special  promise  to  answer  for  the  debt  of 
H.,  and  that  there  was  no  memorandum  or  note 
thereof  in  writing : — Held,  on  demurrer,  that  the 
plea  was  bad,  for  that  the  defendant's  promise 
was  an  orignal  and  not  a  collateral  one.  An- 
drews V.  Smith,  2  C.  M.  &  R.  G27.  12ia 

To  constitute  a  valid  agpeement  to  answer  for 
the  debt  or  default  of  a  third  person,  within  the 
4th  section  of  the  Statute  of  Frauds,  it  is  not 
necessary  that  the  consideration  should  appear 
in  express  terms ;  it  is  enough  if  the  memoran- 
dum be  so  framed,  that  a  person  of  ordinary  ca^ 
pacity  must  infer  from  the  perusal  of  it,  that 
such  and  no  other  was  the  consideration  upon 
which  the  undertaking  was  given.  Hawes  v. 
Armstrong,  1  Scott,  661 ;  1  Bing.  N.  R.  761 ;  1 
Hodges,  1%.  1212 

No  consideration  is  to  be  implied  from  an  un- 
dertaking as  follows : — "  Inclosed,  I  forward  you 
the  bills  drawn  per  J.  T.  A.  upon  and  accepted 
by  L.  D.,  which,  I  doubt  not,  will  meet  due  honor, 
but  in  default  thereof,  I  will  see  the  same  paid." 
Id. 

No  consideration  is  to  be  implied  from  an  un- 
dertaking as  follows : — "  Mr.  R.  H.  C.  of  Barba- 
does,  about  to  proceed  thither  in  the  Mary,  hav- 
in£^  incurred  an  account  with  you  amounting  to 
49c.  5jr.,  with  the  understanding  that  he  ia  to 


^496 


[GUARANTIE] 


tiuflmit  tiie  amount  to  yon,  three  months  afler 
he  ihall  have  arrived  at  Barbadoea,  we  guarantee 
his  performance  of  the  said  en^ra^ment,  and  in 
'^lure  thereof  we  will  be  responsible  to  you."    Id. 

Plaintifis,  owners  of  a  ship  hired  on  charter- 
"party  by  H.  S.,  refused  to  let  her  sail  till  certain 
•disputes  about  the  freight  between  them  and  H. 
S.  were  settled,  b^  H.  9.  giving  security ;  where- 
upon defendant,  m  consideration  that  plaintiffs 
would  let  H.  S.  sail  without  giving  security,  un- 
dertook to  jret  T.  M.  to  sign  the  suarantie  here- 
under set  forth,  and  deliver  it  to  {naiotifi^  within 
a  week  : — Held,  that  this  was  not  an  undertaking 
for  the  debt,  default,  or  miscarriage  of  another, 
within  the  Statute  of  Frauds.  Busnell  r.  Bevan, 
4  M.  <&  Scott,  622;  1  Bing.  N.  R.  103.         1212 

.  The  guArantie  to  be  signed  by  T.  M.  was  as 
follows  : — "Whereas  H.  S.  has  hired  a  ship  for 
-six  months  from  (he  12th  July,  1830,  and  such 
longer  time  as  his  intended  voyage  may  require, 
and  has  paid  or  secured  the  freight  for  six  montlis 
from  the  20th  August,  1830,  and  is  about  to  leave 
£. ;  1  guarantee .  the  payment  of  freight  which 
shall  accrue  for  any  portion  of  the  voyage  after 
the  said  six  months:" — Helc^  an  undertaking 
within  the  Statute  of  Frauds,  and  insufiicient  for 
want  of  consideration  apparent  on  the  face  of  it ; 
and,  consequently,  that  only  nominal  damages 
^uld  be  recovered  against  defendant  for  failing 
to  procure  T.  M.'s  signature,  according  to  his 
promise.    Id. 

Assumpsit  on  the  following  guarantie : — ^*  You 
will  be  so  good  as  to  withoraw  the  promissory 
note,  and  I  will  see  you  at  Christmas,  when  you 
shall  receive  from  me  the  amount  of  it,  together 
with  the  memorandum  of  mj  son's,  making  in 
the  whole  452."  A  promissory  note  for  35Z. 
made  by  the  defendant  s  son,  and  payable  to  the 
plaintin,  was  proved  at  the  trial,  but  not  the  me- 
morandum. The  guarantie  was  proved,  and  a 
subsequent  admission  by  the  defendant,  that  he 
}iad  to  pay  the  plaintiff  451.  doe  from  his  son  : — 
Held,  nrst  that  the  plaintiff  was  not  bound  to 
produce  the  memorandum ;  secondly,  that  the 
consideration,  viz.  the  withdrawing  of  the  pro- 
missory note,  was  sufficient  to  satis^  the  Statute 
•of  Frauds,  though  the  amount  and  maker's  name 
were  not  specified,  there  being  no  evidence  of 
any  other  note  to  which  the  agreement  could 
;apply.  Shortrede  e.  Cheek,  1  Aool.  &,  Ellis,  57 ; 
3  Nev.  &  M.  366.  1212 

Held  also,  that  the  plaintiff  was  entitled  to  re- 
-cover for  the  whole  45/.  upon  producing  a  pro- 
missory note,  made  by  the  defendant's  son,  for 
the  payment  of  35Z.,  and  proving  that  he  had 
withdrawn  it,  there  being  no  evidence  of  any 
other  note,  drawn  by  either  the  defendant  or  his 
son,  having  been  at  the  time  of  the  writ'mg  the 
letter  in  the  possession  of  the  plaintiff.  Id. 

Where  the  defendant  addressed  to  the  plaintiff 
the  following  letter,  which  he  dated  and  signed, 
**  I  hereby  agree  to  see  you  paid  within  three 
months  from  date  hereof,  the  amount  of  5Z.  due 
to  you  on  account  of  Mr.  G,  M.,  jun. :" — Held, 
not  sufficient  to  bind  the  defendant  under  the 
Statute  of  Frauds,  the  consideration  for  the  pro- 
mise not. being  sufficiently  expressed.    Clancey 


V.  Piggoit,  4  Nev.  &  M.  496 ;  2  Adol.  A  EU'is, 
473;  1  Har.  A  WoU.  20.  1212 

Assumpsit  on  tlie  following  agreement: — ^^*I 
undertake,  on  behalf  of  Mr.  Peate,  (in  considera- 
tion of  Mr.  Dicken  having  this  day  given  me  an 
undertaking  to  procure  Mr.  Ward's  check  or  note 
in  favor  of  Mr.  Peate  for  150r,  on  account  of 
a  debt  due  from  Mr.  Chambers  to  Mr.  Peate), 
that  Mr.  Chambers  shall  have  credit  for  that 
sum  in  his  accounts  with  Mr.  Peate,  and  that 
Mr.  Ward  shall  stand  in  the  place  of  Mr.  Peate 
to  that  amount;  and  1  further  undertake,  that 
Mr.  Peate  shall  not  personally  dispute  Mr. 
Ward's  right  to  deduct  that  sum  from  the  ac- 
counts owing  by  the  colliers  of  the  Black  Park 
Colliery  to  Mr.  Chambers:" — Held,  that  this 
agreement  showed  a  sufficient  consideration 
moving  from  the  plaintiff.  Peate  v.  Dicken,  1 
C.  M.  &  R.  422 ;  3  Oowl.  P.  C.  177 ;  5  Tyr.  1 16, 

1212 

-  **  As  you  have  a  claim  on  my  brother  for  52. 
175.  9d.  for  boots  and  shoes,  I  hereby  undertake 
to  pay  the  amount  witliin  six  weeks  from  this 
dale — January  14,  1833:" — Held,  that  no  action 
lies  on  this  undertaking,  inasmuch  as  no  consi- 
deration appears  on  the  face  of  the  instrument. 
James  ».  Williams,  3  Nev.  &  M.  196 ;  2  Dowl.  P. 
C.  481 ;  5  B.  &  Adol.  1109.  1213 

The  plaintiff,  previous  to  delivering  bricks  to  a . 
certain  government  contractor,  received  from  the 
defendants  a  guarantie  in  the  following  terms  : 
— "Please  to  deliver  to  Mr.  S- for  the  comple- 
tion of  his  contracts  at  D.  and  W.  yards,  500,000 
best  bricks,  to  be  delivered  at  the  aock-yards,  at 
32^.  per  thousand,  and  we,  as  his  sureties,  con- 
sent that  the  proper  officer,  Navy-office,  Somer- 
set House,  who  shall  or  mar  have  the  payment  of 
the  contract  when  finished,  shall  and  may  stop 
the  amount  of  such  account  for  bricks  delivered ; 
and  we  do  hereby  agree  to  become  guaranties  for 
the  payment  of  the  same  to  you  when  the  amount 
of  tne  contract  is  paid."  The  bricks  .were  de- 
livered, and  S.  received,  with  the  consent  of  the 
plaintiff,  a  part  payment.  S.  having  performed 
part  only  of  his  contract,  and  &iled  in  the  per- 
formance of  it,  other  persons  were  employea  by 
government  to  finish  the  contract  without  the 
assent  of  S.  or  the  defendants,  and  to  these  per- 
sons payment  of  the  remainder  of  the  contract 
price  was  paid;  afler  which  a  balanced  account 
was  made  out  with  S.,  in  which  he  was  debited 
for  the  sums  paid  to  the  parties  who  finished  the 
contract,  and  with  the  sum  paid  for  work  partly 
performed,  and  received  credit  for  the  whole  con- 
tract work  done: — Held,  that  by  the  guarantie 
the  defendants  undertook  only  that  the  money 
should  be  paid  to  the  plaintiff  when  paid  in  pur- 
suance of  the  contract,  and  that  the  mpney  paid 
to  the  parties  who  finished  the  contract  was  not 
money  paid  to  him.  Hemming  v.  Malin  or  Tre- 
nery,  2  C.  M.  <&  R.  385 ;  1  Gate,  206.  1215 

In  the  aforesaid  account  S.  had  credit  given 
for  extra  work  for  284/.,  and  received  in  pavment 
the  balance  of  the  whole  account,  viz.,  »ll : — 
Held,  that  this  must  be  considered  as  paid  in 
respect  of  the  extras,  and  not  in  pursuance  of 
the  contract : — Held  also,  that  the  nrst  part  pay- 


[GUARANTIE] 


2499 


ment  to  S.  being  by  the  consent  of  the  plaintiff, 
he  had  no  r   " 
payments.    Ii 


—   -     —      --       g     - ^       -  —  —       -         -  g  ~  ~  w 

he  had  no  right  to  recover  in  respect  of  such 


GnarantJe  in  the  following  form  : — *'  F.  in- 
forms me  that  you  are  about  publishing  an  arith- 
metic  for  him.  i  have  no  objection  to  being 
answerable  as  far  as  501.  \  for  my  reference  apply 
to  B."  Signed  «  G.  T."  B.  wrote  this  memo- 
randum, and  added  '*  witness  to  G.  T.,  J.  B." 
It  was  forwarded  by  B.  to  the  plaintiffs,  who 
never  communicated  their  acceptance  of  it  to  G. 
T.  In  an  action  against  the  latter  on  the  gua- 
rantte  : — Held,  that  the  plaintiffs  not  proving  any 
notice  of  acceptance  to  the  defendant,  were  not 
entiled  to  recover.  Mozley  0.  Tinkler,  1  C.  M. 
A^  R.  692;  5  Tyr.  416 ;  1  Gale,  11.  1215 

C.  &.  Co.,  before  their  bankruptcy,  guaranteed 
to  A.  the  payment  of  300/.  for  the  erection  of 
a  sugar  mill  for  D.,  on  the  production  of  a  cer- 
tificate from  the  engineer  that  the  mill  was  erect- 
ed according  to  the  terms  of  a  certain  s[)ecifi- 
cation ;  A.  produces  a  certificate  of  the  erection 
of  the  mill,  stating,  however,  a  deviation  from  the 
original  plan,  with  the  consent  of  D. ;  upon  which 
C.  6l  Co.,  without  making  any  objection  to  such 
deviation,  informed  A.  that  it  was  not  in  their 
power  to  pay  the  money : — Held,  that  A.  might 
prove  the  30(M.  under  the  fiat  issued  against  C.  ^ 
Co.    Ex  parte  Ashwell,  2  Deac.  &  Chit.  281. 

1216 

The  following  gnarantie  was  given  by  the  de- 
fendant in  January,  1825,  to  certain  bankers  : — 
**  Please  to  open  an  account  with  and  honor  the 
checks  of  H.  B.,  on  miH  account,  for  whom  I 
will  be  responsible."  The  account  having  been 
opened,  the  bankers  made  advances  to  H.  B. 
from  time  to  time  till  February,  1827,  when  they 
ceased ;  a  large  balance  was  then  due  to  them 
from  H.  B.,  who,  in  October  of  that  year,  paid  a 
■nm  into  the  bank  on  account  of  it ;  in  Februarv, 
1828,  the  bankers  took  an  acceptance  from  H.  B., 
at  three  months,  for  the  balance  of  his  account, 
with  interest,  without  the  defendant's  knowledge ; 
in  several  previous  instances  the  bankers  had 
taken  similar  acceptances  from  customers  who 
had  overdrawn  their  accounts ;  but  though  the 
defendant  had  been  consulted  by  them  as  their 
attorney  on  the  dishonor  of  several  of  them,  it 
was  not  shown  that  he  was  aware  of  the  practice 
of  the  bank  in  that  particular : — Held,  that  the 
taking  the  acceptance  from  the  principal  debtor 
by  the  parties  ffuaranteed,  without  the  knowledge 
or  assent  of  the  surety,  was  a  giving  time  to  the 
principal,  which  altered  the  situation  of  the 
soiety,  and  therefore  discharged  him  from  liability 
«n  tfcie  guarantie.    Howell  r.  Jones,  4  Tyr.  54b. 

1217 

An  agreement  between  A.,  and  B.  the  wife  of 
A.,  ana  C,  of  the  one  part,  and  of  D.,  of  the 
other,  recitpd  that  A.,  B.,  a^id  C.  had  soed  L. 
and  obtained  a  cognovit  from  him ;  that  W.  was 
bail  to  the  sheriff,  and  that  the  bail-bond  was  for- 
feited \  that  W.  had  reouested  A.,  B.,  and  C.  to 
let  L.  be  at  large,  and  to  forbear  entering  up 
judgment,  or  proceeding  against  the  bail  or  the 
sheriff  till  a  certain  day,  on  W.'s  guaranteeing 
the  secnrity  of  L.'s  person  if  the  money  were  not 

Vol.  IV.  29 


paid  before  that  day,  and  the  agreement  further 
set  forth  that  it  was  understood  and  ainreed,  and 
W.  undertook  and  promised,  that  he,  W.,  would 
render  L.  on  the  day  or  pay  the  money,  in  consi- 
deration that  A.,  B.,  and  C.  would  so  forbear : 
W.,  having  broken  the  agreement.  A.,  B.,  and  C. 
declared  jointly  against  W.,  reciting  the  agree- 
ment, and  averring  performance  on  the  part  of 
A.,  B.,  and  C.:— -Held,  that  B.  was  entitled  to 
join.  Wills  v.  Nurse  (in  error),  1  Adol.  &,  Ellis, 
65.  1218 

A.  guarantees  to  B.  the  debt  of  C.  upon  con- 
dition "  that  no  application  shall  be  made  to  A., 
on  B.'s  part,  for  the  amount  guaranteed,  or  any 
portion  thereof;  but  on  the  failure  of  B.'s  utmost 
efforts  and  legal  proceedings  to  obtain  the  same 
from  C.*'  C.  remains  in  England  two  years,  then 
goes  abroad  insolvent,  not  having  paid  the  debt 
to  B.  No  proceedings  itre  taken  against  him 
until  four  years  ailer  the  guarantie  given,  when 
process  is  issued,  and  continued  on  the  roll,  C. 
remaining  abroad  until  more  than  six  yean  after 
the  guarantie  given  :  the  guarantie  is  discharged 
by  the  laches  of  B.  HoU  v.  Hadley,  4  Nev.  & 
M.  505 ;  2  Adol.  ^  EUis,  758.  1218 

Where  defend&t,  in  assumpsit,  pleads  that 
the  contract  declared  upon  was  a  guarantee  for 
the  debt  of  another,  and  that  no  memorandum ' 
thereof,  stating  the  consideration,  was  or  is  in 
writing  signea  by  defendant,  or  any  person  au- 
thorized by  him;  plaintiff  may  reply,  that  a 
memorandum  of  agreement  in  writing,  stating 
the  consideration,  was  signed  by  defendant,  with- 
out setting  out  such  memorandum  in  the  replica- 
tion. Wakeman  0.  Sutton,  2  Adol.  &  Ellis,  78 ; 
4  Nev.  4&  M.  114.  1218 

In  an  action  on  a  contract  of  guarantie,  it  is  a 
good  bar,  that  before  breach  a  new  contract  has 
been  made  to  pay  absolutely.  Taylor  v.  Hillary, 
1  C.  M.  &  R.  741 ;  3  Dowl.  P.  C.  461 ;  1  Gale, 
22;  5  Tyr.  373.  1218 

The  declaration  stated,  that  the  defendant 
guaranteed  the  payment  of  goods  furnished  by 
plaintiff  to  H.,  at  toe  defendant's  request.  Plea, 
that,  before  breach  of  that  undertaking,  it  was 
agreed  between  plaintiff  and  defendant  mat  plain- 
tiff should  supply  goods  to  H.,  and  that  they 
should  be  paid  for  at  the  end  of  three  months  by 
a  joint  bill  at  four  months,  to  be  accepted  by  the 
defendant,  which  agreement  of  defendant,  plain- 
tiff, before  breach  of  the  former  declared  on,  ac- 
cepted in  full  discharge  of  such  former  agree- 
ment, and  released  the  defendant  from  perform- 
ing it: — Held,  on  demurrer,  that  the  second 
agreement  did  not  require  to  be  in  writing,  pur- 
suant to  29  Car.  2,  c.  3,  being  an  agreement  by 
which  the  defendant  became  UMolutely  bound  as 
an  original  debtor,  and  not  being  an  accord  and 
satisiia^tion,  but  a  substituted  contract,  afforded 
a  good  defence  to  the  action,  without  alleging 
performance.    Id. 

If  in  an  action  on  a  guarantie  for  payment  for 
goods  to  be  supplied  to  A.  the  plaintiff  aver  that 
goods  were  supplied  to  A.,  and  the  defendant 
plead  non-assumpsit,  this  admits  the  supply  of 
the  goods  to  A.,  and  no  proof  is  required  in  sup- 
port of  the  averment,  and  the  plaintiff  need  not 


2500 


[HABEAS— HORSE] 


give  any  evidence  that  the  goods  were  aupplied, 
except  ^ith  the  view  of  showing  the  amount  of 
damages.  Taylor  v.  Hillary,  7  C.  <&  P.  30— Gur- 
ney. 


HABEAS. 

A.  is  charged  with  a  felony  before  three  ma^ 
gistrates,  who,  upon  hearing  evidence,  admit  him 
to  bail,  and  afterwards,  upon  additional  evidence, 
commit  him  to  gaol :  A.  is  not  entitled  to  a  ha- 
beas corpus  to  be  discharged  out  of  custody.  Ex 
parte  AUen,  3  Nev.  &.  M.  35.  1220 

A  hab.  Corp.  will  not  lie  to  bring  up  a  prisoner, 
in  a  county  gaol,  for  the  purpose  of  voting  at  the 
election  of  a  member  of  parliament.  Ex  parte 
Jones,  4  Nev.  d^  M.  340;  2  Adol.  6l  EUis,  436; 
1  Har.  &  WoU.  7.  1220 

Where  a  defendant,  charged  with  selling  un- 
stamped papers,  was  in  custody,  the  court  grant- 
ed a  nab.  corp.  for  the  purpose  of  enabling  him 
to  defend  in  person.  Att  Gen.  v.  Cleave,  2  Dowl. 
P.  C.  668.  1220 

On  an  application  in  bankruptey  for  a  bank- 
rupt's discharge  by  hab.  corp.,*  an  affidavit  may 
be  read,  stating  circumstances  which  are  not  set 
forth  in  the  warrant  of  the  commissioners.  Ex 
parte  Lampon,  3  Deac.  &-  Chit.  751 ;  1  Mont.  & 
Ayr.  245.  1220 

On  a  rule  for  discharging  a  prisoner  who  was 
arrested  under  process  from  an  inferior  court, 
and  brought  up  mto  this  court  by  habeas  corpus 
cum  causa,  it  is  no  objection  that  the  affidavits 
on  which  the  rule  is  obtained  are  intituled  in  a 
cause  in  this  court — Per  Littledale,  J.,  and  Pat- 
toson,  J.  Perrin  v.  West,  5  Nev.  &  M.  291 ;  3 
Adol.  6l  Ellis,  405;  1  Har.  &  Woll.  401.      1220 

In  support  of  a  motion  to  set  aside  a  judge's 
order  for  a  procedendo,  after  a  hab.  corp.  re- 
moving from  an  inferior  court  into  K.  B.,  it  was 
sworn  that  the  judge  made  the  order  in  con- 
sequence of  its  being  proved  before  him,  by  the 
affidavit  of  J.  N.,  that  the  habeas  was  issued  by 
an  uncertificated  attorney : — Held,  that  this  state- 
ment of  the  ground  of  the  order  was  sufficient 
for  the  court  to  act  upon,  without  production  of 
the  affidavit  of  J.  N.,  there  being  no  statement 
on  the  other  side  that  any  different  ground  had 
existed.  Glyn  v.  Hutehinson,  3  DowL  P.  C.  529 ; 
2  Adol.  &  Ellis,  660.  1220 

The  hab.  corp.  was  sued  out  in  the  cause  in 
the  inferior  court  by  the  defendant  in  that  court. 
The  application  to  set  aside  the  order  and  the 
procedendo  was  made  by  parties  who  were  bail 
for  the  defendant  in  a  cause  in  K.  B.,  (nnd  not 
in  the  suit  below),  for  the  purpose  of  oringing 
up  the  defendant  to  be  rendered  in  the  cause  in 
K.  B.,  upon  their  motion,  though  it  was  objected 
that  they  were  not  proper  parties  to  apply.     Id. 

The  court  set  aside  the  judge's  order,  and 
directed  that  the  hab.  corp.  should  stand  revived ; 
reserving  it,  however,  for  consideration,  how  the 
defendant  should  be  dealt  with  as  to  future  cus- 
tody on  his  being  brought  up.    Id. 

Held,  no  objection  to  the  making  of  the  last 
mentioned  rule  that,  s'mce  the  pioce£ndo  issued , 


a  writ  of  inquiry  had  been  executed  in  the  cause 
in  the  inferior  court,  and  it  did  not  appear  that 
final  judgment  had  yet  been  signed.    Id.  ^ 

An  attachment  may  be  granted  for  making  an 
insufficient  return  to  the  first  writ  of  habeas  cor- 
pus, without  issuing  an  alias  and  a  pluries  writ. 
Rex  V.  Winton,  5  T.  R.  89.  1221 


HOLIDAY. 

Whereas  by  the  act  of  the  3  &4  Will.  4,  c.  42, 
s.  43,  it  is  enacted,  that  none  of  the  several  days 
mentioned  in  the  statute,  passed  in  the  sessions 
of  parliament  holden  in  the  5th  and  6th  years  of 
the  reign  of  King  Edward  6,  intitled,  ^*  An  act 
for  keeping  holioays  and  fasting  days,"  shall  be 
observed  or  kept  m  the  courte  of  common  law, 
or  in  the  several  offices  belonging  thereto,  ex- 
cept Sundays^  the  day  of  the  mtivity  of  our 
Lord,  and  the  three  following  days,  and  Monday 
and  Tuesday  in  Easier  week :  It  is  hereby  or- 
dered, that,  henceforth,  in  addition  to  the  said 
days,  the  following,  and  none  other,  shall  be 
observed  or  kept  as  nolidays  in  the  several  offices 
belonging  to  the  said  courte ;  viz.  Good  Friday 
and  &8ter  eve,  and  such  of  the  five  days  follow- 
ing as  may  not  fall  in  the  time  of  term,  but  not 
otherwise  ;  the  birthday  of  our  lord  the  king,  the 
birthday  of  our  lady  the  queen,  the  day  of  the 
accession  of  our  lora  the  king,  Whit-Monday  and 
Whit-Tuesday.  Reg.  Gen.  K.  B.,  C.  P.,  and 
Excheq,  H.T.6W1II.4. 


HORSE. 

A  declaration  in  assumpsit  steted,  that,  in  con- 
sideration tliat  the  plaintiff  would  at  the  request 
of  the  defendant  lend  him  a  horse,  the  latter  pro- 
mised to  take  proper  care  of  him,  and  return  him 
to  the  plaintiff  in  as  good  a  condition  as  he  was  in 
at  the  time  of  the  promise,  or  pay  fifteen  guineas ; 
tlie  contract  proved  was,  in  addition  to  these 
terms,  that  the  defendant  should  find  the  horse 
meat  for  his  work  : — Held,  that  the  contract  was 
sufficiently  Stated  in  the  declaration,  and  accord- 
ing to  ite  leffal  effect.  Handford  v.  Palmer,  5 
Moore,  74 ;  2~B  &  B.  359.  1224 

A  person  to  whom  a  home  is  delivered  to  be 
stabled,  taken  care  of,  fed«  and  kept,  has  no  lien 
on  him  for  the  expense  incurred  in  so  doing. 
Judson  V.  Etlieridge,  1  C.  &  M.  743;  3  Tyr.  954. 

1225 

To  an  action  for  not  delivering  a  horse,  under 
an  agreement  to  sell  him  for  Is.  it  he  did  not  trot 
18  miles  within  the  hour,  within  one  month,  to 
the  satisfaction  of  J.  N.,  with  an  averment  that 
he  had  been  tried  in  the  presence  of  J.  N.  and 
had  failed,  defendant  pleaded,  that  afler  that 
trial,  and  within  the  month,  defendant  gave  notice 
of  another  trial,  but  J.  N.  did  not  attend : — 
Held,  ill.  Brogden  v.  Itfarriott,  2  Scott,  712; 
2  Bing.  N.  R.  473.  1224 

Defendant  also  pleaded  that  the  first  trial  was 
interrupted  by  one  acting  as  the  plaintiff's  ser- 
vant : — Replication  traversing  the  whole  of  that 
plea,  held  single.    Id. 

By  6  Geo.  4,  c.  62,  postmuters  are  to  pay  for 


[HORSE— HUSBAND  AND  WIFE] 


2501 


hones,  let  ont  for  a  distance  not  exceeding  eight 
miles,  a  duty  o€ls.  9d.  a  horse,  or  one-fifth  of  the 
sam  charged  to  the  hirer ;  and  are  to  make  a  re- 
torn  to  the  Stamp  Office  of  the  number  of  horses 
let,  the  number  of  miles,  the  amount  charged  to 
the  hirer  ;  the  fifth  part  of  that  amount,  or  Is.  i)d. 
for  each  horse  ;  for  a  false  return  the  postmaster 
is  liable  to  a  penalty,  and  the  farmer  of  the  duty 
may  compel  him  to  verify  his  return  on  oath. 
Defendant  returned,  as  the  amount  of  duty  for 
two  horses  let  out  for  five  miles,  Qs.  6d.,  and 
omitted  to  state  the  sum  charged  to  the  hirer : — 
Held,  that,  notwithstanding  such  omission,  he  had 
sufficiently  indicated  his  election  to  pay  the  duty 
of  one-fifth,  and  that  the  farmer  could  not  claim 
Is.  9d.  for  each  horse.  Hammond  v.  Hooley,  4 
M.  &,  Scott,  664 ;  1  Bing.  N.  R.  131.  1225 


HUNDRED. 

By  2  Will.  4,  c.  39,  s.  13,  erery  torit  of  smn- 
mons  issued  a^aiiist  the  inhabitants  of  a  hundred  or 
other  like  district,  may  be  served  on  the  high 
constable  thereof,  or  any  one  of  the  high  ctmstabTes 
thereof;  and  every  such  torit  issued  against  the  in- 
habitants if  any  county  of  any  city  or  town,  or  the 
inhabitants  of  any  franchise,  liberty,  dty,  town,  or 
place,  not  bang  part  of  a  hundred  or  other  like  dis- 
trict, on  some  peace  officer  thereof.  1227 

If  an  action  be  brought  by  a  termor  upon  7  & 
8  Geo.  4,  c.  31,  for  an  injury  done  to  his  house 
within  three  calendar  months  from  the  offence 
committed,  and  that  action  abates  by  the  death 
<^  the  termor,  afler  the  three  months  have  ex- 
pired, his  executor  cannot  bring  a  fresh  action. 
Till  Adam  t?.  Bristol  (Inhabitants),  4  Nev.  &  M. 
144 ;  2  Adol.  &,  Ellis,  389.  1229 

Whether  an  executor  of  a  termor  can  in  any 
case  bring  an  action  upon  7  &  8  Geo.  4,  c.  31, 
for  an  injury  sustained  in  the  lifetime  of  his 
testator,  quere  ^    Id. 

To  entitle  a  party  who  has  sustained  damages 
mder  302.  by  the  felonious  act  of  rioters,  to  re- 
quire, 4inder  7  &  8  Geo.  4,  c.  31,  s.  8,  the  holding 
of  a  petty  sessions  for  hearing  and  determining 
his  claim  for  compensation,  it  must  appear  that 
within  seven  days  after  the  commission  of  the 
offence  he  went  before  a  justice  of  the  peace,  and 
that  he  has  complied  with  all  the  other  requisites 
of  the  section.  Rex  v.  Bateman,  1  Nev.  &  M. 
718.  1231 

In  the  absence  of  an  affidavit  verifying  these 
facta,  (in  general  terms,)  the  court  wiu  not  grant 
a  mandamus  for  the  holding  of  a  petty  sessions 
for  each  pmpose.    Id. 


HUSBAND  AND  WIFE. 

MarriageJ] — A  marrisj^  by  banns,  published 
in  false  names,  is  not  void  under  4  Greo.  4,  c.  76, 
s.  22,  unless  both  parties  were  privy  to  such 
mispublication.  Rex  v.  Wroxton,  I  Nev.  &  M. 
712;  4  B.&  Adol.  641.  1233 

By  5  d&6  Will.  4,  c.  54,  all  marriages  h^ore 
ikt  pa$sing  of  the  aetf  between  persons  bang  wUhin 


the  •prohibited  degrees  of  affinity,  are  not  to  be  an- 
nulled for  that  cause  by  any  sentence  of  the  EccU- 
siasticai  Court,  unless  pronounced  in  a  suit  depend- 
ing at  the  time  of  the  passing  of  the  act.  1233 

By  S.2,  all  such  marriages  hereafter  celebrated 
between  persons  within  the  prohibited  degrees  of 
consanguinity  and  affinity  are  to  be  absolutely  void. 
Id. 

The  registry  of  a  marriage  is  evidence  between 
strangers  of  the  time  of  the  marria^.  Doe  d. 
WoUaston  v.  Barnes,  1  M.  &  Bob.  38^Denman. 

1236 

Where,  upon  a  question  as  to  the  validity  of  a 
marria^  between  A.  and  C,  it  appears  that  A.'s 
first  wife,  B.,  was  alive  in  a  distant  colony  26 
days  before  the  second  marriage,  the  sessions  or 
a  jury  are  justified  in  finding  the  second  marriage 
to  be  void.  Rex  v.  Harborne,  4  Nev.  &  M.  341 ; 
2  Adol.  (k,  Ellis,  540 ;  1  Har.  &  WoU.  36.     1236 

Neither  the  sessions,  nor  a  jury  trying  an 
issue  as  to  the  validity  of  such  a  marriage,  are 
bound  to  presume  the  death  of  B.,  in  favor 
of  the  innocence  of  A.,  in  contracting  a  second 
marriage  ;  but  mav  look  to  the  evidence  in  each 
particular  case.   Jd. 


Marriage  settlement^ — On  articles  under  seal, 
after  a  recital  of  an  intended  marriage  between 
B.  and  C,  A.,  (the  father  of  B.),  "  for  the  support 
and  settlement  in  the  world  of  the  young  couple, 
freely  and  clearly  giveth  and  settleth  upon  B.  his 
lands  from  Michaelmas  next"  for  life,  remainder 
to  the  first  son  of  the  marriage,  "  and  so  on  suc- 
cessively,'* with  remainders  over :  this  is  a  cove- 
nant to  stand  seised,  and  not  an  executory  eon- 
tract.  Doe  d.  Jones  v.  Williams,  2  Nev.  &  M. 
602;  5  B.  &  Adol.  783.  1238 

B.  and  C.  have  issue,  E.  their  eldest  and  F. 
their  second  son ;  B.  dies,  then  E.  dies  :  F.  may 
enter,  as  in  his  remainder,  and  thereby  avoid 
a  fine  with  proclamations  levied  by  E.  and  B.  Id. 

By  a  marriage  settlement,  stock  was  assigned 
to  trustees,  upon  trust  to  pay  the  interest  and 
dividends  to  the  husband  for  life,  and  in  case  he 
should  survive  the  wife,  upon  trust  to  transfer 
the  said  stock  to  the  husbana,  "  his  executors,  ad- 
ministrators, or  assigns,  to  and  for  his  and  their 
own  use  and  benefit ;"  but  in  case  the  wife  should 
survive '  the  husband,  upon  trust  during  her  life 
to  pay  the  interest  and  dividends  as  she  should 
appoint,  and  afler  her  decease,  upon  trust  to 
transfer  the  stock  "  unto  the  executors  or  admin- 
istrators of  the  said  G.  M.  (the  husband)  to  and 
for  their  own  use  and  benefit.''  The  wife  sur- 
vived the  husband,  and  took  out  administration 
of  his  effects,  and  claimed  an  absolute  interest  in 
the  whole  corpus  of  the  stock : — Held,  that  she 
was  not  entitled.  Marshall  v.  Collettt,  1  T.  ^ 
Col.  232.  1238 


Husband's  Liabilities.] — An  officer  in  the  army, 
being  required  to  join  nis  regiment  in  the  East 
Indies,  left  his  wife  in  England,  and  settled  a 
certain  sum  upon  her,  which  was  regularly  paid  : 
•^Held,  in  an  action  by  a  tradesman  for  goods 
delivered  at  the  house  in  which  the  wife  was 


2503 


[HUSBAND  AND  WIFEl 


livings,  that  it  was  not  to  be  treated  aa  a  case  of 
separation,  but  that  the  questions  for  the  jury 
were,  Ist,  whether  the  goods  supplied  were  ne- 
cessaries, considering  the  condition  in  life  of  the 
hosband ;  2n6\j,  whether  the  sum  of  monej  set- 
tled was  sufficient ;  and  3dlj,  whether  it  was  or 
was  not  notorious  in  the  neighborhood  that  the 
wife  was  living  in  a  style  not  justified  by  the 
rank  of  her  husband;  and  the  jurj  having  u>und 
the  first  question  in  the  negative,  and  the  others 
in  the  affirmative,  it  was  held  that  their  verdict 
must  be  for  the  defendant.  Dennys  v.  Sergeant, 
6  C.  &  P.  41^— Bosanquet.  1242 

Where  a  wife  had  in  one  single  instance 
bought  goods,  which  were  delivered  at  the  lodg- 
ings of  her  mother,  without  her  husband's  know- 
ledge, but  for  which  he  subsequently  paid: — 
Held,  in  an  action  for  other  goods,  also  bought 
by  the  wife  from  the  same  tradesman,  and  de- 
livered at  the  lodgings  of  tlie  mother,  but  at  a 
different  place,  that  evidence  of  the  facts  was  pro- 
per to  be  left  to  the  jury,  to  show  an  agency  in 
the  wife,  and  a  sanction  of  her  dealings  by  her 
husband;  and  the   jury  having  found  for   the 

flaintiff,  the  Court  refused  to  disturb  the  verdict, 
ilmer  v.  Lynn,  4  Nev.  &  M.  559 ;  1  Har.  6l  Woll. 
59.  1242 

Qucre,  if  in  an  action  against  a  husband  lor 
goods  supplied  to  his  wife,  it  is  necessary  to 
plead  specially  the  adultery  of  the  wife.  Symes 
V.  GoodfeUow,  4  Dowl.  P.  C.  642 ;  2  fiing.  N.  R. 
532 ;  2  Scott,  769.  1240 

Defendant  pleaded  non  assumpsit  to  an  action 
for  the  board  and  lodging  of  his  wife ;  an  arbi- 
trator, to  whom  the  cause  was  referred,  admitted 
evidence  of  the  wife's  adultery,  and  decided 
against  the  plaintiff.  The  court  refused  to  set 
aside  the  award.  Id. 

It  is  competent  to  a  jury  to  infer  agency  in  a 
wife  to  accept  a  notice  with  respect  to  a  particu- 
lar transaction  in  her  husband's  trade,  from  the 
circumstance  of  her  being  seen  twice  in  his 
counting-house,  appearing  to  conduct  his  busi- 
ness wiUi  reference  to  the  transaction  in  question, 
and  on  one  of  these  occssions  giving  directions 

Plummer  v.  Sells,  3  Nev.  &  M. 


to  the  foreman. 
422. 


1243 


A.,  who  kept  a  fruiterer's  shop,  in  the  year 
1824,  became  bankrupt,  but  did  not  surrender  to 
his  commission,  and  from  that  time  to  the  year 
1833,  the  business  was  carried  on  by  A.'s  wife. 
Fruit  was  supplied  to  her  between  the  years  18!^ 
and  1832,  to  an  amount  exceeding  266/.,  and 
evidence  was  given  that  A.  was  seen  in  London 
a  few  times  between  1824  and  1833,  and  was 
arrested  at  the  shop  in  1833,  and  that  he  attended 
the  marriage  of  two  of  his  daughters  at  Mary-le- 
bone  church : — Held,  that  proof  of  these  tacts 
was  evidence  to  go  to  the  iary,  to  show  that 
A.'s  wife  acted  as  uie  agent  oi  A.,  so  as  to  charge 
him  with  the  price  of  the  firuit,  although  it  might 
not  be  sufficient  to  charge  him  with  neces- 
saries supplied  to  his  wife.  Smallpiece  v.  Dawes, 
7  C.  &  P.  40— Parke.  1243 

Wife's  Property.'] — A  husband  is  entitled  to 
the  personal  property  of  his  wife,  which  she  has 


acquired  by  living  apart  from  him  in  adnlterr. 
Agar  V.  Blethyn,  2  C.  M.  4t  R.  699 ;  1  TVr.  A  G. 
m.  1244 

A  woman  living  apart  from  her  husband  ae- 
quired  a  sum  of  money,  which  she  deposited  in  a 
bank.  She  married  another  man,  and  on  that 
account  the  mone^  was  vested 'in  trustees  for  the 
benefit  of  herself'^and  her  illegitimate  children. 
She  was  afterwards  tried,  convicted,  and  execut- 
ed for  murder.  The  trustees  expended  a  con- 
siderable sum  in  her  defence,  and  made  an  appli- 
cation to  the  bankers  for  the  money  so  deposited, 
but  it  appeared  that  such  an  application  was  not 
made  bona  fide  in  execution  of^  the  trusts  of  the 
settlement  The  first  husband  claimed  the  mon- 
ey, and  the  parties  having  all  been  brought  into 
court  by  an  interpleader  rule,  an  issue  wss  di- 
rected to  try  whether  he  was  entitled  to  it,  in 
which  he  recovered.  The  court  refused  to  allow 
the  trustees  their  costs  out  of  the  fund,  and  di- 
rected that  the  costs  of  the  bankers  should  be 
paid  by  the  plaintiff  (the  husband)  to  be  repaid 
to  him  by  the  trustees.    Id. 

Where  a  married  woman  having  separate  estate, 
and  living  apart  from  her  husband,  employed  a 
solicitor  in  various  transactions,  and  promised 
by  letters  to  pay  him,  but  without  referring  to 
her  separate  estate,  it  was  held  that  her  separate 
estate  was  liable  to  the  payment  of  the  solicitor's 
bill  of  costs.  Murray  v.  Barlee,  3  Mylne  &.  Keen, 
209.  1244 

Semble,  that  the  separate  estate  of  a  feme 
covert  is  liable  in  equity  to  her  general  engage- 
ments, as  well  upon  an  implied  undertaking  as 
by  a  written  obligation.     Id. 

Under  3^4  Will.  4,  c.  74,  ss.  77,  91,  a  (feme 
covert,  when  her  husband  has  shsconded,  and  has 
not  been  heard  of  for  some  time,  may  pass  a  con- 
tingent life  interest  in  freehold  property.  Ex 
parte  Gill,  1  Bing.  N.  R.  168.  1244 

Motion  under  the3d&4  Will.  4,  c.  74,  s.91, 
to  dispense  with  tlie  concurrence  of  the  husband 
to  11  disposition  by  the  wife  of  lands,  &c.,  to  which 
the  latter  is  entitled  in  her  own  right.  £x  parte 
Thomas,  4  M.  d&  Scott,  331.  1245 

Rents  devised  to  a  female  durante  viduitate 
do  not  pass  over  to  the  remainder-man  upon  her 
cohabiting  with  one  who,  under  an  illegal  mar- 
riage, holds  himself  out  as  her  husband.  Allen  v. 
Wood,  4  M.  &  Scott,  510 ;  1  Bing.  N.  R.  8.  1245 

And  the  party  who  thus  holds  himself  out  is 
not,  by  so  doing,  estopped  to  show  the  invalidity 
of  the  marriage.     Id. 

A  msrried  woman  being  entitled  ander  a  will 
to  stock  and  cash,  forming  part  of  a  residue,  her 
husband  wrote  to  one  of  the  executors  requesting 
that  the  stock  should  be  transferred  into  the 
names  of  certain  trustees,  for  the  wife's  separate 
use,  and  that  the  cash  should  be  paid  to  him- 
self These  requests  were  complied  with. 
The  husband  employed  part  of  the  cash  in  in- 
creasing the  amount  of  the  stock.  He  after- 
wards became  bankrupt  and  died  :— Held,  that 
the  stock  transferred  by  the  executors  was  not 
reduced  into  possession  by  the  husband,  and, 
therefore,  belonged  to  the  wife  by  survivorship, 


[HUSBAND  AND  WIFE] 


2503 


but  that  the  awiffnees  under  the  bankruptcy 
were  entitled  to  the  increase  made  by  the  hus- 
band.   Kyland  v.  Smith,  1  Mylne  &  Craig,  53. 

1245 

PrimUges  of  Wife.'] — A  married  woman  who 
has  put  her  name  to  a  bill  of  exchange  as  drawer, 
and  is  arrested  upon  it,  will  not  be  discharged  on 
motion.  Walsh  v.  Gibbs,  4  Dowl.  P.  C.  683.  1246 

Costs  of  an  application  to  discharge  defendant 
out  of  custody  on  the  ground  of  coverture  are 
not  costs  in  the  cause.  Mummery  v.  Campbell,  4 
M.  &.  Scott,  379;  10  fiing.  511  ;  2  Dowl.  P.  C. 
798.  1247 

Separatum,] — By  a  deed  dated  in  liB17,  after 
reciting  that  disputes  had  existed  between  W., 
and  £.  his  wife,  and  that  they  had  been  on  the 
point  of  separation,  it  was  witnessed,  that,  in  con- 
sideration that  the  wife  had  consented  to  cohabit 
with  the  husband,  he  had  covenanted  with  S.  (a 
trustee)  to  convey  estates  to  his  use,  ^c.  for 
ninety-nine  years,  Slc.  The  trusts  of  this  term 
were,  that  in  case  the  wife  should  find  herself 
compelled,  hy  a  renewal  of  the  disputes,  to  cease 
to  cohabit  with  her  husband,  or  live  apart  from 
him,  that  a  sufficient  annuity  for  her  separate 
maintenance  should  be  raised  out  of  the  rents, 
or  by  sale  or  mortgrage  of  the  term ;  and  in 
that  event  the  husband  agreed  to  execute 
articles  of  separation.  The  deed  contained  no 
covenant  by  the  trustee  indemnifying  the  hus- 
band against  the  debts  of  the  wife.  Afler  the 
execution  of  this  deed,  the  husband  and  wife 
continued  to  live  together.  By  an  indenture  in 
1818,  made  between  the  husband  and  wife,  and 
tnisteeSf  after  reciting  that  the  husband  at  the 
desire  of  the  wife  had  agreed  to  live  separate  and 
apart  from  her,  and  to  allow  her  a  separate  main- 
tenance, the  husband  demised  the  estate  to  trus- 
tees for  a  term  to  raise  provisions  for  the  wife 
and  an  infant  daughter ;  and  the  husband  cove- 
nanted that  the  wile  might  live  separate  and  apart 
from  him,  and  free  from  his  authority  and  control, 
See.  This  deed  contained  n3  indemnity  against 
debts.  The  parties  continued  to  live  in  the  same 
house,  although  they  slept  in  separate  rooms,  and 
met  at  board,  and  appeared  in  the  world  as  man 
and  wife,  until  June,  18l9,  when  they  finally 
separated.  In  1^22,  the  trustees  in  the  deed  of 
1818  distrained  upon  the  tenants  of  the  land 
charged  with  the  annuity  to  the  wife.  Upon 
bill  nJed  in  equity,  and  appeal,  held,  that  the 
deeds  were  void ;  the  first,  as  providing  for  a 
prospective  separation;  and  the  second,  because 
there  was  a  reconciliation.  Westmeath  (Marquis) 
9.  SaUsbnry  (Marquis),  5  Bligh,  N.  8.  3^.    1249 

Where  a  husband  and  wife  lived  separate,  and 
an  action  was  brought  by  the  wife  for  a  debt  due 
to  herself  in  the  name  of  the  husband  and  wife, 
without  the  husband's  authority,  the  court,  on 
application,  ordered  proceedings  to  be  stayed 
nntil  an  indemnity  was  given  to  the  husband. 
Morgan  v,  Thomas,  2  C.  £  M.  388;  2  Dowl.  P. 
C.3&.  1250 

On  giving  such  indemnity,  the  wife  is  at  li- 
berty to  go  on  in  the  husband's  name.  Id. 


Actions.] — Action  by  husband  and  wife,  join- 
der of  wife.  Nurse  v.  Wills,  1  Nev.  &  M.  765; 
4  B.  &  Adol.  739.  1251 

In  1810  the  defendant's  wife  died  seised  of  cer- 
tain freehold,  with  which  was  intermixed  certain 
copyhold,  to  which  she  had  been  admitted  in 
1804.  She  left  surviving  her  the  defendant  and 
an  only  daughter,  who  was  shortly  after  admitted 
to  the  copyhold  and  married  in  1815.  The  de- 
fendant remained  in  possession  of  the*  freehold 
ever  since,  as  tenant  by  curtesy,  and  also  of  the 
copyhold  ever  since,  letting  them  both  from  time 
to  lime  together  at  an  entire  rent,  and  never  re- 
cognising any  right  in  his  daughter  or  her  hus- 
band to  either  copyhold  or  lent.  No  title  was 
proved,  except  from  tbe  court  rolls  of  the  manor. 
It  was  insisted  that  the  defendant's  possession 
must  be  taken  to  have  continued  for  the  protec- 
tion of  his  daughter's  rights,  and  that  he  was 
therefore  her  agent  for  receipt  of  the  rent  of  the 
copyhold,  liable  to  an  action  by  her  husband  to 
recover  it  as  money  had  and  received  to  his  use : 
— Held,  that  the  husband  could  not  maintain  an 
action  against  the  defendant  without  proving  such 
an  asrency,  or  some  recognition  by  him  of  his 
daughter's  right,  so  as  to  establish  a  privity  be- 
tween the  plam tiff  and  defendant,  and  avoid  Uie 
question  of  title,  which  would  otherwise  have 
arisen.  Clarance  v.  Marshall,  4  Tyr.  147 ;  2  C. 
^  M.  495.  1251 

Semble,  the  husband  might  sue  alone.  Id. 

To  a  plea  of  coverture,  replication  that  the 
husband  was  an  alien,  not  a  subject  of  this  coun- 
try by  naturalization  or  otherwise,  and  at  the 
time  of  the  contract  residing  in  France ;  that  the 
defendant  lived  in  this  kingdom  separate  from 
her  husband,  that  the  plaintiff  gave  no  credit  to 
her  husband,  but  contracted  with  her  as  a  feme 
sole  : — Held,  ill.  Stretton  v.  Busnach,  4  M.  & 
Scott,  678 ;  1  Bing.  N.  R.  139.  1252 

To  a  declaration  against  husband  and  wife  for 
a  debt  due  from  the  wife  before  coverture,  the 
husband's  discharge  under  the  Insolvent  Act  is 
a  good  plea.  Lock  wood  v.  Salter,  5  B.  d&  Adol. 
303.  1253 

Qussre  whether  it  can  be  replied  that  the  wife 
had  separate  property  ?    Id. 

Where  an  action  is  brought  (without  the  au- 
thority of  the  husband)  in  the  name  of  husband 
and  wife,  for  an  assault  upon  the  latter,  the  hus- 
band will  be  entitled  to  stay  the  proceedings 
until  he  receives  an  indemnity  against  costs. 
Harrison  v.  Almond,  4  Dowl.  r.  C.  321 ;  1  Har. 
&  Woll.  519.  1255 


Crim.  Con.] — In  an  action  for  crim.  con.,  evi- 
dence may  be  given  in  reduction  of  damages  that 
the  wife,  before  the  criminal  intercourse,  had  com- 
plained of  her  husband's  treatment  of  her.  Win- 
ter V,  Wroot,  1   M.  dit  Rob.  404--Lyndhur8t. 

1254 

In  an  action  for  crim.  con.,  evidence  on 
the  nart  of  the  plaintiff  to  show  the  amount 
of  the  defendant's  property  is  not  admis- 
sible ;  but,  in  an  action  for  a  breach  of  promise 


2504 


[HUSBAND  AND  WIFE—IMPROVEMENT] 


of  mariiaffe,  it  is  otherwise.    James  v.  Bnddmg- 
ton,  6  C.  d(  P.  589— Aldenon.  1254 

if,  in  an  action  for  adultery,  it  appear  that  the 
wife  has  died  since  the  coramencement  of  the 
action,  the  jarj  should  ^tre  damages  for  the  loss 
of  the  society  of  the  wife  from  the  time  of  the 
discovery  of  the  adultery  to  the  time  of  4he 
wife's  death ;  and  also  for  the  shock  to  the  feel- 
ings of  the  husband ;  and  this  is  so,  although  it 
appear  there  was  no  suspicion  of  the  wife's  infi- 
delity till  she  was  on  her  death-bed,  and  though 
the  husband  continued  to  treat  her  kindly  up  to 
the  time  of  her  death.  Wilton  r.  Webster,  7  C. 
dt  P.  1U8— Coleridge.  1254 

Letters  written  by  the  wife  to  her  husband, 
are  not  reoeivable  in  evidence  in  an  action  for 
criiQ.  eon.,  if  writien  at  a  time  when  at  least  an 
atteiD^bt  4t  adultery  had  been  made  by  the  defen- 
idant;  i>«4  a  draft,  in  the  defendant's  handwriting, 
of  a  letter  written  by  the  wife,  in  answer  to  a 
letter  of  Mrs.  B.  to  the  wife,  is  receivable  in  evi- 
dence, as  is  the  letter  of  Mrs.  B.  Id. 

In  an  action  for  criminal  conversation,  where 
the  adultery  was  committed  on  board  a  ship  dur* 
in^  a  voyage,  a  witness  may  be  asked,  on  the  part 
ofue  plaintiff,  whether  the  wife  did  not  keep  a 
journal,  and  whether  she  stated  for  what  purpose 
she  kept  it.  Jones  v.  Thompson,  6  C  &  P.  415. 
— Tindal.  1254 

Dower.] — Dower  of  copyhold  lands.  Riddell  v. 
Jenner,  3  M.  A  Scott,  673 ;  10  Bing.  29.        1255 

^  In  a  writ  of  dower,  in  support  of  a  plea  of 
election  by  the  widow  to  take  an  annuity  secured 
to  her  by  deed  in  lieu  of  dower,  the  tenant  proved 
a  receipt  by  the  demandant,  after  issue  joined  and 
before  trial,  of  certain  dividends  mentioned  in 
the  deed  : — Held,  that  this,  standing  alone,  was 
not  sufficient  evidence  to  warrant  the  court  in 
holding  (afler  verdict  for  the  demandant)  that 
the  demandant  had  elected  to  take  the  annuity  in 
satisfaction  of  her  dower : — Held,  also,  that  an 
order  made  in  a  suit  in  equity  to  which  the  ten- 
ant was  no  party,  and  which  contained  a  proviso 
that  the  receipt  of  the  money  by  the  demandant 
should  be  without  prejudice  to  her  right  to 
dower,  was  admissible  in  evidence  to  show  quo- 
animo  she  received  it.  Slatter  v.  Slatter,  1  Scott, 
82.  1255 

Quiere  whether  a  court  of  law  can  properly 
take  cognizance  of  an  election  of  the  widow  to 
take  something  in  lieu  of  dower.  Id. 

A  fent^char^  expressed  to  be  for  a  jointure 
and  in  lieu  of  dower  and  thirds,  at  common  law 
does  not  bar  the  jointress  of  her  share  in  her 
husband's  undisposed  of  personal  estate.  Colleton 
V.  Garth,  6  Simon,  19.  1255 


IDENTITY. 

What  is  sufficient  proof  of  identity.  Corfield 
V.  Parsons,  1  C.  &  M.  730;  3  Tyr.  806.  1257 

If  a  carman  take  goods  to  the  house  of  L.,  not 
knowing  him,  and  ask  for  Mr.  L.  of  a  person 
whom  he  finds  in  the  house,  and  that  person  says, 


«<  1  am  Mr.  L.,"  this  is  prima  facie  evidence  that 
he  was  L.  Wdton v.  Edwards, 6  C.  SlP,  677— 
Lyndhurst  1257 


IMPROVEMENT. 

A  public  company  is  by  statute  empowered  to 
hold  lands  and  to  purchase  certain  scheduled 
messuages,  and  is  required  to  make  compensation 
by  a  particular  process  to  persons  ^^  damaged  or 
injured  by  or  in  the  taking  down  of  any  of  the 
messuages  or  buildings  to  be  taken  down  for  the 
purposes  or  otherwise  in  the  execution  of  the 
act."  The  company  purchased  a  house  not  men- 
tioned in  the  scnemile,  and  in  pulling  it  down 
injured  the  adjoining  house: — Held,  that  the 
tenant  of  the  adjoining  house  was  not  entitled  to 
compensation  by  the  process  provided  by  the  act. 
Rcz  r.  Hungerford  Market  Company,  3  Nev.  & 
M.  622 ;  1  Adol.  &,  EUis,  668.  1258 

A  company  for  effecting  improvements  in  a 
town  is  empowered  by  statute  to  take  certain 
lands,  &c.,  upon  giving  notice  and  making  com- 
pensation, the  amount  of  whiah  compensation,  if 
not  agreed  upon,  is  to  be  ascertained  by  a  jury  ; 
and  it  is  provided  that  in  case  the  jury  shall  as- 
sess the  damages  at  more  than  was  offered,  the 
company  shall  pay  **  the  costs  of  the  notices  and 
precepts,  and  costs  of  summoning  the  lurr  and 
witnesses,  and  also  of  the  inquest:" — Held,  that 
a  party  whose  property  was  assessed  at  more  than 
the  sum  offered  was  entitled  to  his  general  costs 
attending  the  trial,  but  not  to  the  expenses  ot 
surveying.  Rex  t.  York  (Justices),  3  Nev.  &  M. 
685 ;  1  Adol.  &  Ellis,  828.  1258 

Where  an  assessment  of  compensation  had 
been  made  to  a  claimant  under  the  3  &  4  Will.  4, 
c.  46,  (Greenwich  Railway  Act),  in  one  entire  sum, 
titid  he  was  possessed  of  a  leasehold  interest  as 
well  as  other  subjects  of  compensation,  the  court 
refused  an  application  on  behalf  of  the  company- 
for  another  assessment  to  be  made,  on  the  ground 
that  as  the  value  of  the  leasehold  property  was 
not  assessed  separatelv  according  to  the  act,  it 
could  not  be  known  what  would  be  the  proper  ad 
valorem  stamp  duty  to  be  affixed  to  the  deed  of 
assi^ment :  the  court  saying  that  the  difficulty 
would  be  obviated  by  putting  on  the  deed  a  stamp 
applicable  to  the  whole  sum  assessed,  and  <fi^- 
citing  all  the  circumstances  of  the  case.  In  re 
London  &,  Greenwich  Railway  (Company,  2 
Adol.  &  Ellis,  678 ;  4  Nev.  d&  M.  458;  1  Har.  A 
Woll.  81.  1258 

Bj  a  local  act,  a  company  are  empowered  to 
take  lands — ^with  an  exception  of  mines — ^fbr  a 
railway,  paying  the  value  of  the  lands  and  making 
compensation  for  damages  sustained  by  reason  of 
the  exerution  of  the  works,  and  for  damage,  loss, 
or  inconvenience  sustained  by  reason  of  the  exe- 
cution of  any  of  the  powers  of  the  act ;  such 
value  and  compensation  to  be  fixed  by  agreement 
or  assessed  by  a  jury : — mines  to  be  worked  by 
the  owner,  so  that  no  damage  be  thereby  done  to 
the  railway — and  in  case  of  damage  the  owner  to 
repair  it  at  his  own  expense,  or  the  company  to 
repair  in  case  of  neglect  or  refusal,  and  recover 
the  expenses  from  the  owner.    The  owner  of 


[IMPROVEMENT— INFANT] 


2505 


land  taken  by  the  company,  and  for  which  com- 
pensation is  paid,  cannot,  upon  afterwards  dis- 
covering that  a  mine,  to  which  he  is  entitled, 
cannotbe  worked  without  doin^  damage  to  the 
railway,  claim  further  compensation  in  respect  of 
the  loss  Busta'med  thereby.  Compensation  in 
respect  of  such  contingent  loss  should  have  been 
claimed  at  the  time  of  the  original  agrreement  or 
assessment.  Rex  v.  Leeds  &  Silhj  Railway  Com- 
pany, 5  Nev.  &  M.  246.  1258 

Whether,  where  an  act  for  making  canals,  &c., 
aathorizes  the  summoning  a  jury,  **  to  ascertain 
what  sum  and  sums  shau  be  paid  by  way  of 
recompense  either  for  the  damages  before  that 
time  sustained,  or  for  the  future  temporary  or 
perpetual  continuance  of  any  recurring  damages 
occasioned,  and  the  time  or  occasion  of  which 
shall  have  been  onl^  in  part  obviated,  repaired 
or  reinedied,  and  which  can  or  will  be  no  further 
remedied  or  repaired,*'  the  jury  can  assess  com- 
pensati(Hi  in  respect  of  prospective  damages, 
were ,  no  previous  damage  has  been  sustained, 
qusie.  Rex  v.  Yorkshire  W.  R.  (Justices),  3 
Nev.  &  M.  802 :  1  Adol.  &  Ellis,  563.        1258 

Where  a  statute  provides  that  a  water-works 
company  shall  make  compensation  for  damages 
done  in  executing  the  worksy  and  these  works  are 
xestrieted  to  a  particular  line,  damage  occasioned 
by  executing  the  prescribed  works  is  within  the 
proviso,  al&ough  the  property  injured  be  not 
within  the  line.  Rex  v.  Nottingham  Old  Water 
Works  Company,  5  Nev.  <&  M.  4^8.  1258 

And  semble,  that  the  act  would  protect  the 
company  from  any  action  at  law  for  the  injury. 
Id. 

Where  an  act  of  parliament  establishing  a 
railway  company  directs  that  the  money  to  be 
paid  for  lands  purchased  by  the  company  shall 
be  paid  into  the  bank,  until  the  same  shall,  upon 
petition,  be  applied  in  the  purchase  of  other 
lands ;  and  in  the  meantime, until  such  purchase 
can  be  made,  shall,  upon  application  to  the  court, 
be  invested  in  the  funds ;  and  that  the  expenses 
and  costs  attending  such  purchase  shall  be  paid 
by  the  company  : — Held,  that,  under  the  latter 
cUnse,  a  pwtv  applying  to  have  the  money  in- 
vested in  the  funds  is  not  entitled  to  the  costs  of 
the  application.  Ex  parte  Taylor,  1  Y.  &  Col. 
239.  1258 

Where  by  a  railway  act,  it  was  enacted  that  the 
monies  paid  into  court  by  the  company  for  lands 
purchased  by  them  should,  by  order  msde  upon 
the  petition  of  the  party  interested,  be  invested 
in  toe  purchase  of  other  lands  to  be  settled  to 
the  like  uses,  and  in  the  meantime  should,  by  an 
order  similarly  obtained,  be  invested  in  the  funds ; 
and  it  was  further  enacted,  that  the  court  might 
c»rder  the  expenses  of  such  purchases,  and  of  the 
investment  of  the  purchase  money  in  land  "  or 
other  disposition  of  the  same,"  to  be  paid  by  the 
company  : — Held,  that  the  company  were  liable 
to  pay  the  expenses  of  the  interim  investment  of 
the  money  in  the  funds.  Ex  parte  Onslow,  1  Y. 
&  C«^.  553.  1258 


INFANT. 

The  office  of  cbrk  of  the  peace  being  merely 
ministerial  may  be  held  by  an  infant.  Crosbie  v 
Hurley,  1  Alcock  &.  Napier,  431.  (/mA).      1259 

Contract  to  enter  into  partnership.  Corpe  v. 
Overton,  3  M.  &  Scott,  738;  10  Biug.  252.  1259 

If  a  father  make  to  a  son  under  age  an  abso- 
lute giil  of  an  article  of  dress  or  ornament,  e.  g- 
a  watch,  he  cannot  aflerwards,  without  that  son  s 
consent,  reclaim  the  gift.  Declarations  made  by 
a  testator  are  evidence  against  a  person  claiming 
in  the  character  of  his  administrator.  Smith  v. 
Smith,  7  C.  &  P.  401— Vaughan.  1259 

Where  an  infant  rented  a  house,  and  exerci^d 
bis  calling  therein  as  a  barber: — Held,  that  it 
was  properly  left  to  the  jury  to  decide  whether  it 
came  within  the  term  of  necessaries.  Semble, 
that  there  is  no  distinction  between  a  trade  carried 
on  by  a  minor,  and  his  occupation  in  a  manual 
employment,  and  that  he  is  not  liable  for  the 
rent  of  a  house  taken  for  either  purpose.  Lowe 
V.  Griffiths,  1  Scott,  458 ;  1  Hodges,  30.        1259 

If  a  person  of  full  age  orders  clothes,  however 
extravagantly  and  absurdly,  and  they  are  deli- 
vered to  him,  he  is  bound  to  pay  for  them ;  but 
with  a  minor  it  is  otherwise.  A  minor  is  only 
liable  for  necessaries  suitable  to  his  state  and  de- 
gree, and  the  jury  must  consider  not  only  whe- 
ther the  clothes  were  suitable  in  point  of  quality, 
but  also  in  point  of  quantity.  Burghart  v.  An- 
gerstein,  6  C.  <&  P.  690— Alderson.  1260 

If  a  minor  has  been  supplied  with  ten  coats 
by  another  tradesman,  and  immediately  after 
that,  the  plaintiff  supplies  him  with  another,  the 
plaintiff  will  not  be  entitled  to  be  paid  for  that 
other  coat,  as  it  was  unnecessary.    Id. 

If  a  minor  is  supplied  with  necessaries  suit- 
able to  his  estate  and  degree,  no  matter  from 
what  quarter,  a  tradesman  cannot  recover  for  any 
further  supply  made  to  the  minor  just  after.    la. 

In  an  action  for  the  price  of  clothes,  brought 
by  a  tailor  against  a  minor,  the  defendant  may 
go  into  evidence  to  show  that  he  had  all  the 
clothes  which  where  suitable  to  bis  estate  and  de- 
gree from  other  tailors ;  and  if  be  in  fact  had 
such  clothes  from  them,  it  makes  no  difierence 
that  he  has  not  paid  for  them,  or  even  that  he 
has  .successfully  defended  an  action  brought  by 
one  of  them  to  recover  the  price  of  the  clothes 
supplied  by  him.     Id. 

Where  an  infant  has  an  allowance  made  to 
him  by  his  guardians  for  his  support,  a  trades- 
man is  not  entitled  to  be  paid  for  articles  sup- 
plied to  the  infant  on  credit,  unless  he  can  make 
out,  that,  having  regard  to  the  infant* s  circum- 
stance and  station,  (which  he  is  bound  to  inquire 
into),  the  articles  were  necessaries.  Mortara  v. 
HaU,  6  Simon,  465.  1260 

A.,  a  minor,  had  held  a  commission  in  the 
army,  but  sold  it  by  reason  of  not  having  suffi- 
cient fortune  to  hold  it.  His  father  was  a  bene- 
ficed clergyman,  who  paid  various  sums  for  him 
during  his  minority,  and  gave  him  a  further  sum 
of  15002.  when  he  attained  the  age  of  twenty- 
one  years : — Held,  that  a  stanhope  was  not  ne- 


S506 


[INFANT— INFERIOR  COURT] 


cesaarj  for  him  while  a  minor,  u  being  snitable 
to  his  state  and  degree.  Charters  v.  Bayntan,  7 
C.  dt  P.  52— Gurney.  1260 

In  an  action  for  seduction  of  the  plaintiflTs 
daughter,  the  defendant  may  examine  witnesses 
to  prove  particular  acts  of  seinal  intercourse 
between  tiie  plaintilTs  daughter  and  those  wit* 
nesses,  who  may  each  be  asked  as  to  the  fact 
and  the  time  and  place  of  its  occurrence ;  but  if 
the  jury  are  of  opinion  that  the  defendant  had 
such  intercourse  with  the  plaintiff's  daughter  as 
caused  him  to  be  the  father  of  the  child,  the 
plaintiff  is  entitled  to  the  verdict ;  and  the  evi- 
dence of  her  unchastity  with  others  is  onlv  to 
be  considered  in  mitigation  of  damages.  Verry 
V.  Watkins,  7  C.  &  P.  306— Alderson.  12^ 

To  charge  a  father  with  the  amount  of  clothes 
supplied  to  his  son,  it  is  essential  that  the  clothes 
should  have  been  supplied  with  the  assent  or  by 
the  authority  of  his  father ;  and  the  father  is  the 
person  to  judge  what  is  proper  for  his  son.  Rolfe 
V.  Abbott,  6  C.  db  P.  286— Gurney.  1264 

The  mother  of  an  illegitimate  child  has  no 
power  to  appoint  a  guardian  for  it  under  stat.  12 
Car.  2,  c.  24,  s.  8;  therefore  the  Court  of  K.  B. 
will  not  on  habeas  corpus  order  an  illegitimate 
child  to  be  delivered  up  hy  a  person  to  whose 
care  it  had  been  committed  by  the  mother,  into 
the  custody  of>a  person  who  was  appointed  guar- 
dian and  devisee  in  trust  for  its  benefit  by  the 
will  of  the  mother.  £z  parte  Glover,  4  Dowl. 
P.  C.  291 ;  1  Har.  &  Woll.  508.  1264 

The  Court  of  K.  B.  will  grant  a  rule  absolute 
in  the  first  instance  to  bring  up  the  body  of  an 
in&nt,  if  it  is  probable  that  it  may  be  concealed. 
Id. 

Where  a  person  is  appointed  guardian  under  a 
will  not  duly  executed  for  that  purpose,  Uie  Court 
will  appoint  him  without  a  reference.  Hall  v. 
Storer,  1  Y.  &  Col.  556.  1264 

The  Court  will  not  discharge  an  in&nt,  in  an 
action  of  slander,  from  execution  for  damages 
and  costs,  although  the  Insolvent  Court  has  re- 
fused to  relieve  him,  because,  on  account  of  his 
io&ncy,  he  was  unable  to  make  the  assignment 
of  property  required  by  the  7  Geo.  4,  c.  57.  De- 
fries  V.  Oavies,  3  Dowl.  P.  C.  629;  1  Scott,  594 ; 
1  Bing.  N.  R.  692;  1  Hodges,  103.  1264 

Quflsre,  whether  an  infant  plaintiff,  betnff  non- 
suited, is  liable  to  be  taken  in  execution  tor  the 
costs  of  the  nonsuit?  Dow  v.  Clark,  2  Dowl.  P. 
C.  302;  IC.&M.  860.  1264 

If  an  infant  appear  in  person,  not  by  ^ardian 
or  prochein  ami,  it  is  error  in  fact  Castledine 
V.  Mundy,  1  Nev.  &  M.  635;  4  B.  &  Adol.  90. 

1264 

Such  error  may  be  uraigned  in  the  court  by 
which  the  judgment  is  pronounced.    Id. 

So  it  may  be  assigned  in  a  court  of  error,  ex- 
cept Dom.  Proc.,  and  (before  1  Will.  4,  c.  70)  the 
court  of  error  constituted  by  27  Eliz.  c.  8.    Id. 

If  an  infant  assigns,  by  attorney,  for  error 
coram  yobis,  that  he  nas  improperly  appeared  in 
the  action  by  attorney  instead  of  guardian,  it  is 


not  a  mere  irregularity,  but  a  ground  of  error : 
still  the  Court  wiU,  on  application,  set  the  as- 
signment aside,  and  allow  the  plaintiff  in  error  to 
assign  by  guardian.  Beven  v.  Cheshire,  3  Dowl. 
P.  C.  70.  1264 

An  appearance  entered  by  a  plaintiff  for  an  in- 
fant defendant  by  an  attorney,  is  irregular,  and 
the  subsequent  proceedings  may  be  set  ande 
without  costs,  even  after  a  writ  of  inquiry  ex- 
ecuted. Nunn  V.  Curtis,  4  Dowl.  P.  C.  729.  1264 

A  motion,  on  behalf  of  an  infant  defendant,  to 
set  aside  irregular  proceedings,  may  be  made  by 
his  father  or  an  attorney ;  but  it  must  appear  to 
be  made  with  the  consent  of  the  defendant    Id. 


INTERIOR  COURT. 

Courts  qf  Requests.'] — ^A  barrister  is  not  exempt^ 
ed  from  liability  to  be  sued  in  the  London  Court 
of  Requests,  under  the  39  6lAQ  Geo.  3,  c  104. 
Therefore,  where  the  defendant,  a  barrister,  hav- 
ing chambers  in  the  Temple,  was  sued^  in  the 
Court  of  C.  P.  for  a  claim  of  62.  65.,  which  waa 
reduced  by  the  verdict  to  4/.  4«.,  the  Court  of 
C.  P.  permitted  him  to  enter  a'suggestion  on  the 
roll  to  deprive  the  plaintiff  of  costs.  Wettenhall 
V.  Wakefield,  3  M.  &  Scot^  805;  10  Bing.  335  ; 
2  Dowl.  P.  C.  759.  1265 

An  action  for  not  using  a  farm  in  a  tenant- 
like manner  is  not  within  the  meaning  of  the 
46  Geo.  3,  c.  66,  (the  Isle  of  Wight  Court  of 
Requests  Act).  Wittam  e.  Urry,  2  Dowl.  P.  C. 
543.  1268 

The  jurisdiction  of  the  Westminster  Court  of 
Requests  is  confined  to  cases  df  debt,  and  it  has 
no  power  to  inquire  into  a  matter  which  is  the 
subject  of  an  action  on  the  case  for  unliquidated 
damages.  Soames  v.  Rawlings,  2  C.  M.  A  R. 
744 ;  4  Dowl.  P.  C.  501 ;  1  Tyr.  d&  G.  46;  1  Gale, 
299.  1268 

But  in  actions  for  ascertained  debts,  not  ex- 
ceeding the  fixed  amount,  they  may  proceed  as 
well  by  the  rules  of  equity  as  law.    Id. 

The  London  Court  of  Requests'  acts  confer 
jurisdiction  over  liquidated  demands,  though 
there  are  special  counts,  but  not  in  cases  where 
unliquidated  damages  are  sought  to  be  recover- 
ed, as  e.  g.,  on  a  count  for  not  returning  gooda 
unsold.  Postan  v.  Masser  or  Massaer,  4  Tyr. 
999 ;  2  C.  M.  dE,  R.  683.  And  see  Mansfield  v. 
Brearey,  1  Adol.  &  Ellis,  347;  3  Nev.  A;  M.  471. 

1268 

An  action  for  the  use  and  occupation  of  **  fur- 
nished" lodgings  is  within  sec.  13  of  the  39  db 
40  Geo.  3,  c.  104,  (the  London  Court  of  Re- 

auests'  Act),  and  therefore  it  may  be  brought  in 
be  superior  courts  without  the  plaintiff's  mcur- 
ring  the  penalties  provided  in  sec.  12.  Kidd  17. 
Mason,  3  Dowl.  P.  C.  96.  1268 

A  court  of  reaueste'  act  provided,  that  a  de- 
fendant, sued  elsewhere  for  a  cause  of  action 
within  the  cognizance  of  that  court,  might  plead 
the  act ;  and  if  it  should  appear  by  the  verdict 
that  the  cause  was  within  the  cognisance  of  that 


[INFERIOR  COURT] 


2607 


tonri,  then  the  plaintiff  Bhould  be  nonsuit,  if  the 
judge  or  jud^s  who  should  try  the  cause  should 
not,  in  open  court,  certify,  as  by  the  act  was  di- 
rected. In  an  action  brought  in  a  local  court  of 
record,  the  defendant  pleaded  the  Court  of  Re- 
quests' Act,  and  the  cause  appeared  to  be  within 
the  cognizance  of  that  court.  The  judges  of  the 
court  of  record  were  the  mayor  and  TraulifTs  of 
the  town,  and  they  were  assisted,  at  the  trial,  by 
the  recorder,  who  was  not  a  judge  of  the  court  of 
record.  A  certificate  was  given,  pursuant  to  the 
act,  but  by  the  recorder  alone  : — Held,  that  this 
did  not  satisfy  the  act.  France  v.  Parry,  1  Adol. 
ft.  Ellis,  615.  1265 

On  error  brought,  the  entry  on  the  proceed- 
ings sent  up  to  the  court  was,  simply,  that  it 
appeared  by  the  certificate  of  the  Court  of  Re- 
cord, that,  &c.,  (without  stating  that  the  certifi- 
cate was  made  in  open  court,  or  by  whom  it  was 
made,  except  as  above) ;  but  it  was  suggested  on 
affidavit,  that  the  certificate  had  really  been  made 
in  open  court  by  the  recorder ;  that  the  proceed- 
ings sent  up  were  merely  a  transcript  of  the  record 
which  remained  below ;  and  that  the  record  of 
the  court  below  had  been  amended  there  by  en- 
tering the  certificate,  as  having  been  made  by 
the  judges  who  tried  the  cause,  in  open  court ; 
and  it  was  moved  that  this  court  should  amend 
the  proceedings  in  conformity  with  the  alterations 
said  to  have  oeen  made  below.  This  court  re- 
insed  the  amendment,  first,  because  they  could 
not  take  notice  that  they  had  only  a  transcript 
before  them,  so  as  to  be  at  liberty  to  amend,  in 
conformity  with  the  record  below;  secondly,  be- 
cause, if  Uie  document  before  them  were  to  be 
considered  as  a  record,  they  had  no  power  to 
make  the  amendment,  it  being  contrary  to  the 
&ctB  as  to  the  person  certifying.  Id. 


Eedesiastieal  Courts.'] — A  defendant  cited  in 
the  Ecclesiastical  Court  must  appear  before  he 
can  apply  for  a  prohibition.  Ex  parte  Law,  2 
Dowl.  P.  C.  568 ;  2  Adol.  &.  Ellis,  45 :  S.  C  nom. 
Rex  V.  Mills,  4  Nev.  &  M.  7.  1273 

A  testator  died  indebted  to  an  attorney  for  law 
expenses,  including  the  preparation  of'^his  will, 
which  was  lefl  in  the  custody  of  the  attorney ; 
the  Prerogative  Court  having  cited  the  attorney 
(at  the  instance  of  the  personal  representatives) 
to  bring  in  the  will,  and  leave  in  the  registry  of 
that  court,  the  Court  of  K.  B.  refused,  in  this 
stage  of  the  proceedings,  to  interfere  bj  prohibi- 
tion, on  the  ground  of  the  attorney's  hen  on  the 
will.     Id. 

A  prohibition  to  an  ecclesiastical  court,  in  a 
cause  which  is  clearly  of  ecclesiastical  cogni- 
zance, does  not  lie  where  there  has  been  an  irre- 
gularity in  the  practice.  Ex  parte  Smyth,  5  Nev. 
&  M.  145 ;  1  Har.  <&  Woll.  417.  1273 

The  only  instances  in  which  the  temporal 
courts  can  interfere  to  prohibit  any  particular 
proceeding  in  an  ecclesiastical  suit,  are  those  in 
which  something  is  done  contrary  to  the  general 
law  of  the  land,  or  manifestly  out  of  the  jurisdic- 
tion of  the  court.    Id. 

Vol.  IV.  30 


Semble,  that  the  court  of  Exchequer  has  power 
to  issue  a  writ  of  prohibition  to  the  judicial  com- 
mittee of  the  privy  council,  if  they  exceed  their 
jurisdiction  ;  but  it  cannot  issue  for  that  which  is 
a  subject  of  appeal.  Ex  parte  Smyth,  2  C.  M.  d^ 
R.  74d ;  1  Gale,  274.  1273 

The  privy  council,  on  an  appeal  from  the 
Arches  Court  to  the  king  in  council,  may  decide 
the  matter  of  appeal,  and  retain  the  principal 
cause,  and  make  an  original  order  therein.     Id. 

In  a  suit  for  a  divorce,  in  the  Consistory  court 
in  London,  the  defendant  put  in  an  answer  under 
protest,  which  protest  was  afterwards  over-ruled  ; 
but  the  Court  refused  to  compel  the  defendant  to 
appear  absolutely,  or  to  admit  the  plaintiff's  libel. 
The  plaintiff  appealed  to  the  court  of  Arches 
from  that  decision,  but  not  in  due  time  ;  and  the 
appeal  was  dismissed.  The  plaintiff  afterwards 
applied  to  the  Consistory  court,  to  be  allowed  to 
correct  her  libel ;  but  the  Court  refused  the  appli- 
cation. The  plaintiff  appealed  from  the  decision 
to  the  court  or  Arches,  who  pronounced  in  favor 
of  the  appeal.  From  that  decree  the  defendant 
appealed  to  the  king  in  council,  praying  that  it 
might  be  reversed,  and  the  cause  retained,  and 
he  be  dismissed  from  all  observance  of  justice 
therein.  The  plaintiff  also  prayed  that  the  cause 
might  be  retained.  The  appeal  was  referred  to 
the  judicial  committee  of  the  privv  council,  who 
reported  in  favor  of  the  appeal,  that  the  decree 
ought  to  be  reversed,  and  tne  principal  cause  re- 
tained, but  the  defendant  should  appear  absolute- 
ly. The  report  was  confirmed,  and  the  order  for 
the  appearance  was  made  and  served  upon  the 
defendant.  On  a  motion  for  a  prohibition  to  the 
judicial  committee  : — Held,  that,  as  the  judicial 
committee  had  jurisdiction  over  the  cause,  and 
they  have  retained  the  cause,  this  must  be  taken 
to  be  a  step  taken  in  the  cause  ;  and,  if  wrong, 
that  it  was  a  matter  of  practice,  over  which  this 
Court  had  no  jurisdiction.     Id. 

Semble,  pleas  may  now  be  pleaded  in  an  action 
of  prohibition.  Hall  v.  Maule,  5  Nev.  &.  M. 
455 ;  1  Har.  &  Woll.  583.  1273 

It  is  competent  to  the  court  of  Chancery  to 
issue  several  concurrent  writs  de  contumac^  ca- 
piendo. Rex  V.  Blake,  2  Nev.  &  M.  312 ;  4  B. 
<&  Adol.  355.  1274 

A  contumace  capiendo  may  be  returnable  on 
or  after  the  essoign  day  of  the  term.    Id. 

Semble,  that  it  ought  to  appear  upon  the  war- 
rant granted  upon  a  writ  of  contumacy  capiendo, 
that  Uie  suit  was  for  a  subject  matter  which  was 
exclusively  within  the  jurisdiction  of  the  Spiri- 
tual Court ;  therefore,  where  a  warrant  merely 
stated  that  the  suit  was  for  slander,  without  show- 
ing that  it  was  a  slander  of  which  the  Spiritual 
Court  alone  had  cognizance,  the  Court  granted 
a  rule  to  show  cause  why  the  party  should  not 
be  discharged  ou(  of  custoay.  In  re  Grale,  1  Har. 
&  Woll.  S.  1274 

Where  a  party  in  custody  under  writs  of  con- 
tumacy capiendo  applied  for  a  rule  to  show  cause 
why  they  should  not  be  set  aside  for  irregularity, 
with  costs ;  and  after  the  rule  obtained,  also  ap- 


2506 


[INFERIOR  COURT— INNKEEPER] 


plied  to  the  Cbuicellor,  who  decided  that  one  of 
them  wu  bad,  and  ordered  the  othen  to  itaod 
€»Ter  for  argument,  the  court,  on  showing  canae, 
enlarged  the  rale,  with  a  stay  of  proceedings. 
Rex  9.  Ricketts,  1  Har.  A  WoU.  64.  11^4 

Cotmtu  Courts.'] — Plea,  in  bar  to  an  action  of 
debt  for  20^.,  that  tlie  debt  did  not  amoont  to  40*., 
and  that  the  defendant,  before  and  at  the  com- 
mencement of  the  8ait,>re«ded  and  still  resides 
in  Middlesex,  and,  from  the  time  of  the  accraing 
of  the  debt,  was,  and  still  is,  liable  to  be  sum- 
moned in  the  coonty  court  of  Middlesex : — Held, 
that  this  plea  was  had  under  the  (bounty  Court 
Act,  (23  Geo.  2,  c.  33,  s.  19),  for  not  negativing 
that  tiie  freehold  or  title  to  land,  or  an  act  of 
bankruptcy,  piincipally  came  in  question.  San- 
dall  V.  Bennett,  4  Nev.  &  M.  89 ;  2  ^doL  Sl  EUis, 
204 ;  3  Dowl.  P.  C.  294  1274 

Semble,  that  a  plea  in  bar,  containing  such 
negative  averments,  would  not  be  good  under  23 
Geo.  2,  c.  33.  Id. 

Semble  also,  that  generally  a  plea  in  bar,  that 
the  debt  is  under  45f.,  and  recoverable  in  a 
county  court,  could  not  be  pleaded  under  the  Sta- 
tute of  Gloucester  (6  £dw.  1,  c.  8).    Id. 

After  a  judgment  in  the  county  court  has  been 
set  aside,  'though  not  at  the  instance  of  the  par- 
ties, the  court  will  not  compel  the  sheriff  to  issue 
execution  on  it  Eldridge  v.  Fletcher,  3  Dowl. 
P.C.588.  1274 

Remowd  of  Causes. 1 — Where  a  defendant  suf- 
fered jadraent  to  ^  by  default  in  the  Palace 
Court : — Held,  that  it  was  too  late,  after  the  jury 
were  sworn  on  the  writ  of  inquiry,  to  remove  tfaie 
cause  by  habeas  corpus.  Smith  v.  Stocking,  1 
Har.  &  WoU.  194.  1276 

Since  21  Jac.  1,  c.  23,  s.  3,  the  Court  of  Excbe- 

?iier  has  no  power  to  remove  a  cause  out  of  the 
alace  Court,  after  interlocutory  judgment  there, 
except  by  writ  of  error.  Lawes  v,  Hutchinson,  5 
Tyr.  236.  1276 

If  a  writ  of  habeas  corpus,  to  remove  a  cause 
from  the  Palace  court,  wherein  judgment  has 
been  suffered  by  default,  is  not  delivered  until 
after  the  jury  have  assessed  the  damages  on  the 
writ  of  inquiry,  the  court  will  issue  a  procedendo. 
Smith  V.  Stirling,  3  Dowl.  P.  C.  609.  1276 


INJUNCTION. 

A  foreign  judgment  being  equally  conclusive 
against  the  debtor  aa  an  English  judgment,  may 
be  set  aside  in  equity  for  fraud.  Bowes  v.  Orr,  1 
Y.  ic  Col.  464.  1279 

A  court  of  equity  has  no  jurisdiction  to  relieve 
a  plaintiff  against  a  jadgment  at  law,  where  the 
case  in  equity  proceeds  upon  a  ground  equally 
available  at  law  and  in  equity  :  but  the  plaintiff 
must  establish  some  special  equitable  ground  for 
relief.  Harrison  v.  Nettleship,  2  Mylne  &.  K. 
423.  1279 

A  bill  in  eauity  to  set  aside  a  verdict  is  not 
sustainable,  where  the  facts  on  which  the  bill  is 


femided,  though  diaooveml  since  the  trial,  might 
have  been  established  at  the  trial  upon  eraas- 
examinatioB.  Taylor  v.  Sheppaid,  1  T.  &  Col. 
371.  1279 

Where  a  party  agvees  not  to  do  a  particular 
act,  and  there  are  other  terms  in  the  agreement 
which  are  so  vague  that  the  court  cannot  enforce 
them,  it  will  not  grant  an  injunction  to  restrain 
the  breach  of  the  negative  term.  Kimberfey  v. 
Jennings,  6  SimoB,  340.  1279 

The  court  will  not  give  any  asnstance  to  a 
party  seeking  to  enforce  a  hard  bargain.    Id. 

Injunction  granted  to  restrain  the  goods  of  a 
partnerahip  from  being  taken  m  execuiion  for  a 
debt  due  from  one  of  the  partners,  who  died  be- 
fore the  writ  was  delivered  to  the  sheriff.  Newell 
r.  Townsend,  6  Simon,  419.  1279 


INNKEEPER. 

A.,  on  a  fair  day,  coming  to  an  inn  kept  by  B., 
with  a  horse  and  gig,  orders  the  h<w8e  to  be  put 
into  the  stable,  but  giving  no  special  direction  as 
to  the  gig.  liie  horse  is  put  into  the  stable,  and 
the  gig  is  placed  with  other  carriages  in  the  pub- 
lic hiraway,  near  the  house,  where  it  is  the  prac- 
tice of  B.  to  put  carriages  on  fair  days.  The  gig 
is  stolen.  B.  is  answerable  for  the  loas.  Jones  v. 
Tyler,  3  Nev.  &  M.  576 ;  1  Adol.  and  Ellis,  522. 

1280 

When  a  guest  arrives  at  an  inn  with  a  horae 
and  gig,  and  gives  directions  to  the  ostler  to  take 
his  li^rse  in,  but  saya  nothing  about  the  gig, « 
ppomiae  to  take  the  gig  into  Uie  inn  may  m  un- 
plied.     Id. 

An  admission  by  an  innkeeper  that  he  left 
money  entrusted  to  him  for  the  purpose  of 
taking  up  a  bill,  in  his  caah-box  in  his  tap-room, 
where  it  was  lost,  together  with  a  much  larger 
sum  of  his  own,  is  evidence  of  gross  negli- 

Smce  to  go  to  a  jury.    Doorman  v.  Jenkins,  4 
ev.  &  ^l.  170.  1281 

The  landlord  of  an  inn  has  alien  on  the  goods 
of  guests  for  board  and  lodging,  and  wine  sup- 
plied to  such  guest's  order,  whatsoever  mav  be  the 
amount,  provided  the  guest  be  possessea  of  hia 
reason,  and  not  an  infant.  Therefore,  the  sheriff, 
under  a  writ  of  ii.  fa  against  the  guest,  can  only 
take  the  guest's  goods,  subject  to  the  lien  of  tne 
landlord  tor  such  his  bill,  and  not  merely  subject 
to  a  lien  for  a  reasonable  quantity  of  winej,  Ac, 
only.  The  landlord  of  an  inn  has  a  lien  for 
money  lent  to  his  guest,  if  it  was  agreed  between 
them  at  the  time  of  the  loans  that  the  guest'a 

goods  should  be  a  security   for  the  sums  lent, 
roctor  r.  Nicholson,  7  C.  &  P.  67— Abinger. 

1281 

An  indictment  lies  against  an  innkeeper  who 
refuses  to  receive  a  guest,  he  having  room  in  hia 
house  at  the  time ;  and  it  is  not  necessary  for 
the  guest  to  tender  the  price  of  bis  entertainment, 
if  his  objection  is  not  on  that  ground.  And  it  is 
no  defence  for  the  innkeeper  that  the  guest  was 
travelling  on  a  Sunday,  and  at  an  hour  of  the 
night  aiier  the  innkeeper's  femily  had  gone  to 
bed ;  nor  is  it  any  defence  that  the  guest  refbsed 


[INNKEEPER— INQUIRY] 


2509 


to  teU  hia  name  and  abode,  as  the  innkeeper  had 
no  right  to  insist  upon  knowing  those  particu- 
lars; bat  if  the  ^uest  come  to  the  inn  drank, 
or  behaves  in  an  indecent  or  improper  manner, 
the  innkeeper  is  not  bound  to  receive  him.  Rex 
9.  Ivens,  7  C.  <&  P.  213— Coleridge.  1281 

If  a  penon  conducts  himself  in  a  disorderly 
manner  in  a  pnblic-house,  and  the  landlord  re- 
qnesti  him  to  depart,  and  he  refuses  to  do  so,  the 
landlord  is  justified  in  laying  hands  on  him  to 
pat  him  out ;  and  if,  while  the  landlord  has  hold 
of  him  to  pat  him  oat,  the  person  lays  hands  on 
the  landlord,  this  is  an  assault ;  and  if  it  is  seen 
by  a  peace  officer,  he  is  justified  in  taking  the 
person  into  castodv.  Howell  v.  Jackson,  6  C.  & 
P.  7S3— Parke.  1281 

So,  if  a  person,  without  committing  any  as- 
t  sault,  make  such  noise  or  disturbance  in  a  pub- 
lic-hoose  as  would  create  alarm,  and  disquiet  the 
neighborhood,  and  the  persons  passing  along  the 
ndjaoent  street,  this  would  be  such  a  breach  of 
the  peace  as  would  not  only  justify  the  landlord 
in  turning  the  person  out  of  the  house,  but  would 
justify  the  landlord  in  immediately  giving  the  per- 
son into  the  custody  of  a  peace  officer,  provided 
that  this  had  occurred  in  the  presence  of  the  of- 
ficer.   Id. 

In  trespass  for  taking  carriage  horses  which 
the  plaintiff  had  hirea  of  the  defendant,  to 
take  him  away  from  the  aefendant's  inn ;  the 
defendant  pleaded  that  the  plaintiff  refused  to 

gy  his  bill  for  entertainment,  and  that  the  de- 
adant  did  so  to  prevent  the  removal  of  the 
plaintiff's  carriage.  To  this  plea  the  plaintiff 
replied,  he  had  ^  tendered"  the  defendant  45/., 
mmd  the  «tefendant  rejoined,  denying  the  tender. 
It  was  proved  that  the  plaintiff  put  down  the 
money,  and  offered  it,  if  the  defendant  **  would 
take  It  in  full  of  the  bill:"— Held,  that  this  was 
not  a  valid  tender,  and  that  this  evidence  did  not 
support  the  replication : — Held  also,  that  on  these 
pleadings  the  jury  are  not  to  consider  the  reason- 
ableness of  the  defendant's  bill.  Gordon  v.  Cox, 
7  C.  dk  P.  172— Coleridge.  1281 


INQUIRY. 

By  1  Will.  4,  c.  7,  s.  1,  any  torii  of  inquiry  of 
dmutgea  issued  in  or  ky  nther  of  me  courts^  by 
whatever  form  of  process  the  action  may  have  been 
tommeneedj  may  he  made  returnable^  and  be  re- 
turned on  any  day  certain  in  term  or  vacation  to 
he  mmned  in  such  writ ;  and  at  the  return  a  rule 
fbrjudfrnent  may  be  given^  easts  taxed,  faud  judg- 
ment stgnedj  and  execution  issued  forthwith,  unless 
^  skeriff,  or  other  vfficer  before  whom  the  same 
mam  be  executedy  shtdl  certify  under  his  hand,  upon 
smi  wrd,  that  judgment  ought  not  to  be  signed 
UMtU  the  d^endant  shall  have  had  an  opportunity 
to  apfly  to  the  court  to  set  aside  the  execution  of 
suck  writ,  or  one  of  the  judges  shaU  thiiik  fit  to 
order  the  judgment  to  be  stayed  until  a  day  to  be 
named  in  such  order ;  provided  it  shall  be  so  post- 
polwd^&r  hy  the  choice  of  the  pUUntiJf^  or  othertoise, 
and  judgment  shall  be  afteriparda  signed  thereon^ 
tmk  juagmMtshaU  be  entered  of  record  as  of  the 


day  of  the  return  of  the  writ,  utdess  the  court  shall 
otherwise  direct,  1281 

Where  a  plaintiff  has  obtained  a  judgment  non 
obstante  veredicto,  he  may  execute  a  writ  of  in- 

?uiry  without  leave  of  the  court.    Shephard  v. 
lalls,  2  Dowl.  P.  C.  453.  1281 

The  master  upon  a  reference  to  him,  may  re- 
ceive affidavits,  but  cannot,  except  by  special  di- 
rection in  the  rule,  receive  viva  voce  testimony. 
Noy  V.  Reynolds,  4  Nev.  &  M.  483;  2  Adol.  A. 
Ellis,  401 ;  1  Har.  db  Woll.  14.  1282 

Where  it  is  necessary  to  move  to  confirm  the 
master's  reports.  Milton  v.  Rawlings,  4  Dowl. 
P.  C.  576.  1282 

Upon  a  reference  to  the  prothonotary  to  ascer- 
tain a  disputed  fact,  a  party  cannot  after  a  term 
has  elapsed  since  the  determination  of  the  pro- 
thonotary have  the  matter  referred  back  to  nim 
to  be  reheard,  on  the  ground  that  an  absent 
witness  has  since  been  discovered.  Edgington 
V.  Nixon,  2  Scott,  509;   2  Ring.  N.  R.  %6. 

1282 

Where  several  sufibr  judgment  by  default  in 
an  action  on  a  promissory  note,  service  of  the 
rale  nisi  to  compute  on  ons  is  service  on  all. 
Figgins  V.  Ward,  2  Dowl.  P.  C.  364 ;  2  C.  &  M. 
424  ;  4  Tyr.  282.  1282 

Service  of  a  rule  on  the  mother  of  the  defen- 
dant, at  his  residence,  held  sufficient.  Wairen  v. 
Smith,  2  Dowl.  P.  C.  216.  1282 

Where  an  attorney  has  been  served  with  pro- 
cess at  chambers,  from  which  he  aflerwards  goes 
away  to  an  unknown  residence,  a  rule  to  com- 
pute may  be  served  by  leaving  a  copy  at  those 
chambers,  (they  being  his  last  place  of  abode), 
and  sticking  another  up  in  the  King's  Rench 
office.    Sealey  v.  Robertson,  2  Dowl.  P.  C.  568. 

1282 

A  rule  nisi  to  compute,  served  by  leaving  a 
copy  at  a  warehouse,  where  the  bill  of  exchange 
was  made  payable,  but  which  was  shut  up  at  the 
ti  me : — Held ,  insufficient  service.  Castle  v.  Sow- 
erby,  4  Dowl.  P.  C.  669.  1282 

Service  of  a  rule  nisi  to  compute  on  the  defen- 
dant's landlady,  is  not  sufficient  Gardener  v. 
Gieen,  3  Dowl.  P.  C.  343.  1282 

Service  of  a  rule  to  compute  at  a  house,  where 
letters  were  directed  to  be  left  for  the  defendant, 
by  a  notice  affixed  to  the  house  where  he  had 
lately  been  residing : — Held,  sufficient.  Provis  v. 
CanUey,  1  Har.  Hl  Woll.  369.  1282 

Service  of  a  rale  nisi  to  compute  at  a  house 
where  the  defendant's  family  were  still  living, 
though  he  himself  had  gone  away : — Held  suffi- 
cient, without  the  leave  of  the  court.  Payett  v. 
Hill,  2  Dowl.  P.  C.  688.  1282 

Service  of  a  rule  nisi  to  compute,  by  putting 
it  under  the  door  of  the  defendant's  chunbers,  is 
not  sufficient,  although  the  laundress  states  that 
the  defendant  will  probably  have  the  rule  in  the 
course  of  the  day.  Strutton  v.  Hawkes,  3  DowL 
P.  C.  25.  1282 


.  .  *■ 

•  t  •    < 


2sia 


[INaUIRY— INSURANCE] 


'  in  the.  case  qT  iC  prisoner,*  ^xtd  under  special 
circurostanccfs,  the  court  ordered  the  prothono- 
tary,  in  cortiptttin^  principal  and  interest  on  a 
promissory  note,  to  inquire  into  the  consideration 
for  which  the  note  was  ^iven,  and  to  decide  on 
the  facta  as  a  jury  would  do.     Fife  v.  Bruyere, 

1  Hod^s,  317.  1283 

The  court  will  grant  a  rule  to  compute  prin- 
cipal and  interest  on  a  promissory  note,  although 
it  is  clearly  shown  that  the  note  has  been  de- 
stroyed.   Clarke  v.  Quince,  3  Dowl.  P.  C.  26. 

1283 

Notice  of  a  writ  of  inquiry  was  allowed  to  be 
served  by  sticking  it  up  in  the  office,  and  leaving 
it  at  the  defendant's  last  place  of  abode,  though 
neither  the  process  nor  notice  of  declaration  had 
been  personally  served.  Watson  v.  Delcroix,  2 
Dowl.  P.  C.  306;  2  C.  &  M.  425;  4  Tyr.  266. 

1284 

The  days  between  Thursday  next  before,  and 
Monday  next  afler,  Easter  day,  must  not  be 
reckoned  or  included  in  any  rules  or  notices,  or 
other  proceedings,  except  notices  of  trials  and 
notices  of  inquiry,  in  any  of  the  courts  of  law 
at  Westminster.    Reg.  Gen.  E.  T.  2  Will.  4. 

1284 

A  defendant,  to  whom  an  irregular  notice  of  in- 
quiry is  given,  ought  to  return  it  forthwith,  and 
state  what  objection  he  has  to  it.  Stevens  v.  Pell, 
2Dowl.P.C.  355;  2  0.  4&M.  421;  4  Tyr.  267. 

1284 

Where  a  notice  of  inquiry  was  given,  with 
eight  days  only  instead  of  fourteen,  and  the 
defendant,  instead  of  returning  it,  merely  gave 
notice,  after  the  lapse  of  six  days,  that  he  in- 
tended to  apply  to  set  it  aside,  without  stating 
the  objection,  tiie  court,  on  making  the  rule  ab- 
solute for  setting  aside  the  inquiry,  refused  costs. 
Id. 

Where  a  defendant  is  under  terms  to  take 
short  notice  of  trial,  he  is  not  bound  to  take  short 
notice  of  inquiry.    Id. 

Afler  judgment  by  default,  and  writ  of  inquiry 
executed,  the  court  upon  application  ordered 
a  new  inquiry,  on  the  ground  tnat,  as  to  part  of 
the  damages  found,  there  was  no  evidence  to 
warrant  ue  finding  of  the  jury ;  the  defendant, 
however,  in  order  to  save  the  expense  of  a  se- 
cond inquiry,  paid  the  plaintiff  the  whole  of  his 
dema&d: — Held,  notwithstanding,  that  he  was 
not  bound  to  pay  the  plaintiff  the  costs  of  the 
inquiry.     Porter  v.  Cooper,  3  Dowl.  P.  C.  GSSl ; 

2  C.  M.  &  R.  232.  1286 


It  is  not  necessary  that  a  rule  to  set  aside  a 
writ  of  inquiry,  should  be  drawn  up  on  reading 
the  undersheriff 's  notes.  Stevens  v.  Pell,  2  C. 
6l  M.  710.  1286 

No  affidavit  of  merits  is  required,  where  the 
execution  of  a  writ  of  inquiry  is  set  aside,  on  the 
ground  of  irregularity  in  not  giving  notice  of  the 
inquiry.      WiBiams'©.  Williams,  4  TVr.  368. 

1286 


INSURANCE. 

Parti^.'\  —  One  of  several  part  owners  of  a 
ship,  without  any  express  authority  from  the 
others,  effected  a  joint  insurance  upon  the  entire 
ship,  charging  the  premium  and  commission  in 
the  ship*s  accounts,  which  were  open  to  the  in- 
spection of,  and  were  actually  inspected  by  the 
other  owners,  and  not  objected  to : — Held,  that 
the  jury  were  warranted  in  finding  that  the 
managing  owner  had  a  joint  authority  to  eiSect 
an  insurance  for  the  whole;  and  that  conse- 
quently all  the  owners  were  liable  to  the  broker, 
notwithstanding  the  credit  was  in  the  first  in- 
stance given  to  the  managing  owner  alone — it 
appearing  that  the  broker  was  ignorant  of  the 
names  oi  the  other  owners.  Robinson  p.  Glead- 
ow,  2  Scott,  250 ;  2  Bing.  N.  R.  150 ;  1  Hodges, 
245.  1288 


Interest.'] — B.  sold  to  plaintiff,  to  be  delivered 
at  Portsmouth,  from  500  to  700  barrels  of  oats, 
to  be  shipped  by  I.  from  Yougball.  Four  days  af- 
terwards, B.  advised  plaintiff  that  I.  had  engaged 
room  in  the  packet  to  take  about  600  barrels  of 
oats  on  plaintiff 's  account.  On  the  following  day, 
plaintiff  insured  400/.  on  oats  per  the  p^ket ; 
the  oats  were  shipped,  but  the  packet  being  bound 
for  Southampton,  and  refusing  to  touch  at  Ports- 
mouth, B.  sold  the  oats  again,  and  delivered  the 
bill  of  lading  to  O.  at  Soumampton  ;  plaintiff  in- 
sisting that  oe  was  entitled  to  the  oats,  and  would 
assert  his  right  by  action.  In  the  meantime  the 
packet  was  lost,  and  afler  a  long  dispute,  plain- 
tiff, in  consideration  of  60/.,  by  indorsement  on 
the  policy,  vested  the  interest  in  the  insurance  in 
B. : — Held,  that  the  plaintiff  had  a  sufficient  in- 
terest to  sue  defendant,  the  underwriter  on  this 
policy.  Sparkes  v.  Marshall,  3  Scott,  172;  2 
Bing.  N.  R.  761.  1290 


Seaworthiness. 1 — In  a  policy  by  a  member  of  a 
mutual  insurance  club,  there  was  a  memoran- 
dum, amongst  other  exceptions,  warranties,  rules, 
terms,  conditions,  and  agreements,  that  ^  all 
ships  were  to  be  inspected  and  approved  by  a 
committee  of  tlie  club,  and  that  all  chain-caolea 
were  to  be  properly  tested  :'* — Held,  in  an  action 
for  a  loss,  that  it  was  not  a  condition  precedent 
which  made  it  necessary  for  the  insureo  to  prove 
that  a  chain-cable  had  been  tested  previously  to 
the  voyage.  Harrison  v.  Douglas,  5  Nev.  <5b  M. 
180 ;  3  Adol.  &  Ellis,  306 ;  1  Har.  &,  Woll.  380. 

1297 

Payment  of  money  into  court  in  an  action  on  a 
policy,  admits  that  the  ship  was  seaworthy.    Id. 

Where  by  the  terms  of  a  policy  in  a  mutual 
insurance  club,  tlie  amount  of  the  loss  is  not  to 
be  drawn  before  a  specified  day,  the  defendant, 
in  an  action  on  the  policy,  by  paying  money 
into  court,  precludes  himself  from  objecting  that 
the  action  is  brought  too  soon.    Id. 


Risk.'l — Upon  an  insurance  from  England  to 
Barbadoes,  and  all  or  any  of  the  West  India  co- 
lonies, to  continue  until  the  ship  shall  be  arrived 


[INSURANCE] 


Rt  her  final '  port  of  discharge,  the  risk  terminates 
on  the  discharge  of  the  outward  cargo  at  any  of 
the  colonies.  Moore  v.  Taylor,  3  Nev.  &  M.  406 ; 
1  Adol.  A  Ellis,  25.  1309 

The  cargo  having  been  landed  at  Barbadoes, 
with  the  exception  of  coals  and  bricks  brought 
firom  England  serving  as  ballast,  (though  of  a 
greater  weight  than  was  requisite  for  llmt  pur- 
pose), but  used  in  the  West  Indies  also  as  mer- 
chandize, the  ship  is  lost  in  Barbadoes  while 
about  to  proceed  to  another  colony  with  bricks 
and  coals,  and  with  other  articles  loaded  there  : 
H  is  m  question  for  the  jury  to  decide,  whether, 
notwithstanding  the  coals  and  bricks  remainin^r 
on  board,  the  outward  cargo  had  not  been  sub- 
stantially discharged  before  the  loss  occurred.    Id. 

Inception  of  risk  on  goods.  Doyle  v.  Powell, 
1  Nev.  ^  M.  678;  4  B.  &  Adol.  %7.  1310 


u 


By  a  policy  of  insurance,  assurance  was  made 
including  risk  of  craft  to  and  from  the  ship,'' 
on  linseed  oil  cakes,  *^  free  of  particular  average 
unless  genera],  or  the  ship  was  stranded."  The 
cakes  were  put  on  board  a  lighter  at  their  desti- 
nation, and  the  lighter  stranded  and  sunk, 
whereby  a  particular  avera^  loss  was  sustained  : 
— Held,  that  the  underwriters  were  not  liable. 
Hofman  v.  Marshall,  2  Bing.  N.  R.  383;  2  Scott, 
559y  1  Hodges,  330.  1309 

Inception  of  risk  on  goods.  Rickman  v.  Car- 
ftain,  5  B.  ^  Adol.  b5l ;  2  Nev.  &  M.  562. 

1310 

PoUey.] — A  policy  of  insurance  on  a  ship 
**]ost  or  not  lost,"  executed,  after  the  ship  is 
known  by  all  the  parties  to  be  lost,  in  pursuance 
of  a  preyious  agreement  to  insure,  is  valid. 
Mead  v.  Davison,  4  Nev.  &  M.  701 ;  3  Adol.  & 
Ellis,  308 ;  1  Har.  &,  Woll.  156.  1315 

Where,  by  the  rules  of  an  insurance  associa- 
tion, insurances  are  to  commence  on  the  day  on 
which  the  ship  is  'accepted  by  the  committee, 
and  to  continue  in  force  for  twelve  months,  a 
ship  accepted  in  February,  and  lost  in  June,  is 
well  insured  by  a  policy  executed  3rd  October. 
Id. 

And  no  objection  to  its  admissibility  in  evi- 
dence arises  upon  the  Stamp  Act,  35  Geo.  3, 
c.  63.  Id. 

A  letter  of  attorney  was  given  to  execute  poli- 
cies in  conformity  with  the  above  rules : — Held, 
that  the  execution  of  the  above  policy  was 
thereby  authorized.  Id. 

Under  an  insurance  from  the  port  of  loading, 
a  loading  at  one  single  place  only  is  authorized. 
Brown  v.  Tayleur,  5  Nev.  <&  M.  472;  1  Har.  & 
YfoVL  578.  1315 

Where,  therefore,  a  ship  insured  at  and  from 
tier  port  of  loading  in  North  America  to  Liver- 
pool, takes  in  part  of  her  cargo  at  Cocagne,  on 
the  coast  of  New  Brunswick, — her  afterwards 
sailing  to  Bouctonche,  another  place  on  the  same 
coast,  within  seven  miles  of  Cocagne,  and  within 
the  same  legal  port,  taking  in  part  of  her  cargo 


there,  and  retu 
pleting  hpr  carg 
policy.   Id. 


IVarranty.'] — A  warranty  to  sail  on  or  before  a 
particular  clay,  is  not  complied  with  by  leaving 
the  harbor  on  that  day,  wiUiout  having  a  suffi- 
cient crew  on  board,  although  the  remainder  of 
the  crew  are  engaged  and  ready  to  sail.  Gra- 
ham V,  Barras,  3  Nev.  &  M.  125 ;  5  B.  &  Adol. 
1011.  1318 

A  policy  of  insurance  contained  a  warranty, 
"not  to  sail  for  B.  N.  A.  after  the  15th  of  Au- 
gust" The  vessel,  on  the  morning  of  the  15th  of 
August,  was  cleared  at  the  custom  house  of  D., 
and  ready  for  sea.  She  was  then  lying  in  the 
Custom-House  Dock,  which  opens  into  u\e  river 
L ,  which  forms  part  of  D.  harbor.  She  was 
afterwards,  on  the  same  day,  hauled  out  of  dock, 
and  warped  down  the  river  L.  about  half  a  mile, 
towards  the  mouth  of  the  harbor,  which  was 
some  miles  distant,  for  the  purpose  of  proceed- 
ing on  her  voyage  to  Q.,  in  N.  A.  At  tne  time 
of  so  moving  tHe  vessel,  the  master  and  crew 
knew  it  to  be  impossible  to  get  to  sea  that  day. 
The  next  day  she  was  warped  a  little  further 
down  the  river,  and  on  the  17th,  when  the  wind 
changed,  she  got  to  sea.  The  jury  having  found 
that  uie  master  and  crew  fully  intended  to  sail 
for  Q.  on  the /15th  of  August,  if  it  had  been  pos- 
sible, and  did  all  they  could,  and  used  every 
means  and  exertion  so  to  do,  and  that  they  in- 
tended by  so  doing  to  put  themselves  in  a  better 
situation  for  the  prosecution  of  the  voyage,  and 
not  merely  and  solely  to  fulfil  the  warranty  : — 
Held,  that  the  vessel  was  in  the  prosecution  of 
her  voyage  on  the  15th  of  August,  and  that  the 
warranty  not  to  sail  for  B.  N.  A.  after  that  day 
had  been  complied  with.  Cockrane  v.  Fisher  (in 
error),  1  C.  M.  &  R.  809 :  S.  C.  nom.  Fishery. 
Cochran,  5  Tyr.  496:  affirming  S.  C.  2C.  & 
M.  581 ;  4  Tyr.  424.  1318 


Loss.] — By  a  policy  of  insurance,  certain  hides 
were  insured  from  the  usual  perils,  "  free  of  par- 
ticular average,  unless  the  ship  be  stranded."  In 
the  course  of  the  voyage,  the  hides  were  so  much 
damaged  by  salt  water,  that  thev  were  necessarily 
sold,  and  the  ship  proceeded  on  her  voyage 
homewards,  and  was  stranded  : — Held,  that  the 
rights  of  the  assured  and  underwriters  were 
fixed  and  determined  at  the  time  of  the  sale  of 
the  hides,  and  that  the  subsequent  stranding  of 
the  vessel  did  not  satisfy  the  condition  upon 
which  the  warranty  depended.  Roux  v.  Salva- 
dor, 1  Bing.  N.  R.  526 ;  1  Scott,  491 ;  1  Hodges, 

49.  mo 

Where,  by  the  terms  of  the  policy,  the  under- 
writer was  not  answerable  for  an  average  loss 
upon  certain  hides  insured,  and  in  the  course  of 
the  voyage  the  hides  became  so  damaged  by  one 
of  the  perils  insured  against,  that  they  could  not 
have  been  carried  to  the  place  of  their  destina- 
tion, (in  consequence  of  their  state  of  putridity) , 
whereupon  the  hides  were  sold  at  the  nearest 


2512 


[INSURANCE-^INTEREST  OF  MONEYJ 


port :— Held,  that  it  amounted  to  a  eonstractive 
total  lou.     Id. 

Where  the  hides  were  sold  in  the  state  and 
under  the  circumstances  above  mentioned  : — 
Held,  that  notice  of  abandonment  was  necessary 
to  enable  the  assured  to  maintain  an  action  for  a 
total  loss.    Id. 


Adjtutment.'] — A  plea  of  payment  to  an  action 
of  covenant  by  A.,  upon  a  policy  of  insurance 
effected  by  A.  as  agent,  is  supported  ^by  an  in- 
dorsement on  the  policy  by  A.,  purporting  that 
the  loss  had  been  adjusted,  and  the  balance  due 
from  the  defendant  to  A.  paid,  although  the 
principal  has  not  authorized  such  a  settfement. 
Gibson  V.  Winter,  2  Nev.  &  M.  737.  1345 

An  insurance  was  efiected  on  goods  on  board 
a  ship  consigned  to  Buenos  Ayres.  The  ship, 
with  the  cargo,  was  captured  by  the  Brazilian 

fovernment,  and  condemned  for  an  attempted 
reach  of  blockade.  Notice  of  the  capture  was 
given  by  the  insured  to  the  underwriters,  and  an 
offer  was  made  by  the  insured  to  abandon.  The 
underwriters  dechned  the  ofier  of  abandonment ; 
and,  afler  some  negotiation,  it  was  arranged  that, 
on  payment  by  the  underwriters  of  352.  per  cent, 
on  the  sum  msured,  the  policy  should  be  deli- 
vered up  to  be  cancelled.  The  per  centage  was 
accordingly  paid,  and  the  policy  cancelled.  Some 
years  af&rwards,  in  pursuance  of  a  convention 
between  Great  Britain  and  the  Brazilian  govern- 
ment, the  goods  were  ordered  by  the  latter  gov- 
ernment, to  be  restored  to  the  owners,  and  com- 
pensation to  be  made.  A  claim  was  made  by  the 
underwriters  to  the  whole  or  a  part  of  the  sum 
awarded  for  compensation;  but  held,  that  the 
underwriters  havmg  declined  the  offer  of  aban- 
donment, the  payment  of  the  35Z.  per  cent,  was  a 
compromise  of  their  liability  under  the  policy, 
and  that  they  were  not  entitled  to  any  portion  of 
the  sum  awarded  for  compensation,  brooks  v. 
Mac  Donnell,  1  T.  &  Col.  502.  1347 


Inturance  Broker."] — By  the  custom  of  Lloyd's, 

Cremiums  of  insurance  are  matters  of  aceount 
etween  the  underwriter  and  the  broker,  and  be- 
tween the  broker  and  the  assured,  without  any 
privity  between  the  assured  and  the  underwriter. 
The  broker  has,  therefore,  a  claim  upon  the  as- 
flured  for  the  amount  of  the  premium  as  the 
policy  is  effiscted,  whether  fie  has  paid  the  under- 
writer or  not, — and  whether  the  underwriter  has, 
by  the  policy,  confirmed  the  premium  to  be 
paid,  or  nas  taken  the  covenant  of  the  broker 
to  pay  it.    Power  v.  Butcher,  5  M.  &  R.  327. 

1352 


L{fe  Insurat^ee.'] — A  suppression  or  false  repre- 
sentation of  (acts  material  to  be  known  by  the 
insurers,  vitiates  a  policy  of  insurance,  although 
it  was  in  answer  to  a  parol  inquiry ;  and  the  po- 
licy is,  by  the  articles  of  the  insurance  ofiiee,  to 
be  void  on  false  answers  being  given  to  certain  I 
written  inquiries.  Waiawright «.  Bland,  1  Mees. 
&  Wels,  32.  1357  ^ 


Therefore,  where  a  party,  going  to  insure  her 
life  for  two  years,  gave  false  answers  to  verbal 
inquiries,  whether  she  had  effected  similar  in- 
surances  at  other  offices : — Held,  that  the  policy 
was  thereby  avoided,    id. 

Qusre,  whether  a  party  may  insure  his  life 
for  the  benefit  of  another  who  provides  the  funds 
to  pav  the  premiums,  and  intends  to  take  the 
benent  of  the  policy  ?    Id. 

By  a  declaration  and  statement  as  to  health, 
Jkc  ,  signed  by  the  assured  previous  to  effecting 
a  policy  on  a  fife,  it  was  agreed,  that,  if  any  un- 
true averment  was  contamed  therein,  or  if  the 
ftbcts  required  to  be  set  forth  in  the  proposal 
(annexed)  were  not  truly  stated,  the  premiums 
should  be  forfeited,  and  the  assurance  be  abso- 
lutely null  and  void.  The  statement  as  tn  the 
health  of  the  life  was  untrue  in  point  of  fact,  but 
not  to  the  knowled^  of  the  party  making  it : — 
Held,  that  the  premiums  were  forreited,  and  could 
not  be  recovered  back.  Duckett  v.  Williams,  2 
C.  &  M.  348 ;  4  Tyr.  240.  1357 


Fire  Insurance.] — The  profits  of  a  business  are 
insurable,  but  they  must  be  insured  qua  profits. 
In  re  Sun  Fire  Office,  3  Nev.  &  M.  819 ;  S.  C. 
nom.  In  re  Wright  &,  Pole,  1  Adol.  &.  Ellis,  621. 

1359 

Under  an  insurance  by  A.  of  his  *' interest  in 
the  Ship  Inn  and  offices,"  A.  cannot  recover 
compensation  for  the  loss  of  his  business  as  an 
innkeeper,  in  the  interval  between  the  fire  and 
the  rebuilding.    Id. 

A  policy  of  insurance  on  a  mill,  millwrights' 
work,  standing  and  going  gear,  engine  house  and 
steam  engine,  recited  <*  Uiat  the  aforesaid  build- 
ings  were  brick  built,  wanned  by  steam,  lighted 
by  gas,  and  worked  by  the  steam  engine  above 
mentioned,  in  tenure  of  one  firm," — ^^*  standing 
apart  from  all  other  mills,  and  worked  by  day 
only."  In  an  action  of  covenant  to  recover  the 
amount  of  a  loss  by  fire,  held,  that  the  recital 
did  not  mean  that  the  steam  engine  was  not 
worked  by  night.  Whitehead  v.  Price,  8  C.  M. 
&  R.  447 ;  1  Gale,  151.  1359 

A  condition  was  indorsed  on  the  policy  avoid- 
ing it,  if,  after  the  insurance  was  efiected,  the 
risk  should  be  increased  by  the  erection  or  al- 
teration of  any  stove,  or  the  carrying  on  any 
hazardous  trade,  &c.  The  defendant  pleaded, 
that  afler  the  making  of  the  policy,  the  said 
steam  engine  was  worked  bv  night,  and  not  by 
day  only,  whereby  the  risk  was  increased: — 
Held,  that  the  plaintiff  was  entitled  to  judgment, 
notwithstanding  a  verdict  for  the^  defendant  on 
this  plea,  it  bemg  bad  in  omitting  to  state  that 
the  engine  was  not  worked  in  Sie  same  way 
before  the  time  of  the  effecting  of  the  policy. 


INTEREST  OF  MONEY. 

A  banker  was  not  (before  3  dt  4  Will.  4,  c.  48, 
ss.  28, 29, 30)  liable  to  pay  interest  upon  monej 
deposited,  although  at  the  time  of  the  deposit  it 


[INTEREST  OF  MONEY— INTERPLEADER] 


9513 


had  been  declared  that  intereflt  should  not  be 
payable  upon  a  certain  event  which  did  not  hap- 
pen. Edwards  v.  Vere,  2  Nev.  &  M.  120 ;  5  B. 
&  Adol.  282.  1363 

V.  &  Co.,  bankers,  were  assignees  of  a  judff- 
ment  obtained  in  Scotland  against  M-  H.  for 
4100/.  In  1829,  M.  H.  deposited  with  V.  &  Co. 
41002.,  and,  by  a  memorandum  in  writings  it 
was  agreed  that  that  sum  should  be  deposited  in 
their  hands  for  safe  custody  on  account  of  M.  H. 
and  that  from  the  time  such  deposit  should  be 
made,  and  during  its  continuance,  V.  <&  Co.  were 
not  to  pay  any  interest  thereon,  and  all  interest 
should  ceaab  m  respect  of  the  amount  due  upon 
the  judgment.  M.  H.  afterwards  became  bank- 
rupt, and  bis  assignees,  on  the  12th  of  November, 
1831,  demanded  from  V.  &  Co.  the  4100/. 
which  they  refused  to  pay : — Held,  that  they 
were  not  liable  to  pay  interest  on  that  sum  from 
the  time  when  payment  of  the  principal  was  de- 
manded. Id. 

Independently  of  the  3  &  4  Will.  4,c.  42,  s.  28, 
interest  is  not  recoverable  in  an  action  for  money 
had  and  received.  Therefore,  where  A.  consigned 
goods  to  B.,  with  directions  to  remit  the  proceeds 
ID  C,  to  which  B.  assented  : — Held,  in  an  action 
for  money 'had  and  received  by  C  against  B.,  that 
interest  was  not  recoverable,  ^there  havjpg  been 
no  notice  that  interest  would  be  claimed),  al- 
though by  the  course  of  dealing  between  A.  and 
B.  interest  would  have  been  payable  as  between 
them.  Frahling  v.  Schroeder,  2  Scott,  143;  2 
Bing.  N.  R  77.  1362 

In  an  action  on  an  attorney's  bill,  the  plaintiffs 
gave  notice,  pursuant  to  3  &  4  Will.  4,  c.  42,  s. 
34,  that  they  should  claim  interest  from  the  date 
of  the  notice.  After  the  writ  was  issued,  the  bill 
was  referred  for  taxation  at  the  instance  of  the 
defendant,  no  terms  being  made  as  to  the  allow- 
ance of  interest : — Held,  that  the  plaintiifs  could 
not  afterwards  have  an  assessment  of  damages 
for  the  purpose  of  recovering  the  interest.  Ber- 
rington  V,  rhillips,  1  Mees.  ^  Wels.  48.        1262 

Tbe  Court  of  Exchequer  Chamber  cannot, 
under  3  ^Ic  4  Will.  4,  o.  42,  s.  30,  allow  interest 
upon  the  damans  recovered  in  a  personal  action 
in  which  error  is  brought,  except  when  the  writ 
of  error  is  tested  subsequently  to  the  day  on 
which  that  act  received  the  royal  assent.  Bum 
V.  Owalho  (in  error),  4  Nev.  AM.  893;  1  Adol. 
St  EUis,  895.  1366 


INTERPLEADER. 

H  what  cases,]— The  1  &,  2  Will.  4,  c.  58,  does 
not  apply  to  claims  in  equity.  Sturgess  v.  Claude, 
1  Oowl.  t.  C.  505.  1368 

A  lien  attaching  upon  the  goods  in  dispute 
does  not  prevent  the  party  who  holds  them  itom 
applying  to  the  court  for  relief  under  the  Inter- 
pleader Act.  Cotter  v.  England  (Bank),  3  M. 
4k  Scott,  180 ;  2  Dowl.  F.  C.  728.  1368 

A  party  fairly  applying  for  relief  under  the 
Interpleader  Act,  is  entitled  to  his  costs  out  of 
the  fund,  or  out  of  the  proceeds  of  the  goods  in 
dispute.    Id. 

A  party  who,  by  bis  own  act,  is  placed  in  a  si- ' 


tuation  to  be  sued,  cannot  call  on  the  court  to 
substitute  another  defendant  under  the  Inter- 
pleader Act,  1  &.  2  Will.  4,  c.  58.  Belcher  v.  Smith, 
9  Bing.  82 ;  2  M   &  Scott,  184.  1368 

The  motion  under  the  Interpleader  Act,  1  A;  2 
Will.  4,  c.  58,  is  to  the  discretion  of  the  court, 
and  will  not  be  allowed  where,  from  the  circum- 
stances, it  may  be  reasonably  suspected  that 
there  is  collusion  between  the  defendant  and  the 
third  party  whom  he  seeks  to  substitute.     Id. 

The  Interpleader  Act,  1  &2  Will.  4,  c.  56, 
does  not  apply  to  a  case  where  the  defendant  has 
a  legal  claim.  Braddick  v.  Smith,  9  Bing  84;  2 
M.  <&  Scott,  131.  1368 

It  seems  that  a  wharfinger,  who  claims  lien 
on  goods  for  wharfage,  &c.,  is  not  within  the  act. 
Id. 

Where  a  defendant  has  been  indemnified  by  a 
third  party  for  not  delivering  up  property  in  hia 

fossession,  he  haa  no  right  to  relief  under  the 
nterpleader  Act,  and  the  court  will  discharge  a 
rule  obtained  for  that  purpose,  with  costs.  Tucker 
V.  Morris,  1  C.  &  M.  73;  1  Dowl.  P.  C.  639. 

196& 
The  court  cannot  give  relief  under  the  In- 
terpleader Act  to  stakeholders,  who  are  only 
threatened  with  proceedings ;  an  action  must  be 
brought,  and  the  plaintiff  declare,  before  the 
court  will  interfere.  Parker  t?.  Linnett,  2  Dowl. 
P.  C.  562.  136S 

A  stakeholder  acting  with  good  faith  is  entitled 
to  his  costs  of  coming  to  the  court  out  of  the 
fund  in  dispute,  which  are  ultimately  paid  by  the 
successful  party.    Id. 

The  holder  of  title  deeds  cannot  apply,  under 
the  Interpleader  Act,  for  protection  against  op- 
posing claims.  Smith  v.  Wheeler,  3  Dowl.  P.  C. 
431;  1  Gale,  15,163.  .    1368 

Trover  for  title  deeds  is  within  the  act.    Id. 

Where  two  parties  claim  to  be  entitled  to  & 
reward,  the  defendant,  when  sued  by  one  of  thenk 
to  recover  it,  is  not  entitled  to  the  relief  given 
by  the  Interpleader  Act.  Collis  v.  Lee,  1  HcSlges^ 
204:  S.  P.  Ghrant  v.  Fry,  4  Dowl.  P.  C.  135. 

136d 

After  the  Court  of  Chancery  have  issued  an 
injunction  to  stay  a  cause,  the  court  will  not  grant 
a  rule  for  interpleading.  Arayne  t.  Lloyd,  1 
Bing.  N.  R.  720 ;  ]  Scott,  609 ;  1  Hodges,  166^ 

136S 

The  coort  discharged  with  costs  such  a  rule. 


Proctdure'\ — Claimants  neglecting  to  appear 
under  the  Interpleader  Act  are  precluded  by  the 
terms  of  the  rule  from  enforcing  their  claims. 
Ford  V.  Dillon,  2  Nev.  &.  M.  662.  1368 

Where  monev  has  been  paid  into  court  by  a 
stakeholder  to  aoide  the  event  of  a  feigned  issue 
under  1  dt-  2  Will.  4,  c.  58,  the  party  succeeding 
cannot  take  the  money  out  before  judgment 
signed.  Cooper  v.  Lead  Smelting  Company,  1 
Dowl.  P.  C.  728 ;  9  Bing.  634 ;  2  M.  &  Scott, 
810.  1368 


2514 


[INTERPLEADER-JURISWCTIOXJ 


Ob  n  spfiicatiaa  to  m  jodee  ai 
an  lotrrpieader  AetfaBoron- 
itorall  parties,  to  refer  the 
toiB  temis,  to  a  barriater,  inatfpad  of 
being  directed.      The  coort  reliiaed  to 
rule  nisi  for  Ta/jing  the  order,  bj  introducing  a 
fineah  term  into  the  reference,  in  conaeqoenee  oi  in-  • 
fonnation  which  one  of  the  parties  (an  adminia-  • 
trathx;  had  obtained  since  the  bearing  at  cham- 
bers.    Drake  «.  Biown,  2  C.  M.  du  R.  270.   13&! 

I 
A  rule  onder  the  1st  aect  of  the  Interpieader 

Act,  cannot  be  drawn  up  for  a  stay  of  proceed- 
ings, unless  notice  has  been  giren.  Smith  r. 
Wheeler,  3  Dowl.  P.  C.  431 ;  1  Gale,  15.         13&3 

Soeh  a  role  may  be  drawn  np  to  show  cause 

at  chambers.    Id. 

I 

Where  an  aactiooeer  has  one  action  brought ' 
against  him  in  Com.  Pleas,  and  another  in  K.  B. 
1^  difierent  claimants  of  the  same  property,  he 
must,  to  relieve  himself  under  the  Interpleader 
Act,  obtain  rules  in  both  courts.  Allen  r.  Gilby, 
3  Dowt  P.  C.  143.  1366  . 

If  a  part  of  a  sum  claimed  by  the  parties  has ' 
been  paid  to  one  of  them  before  adrerse  claim 
made,  the  adrerae  claimant  has  a  right  to  have  ' 
the  whole  sum  he  claims  paid  into  court,  on  the  ■ 
holder  applying  for  relief  under  the  Interpleader 
Act.    Id. 

A  claimant  called  upon  by  a  rule  under  the  In- 
terpleader Act  to  come  in  and  slate  his  claim, 
muft  gire  the  particulars  upon  his  affidavit,  to  * 
enable  the  court  to  decide  eren  whether  he  is 
to  be  made  a  party  to  an  issue.  Powell  v.  Lock, 
3  Adol.  d&  Ellis,  315;  1  Har.  A  WoU.  261.  1368 

The  court  has  no  power  to  order  rules  made 
under  the  Interpleader  Act,  (1  A  2  Will.  4,  c. 
58),  to  be  entered  in  any  other  manner  than  is 
pointed  out  by  the  7th  sect.,  viz.  according  to 
their  true  dato.  Lambirth  r.  Harrington,  2  Scott, 
263;  4  Dowl.  P.  C.  126;  1  Hodges,  2(6.        1368 

Where  the  defendant,  in  an  issue  tried  under 
the  Interpleader  Act,  died  after  verdict  for  the 
plaintiff,  but  before  judgment  was  signed,  the 
court  will  not  order  the  rules  of  court  to  be 
entered  nunc  pro  tunc.  ^  Id. 

In  an  action  brought  by  A.  against  B.,  the 
court,  upon  a  motion  under  the  Interpleader 
Act,  made  by  B.,  direct  that  an  action  for  money 
had  and  received  shall  be  brought  by  C.  against 
A.,  to  try  the  right  of  certain  money  :— -Held, 
first,  that  in  an  action  brought  in  pursuance  of 
such  order,  a  special  agreement  might  be  given 
in  evidence,  which  in  ordinary  cases  would  be 
admissible  only  under  a  special  count.  Pooley  v. 
Goodwin,  5  Nev.  &  M.  466 ;  1  Har.  &  Woll.  o67. 

1368 


party  is  bable  fer 
,2DowLP.  C 


withoi^  having 
party  to  do  what 
not  entitled  to 


to  the  question  of 


tothe  coot  by 

rule  eaDs  on  him  tojdo,  is 
of  the  rule,  if  theop- 
^^1— »  ^^mttifWfm^  himself 

Id. 


Cotts.] — ^Thc  costs  of  the  applicant  under  the 
Interpleader  Act,  where  he  has  acted  bona  fide, 
will,  in  the  first  instance,  be  directed  to  be  paid 
out  of  the  fund  or  the  produce  of  the  thing 
in  dispute,  to  be  repaid  by  the  party  ultimately 
successful.  Duear  v.  Mackintosh,  3  M.  &  Scott, 
174 ;  2  Dowl.  P.  C.  730.  1368 

Where  an  issue  is  tried  by  direction  of  the 


AnisBoe  was  £rectod  under  the  lutei  pleader 
Act,  and  afterwards  the  claim  was  abandosied  : — 
Held,  on  an  appbcatiim  to  the  court  for  costs, 
that  an  affidavit  in  support  of  it  most  be  intituled 
m  the  namesof  the  parties  in  the  original  canse. 
Elliott  r.  Sparrow,  1  Har.  A,  WoU.  m         1368 

Where  a  claimant,  after  an  application  under 
the  Interpleader  Act,  abandooa  hia  claim  after 
an  issue  directed,  the  sheriff  is  entitled  to  his 
costs  from  the  time  of  directing  the  issue  and  of 
the  applicaticm  of  those  costs.  Scales  s.  Sarge- 
son,  4  Dowl.  P.  C.  231.  1368 

BiU  ef  imterpUmder.} — One  of  several  defen- 
dants may  pray  that  the  plaintiff  and  the  other 
defendanto  ahaU  interplead.  Land  v.  North,  4 
DougL2e6.  1368 

It  is  sufficient  to  support  a  bill  of  interpleader, 
that  each  of  the  defendants  has  a  claim  to  the 
matter  in  question,  although  one  onlv  can  main- 
tain an  action  at  law,  the  principle  beins  to 
prevent  a  plaintiff  from  being  doublv  vexed:  it 
IS  thereibre  not  neoeasary  tut  he  should  have 
been  actually  sued.  Morgan  r.  Ifarsack,  5  Mer. 
107.  1368 

A  bill  of  interpleader  is  not  demurrable  be- 
cause it  does  not offi?r  to  bringthe money  claimed 
into  ceurL  But  the  plaintiff  must  bring  it  in, 
before  he  takes  any  step  in  the  cause.  Meux  v. 
BeU,  6  Simon,  175.  1368 

Where  a  principal  has  created  a  lien  in  fevor  of 
another  person,  on  funds  in  the  hands  of  an  agent, 
the  agent  mav  file  a  bill  of  Interpleader  against  his 
principal  and  the  other  claimant.  Smith  v.  Ham- 
mond, 6  Simond,  10.  1368 


JURISDICTION. 

The  judges  declined  to  anawer  a  question  pro- 
posed to  them  by  the  House  of  Lords,  in  terms 
which  rendered  it  doubtful  whether  it  did  not 
extend  to  the  construction  of  a  bill  before  the 
House.  In  re  London  and  Westminster  Bank,  1 
Bing.  N.  R.  197.  1369 

The  Court  of  Exchequer  has  no  power  under 
the  4  &  5  Will.  4,  c.  62,  s.  26,  to  order  judgment 
to  be  entered  up  non  obstante  veredicto  in  a  cauae 
out  of  the  Court  of  Common  Pleas  at  Lancaster. 
Potter  V.  Moss,  3  Dowl.  P.  C.  432 ;  1  C.  M.  dc  R. 
848 ;  5  Tyr.  513.  1369 

The  26th  section  of  the  4  &  5  Will.  4,  e.  62, 
does  not  authorize  the  Court  of  Exchequer  to  en- 
tertain a  motion,  in  a  cause  in  the  Common  Pleaa 
at  Lancaster,  to  set  aside  an  award  made  under 
an  order  of  nisi  prius,  though  a  verdict  was  taken 
subject  to  the  award.  Byrne  v.  Fitzhugh,  1  C. 
M.  A;  R.  597 ;  3  Dowl.  P.  C.  278.  1369 


[JURISDICTION— JUSTICES  OP  THE  PEACE] 


^15 


All  the  jud^res  are  now  judges  of  the  Court 
of  Common  Pleas  at  Lancaster,  under  the  4  &  5 
WiU.  4,c.  62.     Id. 

Where  several  actions  are  pending  in  different 
courts  for  the  same  cause  of  action,  though  one 
court  will  not  allow  its  proceedings  to  be  depen- 
dent on  those  of  another,  yet  where,  in  an  action 
for  a  libel  brought  in  the  Common  Pleas,  to 
which  a  justification  was  pleaded,  the  jury  found 
for  the  defendant,  and  a  rule  nisi  was  then  obtained 
for  entering  a  verdict  for  the  plaintiff,  on  the  spe- 
cial plea,  with  a  farthing  damages,  on  the  ground 
that  the  justification  was  insufficient,  the  court  of 
K.  B.  allowed  the  defendant  in  another  action  here 
(for  the  same  libel)  against  other  persons,  to  have 
further  time  for  pleading  until  the  sittings  in 
the  next  term,  and  aflerwards  again  enlarged 
the  time  to  the  following  terra,  in  order  that 
the  defendant  might  know  the  decision  of  the 
Court  of  Common  Pleas,  as  to  the  validity  of 
the  plea.     Clark  v.  Allbutt,  4  Dowl.  P.  C.  684. 

1369 

Semble,  that  a  judge  of  a  court  of  record  has 
not  individually  any  power  to  fine  or  imprison  for 
a  contempt.  Rex  v.  Faulkner,  I  C.  M.  &  R.  525 ; 
2  Mont  &  Ayr.  311 ;  1  Gale,  210.  1369 

Qutere,  whether  a  Court  of  Record  can  punish 
for  a  contempt  which  is  neither  committed  in  the 
face  of  the  court,  an  obstruction  of  its  process,  nor 
an  interference  with  the  course  of  justice.    Id. 

A  witness  in  a  prosecution,  tried  at  the  K.  B. 
sittings,  struck  the  defendant  afVer  the  trial  was 
over,  as  both  were  in  the  lobby  of  the  court.  The 
witness  being  brought  into  court  in  custody,  and 
evidence  given  of  these  facts,  the  judge  committed 
him  to  the  custody  of  the  marshal  for  three  days 
for  this  contempt  of  court.  Rex  v.  Wigley,  7  C. 
&  p.  4— Coleridge.  1369 

Upon  a  plea  of  nul  tiel  record  to  a  declaration 
in  Bci.  fa.  in  the  Exchequer,  on  a  judgment  ob- 
tained in  the  court  of  great  sessions  for  Wales, 
before  the  paseinff  of  the  11  Geo.  4  &  1  Will.  4, 
c.  70,  the  plaintiff  is  entitled  to  the  judgment  of 
the  court  upon  producing  the  certificate  and 
affidavit  of  the  record  being  in  the  hands  of  the 
officer,  in  pursuance  of  the  rules  of  M.  T.  1  Will. 
4,  though  the  actual  judgment  is  not  in  court. 
Howell  r.  Brown,  3  DowL  P.  C.  805.  1370 

The  proper  mode  of  procuring  the  superior 
court  at  Westminster  to  exercise  the  discretion 
vested  in  them  by  s.  14  of  11  Geo.  4,  c.  70,  of 
obtaining  the  practice  of  any  Court  of  Great 
Session,  &c.,  abolished  by  the  act,  is  by  motion. 
The  practice  in  such  a  conn,  before  its  abolition 
by  that  act,  cannot  be  pleaded  to  an  action  of 
•ci.  fa.  on  a  judgment  recovered  therein.  How- 
eU  V.  Bowers,  2  C.  M.  &  R.  621 ;  1  Tyr.  &  G. 
88.  1370 


JURY. 

If  a  defendant  in  an  action  of  replevin,  which 
is  made  a  special  jury  caose,  withdraws  his  avow- 
ries, and  the  judge  directs  him  to  pay  *'all 
costs,"  that  will  not  include  the  costs  of  the 

Vol.  IV.  31 


special  jury.    Bell  v.  Tainthorp,  2  Dowl.  P.  C. 
518.  1375 

The  usual  rule  having  been  obtained  for  a 
special  jury  by  the  defendant,  a  judge  at 
Chambers,  upon  the  statement  of^  the  plaintiff's 
attorney,  without  affidavit,  ordered  a  special  jury 
to  be  struck  next  day.  The  court  refused  to  set 
aside  that  order  as  being  irregular.  Joseph  v. 
Perry,  3  Dowl.  P.  C.  699.  1373 

The  court  will  not  hear  counsel  for  a  juryman 
who  has  been  fined  for  contempt.  Came  v. 
Nicol,  3  Dowl.  P.  C.  115.  1375 

Where  the  plaintiff  or  prosecutor  has  obtain- 
ed and  struck  a  special  jury,  and  has  with- 
drawn his  record,  tne  defendant  may  take  down 
the  record  by  proviso,  and  claim  a  tri^  by  a  com- 
mon jury.  'Riex  v.  Derbishire,  1  M.  &  Rob.  307 
— Denman.  1374 

By  the  operation  of  6  Geo.  4,  c.  50,  s  1,  upon 
the  letters  patent  appointing  the  postmaster-ffen- 
eral,  all  deputies  and  officers  appointed  Ly  him 
are  excepted  from  serving  as  jurors.  £z  parte 
Atkinson,  2  Dowl.  P.  C.  773.  1372 

Semble,  that  an  action  for  a  libel  in  a  newspaper, 
is  a  fit  case  to  be  tried  bj  a  special  jury,  if^there 
be  special  pleas  of  justification,  but  not  if  the 

rmeral  issue  only  be  pleaded.  KoberiB  v.  Brown, 
C.  &  P.  757— tindal.  1373 


JUSTICES  OF  THE  PEACE. 

All  magisterial  jurisdiction  over  places  or 
precincts,  which  by  the  Boundary  Act  (2  &  3 
Will.  4,  c.  64)  are  included  within  the  metes  and 
bounds  of  any  borough  mentioned  in  the  first 
division  of  schedules  (A)  and  (B)  to  the  Muni- 
cipal Reform  Act  (2  &  3  Will.  4,  c.  76),  is,  from 
the  passing  of  the  latter  act,  vested  exclusively 
in  the  borough  justices.  Rex  v.  Gloucestershire 
(Justices),  6  Nev.  &  M.  115.  1377 

In  a  borough  to  which  the  king  has  granted 
by  charier  that  the  borough  justices  shall  have 
exclusive  jurisdiction  in  misdemeanors  without 
jurisdiction  in  felonies,  and  that  the  county  jus- 
tices shall  not  intromit  themselves  within  the 
borough;  and  in  which  a  borough  rate  appli- 
cable to  the  purposes  of  a  county  rate  was  levied 
before  the  passing  of  55  Geo.  3,  c.  51,  the  county 
justices  have  no  power  to  order  the  levying  of  a 
county  rate,  although  by  virtue  of  its  charter  the 
borough  brings  burthens  upon  the  county.  Rex 
r.  Shepherd,  4  Nev.  dit  M.  185;  1  Adol.  <fe  Ellis, 
298.  1377 

If  a  felony  be  committed  in  that  part  of  the 
county  of  a  town  which  has  been  added  to  it  by 
the  Boundary  Act,  2  &  3  Will.  4,  c.  64,  and  the 
Municipal  Reform  Act,  5  &  6  Will.  4,  c.  76,  it  is 
triable  In  the  county  of  the  town.  Rez  v.  Piller, 
7  C.  &  P.  337— Coleridge.  1377 

A  conviction  before  the  maeistrates,  upon  an 
information  under  the  game  laws,  is  a  judicial 
proceeding,  at  which  all  the  king's  subjects  for 
whom  there  is  room,  and  against  whom  there 
rests  no  special  ground  for  exclusion,  have  a 
right  to  be  present  Danbney  v.  Cooper,  5  M.  d^ 
R.  314.  1378 


[JUSnCES  OF  THE  FEACE] 


^  i^  kvt  hATinp  pQt  H  in 

of  a  finable  ofience. 

Blofgan  V.  Brown, 

1388 

t,  win  not  entitie 
of  S«  Geo.  2,  c. 

the 


WWtralttcal  act  of 
itifcafl  he  bwlU  ferj-fa^^t^ 

«^tto  leir^anle  imptmd  bj  eeftam 
lot  wader  that  art,  vpoK  a  aedectf 
te  p«7  tke  me,  but  doanoieoBteuanTl 
doeirtlf  mW  it  eonpul^        Iheia  to 

^z!^lfV  ■*"  ••  '■'■«  <^  wanant  tiU  the 
paftf  baa  been  •  " 


-   -^  f  Id. 

IB  the  fint  nataoee  withom  aoy 

JH,  9A4oL&£Ilia,425;  1  «».  dk  WoiL  aas.' 

1378. 

,  Where,  median  act,  the  power  of  enteftaiB- 
gg  •"  «ppeal  afajiHt  a  late  k  in  the  coami*. 
fiOBCTa  appointed  nnder  the  aet,  and  not  in  tfe 

the  p«ty  to  be  aommoned  before  thJLlSn^' 


bate  in  any  cue 
a  wanant  aAer  tbrj  hare 
it?    BairawT.  Lwooaibe,5fleT.  A. 
M.  330 ;  IHar.  4b  WolL  457.  1384 

,  without  aothority,  order 

of  the  ezecotion  of  a  diatreas  war- 

and  the  offieer  afterwards  eze- 

-rt,  he  is  entitled,  before  action 

brought  for  the  taking  nnder  socb  warrant,  to  a 

'  of  a  eopj  and  a 


94  Geo.  2,  c  44. 


'ir^ 


of  the  warrant, 


The  adindication  of  magistratea,  nnder  50 
ue^  3,  c  49,  a.  I,  npon  the  aceonnta  of  choich- 
wardens  and  OTeiaecn  rendered  by  them  at  the 
expiration  of  their  office,  is  in  ihe  natore  of  an 
■''■'^  ■■'  cannot  be  re-opened  by  tboae  magis- 


iwo^or  Mich  «  Kt  m»t  be  l«,ied  "  Sb^ 
reapeet  like  thow  ofUie  43  Elix.    uT^ 

or  o^leet,  br  ten  days  after  demuid.  to  m*  ur 
feM  3W  IhHn  him  to  the  eompt;^,  thi^J 
oi  gM,  ioeh  mt  dioiild  be^Soroed  ^^ 

»^  iti?-  r"?!?^  or  their  clerk,  or  .nv 
perwm  aetiog  under  their  anthoritv    with  mJi 

Mk  of  the  good,  of  the  perty  «, 'ne«l^ta/or 
refiMmg  to  pay,  or  the  n^  iighi^^^^ 
b,  action,'  *c.  :-Held,  .hat  a  S«r«t^I^ 
^ajMtree,  wUhont  previoo.lr^iSm^'^ 
he«.ng  the  party  to  be  dirti^iied  op^^" 
fcgal,  thoiigh  a  sarnmoD.  and  hearii^  were  not 
fa  tern.,  required  by  the  act  P«ntJ  Tuy^. 
pool  Ga.  Company,  3  Adol.  *  EUia,  433.     1^ 

«J^!!!^Z\  "^f"^*'  ^™n«»  «  warrant  in  the 
r^7  of  •Mf«"'on,  he  »  bonnd  fint  to  nimmon 
and  hear  the  partiea,  nnleaa  the  .tatate  nS« 

that  foncbon  roinwterial  onlv  or  in  27™.  5.1, 
jnanner^  di.pen«.  with  th^  .^^0".'^  h^! 

In  trover  for  diatraining  plaintir.  mrnda  tho 

nndpr  their  an'thoril/rxed' .^  SrV^' 
to  them  "^TT  r^  i""^'»f  '  -"'"  owi^bfh^ 
to  oTe  ii,"iHe  5  te?'**  ''^  tbemTcco^rding 
_  ij  u  •  "«'°'  ""t  Ihe  warrant,  althonirh  il 
would  have  protected  the  clerk  or  ^  offl«,r  wi 
no  ja.trficat.on  to  (he  company,  they  not  wTn" 


trates  for  the  pnrpoae 
aetUeme 


mistake  in  the 


In 


of  a  mistike,  an  appeal  lies  to  the 

Where  magistrates  are  empowered  to  settle 
awl  allow  the  aceonnta  of  a  public  officer,  and, 
in  case  of  a  neglect  or  lefosal  by  auch  officer,  for 
wwteen  days  after  the  allowance,  to  pay  over  the 
balance  Ibond  to  be  doe  from  him,  aie  directed, 
upon  application  of  the  parties  interested,  to  issue 
*A**^**  w»n»nt  for  soch  balance^-^ey cannot 
after  nsning  a  warrant  in  conformity  with  the 
power  given  to  them,  but  before  execution 
of  It,  order  that  the  execution  be  suspended, 
on  the  ground  of  an  error  in  the  settlement  of  the 
Mcounta,  unless  the  parties  interested  consent  to 
such  suspension.     Id. 

Thus,  in  the  case  of  a  warrant  under  50  Geo. 
3,  c.  49,  for  the  balance  adjudged  by  magistrates 
to  be  due  from  chnrehwardens  and  overbcers  at 
the  expiration  of  their  office.    Id. 

DubiUtur,  whether  the  ordermight  oot  be  sus- 
pended, on  the  ground  that  it  had  since  appeared 
to  the  magistrates  that  there  bad  been  no  neglect 
or  refusal  to  pay  for  fourteen  days  after  the  a&ow- 
ance  ?    Id, 

Semble,  that  if  the  distress  warrant  were  a 
nuUity,  the  magistrates  might  suspend  it.    Id. 

Whether  the  magistrates  have,  in  ordinary 
cases,  where  no  party  is  specially  interested  in 
having  the  execution  of  the  warrant,  power  to 
suspend  a  warrant  which  they  have  in  due  form 
issued,  quaere.    Id. 

In  trespass  for  false  imprisonment  against  two 
rmigiBirates,  the  defendants  gave  in  evidence  a 
conviction  under  7  &  8  Geo.  4,  c.  30,  a.  24,  of 
the  plaintiff,  for  «« unlawfully  and  maliciously 
damnging/'  &c.,  a  quantity  of  rushes  for  which 
they  adjudged  the  plaintiff  to  pay  the  sum  of  10«. 
as  area*unable  compensation,  and  65. 6d.  for  cosU  j 


[JUSTICES  OF  THE  PEACE— LANDLORD  AND  TENANT]    2517 


and  ID  de&ult  of  immediate  payment,  the  plaintiff 
to  be  imprisoned  for  one  calendar  month,  anless 
the  said  soma  should  be  sooner  paid.  The  warrant 
of  commitment  stated  the  offence  to  be,  that  the 
plaintiff  anlawfuUv  trespassed  on  land  in  the 
occupation  of  D.  1^,  and  cut  down  and  carried 
away .  a  quantity  of  rushes,  for  which  ofience  he 
was  ordered  to  pay  the  sum  of  lOs.  penal^,  and 
the  gaoler  was  ordered  to  detain  nim  for  the 
^Mce  of  one  month,  or  until  he  should  be  de- 
liyered  by  the  due  order  of  law : — Held,  that 
the  conviction  sufficiently  supported  the  commit- 
ment OanieU  r.  Phillipps,  1  C.  M.  ^  R.  612 ; 
5  Tyr.  203.  1384 

The  return  to  a  hub.  corp.,  by  a  eaoler,  stated 
that  the  prisoner  was  reoeivea  by  him  under  a 
warrant  of  commitment,  reciting  a  conviction  un- 
der the  act  for  the  prevention  of  smugf^lin^,  (3dc 
4  Will.  4,  c.  53,  which  authorises  justices  to 
amend  their  warrant  of  commitment) ;  that  on  a 
subsequent  day  seme  person  came  to  the  gaol,' 
took  away  the  warrant,  and  left  in  lieu  thereof 
another  warrant,  dated  the  same  day,  under  the 
bands  and  seals  of  the  same  justices,  but  which 
contained  no  statement  of  its  being  a  substituted 
warrant;  and  that  under  this  warrant  he  had 
since  detained  the  prisoner: — Held, that  it  did 
not  sufficiently  appear  that  the  second  warrant 
was  substituted  by  the  authority  of  the  justices, 
and  that  the  prisoner  was  therefore  liable  to  be 
discharged.  Rex  v.  Elmy,  3  Nev.  &  M.  733 ;  ] 
Adol.  £  EUis,  843.  1384 

Where  power  is  given  to  magistrates  to  com- 
mit by  issuing  forth  their  warrant  (as  under  5  Geo. 
4,  c.  18,  s.  2,)  such  warrant  must  be  in  writing; 
and  an  imprisonment  without  a  warrant,  except 
daring  the  period  neoessafy  to  prepare  the  war- 
vant,  18  illegal.  Hutehinson  v.  Lowndes,  1  Nev. 
dt  M.  674 ;  4  B.  A  Adol.  118.  1386 

The  irregularity  is  not  cured  by  a  warrant  of 
eommitment  drawn  up  on  a  subsequent  day,  dated 
as  of  the  day  of  commitment.    Id. 


LANDLORD  AND  TENANT. 

ContracU  for  Leases.} — It  is  no  defence  to  a 
bill  filed  against  a  landlord  for  specific  perform- 
ance of  an  agreement  for  a  farming  lease,  by 
a  person  to  whom  the  benefit  of  the  agreement 
has  been  assigned,  that  the  party  with  whom  the 
landlord  contracted  has  become  insolvent,  pro- 
vided the  assignee  is  solvent,  and  in  a  condition 
to  enter  into  the  usual  covenants,  and  there  is  no 
evidence  that  the  contract  was  entered  into  upon 
eonsideratimis  personal  to  the  assignor.  Crosbie 
«.  Tooke,  1  Mylne  A  K.  431.  1387 

Where  a  landlord  agrees  to  grant  a  lease  to  A., 
his  executors  and  assigns,  upon  certain  condi- 
tions, and  A.  assigns  his  interest  in  the  contract 
to  B.,  and  then  becomes  bankrupt,  B.^  on  per- 
forming the  conditions,  has  a  right  to  enforce 
the  agreement  specifically,  notwithstanding  his 
assignor's  bankruptcy  ;  and  this  right  is  not  af- 
fected bv  a  proviso,  that,  in  case  of  the  bank- 
ruptcy 01  A.,  the  landlord  shall  have  power  to  re- 
enter and  sell  the  benefit  of  the  contract  and  the 
pzemises,  and  hold  the  proceeds,  subject  tq  his 


own  claims,  for  the  use  of  A.'s  estate.  Morgan  v. 
Rhodes,  1  Mylne  &  K.  435.  1387 

The  insolvency  of  the  intended  lessee  is  a  good 
ground  of  objection  to  a  bill  brought  by  him  for 
the  specific  performance  of  a  contract  to  renew  a 
lease.    Price  v.  Asaheton,  1  T.  A;  Col.  441.    1387 

To  prove  a  settlement  by  renting  a  tenement, 
a  witness  produced  a  book  containing  the  entry 
of  an  agreement  for  a  present  demise  of  a  house, 
at  11/.  per  annum.  The  witness  stated  that  he 
let  the  house  as  agent  to  his  father,  who  was 
present,  and  that  the  terms  were  reduced  to 
writing,  to  prevent  mistake,  and  signed  by  the 
wife  of  the  pauper,  on  purpose  to  bind  her  hus- 
band, the  husband  not  being  present ;  but  that 
the  entry  was  not  signed  by  the  witnedb  or  his 
father,  nor  did  their  name  appear  in  any  part. 
He  further  stated,  that  he  had  no  memorv  of 
these  things  but  from  the  book,  without  which  he 
could  not  of  his  own  knowledge  be  able  to  speak 
to  the  fact ;  but,  on  reading  the  entry,  he  had  no 
doubt  that  the  fket  really  happened : — Held,  that 
the  entry  was  neither  a  lease  nor  an  agreement 
for  a  lease  within  the  Btamp  Act.  nex  v.  St. 
Martin,  Leicester,  4  Nev.  A  M.  202;  2  Adol.  A> 
Ellis,  210.  1387 

Jf  an  agreement  for  a  lease  contain  no  stipula- 
tion as  to  covenants,  the  party  agreeing  to  take 
the  lease  has  a  right  to  a  lease  containmg  only 
usual  covenants,  and  a  restriction  against  par- 
ticular trades,  not  being  a  usual  covenant,  cannot 
be  introduced  into  the  jease.  Propert  v.  Parker, 
3  Mylne  A  K.  280.  1387 

Where,  in  an  agzeement  for  the  lease  of  a 
house  to  be  granted  by  the  defendants  to  the 
plaintiff,  it  was  stipulated  that  the  lease  should 
oontain  the  usual  covenants  between  landlord  and 
tenant,  and  that  the  house  should  not  be  con- 
verted into  a  school,  it  is  immaterial  whether  the 
plaintiff  had  or  had  not  notice  that  the  defendants 
derived  their  title  under  a  lease  from  another 
person ;  because  the  ageeement  amounte  to  a  re- 
presentation on  the  part  of  the  defendants,  that 
they  were  at  liberty  to  grant  a  lease  conformably 
to  the  terms  of  the  agreement.  Van  v.  Corpe,  3 
Mylne  &  K.  269.  1387 

A  party  who  enters  into  an  agreement  for  an 
under-lease,  without  inquiring  into  the  covenante 
of  the  original  lease,  has  constructive  notice  of 
all  usual  covenante  in  the  original  lease.  Flight 
9.  Barton,  3  Mylne  ^k  K.  282.  1387 

Quaere,  whether  he  has  such  notice  of  unusual 
covenante  ?    Id. 

But  where  a  party  entered  into  an  agreement 
under  a  lessee  tor  an  under  lease,  and  mforroed 
him  of  the  nature  of  the  business  which  he  meant 
to  carry  on  in  the  premises,  and  the  lessee  did 
not  apprise  him  that  there  was  a  covenant  in  the 
original  lease  prohibiting  such  business,  the 
silence  of  the  lessee  was  equivalent  to  a  repre- 
sentetion  that  there  was  no  such  prohibiting 
covenant.    Id. 

It  is  the  duty  of  a  person  eontraeting  for  an 
under-lease  to  inform  himself  of  the  covenante 
conteined  in  the  original  lease,  and  if  he  enters 
and  tokea  poasessioA  of  the  property  he  will  be 


2618 


[LANDLORD  AND  TENANT] 


bound  I17  thoge  covencntB.    CoflRr  v.  Collmge,  3 
Mylne  &  K.  383.  l3o7 

Wbere  the  original  lease  contained  nsnal  cove- 
nants, and  the  defendant  entered  into  an  agree- 
ment with  the  plaintiff  for  an  under-lease,  and 
took  possession  of  the  premises,  no  reference  to 
covenants  being  made  in  the  agreement,  bat  the 
defendant's  solicitor  having  hi^  an  opportunity 
of  inspecting  the  orignal  lease^  it  was  held  that 
the  defendant  was  bound  to  accept  a  lease,  with 
the  unusual  covenants  contained  in  the  original 
lease.    Id. 

A  contract  provided  that  a  lease  should  be 
drawn,  prepared,  and  executed  at  the  sole  expense 
of  the  lessor.  In  an  action  on  the  agreement  by 
the  lessee : — Held,  tliat  it  was  not  necessary  to 
aver  that  a  lease  was  tendered  to  the  lessor  for 
execution.  Price  v.  Williams,  1  Mees.  Sl  Wels. 
6.  1387 

The  declaration  set  out  the  agreement  in  terms ; 
it  contained  words  of  present  demise  fur  fourteen 
years,  but  stipulated  also  for  the  execution  of  a 
future  lease: — Held,  that  the  declaration  need 
not  allege  expressly  what  the  agreement  amount- 
ed to  in  law ;  whether  it  was  an  actual  demi«e,  or 
only  an  agreement  for  a  demise.     Id. 

JJgreemenU  or  LeasesA — A  memorandum  of 
an  agreement  to  let,  which  contains  words  of 
present  demise,  and  sufficiently  ascertains  the 
terms  of  the  intended  tenancy,  will  operate  as  a 
present  demise,  although  it  provides  for  the  pre- 

riratioYi  of  a  future  lease.     Warman  9.  Faithful, 
Nev.  &,  M.  137 ;  5  B.  &  Adol.  1042.  1389 

Whether  an  agreement  for  a  lease  shall  enure 
as  a  present  demise,  is  a  question  of  intention 
to  be  collected  from  the  instrument ;  therefore 
where  an  agreement  for  a  lease  contained  a  stipu- 
lation as  to  the  terms  upon  which  the  tenant 
should  hold  till  a  lease  was  granted,  but  also  con- 
tained a  proviso  that  it  should  not  be  construed 
or  taken  to  operate  as  a  lease  or  actual  demise  : 
— Held,  that  it  did  not  require  a  lease  stmmp. 
Perring  v.  Brook,  7  C.  &  P.  360— Coleridge. 

A  memorandum  having  a  lease  stamp,  by 
which  A.  agrees  to  let  to  B.  certain  lands  men- 
tioned in  an  annexed  abandoned  lease  from  A.  to 
C,  Qp<^n  the  conditions,  agreements,  Ac,  con- 
tained in  the  same  lease,  and  by  which  A.  and  B., 
bind  themselves  to  execute  a  lease  similar  to 
such  abandoned  lease,  is  itself  a  valid  lease. 
Pearce  v.  Cheslyn,  5  Nev.  &  M.  652.  1389 

The  annexed  lease  may  be  read  in  evidence, 
although  itself  unstamped.    Id'. 

Construction  ]— A  demise  by  A.  to  B.  for  the 
term  pf  his  natural  life  may  enure  as  a  demise 
either  for  the  life  of  A.  or  of  B.,  according  to  cir- 
cumstances. Doe  d.  Pritchard  v.  Dodd,  2  Nev.  Hl 
M.  638 ;  5  B.  &  Adol.  689.  1393 

Semble,  that  if  the  habendum  be  to  B.,  his  ex- 
ecutorii,  administrators,  and  assigns,  a  presump- 
tion is  created  in  favor  of  a  devise  for  the  life 
of  A.    Id. 

Such  presumption  is  confirmed  by  a  covenant 


by  A.  with  B.  for  quiet  enjoynient  doring  the  life 
of  A.    Id. 

Such  a  covenant  per  se  would  amount  to  a  de- 
mise.   Id. 

In  an  action  of  assumpsit  for  money  had  and 
received,  to  recover  back  a  sum  alleged  lo  have 
been  overpkaid  by  a  tenant  to  his  landlord,  upon 
a  settlement  between  them  in  relation  to  a  distress 
for  arrears  of  rvnt,  it  appeared  that  the  defendant 
held  the  premises  under  a  lease  from  Michaelmas, 
1832 : — Held,  that  a  memorandum  written  in  the 
margin  of  the  drafl  of  tlie  lease,  whereby  the 
tenant  engaged  to  pay  rent  for  the  preceding  half 
quarter,  was  admissible  in  evidence  for  the  pur- 
pose of  negativing  the  plaintiff's  claim.  Cowne 
V.  Garment,  1  Scott,  275 ;  1  Bing.  N.  R.  318. 

1393 

Semble,  that  assumpsit  was  the  proper  form  of 
action,  and  not  case,  for  an  excessive  distress.  Id. 

A  demise  of  an  incorporeal  hereditament  can 
only  be  valid  by  deed ;  a  demise  by  parol  of  a 
right  of  hunting  and  sporting,  together  with  a 
messuage,  is  therefore  void.  Bird  v.  Higginson, 
4  Nev.  d&  M.  505 ;  2  Adol.  &.  £Uis,696 ;  I  Har. 
&W0II.6I.  1392 

By  a  deed  to  lead  the  uses  of  a  recovery,  lands 
are  limited  to  A.  for  1000  years,  and  subject 
thereto,  to  B.  for  life,  remainder  to  C.  for  2C0O 
years,  remainder  to  D.  for  life,  remainder  to 
trustees  to  preserve,  &c.  remainder  to  the  issue 
of  D.  successively,  in  tail,  with  the  ultimate  re- 
mainder to  the  heirs  of  D.  The  trusts  of  the 
first  term  are  declared  to  be,  upon  non-payment 
of  800/.  lent  by  A.  to  D.,  to  raise  that  sum  by 
sale,  mortgage,  or  other  disposition.  The  trusta 
of  the  second  term  are  to  repay  B.  for  any  interest 
paid  by  her  to  A.,  and  to  raise  a  further  sum  for 
B.  Power  lo  B.  tO|  demise  for  ten  years,  or  for 
seven  years  from  her  death,  to  take  effect  in  pos- 
session, reserving  the  best  rent,  &e.  B.  demises 
under  the  power  for  seven  years  from  her  death 
to  E.,  reserving  rent  to  D.,  or  to  the  person  enti- 
tled for  the  time  being  to  the  freehold  or  inhe- 
ritance. The  lease  takes  effect  as  an  appoint- 
ment^under  the  power  in  advance  of  the  term  for 
1000 'years.  B.  and  D.  die.  A.  may  distrain 
upon  E.  for  the  accruing  rent.  Rogers  v.  Hum- 
phreys, 5  Nev.  &  M.  511.  13^2 

To  an  avowry  by  A.,  E.  pleads  non  tenuit, 
the  tenure  (if  any)  under  A.,  created  by  the 
lease,  is  not  negatived  by  showing  that  A.  has 
joined  with  the  issue  of  D.  as  a  co- lessor  with 
them  in  an  action  of  ejectment  against  E.,  which 
is  still  pending.     Id. 

Such  tenure  could  not  be  affected  by  the  re- 
sult of  such  action.    Semble.    Id. 

A  printed  instrument  purporting  to  be  a  form 
of  a  demise  of  a  farm,  had  originally  contained 
in  the  habendum  words  creating  a  tenancy  from 
year  to  year,  but  on  producing  the  instrument  in 
evidence,  they  were  found  to  be  struck  through, 
and  were  proved  to  have  been  so  struck  through 
before  tlie  execution  of  the  instrument  by  the 
party  charged.  The  remaining  words  of  demise 
wt're  "  for  the  term  of  one  year  fully  to  be  com- 
plete and  ended,"  and  ^tood   immediately  pre- 


[LANDLORD  AND^  TENANT] 


25m 


ceding  those  which  had  been  •truck  out.  How- 
ever, many  subsequent  stipulations  remained  in 
the  leases,  which  seemed  to  be  only  applicable  to  a 
tenancy  for  longer  than  a  year,  or  determinable  by 
notice  to  quit : — Held,  first  that  the  words  struck 
through  might  be  looked  at  to  ascertain  the  real 
intention  o?  the  parties  in  so  erasing  them,  and 
consequently  that  the  tenancy  was  lor  one  year 
only ;  and  next,  that  the  stipulations  inapplica- 
ble to  such  a  tenancy  must  be  consideied  as 
struck  out,  or  as  surplusage,  unless  the  tenancy 
should  continue  for  more  than  a  year.  Strick- 
land V.  MazweU,  2  C.  &  M.  539;  4  Tyr.  346. 

1392 

llj  the  same  instrument  of  demise,  after  a 
coTenant  for  payment  of  rent  by  the  tenant,  it 
'was  agreed,  "  that  in  case  the  tenant  should  duly 
observe  and  perform  the  several  covenants  and 
agreements ,  thereinbefore  contained  on  his  part 
and  behalf,'*  and  should  peaceably  quit  the  farm 
in  pursuance  of  notice  to  do  so,  he  should  be  en 
titled  to  a  way   going  crop, 
lands   in  seed  or  turnips  the 
such  crop  being  to  be  left  for  the  landlord,  or 
his   incoming  tenant,  at  a  valuation  to  be  made 
by    arbitrators  or  an   umpire  : — Held,  that  this 
clause  did  not  give  the  tenant  the  right  of  pos- 
session of  the  land  to  the  exclusion  of  the  land- 
lord, after  the   determination  of  the  year's  te- 
nancy, but  at  most  only  a  right  to  go  on  the 
land  to  improve   the  crop ;  and   that   the  land- 
lord   might    maintain   trespass    quare    clausum 
frecrit,   for  taking   possession  of  the   crop,  and 
hindering  him   from  having  the  use  and   occu- 
pation of  the  land,  after  the  year  was  expired. 
Id. 


to  be  taken   from 
previous   summer. 


Whether  the  payment  of  the  rent  was  a  con- 
dition precedent  to  the  tenant's  having  the  right 
to  the  way  going  crop,  quere.     Id. 

A.,  the  owner  of  certain  freehold  houses  and 
land,  with  a  yard  adjoining  thereto,  demised,  by 
parol,  several  of  the  houses.  The  tenants  were 
m  tbie  habit  of  passing  over  the  yard,  and  using 
m  common  pump  and  privy  tjiere.  There  was 
no  evidence  whether  the  yard  formed  part  (%f  the 
demise  or  not.  In  trespass  by  one  of  the  te- 
nants against  the  landlord  for  excluding  him 
from  the  yard,  the  judge  left  it  to  the  jury  to 
sav  whether  the  landlord  at  the  time  of  the  de- 
mise had  reserved  the  yard : — Held,  that  this 
was  a  misdirection,  the  question  being  whether 
be  had  demised  it,  and  not  whether  He  had  re- 
served it.  Hebbert  or  Herbert  v.  Thomas,  I  C. 
M.  &  R.  8&1 ;  5  Tyr.  503 ;  1  Gale,  53.  1392 

In  trespass  to  land,  if  the  defence  be  that 
the  plaintiff,  who  has  the  freehold,  is  out  of 
possession  by  a  demise,  it  is  for  the  defendant 
to  xebut  tlie  presumption  that  possession  fol- 
lows the  freehold,  by  proving  a  demise.  Id. 

If  under  a  parol  demise  for  more  than  three 
years,  void  by  the  Statute  of  Fraudp,  the  lessee/ 
enters  and  becomes  tenant  from  year  to  year,  he 
is  bound  by  an  undertaking  to  repair  contained 
in  such  void  demise.  Ricnardson  v.  Giffbrd,  3 
Nev.  ^k  M.  325 ;  1  Adol.  &  Ellis,  52.  1301 


Stomp]. — In  support  of  an  is8ues>f  assignmefUy 
the  plaintiffs  offered  in  evidence  a  deed  exe- 
cuted by  the  defendant  only,  which  when  exe- 
cuted was  intended  by  the  parties  to  be  the 
counterpart  of  a  lease,  and  was  stamped  with  a 
duty  of  H.  lOs.  f  but  the  grantor  having  thereby 
parted  wilh  all  his  interest  in  the  premises,  the 
original  deed  became  by  operation  of  law  an 
assignmeni  : — Held,  that  the  deed  so  tendered  in 
evidence  was  not  admissible  for  the  purpose  o€ 
proving  an  assignment,  the  proper  stamp  being 
\l,  15« ,  under  the  general  clause  to  the  55  Geo. 
3,  c.  184,  applicable  to  "  deeds  of  any  kind,  not 
otherwise  charged,  or  expressly  exempted  from 
stamp  duty.'*  Baker  v.  U-osling,  1  Scott,  58  ;  1 
Bing.  N.  R.  246.  1395 

Where  an  instrument  which  was  in  reality  a 
lease,  but  which  bore  an  agreement  stamp  for 
15«.  was  executed  in  1805,  at  which  period  the 
amount  of  the  stamp  on  a  lease,  according  to 
the  act  then  in  force,  was  H.  IO5.,  but  was 
stamped  in  1834,  under  the  provisions  of*  the 
37  Geo.  3,  c.  136,  s.  2,  with  a  stamp  of  1^,. 
being  the  amount  of  the  stamp  then  in  force  : 
— Held,  that  the  proper  duty  had  been  ^id. 
Buck  worth  v.  Simpson,  1  C.  M.  &R.  834;  5  Tyr. 
344 ;  1  Gale,  38.  1395 

A  lease  contained  a  demise  of  two  separate 
farms,  with  two  habendums,  differing  from  each 
other ;  a  reservation  of  a  separate  rent  in  respect 
of  each  farm,  and  separate  covenants,  some  ap- 
plying to  one  farm,  some  to  the  other.  The 
lemee  entered  on  the  whole  at  one  time : — Held, 
that  one  ad  valorem  stamp  for  the  amount  of 
both  rents  was  sufficient.  Blount  v,  Pearman, 
1  Scott,  55 ;  1  Bing.  N.  R.  408.  1395 


Assignment.'] — Semble,  an  offer  by  an  executor 
to  a  lessor  to  surrender  to  him  a  lease  granted  to 
his  testator,  is  an  answer  to  an  action  ofcovenant 
against  him  as  assignee  for  breaches  of  a  cove- 
nant to  repair,  as  to  all  breaches  accruing  after 
that  offer.    Reid  c.  Tenterden  (Lord),  4  Tyr.  111. 

1399 

In  covenant  against  an  executor,  sued  as  an 
assignee,  for  breaches  of  covenants  to  pay  rent 
and  to  repair,  incurred  in  his  time,  it  was  pleaded, 
first,  that  the  defendant  was  executor  of  the  les- 
see ;  that  the  premises  vested  in  him  as  such  ex- 
ecutor only,  and  not  otherwise ;  that  the  profits 
of  the  demised  premises  at  tlie  time  he  became 
executor,  and  since  that  time  hitherto,  were  less 
than  the  rent  reserved  ;  and  that  the  defendant  had 
paid  to  the  plaintiffs  before  commencing  the  suit. 
255/.,  being  all  that  remained  in  his  hands  of  the 
said  profits  by  him  at  any  time  received  there- 
from, and  that  he  had  never  since  received  any 
such  profit : — Held,  on  special  demurrer,  to  bie 
insufficient,  for  not  stating  that  the  defendant 
had  no  other  assets  of  the  deceased,  which  had 
come  to  his  hands  as  executor  to  be  administered. 
Id. 

In  two  other  pleas,  the  defendant  added  to  the 
above  statement,  that  the  sum  of  2551.,  so  paid 
before  the  commencement  of  the  suit,  was  all  the 
money  that  remained  in  his  hands,  not  only  on 


^20 


[LANDLORD  AND  TENANT] 


account  of  tb^  profits  of  the  premises  received  by 
him,  but  all  goods  and  chattels  which  were  of 
the  deceased  which  had  come  to  his  hands  to  be 
administered;  and  that  he  had  not,  at^the  time  of 
the  commencement  of  the  suit,  or  at  any  time 
since,  tjxy  profits  or  goods  and  chatties  of  the 
deceased  in  his  hands  to  be  administered : — 
Held,  on  special  demurrer,  to  be  insufficient  for 
not  stating,  that  during  the  interval  between  the 
payment  of  the  2251.  aod  the  commencement  of 
the  suit,  defendant  had  no  assets.    Id. 

A  lessee  for  years  under-demised  for  a  term 
longer  than  the  residue  held  by  him,  the  un- 
der lessee  covenanting  to  pay  to  the  lessee,  his 
executors  and  administrators,  the  yearly  sum  of 
75/.,  by  quarterly  payments : — Held,  that  not- 
withstanding the  instrument  amounted  to  an  as- 
signment, inasmuch  as  all  the  lessee's  term  was 
thereby  conveyed,  covenant  lay  at  the  suit  of  the 
*  executor  of  the  lessee,  to  recover  arrears  of  this 
rent  accruing  during  the  continuance  of  the 
lessee's  term.  Baker  v.  GrosUing,  4  M.  &  Scott, 
d39.  1398 

An  executor  who  has  occupied  premises  held 
by  his  testator  under  a  lease,  with  covenants  for 
payment  of  rent  and  taxes,  and  to  keep  the  pre- 
mises in  repair,  sued  in  covenant  as  assignee,  in 
respect  of  the  privity  of  estate,  is  liable  on  the 
covenant  for  iMviuent  of  rent  and  taxes  to  the 
extent  only  or  the  profits  :  but,  for  a  breach  of 
the  covenant  to  repair,  he  is  liable  to  the  same 
extent  that  any  ouier  assignee  is  liabb.  Tre- 
meere  v.  Morrison,  4  M.  &  Scott,  603.  1999 

Qnere,  whether  there  is  any  distinction  in 
this  respect  between  the  case  of  an  executor,  and 
that  of  an  administrator.  Id. 

In  assumpsit  for  use  and  occupation,  held, 
that  under  the  issue  of  non  assumpsit,  the  de- 
fendant might  give  in  evidence  that  the  plaintiff 
had  Mortgaged  the  premises  before  the  defen- 
dant came  mto  occupation,  and  that  the  mort- 
gagee had  given  notice  to  the  defendant  not  to 
pay  to  the  plaintiff  any  rent  becoming  due  after 
such  notice.  Waddilove  v.  Barnett,  2  Biuff .  N. 
R.  538.  *1399 

Obedience  to  the  mortgagee's  notice  as  to  rent 
due  befi>re  the  notice,  must  be  specially  pleaded. 
Id. 

An  assig^nee  of  a  lease,  containing  covenants 
running  with  the  land,  is  liable  uier  he  has 
assigned  over,  for  a  breach  incurred  after  the  as- 
signment to  him,  and  before  his  assignment 
over.  Harley  v.  King,  2  C.  M.  dt  R.  18;  1 
Gale,  100.  ^  1400 

In  debt  for  rent  on  a  lease,  by  lessor  against 
the  assignee  of  the  lessee,  the  declaration  stated 
that  all  the  estate,  &c.  of  the  lessee  came  to 
and  vested  in  the  defendant,  which  allegation 
the  defendant  traversed,  and  the  plaintiff  joined 
issue.  It  w«s  in  evidence  that  defendant  was 
assignee  of  only  a  part  of  the  demised  premises  : 
— Held,  that  there  was  a  fatal  variance,  and  that 
the  issue  must  be  found  for  the  defendant.  Cur- 
tis V.  Spitt^,  1  Scott,  r37;  1  Bing.  N.  R.  756 ;  1 
Hodges,  1S3.  1400 

Semble,  that  it  is  a  nice  and  diffiault  question 


whether  a  lessor  can  maintain  an  action  in  debt 
against  the  sssignee  of  part  of  the  land  de- 
mised, to  recover  rent  issuing  from  the  whole 
of  it.    Id. 

The  surrenderee  of  a  copyhold  is  an  assignee 
of  a  reversion  within  the  statute  of  32  Hen.  8,  c. 
34,  and  may  maintain  an  action  of  covenant 
ui>on  a  lease  made  bjr  his  surrenderor,  and  the 
defendant  in  such  action  cannot  protect  himself 
by  alleging  the  invalidity  of  the  lease.  Whitton 
V.  Peacock,  3  Mylne  dt  K.  325.  1400 

In  1762,  a  lessor  having  only  an  e<)uitable  es- 
tate in  a  certain  field,  demised  a  portion  of  the 
field  to  a  lessee  for  99  years.  In  1773,  the  lessor 
having  acquired  the  legal  estate  in  the  field,  de- 
mised the  residue  or  the  field  to  the  lessee  for  the 
name  term,  by  an  indenture,  which  recited  the 
former  lease,  stipulated  for  its  continuing  in  force, 
but  provided  that  no  more  rent  should  be  paid  for 
the  entire  field  than  was  paid  for  the  first  portion, 
and  that  the  rent  to  be  paid  for  the  entire  field 
was  meant  to  be  the  same  as  that  reserved  for 
the  first  portion  : — Held,  that  the  assignee  of  the 
reservation  could  not  sue  the  assignee  of  the 
lessee  upon  the  covenants  in  the  lease  of  1762. 
Whitton  V.  Peacock,  2  Scott,  630;  2  Bing.  N  R. 
411.  1400 

Liability  of  assignee.  Wolveridge  p.  Steward, 
1  C.  &,  M.  644;  3  Tyr.  637.  1401 

It  is  no  defence  at  law  to  an  action  on  an  in- 
denture of  lease  by  the  trustee  of  a  partv  who  has 
become  bankrupt,  that  the  defendants,  the  lessees, 
have  performed  their  covenants  with  the  assig- 
nees of  the  cestui  que  trust.  Britten  v.  Britten 
or  Perrott,  2  C.  &  M.  597  ;  4  Tyr.  473.         1401 


Forfeiture.'] — A  termor,  after  deserting  the  de- 
mised premises,  delivered  up  the  possession  of 
them,  with  the  lease,  to  a  party  who  claimed  by 
a  title  adverse  to  that  of  the  landlord,  with  intent 
to  assist  him  in  setting  up  that  title,  and  not  that 
he  should  hold  bona  fide  tfnder  the  lease : — Held, 
that  the  term  was  forfeited  by  the  act  of  betraying 

1, 1  C.  M. 


possession.    Doe  d.  EUerbrock  v.  Flynn, 
&R.  137;  4  Tyr.  619. 


1401 


Where,  during  the  existence  of  a  lease  eon« 
taining  a  proviso  for  re-entry  in  case  of  assign- 
ment or  underletting  without  licence  in  writing, 
the  lessor,  who  had  during  the  remainder  of  the 
interest  in  it,  engaged  to  grant  a  new  lease  to  the 
defendant  to  take  efiect  on  the  expiration  of  the 
old  lease  - — Held,  that  the  lessor  could  not  main- 
tain ejectment  against  the  defendant  on  the  fact 
of  his  possession,  though  no  licence  in  writing 
had  been  granted,  as  there  was  a  waiver  of  the 
forfeiture  if  any  had  taken  place,  or  else  there 
was  no  forfeiture  at  all,  for  tne  defendant  came 
in  with  the  lessor's  consent.  Doe  d.  Weatherhead 
V.  Curwood,  1  Har.  A  WoU.  140.  1403 

A  proviso  in  an  agreement  of  demise  that  the 
tenant  should  within  a  certain  time  erect  a  shop 
front,  &c.,  and  that,  if  he  did  not  do  so,  it  should 
be  lawful  for  the  landlord  or  his  ageifts  to  retake 
possession  of  the  premises,  and  Sie  agreement 
should  be  null  and  void,  was  held  to  make  it « 


[LANDLORD  AND  TENANT} 


2521 


lease  Toidable  only  at  the  election  of  the  lessor. 
Doe  d.  Nash  v.  Birch,  1  Mees    &  Wels.  402. 

1401 

Qusre,  whether  a  demand  of  rent^  which  be- 
came due  subsequent  to  a  forfeiture,  amounts  to 
a  waiver  of  the  forfeiture  ?   Id. 

A.  lessor  at  will,  B.  lessee  at  Will,  C.  under 
lessee  at  will :  a  demand  of  the  possession  made 
upon  the  premises  from  the  wife  of  C.  is  sufficient 
to  entitle  A.  to  maintain  ejectment  Doe  d.  Blair 
V.  Street,  4  Nev.  &  M.  42.  :i405 

IVhether  a  demand  made  off  the  premises  from 
the  wife  of  C.  would  be  sufficient,  quaere  ? 

A  party,  who  defends  in  ejectment  as  landlord 
as  to  W.,  and  as  tenant  as  to  B.,  cannot  take  ad- 
Tan  tage  of  a  defect  in  the  service  of  a  demand  of 
possession,  made  upon  the  tenant  of  B.,  for  the 
purpose  of  determining;  an  estate  at  will.    Id. 

Surrender.] — A.,  the  tenant  of  a  house,  three 
cottages,  and  a  stable  and  jrard,  let  at  an  entire 
rent,  for  a  term  of  seven  years,  before  the  expira- 
tion of  the  term  assigned  all  the  premises  to  B. 
for  the  remainder  of  the  term,  the  nouse  and  cot- 
tages bein^  in  the  possession  of  under  tenants, 
and  the  stable  and  yard  in  that  of  A.  The  land- 
lord accepted  a  sum  of  money  as  rent  up  to  the 
day  of  the  assignment,  which  was  in  the  middle 
of  the  quarter.  ^  B.  took  possession  of  the  yard 
and  stable  only.  The  occupiers  of  the  cottages 
having  left  them  after  the  assignment,  and  bemre 
the  expiration  of  the  term,  the  landlord  re-let 
them.  A.  paid  no  rent  after  the  assignment,  but 
the  landlord  received  rent  from  the  under-tenants. 
Before  the  expiration  of  the  term  the  landlord 
adTertised  the  whole  of  the  premises  to  be  let  or 
sold  : — Held,  that  this  was  a  surrender  by  opera- 
tion of  law  of  all  the  premises.  Reeve  v.  Bird,  1 
C.  M.  &  R.  31 ;  4  Tyr.  612.    ,  1406 

The  plaintiff  was  tenant  to  A.  of  one  close;  K. 
was  tenant  to  B.  of  another  close  ;  the  plaintiff 
and  K.  verbally  a^eed  to  exchange  their  hold- 
inii^s;  ^'the  plaintiff  to  have  B.'sland,  and  pay 
K.'s  rent ;  K.  to  have  A/s  land  and  pay  plaintiff's 
rent."  On  the  same  day  each  took  possession 
of  the  other's  land.  K.  undertook  to  communi- 
cate their  bargain  to  C,  who  was  the  asent  of 
both  A.  and  B. ;  he  did  accordingly,  some  days  af- 
terwards, communicate  to  him,  and  C.  expressed 
his  concurrence : — Held,  that  this  was  evidence 
to  ^  to  the  jurv  of  a  surrender  by  K.  to  B.  of 
his  mterest  in  B.  s  close.  Bees  v.  Williams,  2  C. 
M.  &  R.  5^1 ;  1  Tyr.  &  G.  23.  1409 

A.  demises  to  B.,  who  underlets  to  C.  In  the 
middle  of  both  terms  it  is  agreed  between  A.  and 
B^  that  B.'a  tenancy  shall  cease,  and  between  A- 
and  C.  that  C.  shall  hold  under  A.  for  a  longer 
term.  This  arrangement  enures  as  a  surrender 
from  B.  to  A.,  ancTa  new  demise  from  A.  to  C 
Rex  «.  Banbury,  3  Nev.  A  M.  292,  I  Adol.  & 
Ellis,  136.  1409 

By  agreement  dated  in  May,  by  which  A.,  B., 
and  C.  were  parties,  A.  and  B.  agreed  to  sell  by 
auction  an  estate  to  which  they  were  entitled  as 
tenants  In  common,  or  in  default  of  such  sale, 


that  such  parts  of  it  as  should  not  be  sold  after 
the  1st  August  and  before  the  1st  September  fol- 
lowing should  be  divided  into  two  equal  lots  be- 
tween A.  and  B. ;  and  that  100/.  should  be  paid 
by  A.  to  C,  tlie  principal  tenant,  as  a  remune- 
ration for  his  ffiving  up  possession  of  his  farm 
at  Michaelmas  following;  and  C.  sgreed  to  give 
up  possession  of  his  farm  accordingly.  No  part 
or  the  estate  was  sold  by  the  1st  September,  but 
some  portions  were  sold  subsequently,  and  the  re- 
mainder was  divided  between  A.  and  B.,  but  such 
division  was  not  completed  till  the  followihg 
March.  C.  continued  m  possession,  by  the  de- 
sire of  A.  and  B.,  until  that  time,  and  then  quit- 
ted : — Held,  that  the  acrreement  was  not  a  sur- 
render of  A.'s  term.  Weddall  r.  Capes,  1  Mees. 
A  Wels.  50.  1406 


Teiianey  from  Year  to  Year.]  —  Payment  of 
rent  is  prima  facie  evidence  of  a  tenancy  from 
year  to  year.  Doe  d.  Pritchard  v.  Dodd,  2  Nev. 
<&  M.  ^ ;  5  B.  &  Adol.  689.  1413 

Secus,  where  the  existence  of  such  a  tenancy 
would  imply  that  devisees  in  teust  had  conveyed 
away  their  estate,  whilst  a  duty  still  remained  to 
be  performed  by  them,  semble.    Id. 

The  presumption  is  completely  rebutted  by 
showing  that  the  rent  paid  and  reserved  is  of  the 
same  amount  as  the  rent  reserved  in  an  unex- 
pired lease,  the  premises  being  at  the  time  of 
such  payment  of  rent  of  much  mater  value  than 
the  rent  so  reserved  and  so  paid.    Id. 

A  contract  was  made  for  the  purchase  of  a  pub- 
lic-house, 50^.  were  paid  as  a  deposit,  70/.  more 
were  to  be  paid  on  the  landlord's  consent  being 
obtained  to  a  change  of  the  tenancy.  The  pur- 
chaser sent  some  furniture  to  the  house  in  ques- 
tion, and  resided  in  a  part  of  it,  the  vendor  also 
still  remaining  in  it: — Held,  that  the  contract 
was  conditional  on  a  valid  consent  of  the  landlord 
being  given ;  and  that  a  verbal  consent  aflerwards, 
revoked  before  any  change  of  tenancy  in  fact  had 
occurred,  was  not  binding ;  that  there  had  been 
no  partial  enjoyment  of  the  object  of  Uie  contract, 
and  that  therefore,  on  the  failure  of  the  condition, 
the  50/.  miffht  be  recovered  as  money  had  and 
received.  Wrighton  or  Wright  v.  Newton,  2  C. 
M.  &  R.  124  ;  1  Gale,  67.  1412 

Defendant  in  possession,  under  a  lease  for 
fourteen  years,  assigned  the  lease,  by  way  of 
mortgage,  to  plaintiff,  and  then  committed  a  for- 
feiture, for  which  the  lessor  brought  ejectment. 
It  was  then  agreed,  at  a  meeting  of  all  the 
parties,  that  judgment  should  be  signed  in  the 
ejectment,  that  the  lessor  should  grant  a  new 
lease  to  plaintiff,  and  that  plaintiff  should  grant 
an  under-lease  to  defendant.  The  new  lease  was 
accordingly  granted  to  plaintiff,  who  then  deli- 
vered defendant  the  kev,  saying,  ^<  Gk>  on  as 
u.«ual,  pay  the  money"  (due  on  mortgage),  "and 
when  vou  have  done  so,  you  shall  have  an  under-  ^ 
lease :  * — Held,  that  this  did  not  constitute  defen- 
dant tenant  from  vear  to  year.  Doe  d.  Rogers  v. 
Pullen,  3  Scott,  Sl45;  2  Bing.  N.  R.  749.       1412 

A  party  who  has  been  let  into  the  possession 


S522 


[LANDLORD  AND  TENANT] 


of  land  in  a  contract  of  sale  which  has  not  been 
completed,  is  a  tenant  at  will  to  the  vendor.  Ball 
V.  CaUiniore,  2  Cl  M.  &  R.  120;  1  Gale,  96. 

1412 

A  feoffment  with  livery  of  seisin  made  on  the 
land,  determines  a  tenancy  at  will,  though  the 
tenant  be  not  present,  nor  assenting  to  the  feoff- 
ment; and  the  feofiee  may  maintain  trespass 
against  the  tenant  at  will  who  has  been  entered 
on  his  possession.    Id. 

An  under  tehant  who  is  in  possession  at  the 
determination  of  the  original  lease,  and  is  per- 
mitted by  the  reversioner  to  hold  over,  is  quasi 
a  tenant  at  suficrance ;  and  the  mere  fact  of  occu- 
pation, coupled  with  the  payment  of  rent  for  such 
time  of  occupation,  does  not  raise  the  presump- 
tion of  a  demise  for  years  unless  there  is  some 
evidence  to  show  an  agreement  for  a  demise  for 
the  term.  Simpkin  v.  Ashurst,  1  C.  M.  ^  R. 
261 ;  4  Tyr.  781.  1414 

Where  there  is  a  demise  from  year  to  year,  so 
long  as  the  parties  shall  please,  and  a  new  tenant 
takes  possession,  whose  occupation  as  tenant  the 
then  reversioner  omits  to  determine  by  a  notice 
to  quit,  the  pleadings  may  allege  a  new  relation 
of  landlord  and  tenant,  on  Uie  original  terms,  be- 
tween the  reversioner  and  the  occupier.  Buck- 
worth  V.  Simpson,  1  C.  M.  &  R.  834 ;  5  Tyr. 
344;  1  Gale,  38.  1415 

A.  demised  to  B.  certain  lands  and  premises 
for  one  year  certain,  and  then  from  year  to  year 
so  long  as  the  parties  should  think  proper,  with 
power  to  determine  it  on  giving  notice  to  quit ; 
and  the  lease  contained  various  terms  and  con- 
ditions as  to  the  management  of  the  lands  and 
repairing  the  buildings.  The  lessee  died,  and  his 
executors  entered  into  the  occupation  of  the  pre- 
mises, and  continued  to  occupy,  and  paid  rent : — 
^Ileld,  that  they  were  chargeable  [n  their  persona] 
character  upon  the  terras  contained  in  the  origi- 
nal demise ;  their  contmuing  to  occupy,  and  Ine 
landlord  abstaining  from  giving  notice  to  quit, 
raising  an  implied  promise  on  their  parts  to  abide 
t>y  the  terms  of  the  original  contract.     Id. 

If  a  person  takes  lodgings  on  the  first  and 
.second  floors  of  a  house,  he  has  aright  to  the  use 
of  the  door  bell,  the  knocker,  and  the  skv-light  of 
the  staircase,  and  the  water-closet,  unless  it  be 
otherwise  stipulated  at  the  time  of  the  taking  of 
the  lodgings ;  therefore,  if  the  landlord  deprive 
the  lodger  of  the  use  of  either,  an  action  lies.  If 
the  defendant  in  such  a  case  merely  pleads  the 
general  issue,  he  cannot  show  that  the  water- 
closet  was  useless  before  he  removed  it ;  but  in 
mitigation  of  damages,  he  may  go  into  evidence 
to  show  that  the  plaintiff  and  his  family  were  bad 
lodgers,  and  that  he  did  the  acta  complained  of 
to  cause  them  to  quit  the  house.  Underwood  v. 
Narrows,  7  C.  &  P.  26— Abinger.  1416 

Quiere,  whether  a  mortgagee,  by  giving  notice 
>of  tiie  mortgage  to  a  tenant  who  comes  into  pos- 
session under  a  demise  from  the  mortgagor  uler 
the  mortgage  executed,  thereby  makes  nim  his 
tenant,  unless  something  has  been  done  to  make  I 
a.  new  tenancy  between  the  tenant  and  the  mort- 


ree.    Partington  v.  Woodcock,  5  Nev.  &  M. 
1  Har.  &  WoU.  262.  1416 

Rent.] — A.  demised  a  colliery  to  B.,  and  B. 
covenanted  to  pay  as  rent  "  one  third  part  of  the 
money  that  should  arise,  be  made,  received,  or 
produced  from  the  sale  of  the  coals  ;**  and  cove- 
nanted to  keep  **■  true  accounts  of  all  coal  daily 
raised,  and  to  make  and  deliver  true  copies  there* 
of  to  A- :" — Held,  that  taking  the  two  covenants 
together,  the  rent  was  to  be  calculated  on  the 
amount  of  coal  sold,  and  not  on  the  amount  of 
money  actually  received.  Edwards  v.  Rees,  7  C. 
<&  P.  340— Coleridge.  141d 

A  tenant  in  fee  demised  lands  firom  year  to 
year.  He  died,  having  devised  the  lands  for  life. 
The  devisee  for  life  received  rent,  but  did  not  live 
long  enough  to  have  a  right  to  determine  the 
yearly  tenancy  : — Held,  that  the  administrator  of 
the  tenant  for  life  was  not  entitled  to  an  appor- 
tionment  of  the  rent,  under  the  stat  11  Geo.  2, 
c.  19,  8.  15.  Botheroyd  r.  Woolley,  5  Tyr.  522  : 
1  Gale,  66.  1418 

By  parol,  a  dwelling-house  and  premises  were 
demised  for  a  year,  the  lessee  '^  accepted  the  lease 
and  by  virtue  of  the  demise  entered  upon  the 
demised  land."  Before  -and  at  the  time  of  the 
demise,  eight  acres  included  in  it  had  been  de- 
mised to  a  third  party,  in  whose  possession  they 
were,  so  that  the  lessee  could  not  and  did  not 
enter  upon  them : — Held,  that  tiie  lessee  was  in 
under  the  lease,  he  taking  an  interesse  termini  in 
the  eight  acres,  and  that  the  want  of  possession 
was  not  an  equivalent  to  an  eviction  by  the  tor- 
tious  act  of  the  landlord,  but  was  quasi  an  evic- 
tion by  an  elder  title,  and  that,  therefore,  while 
out  of  the  possession  of  the  eight  acres  the  rent 
was  not  suspended,  but  was  apportioned,  and 
might  be  distrained  for.  Neale  v.  Mackenzie,  2 
C.  M.  <fc  R.  84 ;  1  Gale,  119.  1418 

By  a  local  turnpike  act  it  is  provided,  that  in 
leases  of  the  tolls,  the  rent  shall  be  made  payable 
to  the  treasurer,  and  that  in  default  thereof,  every 
such  lease  shall  be  null  and  void  to  all  intents  and 
purposes  whatsoever.  A  lease  is  made  where- 
by the  rent  is  reserved  to  the  trustees  or  their 
treasurer : — Held,  first,  that  the  reservation  in  the 
alternative  is  bad  within  the  former  part  of  this 
clause*  and,  secondly,  that  the  words  **null  and 
void  to  all  intents  and  pniposes"  are  to  be  con- 
strued as  meaning  absolntely  void,  and  not  void- 
able only :  and  thirdly,  that  the  above  provision 
is  not  repealed  by  either  of  the  general  turnpike 
acts,  3  Geo.  4,  c.  126,  and  4  Geo.  4,  0..95,  but  re* 
mains  in  fbll  force.  Pearse  v.  Moirice,  4  Nev. 
4&  M.  48 ;  2  Adol.  &  Ellis,  84.  1418 

Where  a  tenant,  who  is  shortly  about  to  qui ^ 
his  farm,  advertises  for  sale  by  auction  his  stock, 
&,c.  upon  the  farm ;  his  payment  of  rent  already 
due  and  to  be  due  at  the  expiration  of  his  tenancy 
to  his  landlord,  who  has  notice  of  the  intended 
sale,  does  not  raise  an  implied  promise  on  the  part 
of  the  landlord  not  to  interfere  with  or  prevent 
the  sale,  or  the  removal  of  the  property.  Bush- 
ley  V.  Fisher,  3  Nev.  &  M.  381.  1420 

Semble,  that  a  receipt  ''for  a  quarter's  rent 


[LANDLORD  AND  TENANT] 


2523 


due  from  A."  (the  occupier),  wof  itoelf  evidence 
from  which  a  letting  may  be  inferred.  Rex  v. 
St  Martin,  Leicester,  4  Nev.  dt  M.  202 ;  2  Ado). 
A  EUiB,  210.  1420 

Where  there  it  a  covenant  in  a  lease  to  allow 
■o  much  of  the  rent  as  maj  be  necessary  to  be 
expended  in  repairing  the  premises,  evidence  of 
repairs  and  monej  expended  thereon  will  sup- 
port the  plea  of  nens  in  arrere  to  an  avowry. 
Woods  V.  Rock,  1  Alcock  &  Napier,  57.  {Jriah). 

1421 

Nomine  pmne.  ^  Denton  v.  Richmond,  3  Tyr. 
630;  1  C.  &M.734.  1423 

A  leaae  contained  a  stipolation,  that,  for  every 
acre,  and  so  on  in  proportion  for  a  less  quantity 
of  the  land  which  tne  lessee  should  suffer  to  faie 
oocopied  by  any  other  person  without  the  eon- 
•ent  of  the  landlord,  an  additional  rent  should  be 
paid.  The  tenant  undertook  to  use,  occupy,  dress, 
and  manure  the  land  according  to  the  custom  of 
the  country.  The  tenant,  wiUiout  the  consent  of 
the  landlord,  suffered  other  persons  to  use  small 
portions  of  the  land  for  the  purpose  of  raising  a 
potaioe  crop.  It  was  proved  to  be  the  custom  of 
the  country  for  farmers  to  pursue  that  course : — 
Held,  that  the  landlord  was  entitled  to  the  addi- 
tional rent,  this  being  an  occupation  by  other 
peitens.  Greenslade  v.  Tapscott,  1  C.  M.  &  R. 
te;4Tyr.5G6.  1423 

Tenants  in  common  cannot  sue  jointly  for 
doable  vmlne  for  holding  over,  where  there  has 
been  no  Joint  demise.  Wilkinson  v.  Hall,  1  Scott, 
675;  1  Bing.  N.  R.  713;  1  Hodges,  170.       1422 

Sofoirs.'] — Where  premises  burnt.  M'Kenzie 
V.  ITLeod,  4  M.  d:  Scott,  249 ;  10  Bing.  385. 

1425 

Tlie  jury  having  given  damages  (under  2M.) 
in  an  action  by  landlord  against  tenant  for  an 
injory  to  the  former,  arising  from  the  tenant 
quitting  premises  occupied  by  him  as  tenant  from 
year  to  year  without  having  don^  repairs  he  was 
Doiind  to  do.  The  court  refused  to  disturb  the 
verdict,  although  it  appeared  that  the  larger  por- 
tion of  the  repairs  rec^uired  ouf  ht  to  have  been 
done  by  the  landlord  himself.  Woods  v.  Pope,  1 
Beott,  536;  1  Bing.  N  B.  467;  6  C.  dt  P.  783. 

1424 

If  a  tenant,  who  is  bound  to  repair,  leave,  and 
at  tbe  end  of  the  tenancy  the  premises  be  out  of 
repair,  the  jniy  may  give  the  landlord,  in  an  ac- 
twn  against  tae  tenant,  not  only  the  amount  of 
tiie  aetoal  expense  of  the  repairs,  but  also  a  com- 
pensation for  the  loss  of  the  use  of  the  premises 
they  were  undergoing  repair.    Id. 


A  declaration  upon  a  covenant,  whereby  A.  & 
B.  jointly  and  severally  covenanted  to  repair 
during  the  term,  alleged  as  a  breach,  that  neither 
A.  nor  B.,  whilst  the  latter  was  unmarried,  nor 
A.y  nor  B.,  nor  C.  her  husband,  since  the  mar- 
riage of  B.  with  C.  did  repair  during  the  term, 
dkc.  A  plea  that  A.  and  B.  and  C.  did,  during  the 
term,  repair,  dtc.  is  bad  on  special  demurrer. 
Marshall  v.  Whiteside,  4  Dowl.  P.  C.  766.     1424 

Where  a  very  old  house  is  demised,  with  tbe 
Vfoal  covenants  to  repair,  it  is  not  meant  that  the 

Vol.  IV.  32 


house  should  be  restored  in  an  improved  state, 
or  that  the  consequences  of  the  elements  should 
be  averted ;  but  the  tenant  has  the  duty  of  keep- 
ing the  house  in  the  state  in  which  it  was  at  the 
time  of  the  demise  hv  the  timely  expenditure  of 
money  and  care.  Uutteridge  v.  Munyard,  7  C. 
&  P.  129;  1  M.  &  Rob.  334— Tindal.  1424 

Where  a  lessee  covenants  to  yield  up  the  pre- 
mises at  the  end  of  the  term  in  as  good  condition 
as  they  were  in  when  the  lease  was  granted,  and 
after  the  expiration  of  the  term  holds  over  as 
tenant  from  year  to  year,  no  implied  promise 
arises  to  yiela  up  the  premises  at  the  expiration 
of  the  new  tenancy,  in  the  state  in  which  they 
were  when  the  origmal  lease  was  granted.  John- 
son V.  St.  Peters,  Hereford,  6  Nev.  AM.  106. 

1424 

A  tenant  from  year  to  year  is  not  bound  to  do 
substantial  repairs :  he  is  only  bound  to  keep  the 

? remises  wind  and  water  tight.    Leach  v.  Thomas, 
C.  A  P.  328— Patteson.  1425 


Husbandry! — Custom  as  to  manure.  Roberts 
V.  Barker,  1  C.  &  M.  806 ;  3  Tyr.  945.  1426 

A  tenant,  whose  tenancy  is  determined  aftev 
Lady-day,  by  an  agreement  which  is  silent  as  to 
way-going  crops,  is  not  entitled  to  such  crops 
under  a  custom  which  gives  to  the  tenant  such 
crops  upon  a  regular  expiration  of  a  Lady-day 
tenancy.  Thorpe  v.  Eyre,  3  Nev.  d(&  M.  214;  1 
Adol.  &  Ellis,  926.  1428 

An  action  between  the  owner  of  land,  and  a 
party  holding  by  his  permission,  but  claiming 
to  hold  as  bailiff  and  not  as  tenant,  was  referred 
to  an  arbitrator,  who  was  to  say  what  was  to  be 
done  by  the  parties  with  respect  to  the  land.  He 
awarded  that  the  holding  was  as  tenant,  that  the 
tenancy  should  cease  on  tbe  delivery  of  the 
award,  and  that  possession  of  the  land  should  be 
delivered  up  to  the  owner  in  one  month  after. 
On  an  issue  between  the  landlord  and  an  execu-* 
tion  creditor  of  the  tenant,  whether  the  crops  on 
the  land  at  a  certain  time  were  the  property  of 
the  party  so  found  to  have  been  tenant,  the  award 
was  held  to  be  admissible  in  evidence  on  the  part 
of  tbe  landlord.    Id. 

Held,  also,  that  the  award  did  not  of  itself 
change  the  property.    Id. 

In  an  action  against  a  tenant  upon  promises  to 
cultivate  a  form  according  to  the  course  of  good 
husl>andry,  and  the  custom  of  the  country,  if  the 
declaration  sets  out  the  custom,  and  the  defend- 
ant traverses  it,  the  plaintiff  must  prove  it  as 
alleged.  Angerstein  v.  Handson,  1  U.  M.  dt  R. 
789;  5  Tyr.  fe3;  1  Gale,  8.  1427 

If  a  tenant,  durin^r  bis  tenancy,  remove  a  dung 
heap,  and,  at  the  tune  (^  his  so  doing,  digs  into 
and  removes  virgin  soil  that  is  beneath  it,  the 
landlord  may  mamtain  either  trespass  de  bonis 
asportatis  or  trover  for  the  removal  of  the  virgin 
soil.  Higgin  v.  Mortimer,  6  C.  <fc  P.  616— Parke. 
^*  1427 

A  custom  of  the  country,  by  which  the  tenant 
of  a  farm,  cultivating  it  according  to  the  course 
of  good  husbandry,*  is  entitled,  on  quitting,  to 
receive  from  the  Iwdlord  or  incoming  tenint  a 


3534 


[LANDLORD  AND  TENANl'] 


reason&ble  aUowance  for  seeds  and  labor  bestow- 
ed on  the  arable  land  in  the  last  year  of  the  ten- 
ancy, and  is  bound  to  leave  ^he  manure  for  the 
landlord,  if  he  will  purchase  it— is  not  excluded 
by  a  stipulation  in  the  lease  under  which  he  holds, 
that4ie  willconsame  three-fourths  of  the  hay  and 
straw  on  the  farm,  and  spread  the  manure  arising 
therefrom,  and  leave  such  of  it  as  shall  not  be  so 
spread  on  the  land  for  the  use  of  the  landlord,  on 
receiving  price  for  it.  Hutton  v.  Warren,  1  Mees. 
&  Wels.466.  1427 

Emblements.  Graves  v.  Weld,  2  Nev.  &.  M. 
725 ;  5  B.  &  Adol.  105.  1429 

Quiet  Enjoyment.] — A  covenant  by  lessor,  that 
lessee  paying  the  rent  and  performing  covenants 
shall  quietly  enjoy,  is  not  a  conditional  covenant; 
and  a  plea  stating  the  non-payment  of  the  rent, 
or  the  non-performance  of  a  covenant  by  the 
lessee  (to  insure),  is  no  bar  to  an  action  by  the 
lewee  on  the  covenant  for  quiet  enjoyment.  Daw- 
son V.  Dyer,  2  Nev.  ^  M.  559;  5  B.  &  Adol.  584. 

1431 

Defendant,  a  lessee,  covenanted  that  plaintiff, 
paying  rent,  &c.  should  have  quiet  enjoyment  of 
a  term  upon  an  underlease  to  commence  in  1836 : 
defendant  having  aflerwards  forfeited  his  own 
term  by  non-payment  of  rent  to  the  superior 
landlord,  plaintiff  could  not  come  into  possession 
of  the  term  to  commebce  in  1836 : — Held,  that 
plaintiff  could  not  sue  on  the  covenant  for  quiet 
enjoyment;  at  all  events  not  before  1836.  Ire- 
land V.  Bircham,  2  Bing.  N.  R.  90 ;  2  Scott,  207. 

1431 

^fotice  to  quit,] — '•  1  have  no  rent  for  you,  be- 
cause A.  B.  has  ordered  me  to  pay  none.  This 
is  evidence  of  a  disclaimer  of  tenancy.  Doe  d. 
Whitehead  v.  Pittman,  2  Nev.  db  M.  ^.      1434 

An  agent  to  receive  rents  has  no  implied  au- 

•thority  to  give  notice  to  quit.    Doe  d.  Mann  r. 

Walters,  5  M.  A  R.  357.  1436 

Where  notice  to  quit  is  given  by  an  agent,  the 
authority  of  such  agent  roust  be  complete  a  half 
vear  before  the  expiration  of  the  notice,  or  at 
least  before  the  day  of  the  demise  is  laid  in  a  de- 
claration in  ejectment,  brought  in  respect  of  such 
notice.    Id. 


house  and  obtaining  possession.    Hillaiy  v.  Gay, 
6  C.  &  P.  284— Lyndhurst.  1441 


In  the  case  of  an  ordinary  weekly 
week's  notice  to  quit  is  not  implied  as 
contract,  unless  there  be  a  usage  to 
but  in  absence  of  sucli  usage,  a  weekly 
enters  on  a  fresh  week,  may  be  bound 
until  the  expiration  of  that  week, 
week's  rent.    Huffell  v.  Armitstead, 
56— Parke. 


tenancy,  a 
part  of  the 
that  eSecX ; 
tenant  who 
to  continne 
or  pay  the 
7  C.  &  P. 
1435 


LandloriCs  Right  to  take  Possession.]—U  a  ten- 
ancy of  a  honstf  be  determined,  and  the  tenant 
has  promised  to  leave  on  a  particular  day,  but 
aftprwards  refused  to  do  so,  the  landlord  is  not 
JjQBtified  in  putting  the  tenant's  wife  by  force  out 
of  the  house,  and  putting  ihe  tenant's  furniture 
into  the  street;  but  if  the  tenancy  be  determined, 
and  the  tenant  and  his  family  be  gone  away,  and 
the  house  locked  up,  no  one  being  in  possession, 
the  landlflgrd  will  be  Justified  in  breaking  into  the 


If  a  landlord  be  lawfully  on  his  tenant's 
mises  for  the  purpose  of  making  a  distress,  he 
may  put  up  a  bill  m  the  window  for  the  purpose 
of  letting  them,  without  thereby  making  himself 
liable  as  a  trespasser.  Skidmore  v.  B^oth,  6  C 
A  P.  777— Tindal.  1441 

Tenant's  Power  to  dispute  Title.] — ^In  an  action 
of  replevin,  the  landlord's  title,  under  which  the 
tenant  has  gained  possession  of  the  premises, 
cannot  be  disputed,  although  the  tenant  is  pre- 
pared with  evidence  to  show  that  the  premises 
have  been  fraudulently  conveyed  to  the  land- 
lord, and  that  the  actual  title  is  vested  in  another 
person.      Parry  r.  House,  Holt,  489— Dallas. 

1441 

Where  a  tenant,  by  mistake  or  misrepresenta- 
tion, pays  rent  to  a  person  not  entitled  to  de- 
mand it,  he  is  not  precluded  by  such  payment 
from  giving  evidence,  on  a  plea  of  non  tenuit, 
in  replevin  against  the  supposed  landlord,  to 
show  that  the  latter  is  not  entitled  to  the  rent. 
Rogers  v.  Pitcher,  1  Marsh.  541 ;  6  Tannt  90fiL 

1441 

The  defendant,  in  March,  3832,  took  certain 
premises  from  F.  and  B.,  **  agents  for  the  trustees 
of  the  joint  estates  of  T.  and  K.  B  "  Upon  the  trial 
of  an  action  for  use  and  occupation  brought  by 
the  plaintiffs,  *^  as  trustees  of  the  joint  estate  of 
T.  and  8.  B."  against  the  defendant,  it  appeared 
by  the  plaintiff 's  own  evidence,  that,  in  ISIl,  they 
were  trustees  for  the  estate  of  8  B.  only : — Hela, 
that  the  defendant  was  estopped  flrom  taking  ad- 
vantage of  this  discrepancy,  having  in  1832  Uken 
the  premises  of  plaintiffs  as  trustees  of  the  joint 
estate.  Fleming  v.  Grooding,  AH.Sl  Scott,  455 ; 
10  Bing.  549.  1441 

If  one  party  takes  an  interest  in  land  under 
another,  although  that  interest  be  wrongfully  ac- 
quired, he.  cannot  aflerwards  dispute  tlM  tiUe  of 
the  person  under  whom  he  tooa  that  interest. 
Doe  d.  Johnson  v.  Baytup,  4  Nev.  &  M.  837;  3 
Adol.  <&  Ellis,  188 ;  1  Har.  &  Woll.  270.      1441 

Where  a  party,  under  a  fraudulent  pretenoe, 
borrowed  the  keys  of  a  house  from  another,  and 
then  retained  the  possession  : — Held,  that  he 
could  not  dispute  the  title  of  the  lender  in  an 
ejectment,  so  as  to  maintain  his  own  possession. 
Id. 

A.  having,  without  title,  entered  upon  land, 
and  built  a  cottage,  afterwardii  accepts  a  lease  (by 
indenture)  from  B. :  C.  claiming  the  had  as  fata 
own,  pays  to  A.  202.,  to  give  up  the  possessi6n  tm 
him : — Held,  (in  ejectment  on  the  demise  of  B. 
against  C.)  that  A.  has  estopped  himself  fVom 
controverting  the  title  of  B.,  and  that  O.  is  bound 
by  the  estoppel,  as  having  come  in  under,  and 
received  the  possession  from,  B.  Doe  d.  Bullen 
r.  Mills,  1  Nev.&,  M.  25;  2  Adol.  &  Ellis,  17;  I 
M.  d&  Bob.  385.  144t 

In  defence  to  an  action  of  ejectment,  it  may  be 
shown  that  the  parties  under  whom  the  plaintiffii 
claim  had  no  title  when  they  conveyed  to  him, 
although  the  defendant  himself  clainis  by  a 
conveyance  from  the  same  parties,  if  the  latter 


k 


[LANDLORD  AND  TENANT— LEGACY] 


8535 


conveyance  wu  svbaeqiiettt  to  that  which  the 
defendant  seeks  to  impeach.  Doe  d.  Oliver 
17.  Powell,  1  Add.  <&  Ellis,  531 ;  3  iNev.  <&  M. 
616.  1441 

Defendant,  after  hein^  let  into  possession  of 
certain   premises  by   P.,  and  paying  rent  to  him, 

Cid  one  quarterns  rent  to  plaintiff,  to  whom  P. 
d  agreed  to  demise  the  premises  for  a  Ion? 
term.  In  an  action  by  plainlilF  for  the  succee<n 
in^  quarter's  rent,  held,  that  defendant  might 
show  that  the  agreement  between  P.  and  the 
plaintiff'  was  put  an  end  'to,  and  that  the  rent  had 
been  paid  to  P.  Brook  v.  Biggs,  2  Bing.  N  R. 
57:2.  1441 


A  lessee  for  jears,  who  eoTenants  to  deliver 
up  possession  of  the  premises,  at  the  expiration 
of  the  term,  to  his  lessor,  his  heirs  and  assigns, 
is  not  estopped  by  such  covenant  from  showmg, 
aAer  the  death  of  the  lessor  or  the  determination 
of  the  lease,  that  the  lessor  was  only  tenant  for 
liie  of  the  property  demised.  •  Doe  d.  Strode^v. 
Beaton,  2  C.  M.  <&  R.  728  j  1  Tyr.  dit  G.  19;  1 
Gale,  303.  1441 

P.,  N.,  and  the  plaintiff*  occupied  successively 
pemisea,  under  a  lease  that  had  been  granted 
m  lti09,  by  parties  having  no  right  to  make  a  lease. 
The  defendant  in  1827  became  possessed  of  the 
fee.  In  the  years  1829  and  1^1  respectively, 
the  defendant  distrained  on  P.  and  on  N.  for  ar- 
tears  of  rent,  which  they  paid : — Held,  that  these 

Pyments  amounied  to  such  an  acquiescence  by 
and  N.  in  the  title  of  the  defendant,  that  they, 
and  those  deriving  possession  from  or  under  them, 
were  estopped  from  disputing  it;  and  this  al- 
thoogh  the  defendant  himselx  produced  in  evi- 
dence  the  lease  of  1809,  and  failed  to  show  that 
it  had  been  assigned  to  him.  Cooper  v.  Blandy, 
4  M.  db;  Scott,  5&.  1441 

Ptevious  to  1812,  a  person  built  a  house  on  a 
pieee  of  waste  ground,  and,  before  he  acquired  a 
title  to  it,  ffave  up  possession  to  the  tenant  of  the 
adjoining  bnd,  who  held  it  under  a  lease  granted 
in  1812.  The  latter  let  the  premises  to  the  de- 
fendant : — Held,  in  ejectment  by  the  landlord  of 
the  adjoining  land  affaiust  the  defendant,  that 
the  latter  was  estopped  from  denying  the  title  of 
the  tenant,  and  the  tenant  from  disputing  that  of 
the  landlonL  Doe  d.  Wheble  v.  FoUer,  I  Tyr.  & 
6.  17.  1441 


LEGACY. 

Assent.] — ^Where  A.,  the  legatee  of  a  term, 
enters  and  acoupies  for  a  short  time^  and  then 
quits  the  possession,  it  is  a  question  for  the 
jiify  whether  the  executors  have  or  have  not  as- 
sented to  the  bequest ;  and  if  a  party  contract 
with  A.  fi>r  an  underlease,  it  may  be  left  to  the 
jury  to  say  whether  the  contract  was  made  with 
A.  m  his  own  right,  or  as  agent  to  the  exe> 
calors.    Richardson  v.  Giffbrd,  3  Nev.  db  M.  325. 

1445 

Recovery,] — Where  an  executor  agrees  with  a 
k^tee  to  allow  him  interest  on  his  legacy,  if  he 
will  permit  it  to  remain  in  his  hands,  it  becomes 
a  ken  to  the  executor,  for  which  he  is  person- 
ally liable  at  law,  and  cannot  plead  plene  admini- 


stravit  in  bar  to  an  action  b^  the  legatee.    Was- 
ney  v.  Earnshaw,  4  Tyr.  60o.  1445 

In  an  action  against  executors  (upon  an  ac- 
count stated)  for  a  legacy,  it  is  competent  to  the 
plaintiff*  to  impeach  any  particular  item  or  items 
on  the  credit  side  of  the  account.  Rose  v.  Savoiy, 
2  Scott,  199;  ]  Hodges,  269.  1445 

The  executors  of  a  will,  under  which  A.,  an 
insolvent  debtor,  was  entitled  to  a  legacy,  gave 
bis  assignees  a  balanced  account,  wherein  they 
admitted  (i82l.  to  be  the  amount  of  the  legacy, 
but,  on  the  other  side,  they  debited  the  insolvent 
with  a  loan  of  4002.,  advanced  on  the  security  of 
the  legacy  when  it  was  in  reversion ;  the  assignees 
proved,  at  the  trial,  that  the  instrument  by  which 
the  loan  was  secured  was  void  under  the  Insolv- 
ent Act : — Held,  that  they  were  entitled  to  reco- 
ver the  whole  of  the  legacy.  Id. 

E.  by  will  bequeathed,  subject  to  debts  and 
legacies,  the  residue  of  his  personal  estate  to  his 
executors,  upon  trust,  to  divide  the  same  into 
two  equal  parts,  and  to  divide  one  of  such  parts 
into  six  equal  shares,  and  to  pay  one  of  such 
shares  unto  each  of  his  cousins,  £.,  T.,  J.,  W., 
and  J.  H.,  and  the  remaining  as  therein  men- 
tioned, and  appointed  M.  his  executor,  who  dulv 
proved  the  will.  M.,  having  taken  upon  himself 
the  execution  of  the  will,  called  a  meeting  of  the 
residuary  legatees,  at  which  J.  U.  was  present, 
and  exhibited  an  account,  charging  himself  with 
assets,  and  paid  some  of  the  legatees  the  greater 
portion  of  their  share  of  the  residue,  and  was 
about  to  pay  J.  H.,  but  was  prevented  from  so 
doing.  Another  meeting  was  afterwards  called, 
at  which  J.  H.  was  not  present,  when  the  exe- 
cutor exhibited  another  account,  charging  him- 
self with  assets,  and  crediting  himself  with 
paynients  and  disbonements,  and  amonest 
others,  with  having  paid  ^*cash  for  legacy  du- 
ties." To  this  was  appended  a  supplemental  ac- 
count, containing,  amongst  others,  the  following 
item:— "By  cash  reteined  for  J.  H.,  1792. 10*." 
In  an  action  for  monev  had  and  received,  and  on' 
account  stated,  brought  by  J.  H.  against  the  ex- 
ecutor, to  recover  the  amount  of  Uie  legacy : — 
Held,  that  the  action  was  maintainable.  Hart  r. 
Minors,  2  C.  dt  M.  700.  1445 

Ademption.'] — Testator  gave  to  his  wife  his 
house  in  B.,  and  the  furniture  in  the  said  house. 
The  lease  of  the  house  expired  in  the  testator's 
lifetime,  and  he  took  another  house,  and  removed 
his  furniture  to  it : — Held,  that  tbe  legacy  was 
adeemed.    Colleton  v.  Garth,  6  Simon,  19.   1444 

Legacy  Duty.]— A.  devises  real  estates  to  B. 
and  C.  in  trust  to  convey  to  the  use  of  D.  for 
life,  remainder  to  B.  and  C.  for  D.'s  life  to 
preserve  contingent  remainders,  remainder  to  the 
use  that  £.  shall  take  out  of  the  premises  such 
annuity  oryearlv  rent-charge  not  exceeding  500L 
per  annum  for  her  life  as  D.  shall  appoint,  such 
annuity  to  be  paid  to  her  clear  of  all  taxes  and 
deductions  whatsoever;  and  in  default  of  issue 
of  D.  the  ^testator  devised  the  premises  charged 
with  the  annuity  or  lentpcharge  to  F.  D.  ap- 
points that  the  annuity  shall  be  the  full  annuity 
of  5002.    D.  dies,  F.  enters,  and  is  compelled  by 


2506 


[LEGACY— LIEN] 


Exchequer  pfoce«i  to  pty  the  legaej  dntj  on  the  i 
annnitj: — Held,  fint,  that  USe  umintT  wu 
ehur^ciihle  with  legacj  duty ;  aeeondljr,  tnmt  the 
legacy  datj  is  a  ^  tax/'  within  the  woida  of  the 
deriae ;  and  thirdly,  that  F.  takea  the  land  anh- 
jeet  to  the  payment  of  lemcy  and  legacy  dnUr, 
and  cannot  cadi  upon  E.  lor  repay  men  t  of  the 
legacy  duty.  Stow  v.  Davenport,  2  Nev.  &  M. 
805 ;  5  B.  &  Adol.  359.  1446 

Ezecutora  cannot  be  called  upon  to  pay  legacy 
doty  upon  the  whole  of  a  reaidoe  bequeathed  to 
them  in  truat  to  divide  the  intereat  among  poor 

Siona  peraona,  in  lOL  or  152.  aa  they  ahoiud  aee 
t  In  re  Wilkinaon,  1  C.  M.  &  R.  142;  4  Tyr. 
513:  8.  F.  Att-Gen.  r.  Naah,  1  Meea.  &  Wela. 
237.  1446 

If  any  of  the  objecta  of  the  above  bdnnty 
ahoold  have  received  to  the  amount  of  201.  or 
npwarda,  by  having  beena^lected  to  receive  anch 
bonntv  on  more  toan  one  occaaion,  legacy  duty 
woula  attach  on  such  amount,  and  the  duty 
would  be  calculated  according  to  the  neameaa 
of  blood  of  aucb  individual,  and  in  that  ^aae 
the  executora  would  be  accountable  for  and 
bound  to  retain  the  duty  chargeable  on  auch 
amount  Id. 

A  teatatriz,  after  giving  aeveral  legaciea  free 
of  doty,  bequeathed  a  part  of  her  eatate  to  tma- 
teea,  **  upon  tmat  to  pay  off  all  and  every  debt  and 
debta  of  her  firat  hnaband,  that  could  be  legally 
and  aatiafiu:torily  proved  againat  him,  aa  it  waa 
her  will  and  deaire  that  the  aame  ahould  be  dia- 
eharged  :** — Held,  that  the  creditora  were  liable 
to  tlK  dulaoa  payable  upon  thia  beqneat  Foater 
p.  Ley,  2  Scott,  436;  2  Bing.  N.  R.  2G9;  1 
Hodgea,  386.  1446 

A  bill  being  filed  in  Chancery  to  ascertain  the 
debts  doe  from  the  teatatrix's  late  husband,  the 
parties  appeared  before  tb^  court,  and  the  amount 
of  the  debts  waa  ascertained  and  paid  in  full ; 
but  the  court  neglected  to  give  directions  for  the 
payment  of  the  legacy  duties,  pursuant  to  36 
Geo.  3,  c.  52.  The  duties  were  subsequently  paid 
by  the  executors,  when  the  accounta  were  passed 
through  the  Stamp  Office : — Held,  that  tbey  could 
maintain  an  action,  to  recover  the  amount  of  the 
duties,  againat  the  le^teea  in  reaped  of  whoae 
legaciea  they  were  paid.    Id. 

A  testator  devised  real  estates  to  tmatees,  for 
the  benefit  of  several  parties  for  life,  and  after 
their  deatha  to  be  distributed  amongst  their  chil* 
died,  Ac;  and  the  will  contained  a  power  by 
which  the  testator  directed  that  it  ahould  be  law- 
ful for  the  trustees  to  sell  the  same,  or  part,  d^., 
*'  aa  shall  appear  most  expedient  to  my  trustee  or 
trustees  for  the  lime  being,  towards  tne  manage- 
ment of  my  property  and  affairs."  Some  portion 
was  sold  shortly  after  the  teste  tor's  death,  be- 
cause, being  suitable  for  building,  it  waa  advan- 
tegeous  to  the  estete  to  sell  it ;  and  the  remain- 
der, after  being  subject  to  the  truste  for  ten 
years,  was  sold  oniter  an  order  of  a  court  of 
Equity  : — Held,  that  the  money  arising  ^rom  nei- 
ther sale  was  liable  to  legacy  duty.  In  re  Evans, 
2  C.  M.  &  R.  206.  1446 

An  instrument  vesting  property  in  trusteea,  for 
the  benefit  of  the  grantor  for  his  life,  and  after 
hiadec«aaa  fur  the  benefit  of  other  peraona,  with 


a  power  of  KvocKtiott,  ■  boA 
eonaeqoently  not liaMe  to thepayasent 
duty.  Tompoon  r.  Browne,  3  Mybie  &  1 

A  teatatriz  gave  to  L.  for  his  life  an  annuity 
or  clear  yearly  sum  of  500L,  to  be  paid  and  pay- 
able half  yearly,  out  of  real  estate,  clear  of  all 
Uxea  and  outgoinga.  The  annuiUnt  takea  it 
clear  of  the  legacv  duty.  Looch  v.  Peters,  1 
Mylne  A  K.  4dU.   '  1447 

Where  a  leatator  in  hia  will  direeU  that  one 
cfawa  of  lenriea  ^  afaall  be  paid  prior  to  hia  debta 
and  other  legaciea,  and  that  all  hia  legaciea  ahall 
be  paid  withm  two  yeara,  fiee  from  le^cy  duty,*' 
the  exemption  from  du^  ia  not  limited  to  aneh 
legaciea  only  aa  are  payable  within  two  yeara; 
but  the  general  worda,  "■  all  my  legaciea,  will 
include  a  legacy  given  by  a  aubwqoent  codi- 
cil, which  ia  made  payahfe  at  a  different  time. 
Byne  v.  Cnnry,  2  C.  &  M.  603;  4  Tyr.  479. 

1447 

Jackaon  «.  Forbea,  2C.  db  J.  383 ;  2  Tvr.  356, 
affirmed  in  Dom.  Proc.  Att  Gen.  v.  Jackson,  3 
Tyr.  982.  1448 

Proceedinga  againat  executors  for  legacy  dnty. 
In  re  Piggot,  1  C.  ^t  M.  827 ;  3  lyr.  850.     1449 

UCETICE. 

A  room  need  for  public  mnaie  or  dancing  ia 
within  the  atat.  25  Geo.  2,  c.  36,  although  it  is 
not  exclusively  uoed  for  those  porpoaea,  and  al- 
though no  money  be  taken  for  admiasion ;  bnt 
the  mere  accidental  or  occasional  nae  of  a  room 
for  either  or  both  those  pnrpoaea  will  not  be  within 
that  statute.  Gregory  v.  Tofis,  6  C.  &  P.  271 ;  1 
M.  A  Rob.  313— Lyndhurst.  1449 

Proof  that  there  is  nothing  painted  on  the  houae 
denoting  that  it  ia  licenoeounder  that  atatute,  ia 
sufficient  prima  facie  evidence  in  an  actaoo  for 
peoaltfes  that  it  is  unlioenaed.    Id. 

If  a  room  be  continually  uaed  for  the  purpoae 
of  muaic  and  dancing,  it  will  be  for  the  jury  to 
say  whether  it  is  not  kept  for  thoae  purpoaea ; 
and  a  room  kept  for  drinking,  and  muaic,  and  dan- 
cing, is  within,  the  stat.  25  Geo.  2,  c.  36.  Gre- 
gory V.  Tavemor,  6  C.  dt  P.  261— Gnrney.   1449 


LIEN. 

A  mortgage  deed  was  delivered  to  A.,  an  auc- 
tioneer, for  the  purpose  of  obtaining  payment  of 
the  principal  and  interest  due  thereon  from  the 
mortgagor,  and  A.  made  aeveral  applicationa  for 
that  purpose : — Held,  that  A.  had  no  lien  on  the 
deed  in  reapect  of  the  charge  for  making  thoae 
applicationa.    Sanderson  v.  Bell,  2  C.  &  M.  304. 

1451 

Defendanta,  proprieton  of  a  acribUing  and 
fulline  mill,  stipulated  that  all  goods  on  hand 
should  be  subject  to  a  lien  for  a  general  balance. 
Having  received  certain  wool  and  cloth  of  the 
plaintiff,  to  be  acribbled  and  fulled,  and  certain 
'oil  and  dyeing  materials,  to  be  uaed  by  the  plain- 
tiff on  the  wool,  for  which  purpose  the  plaintiff 
had  access  to  the  oil  and  dyea  in  a  room  or  which 
the  defendanta  kept  the  key:-*Ueidf  that  the 


[UEN— LIMITATION  OF  ACTIONS  AND  SUITS] 


2S37 


fcfemluite  had  no  lien  for  their  general  balance 
OB  the  oil  and  dyeing  ma^riala.  Campston  v. 
Haigh,  2  Bing.  N.  R.  449.  1450 

In  an  action  of  trover  for  wool,  a  defendant 
may  plead,  aince  Reg.  5,  H.  T.  4  Will.  4,-1  at, 
the  general  issue ;  Ua,  a  lien  by  custom ;  Sd,  a 
lien  by  agreement ;  4th,  a  lien  by  custom,  with  a 
statement  that  the  wool  was  deposited  by  one 
haying  a  prima  fiicie  title  to  it ;  and,  5th,  a  lien 
by  custom,  with  a  statement  that  the  wool  was 
depoeited  with  the  defendant  by  the  plaintiff's 
asent: — Leockart  «.  Coimer,  1  8cott,  481;  1 
Bing.  N.  R.  609;  7  C.  &  P.  119;  1  Hodges,  16. 

1450 

Whether,  by  the  custom  of  trade  of  London, 
whoeyer  the  person  may  be  who  houses  goods 
with  an  up-town  warenouse-keeper  the  ware- 
house-keeper has  a  right  to  detain  them  for  all 
that  is  due  from  such  person  in  respect  of  charges 
ibr  goods  previously  deposited  by  such  person, 
qoere  ?  But  it  seems  that  such  a  custom  would 
not  be  nnreasonaole.    Id. 

To  trorer  for  a  policy  of  insurance,  defendant, 
afler  stating  the  existence  of  mutual  accounts 
between  him  and  the  assured,  pleaded  a  lien  for 
a  general  balance  due  to  him  atf  an  insurance 
brwer,  the  plaintiff  replied  a  bill  of  exchange 
given  and  talEen  as  payment  for  this  balance,  and 
not  due  at  the  time  of  the  conversion  in  ques- 
tion. Upon  demurrer: — Held,  that  defendant 
conld  not,  without  pleading  it  as  a  defence,  rely 
also  on  the  mutual  credit  between  the  parties  to 
justify  his  detention  of  the  policy.  Uewison  v. 
Gnthrie,  2  Bing.  N.  R.  755.  1450 

A.  put  a  phaeton  into  the  possession  of  M.,  for 
him  to  paint  it,  and  paid  M.  beforehand  for  the 
painting.  M.  never  painted  it,  but  placed  it  on 
the  pffemises  of  B.,  where  it  stood  three  months : 
^Held«  that  B.  had  no  lien  on  the  phaeton  for  his 
cfaarce  for  the  standing  of  it,  unless  the  juiy  were 
satisfied  that  M.  had  placed  it  there  by  the  autho- 
rity of  A.  Bnzton  v.  Banghan,  6  C.  «fc  P.  674-- 
Aiderson.  1450 


LIGHTS. 

A.,  the  side  of  whose  house  adjoined  B.*s 
lawn,  wrote  to  B.  as  follows : — '*  Bemre  the  last 
coat  of  paint  is  put  on  the  side  wall,  we  wish  to 
place  a  window  in  it,  and  our  workmen  say  it 
Can  be  finished  ^  off  more  neatly  with  your  per* 
mission  to  place  the  necessary  ladder,  &c.  The 
motive  for  doing  this  is,  that  I  should  gain  a 
mote  cheerfbi  new  of  the  common,  and  passing 
ohjeefs.'*  B.  replied,  **  Tou  are  welcome  to  place 
a  ladder  in  my  grounds :" — Held,  that  this  did 
not  amount  to  a  licence  by  B.  to  A.  to  open  a 
window  in  the  side  of  A.*s  house;  and  therefore 
that  A.  might  obstruct  the  window  by  an  erection 
on  her  own  land.  Bridges  v.  Blanchard,  3  Net. 
&  M.  G91 ;  1  Adol.  &  Ellis,  536.  1453 

Qo0re,  whether  a  parol  licence  to  have  the  light 
and  air  come  unobstructed  from  A.*s  land  to  a 
window  to  be  opened  in  B.'s  house,  which  ad- 
joint A.'s  land,  can  be  revoked  after  the  window 
DMM  been  opened  ?    Id. 

Qiusre,  whether  such  a  right  can  be  conveyed 


by  parol  licence,  or  whether  it  is  an  etiemeat 
which  lies  in  grant.     Id. 

No  licence  or  covenant  from  A.  the  owner  of 
adjoining  land,  to  put  out  or  liot  to  obstruct 
windows  in  the  house  of  B.,  is  to  be  inferred 
from  the  circumstance  of  A.'s  beinir  a  party  to 
the  deed  by  which  the  bouse,  with  me  windows 
in  it,  was  conveyed  iff  B.,  and  by  which  deed  A. 
conveyed  part  of  the  adjoining  land  to  B.  Blan- 
chard  v.  Bridges,  5  Nev.  &  M.  567.  1453 

Or  firom  the  circumstance  of  A.'s  witnessing, 
without  objection,  the  progress  of  the  building. 
Id. 

The  right  to  unobstructed  access  of  lieht  and 
air  through  a  window,  is  lost  by  a  materiu  altera- 
tion in  the  side  of  the  wall  in  which  the  window 
was  placed.    Id. 

A.,  in  licenning  B.  to  build  to  the  extremity  of 
B.'s  ground  adjoming  that  of  A.'s,  expressly  re- 
serves to  himself  the  right  of  building  to  the 
extremity  of  his  own  ground  when  he  shall  think 
proper  to  do  so.  A.  may  at  any  time,  within 
twenty  years,  build  to  the  extremity  of  his  own 
land,  though  he  thereby  render  the  house  of  B. 
dark,  damp,  and  uninhabitable.    Id. 

To  sustain  an  action  on  the  case  for  darken- 
ing the  plaintiff's  windows,  it  is  not  sufficient 
that  a  ray  or  two  of  light  should  be  obstructed. 
The  question  is,  whether,  in  consequence  of  the 
obstruction,  the  plaintiff  has  less  light  than 
before,  to  so  considerable  a  degree  as  to  injure 
the  plaintiff's  property  in  point  of  value  or  occu- 
pation. Pringle  v.  Wernham,  7  C.  &  P.  377 — 
Denman ;  S.  P.  Welb  r.  Ody,  7  C.  &  P.  410— 
Parke.  1453 

A  party  may  so  alter  the  mode  of  enjoyment 
of  ancient  lights  as  to  lose  the  right  to  them 
altogether.  Garritt  v.  Sharp,  4  Nev.  &  M.  834 ; 
3  Adol.  A  Ellis,  335 ;  1  Har.  &  WoU.  224. 

1453 


LIMITATION  OF   ACTIONS  AND  SUITS. 

Pergonal  Jletions.J — ^The  statute  of  limitationa 
is  not  a  bar  in  cases  of  fraud.  Ex  parte  Boiton> 
1  Mont.  Sl  Ayr.  60.  1456 

The  fact  of  the  statute  of  limitations  having 
run  since  the  debt  accrued,  is  no  ground  for 
setting  aside  the  plaintiff's  proceedings.  Potter 
V.  Macdooel,  3  Dowl.  P.  C.  563.  1456 

Where  a  client  employs  an  attorney  to  conduct 
a  suit,  it  is  an  entire  contract  to  carry  on  the 
suit  to  its  termination,  and  determinable  only  on 
reasonable  notice ;  and  where  no  such  notice  has 
been  given,  the  statute  of  limitations  is  no  bar 
to  that  part  of  the  demand  which  is  for  business 
done  more  than  six  yean  before  the  commence- 
ment of  an  action  by  the  attorney  for  business 
done  in  the  suit,  which  was  not  brought  to  a 
termination  till  within  six  yeara  of  tne  com- 
mencement of  the  action,  mrris  v,  Osbourn,  % 
C.  dt  M.  629 ;  4  Tyr.  445.  1457 


2528 


[LIMITATION  OF  ACTIONS  AND  SUITS] 


of  B.'s  extending  to  C.  a  period  of  two  years  and 
upwards  for  the  liquidation  of  his  debt,  afrees  to 
reserve  to  B.  all  ri^ht  and  claim  which  B.  maj 
now  have  against  him,  A.,  by  virtue  of  the  secu- 
rity previoutfly  entered  into  on  C.'s  behalf,  and 
to  be  bound  bv  it,  if,  at  the  expiration  of  such 
peifiod,  B.'s  aemand  shall  nr.t  have  been  fully 
discharged  : — Held,  that  A's  liability  attached 
upon  default  made  by  C.  afler  the  expiration  of 
two  years  and  a  few  days ;  that  B.'s  riffht  of  ac- 
tion then  accrued ;  and  that,  therefore,  the  statute 
of  limitations  then  began  to  ran  Holl  v.  Hadley , 
4Nev.&M.515.  1457 

The  statute  of  limitations  in  assumpsit  begins 
to  run  from  the  time  when  the  cause  of  action 
accrues.  Therefore,  where  by  a  local  turnpike 
act  the  trustees  were  to  pay  first  the  expenses  of 
obtaining  the  act,  and  next  the  expenses  of  erect- 
in£[  toll-bouses,  Ac,  a  builder  who  brought  an 
action  for  work  and  labor  in  so  doing  more  than 
six  years  after  the  work  done,  but  within  six 
years  of  the  time  when  the  trustees  had  funds  in 
hand  by  having  paid  off  the  expenses  of  the  act, 
it  was  held  that  he  was  too  late,  as  the  action 
was  maintainable  immediately  ailer  the  work 
done,  though  the  execution  would  have  been 
postponed.  £mery  v.  Day,  1  C.  M.  &  R.  245 ;  4 
Tyr.  695.  1457 

Where  a  local  turnpike  act  provided  that  all 
orders  of  the  trustees  should  be  entered  in  a  book 
kept  for  that  purpose,  an  order  by  them  to  pay  a 
bill  is  not  an  act  done  so  as  to  take  a  debt  out  of 
the  statute  of  limitations,  under  9  Geo.  4,  c.  14, 
unless  it  so  be  entered  in  writing,  the  only  act 
capable  of.  taking  a  cause  out  of  the  statute  being 
the  payment  of  principal  or  interest.  Id. 

The  3  A.  4  Will.  4,  c.  27,  s.  42,  limiting  the 
recovery  of  arrears  of  interest  and  rent  to  six 
years,  does  not  apply  to  actions  commenced 
before  the  24th  July,  18:^3,  when  it  was  passed. 
Paddon  v.  Bartlett,  5  Ney.  &  M.  383;  1  Har.  & 
Woll.  477.  1458 

Covenant  for  rent  arrear  may  be  broofht  w  ithin 
the  time  limited  by  3  <fe  4  Will.  4,  c.  42,  s.  3,  and 
is  not  limited  to  six  years  by  3  &  4  Will.  4,  c. 
27,  8. 42.  Paget  v.  Foley,  3  Scott,  120;  2  Bing. 
N.  R.  679.  14% 

A  devisee,  claiming  an  annuity  granted  by 
will,  is  not  barred  under  3^4  Will.  4,  c.  27,  ss. 
2,  3,  by  the  lapse  of  20  years,  if  he  has  never  re- 
ceived any  payment  in  respect  of  the  annuity. 
James  v.  Salter,  2  Scott,  750 ;  2  Bing.  N.  R.  505. 

1458 

By  the  will  the  annuity  was  charged  on  tests^ 
tor*8  freehold,  provided  certain  leasehold  property 
specified  in  the  will  proved  to  be  insufficient : — 
Held,  that,  even  as  against  the  annuitant,  the 
will  by  itself  was  no  evidence  that  the  testator 
died  possessed  of  leasehold  property.    Id. 

Where  it  appears  on  the  face  of  the  bill  that 
the  cause  of  suit  accrued  more  than  six  years 
before  the  filing  of  the  bill,  a  defendant  need  not 
plead  the  statute  of  limitations,  but  may  demur. 
Hoaie  V.  Peck,  6  Simon,  51.  1460 

Where  a  judgment  creditor  had  allowed  twenty 

2 ears  to  elapse  without  taking  steps  to  recover 
is  debt,  and  then  ascertained  that  during  the 


]  twenty  years  a  suit  bad  been  instituted  for  the 
benefit  of  the  specialty  creditors  of  his  debtor 
and  lliat  under  a  decree  in  the  suit  they  had  re- 
ceived part  payment  of  their  debts,  and  that 
there  was  money  in  court  available  for  the  pay- 
roent  of  the  remainder : — Held,  that  he  was 
barred  by  the  statute  of  limitations  from  proving 
his  debt  before  the  Master,  and  receiving  pay- 
ment raleably  with  the  other  creditors.  Berring- 
ton  V.  Evans,  1  T  &  Col.  434.  1460 

A.  is  mortgagee  from  B.  of  certain  leasehold 
coal-mines  and  bar^s,  &c.  B.  aflerwards  de« 
mises  the  mines,  and  assigns  the  barees  to  C.  A. 
may  bring  trover  against  D.,  who  tortiously 
seizes  and  sells  the  barges  and  part  of  the  pro- 
duce of  the  mines.  The  seizure  and  sale  were 
for  tolls  claimed  to  be  due  to  a  canal  company  : — 
Held,  that  no  injury  resulted  to  it  until  tne  sale ; 
and  that  therefore  an  action  brought  within  six 
months  of  the  sale,  but  more  than  six  montlis 
after  the  seizure,  was  not  barred  by  a  clause  in 
the  canal  act,  limiting  the  commencement  of 
actions  for  any  thing  done  in  pursuance  of  that 
act  to  within  six  months  alter  the  fact  committed. 
Frazer  v.  Swansea  Canal  Comp.  3  Nev.  &  M.  301 ; 
1  Adol.  and  Ellis,  354.  1461 

Semble,  however,  that,  in  an  action  by  C,  in 
respect  of  such  seizure  and  sale,  the  period  of 
limitations  would  have  run  from  the  time  of  the 
original  seizure,  whether  the  action  were  framed 
m  trespass  or  in  trover.     Id. 

A  dock  act  authorized  a  company  to  make  and 
maintaui  dockii,  and  to  appoint  a  dock  roaster, 
who  shbuld  have  power  to  direct  the  mooring, 
unmooring,  moving  and  removing  of  all  vesaeli 
into  or  in  the  docks,  and  should  have  control  over 
the  space  of  100  yards  from  the  entrance  into  the 
docks,  so  far  as  related  to  the  transporting  of  ves- 
sels in  and  out ;  the  company  to  oe  sued  in  the 
name  of  their  treasurer ;  and  every  action  brought 
against  any  person  for  any  thing  done  in  pur* 
suance.of  the  act,  to  be  commenced  within  six 
calendar  months  after  the  fact  committed.  In  an 
action  brought  against  the  treasurer  for  damage 
done  to  a  vessel  by  means  of  improper  directions 
given  by  the  dock-master  in  transporting  her  in- 
to the  docks : — Held,  that  giving  such  directions 
was  a  thing  done  in  pursuance  of  the  act,  and 
that  the  action  should  have  been  commenced 
within  six  calendar  months  after  those  directions 
were  given.    Smith  v:  Shaw,  5  M.  &  R.  225. 

1461 

Merchant's  ^ccounU.'] — If  goods  are  supplied 
by  A.  to  B.,  and  five  years  ^lerwards  there  are 
mutual  dealings  between  the  parties,  quflsre,  whe- 
ther the  first  Item  comes  within  the  exception  of 
merchants'  accounts  in  the  atat.  of  limitations. 
Moore  v.  Strong,  I  Scott,  367 ;  1  Bing.  N.  R.  441 ; 
1  Hodges,  28.  1462 

A  conversation  at  the  time  of  a  nurchaae,  is 
admissible  in  evidence  for  the  defenaant,  in  an 
action  for  the  price  of  goods,  although  it  may 
let  in  a  sctroff  otherwise  barred  by  the  statute  of 
limitations.    Id. 

A.  occupied  a  house  and  land  under  B.,  at  the 
rent  of'l6£.  a  year,  and  A.,  at  B.'s  request,  enter- 
ed into  his  employment  as  a  farming  bailiff,  and 
to  perform  other  services,  in  the  place  of  another 


[UMITATION  OF  ACTIONS  AND  SUITS] 


2529 


penon  who  had  been  employed  bj  A.,  and  had 
been  p&id  I2f.  a  week.  A.  continued  in  B/s. 
■ervioe  for  more  than  twelve  yean;  but  there 
waa  no  payment  of  rent  on  the  one  hand,  or  of 
wages  on  the  other.  In  an  action  brought  by  A  , 
to  recoTer  wages  for  twelve  years,  ded acting  the 
rent : — Held,  that  this  was  not  such  an  open  ac- 
count as  would  take  the  case  out  of  the  stat  of 
limitations  since  the  9  Geo.  4,  c.  14 ;  but  there 
must  be  a  part  pftyment  in  cash,  or  what  is  equi- 
▼alent  to  it,  to  have  that  effect  Williams  v 
Griffiths,  2  C.  M.  <&  R.  45 ;  1  Gale,  65.        1462 


Jhmdamce  by  Proeess.]-^Bj  2  Will.  4,  c.  39,  s 
10,  mo  writ  issued  by  authority  of  the  act  shall  be  in 
force  for  more  than  four  eaUndar  months  from  the 
day  of  the  date  thereof  including  the  day  of  such 
datCy  but  every  writ  ^summons  and  capias  may  be 
continued  by  alias  and  pluries,  as  the  ease  may  re- 
MCtrc,  if  any  d^endant  therein  named  may  not  hate 
Hen  arrested  thereon  or  served  therewith :  provided 
always^  that  no  first  writ  shall  be  available  to  pre- 
vent the  operation  of  any  statute  whereby  the  time 
for  the  eommence»»^ent  of  the  action  may  be  limited^ 
usUess  the  defendant  shall  be  arrested  thereon  or 
served  therewith,  or  proceedings  to  or  towards  out- 
lawry  shaU  he  had  thereupon^  or  unless  such  writ, 
and  every  writ  (if  any)  issued  in  continuation  of  a 
preceding  writ,  shall  be  returned  non  est  inventus 
and  entered  of  record  within  one  ealendar  month 
next  sSttr  the  expiration  thereof  including  the 
day  of  such  expiration,  and  unless  every  writ  issued 
in  continuation  of  a  preceding  writ  shall  be  issued 
mtkin  one  such  calendar  month  after  the  expiration 
of  the  preceding  writ,  and  shaU  contain  a  memoran- 
aum  indorsed  thereon  or  subscribed  thereto,  specify- 
ing the  day  of  the  date  of  the  first  writ ;  and  return 
to  be  made  in  bailable  process  by  the  sheriff  or  other 
officer  to  whom  the  torit  shall  be  directed,  or  his 
successor  in  office,  and  in  process  not  bailable ,  by 
the  plaintiff  or  his  attorney  suing  out  the  same,  as 
the  ease  may  be.  1463 

In  a  qui  tarn  action,  if  the  declaration  do  not 
appear  on  the  record  to  be  filed  within  a  year  of 
the  writ,  it  is  necessary  to  connect  it  with  the 
writ  bv  evidence  of  tlie  time  when  the  declaration 
waa  filed,  and  showing  tlie  writ  to  be  continued 
on  the  roll  down  to  that  time.  In  the  C  P.  the 
placitom  beinff  always  intituled  of  the  term  in  or 
after  which  the  trial  takes  place,  it  furnishes  no 
evidence  of  the  date  of  the  declaration.  Thistle- 
wood  q.  t.  V.  Cracroft,  6  Taunt.  141 ;  1  Marsh. 
497;  1  M.  &S.500.  1463 

Where  a  writ  of  summons,  iested  in  time  to 
ware  the  statute  of  limitations,  was  resealed  in 
eoBsequence  of  an  alteration  in  the  description  of 
the  defendant  and  the  conntv  in  which  he  resided, 
and  was  not  served  until  after  the  six  years  had 
expired : — Held,  that  the  resealinv  did  not  amount 
io  a  re- issuing  of  the  writ,  and  that  it  was  not  ne- 
cessary for  the  plaintiff  to  show  when  the  rcseal- 
in?  took  place.  Braithwaite  v  Montford  (Lord), 
2  C.  <&  M.  406 ;  4  Tyr.  276.  1463 

A  bill  of  Middlesex  was  a  good  continuance  of 
A  latitat,  in  order  to  save  the  statute  of  limitations. 
French  v.  Mawwood,  2  Dowl.  P.  G.  565.       1464 

The  court  will  not  allow  process  to  be  served 
at  the  house  of  the  agent  of  a  defendant  out  of 


the  jurisdiction,  in  order  to  save  the  statute  of 
limitations;  but  the  plaintiff  must  proceed  ac- 
cording to  the  provisions  of  the  2  &  3  Will.  4,  c. 
39,  s.  10.  Frith  v.  Donegal  (Lord),  2  Dowl.  P.  C. 
527.  1464 


The  proviso  in  the  10th  section  of  the  39th 
cap.  of  2  &  3  Will.  4,  the  Uniformity  of  Process 
Act,  as  to  an  alias  or  pluries  issuing  within  a 
month  from  the  expiration  of  the  preceding  writ, 
only  applies  Io  cases  where  it  is  sought  to  pre- 
vent the  operation  of  some  statute  of  limitation. 
Nicholson  v.  Rowe,  2  G.  &  M.  469.  1463 

« 

In  ordinary  eases  the  alias  or  pluries  may  be 
sued  out  at  any  time,  and  the  continuances,  if 
necessary,  may  be  entered  (as  formerly)  at  any 
time.    Id. 

A  plea  of  the  stat.  of  limitations  stated  that 
the  cause  of  action  did  not  accrue  within  six 
years  next  before  the  commencement  of  the  suit. 
Plaintiff  replied,  that  the  cause  of  action  did  ac- 
crue within  six  years,  <&c. : — Held,  that  without 
specially  replying  process  issued,  the  plaintiff 
nitght  on  the  above  replication  prove  a  quo  mi- 
nus to  have  issued  within  the  six  years,  and  pro- 
duce the  roll  to  show  ihe  continuances  regularly 
entered  up  accordingly.  Dickenson  v.  Teague,  I 
G.  M.  &  R.  241 ;  4  Tyr.  450.  1463 

If  continuances  are  regularly  entered  upon  the 
roll,  the  court  will  not  look  at  any  thing  in  order 
to  contradict  the  roll,  e.  g.  a  writ  pr^uced  to 
show  that  a  second  writ,  an  alias,  was  tested  on  a 
day  subsequent  to  the  return  day  of  the  first.   Id. 

Since  2  d^  3  Will.  4,  c.  39,  s.  10,  it  is  not  ne* 
cessary  to  serve  or  endeavor  to  serve  a  writ 
which  is  issued  to  avoid  the  effect  of  the  statute 
of  limitations ;  it  is  sufficient  to  return  it  non  est 
inventus,  and  enter  it  of  record.  Williami  v.  Ro* 
berU,  I  G.  M.  ^  R.  676 ;  3  Dowl.  P.  G.  513;  5 
Tyr.  421 ;  1  Gale,  56.  146a 

But  the  expense  of  such  of  the  writs  as  are  un 
necessarily  issued  will  not  be  allowed  to  the  plain- 
tiff.   Id. 

JicknowUdgment  in  Bar.] — What  a  suffioieni 
acknowledgment.  Dabbs  v.  Humphrey,  4  M.  dk 
Scott,  285 ;  10  Ring.  446.  1464 

Form  of  acknowledgment.  Lechmeie  v.  Flet> 
cher»  1  G.  &  M.  923 ;  3  Tyr.  450.  1470 

To  take  a  case  out  of  the  statute  of  limitationsy 
the  acknowledgment  of  a  debt  must  contain  an 
express  or  implied  promise  to  p^.  Linley  or 
Linsel)  V.  Bonsor.  2  Soott,  399;  S  Bing.  N.  R. 
241 ;  1  Hodges,  315.  1465 

Defendant  having  accompanied  an  acknowl- 
edgment of  debt  wiDi  an  assertion  that  he  should 
have  nothing  to  do  with  the  claim  ;  that  he  wished 
the  claimant  would  make  him  a  bankrupt,  and 
that  he  would  rather  go  to  gaol  than  pay  the 
claimant : — Held,  that  it  was  properlv  lefl  to  e 
jury  to  consider  whether  the  acknowledgment  wae 
one  from  which  a  promise  to  pay  could  be  im- 
pfted.    Id. 

In  a  letter  written  to  the  plaintiff  within  sia 
years,  the  defendant  says,  **  1  can  never  be  happy 
until  1  have  not  only  paid  you  every  thing,  but 
all  to  whom  I  owe  naoney  ;*   and  **  jour  acceant 


2630 


[UMITATION  OF  ACTIONS  AND  SUITS] 


M  fsite  eomet ;  aDd  oh !  that  I  were  now  foing 
to  eneloae  ytm  the  amonot  of  H  :** — Held,  that 
this  was  eridence  to  go  to  the  jury  of  an  acknow- 
ledjrment,  taking  the  caae  ont  of  the  statute  Kii 
Ihnitataona.  Oodaon  v.  Mackej,  4  Ner.  &  M. 
^27.  1465 

HeMf  that  loeh  prOmiae,  accompanied  bj  thia 
••zpreaaion— **  It  ia  inipoaaibte  to  atate  to  ^oa 
what  will  be  done  in  mj  affiun  at  preaent ;  it  ia 
dificnlt  to  know  what  will  be  beat,  hot,  imme- 
^ialelj  it  ia  arttled,  yon  ahall  be  informed  :**  ia  an 
ahaolote  onconditional  promiae,  and  not  a  quali- 
fied or  conditional  promiae.    Id. 

Whether  proof  of  aoch  lettera,  together  with 
^pvoof  of  a  bib  drawn  more  than  six  yeara  ago,  by 
the  plaintiff  on  the  defendant,  and  accepted  by 
the  latter,  would  entitle  the  plaintiff  to  recover 
more  than  nominal  damagea,  qiuere.    Id. 

Under  9  Geo.  4,  e  14,  a.  I,  an  acknowledg- 
ment  aigned  by  the  agent  of  the  debtor  will  not 
.retrieve  a  debt  barred  by  the  atatnteoi  limitationa ; 
it  moat  be  aigned  by  the  debtor  himself.  Hyde  v. 
Johnaon,  3  &ott,  330;  2  Bing.  N.  R.  776.     1469 

Where  a  letter,  acknowledging  the  eziatence  of 
«  debt,  which  waa  prodncea  for  the  purpoae  of 
taking  the  caae  out  of  the  statute  of  lunitationa, 
did  not  contain  any  date :- *HeId,  that  the  time 
when  the  letter  waa  written  might  be  supplied  by 
parol  evidence.  Edmunda  v.  E]k>wna,  2G.  &  Si. 
459;  4Tyr.  173.  1471 

In  an  action  on  a  promiaaory  note  payable 
-with  intereat,  the  worda  in  the  letter  acknowledg- 
ing the  debt  were  aa  follows : — **  1  shall  be  most 
hi^y,  to  pay  you  both  intereat  and  principal  aa 
convenient:^ — Held,  that  thia  waa  a  conditional 
pronuae,  and  that  the  plaintiff  waa  bound  to  give 
•ome  evidence  to  show  that  the  defendant  was 
able  to  pav,  or  that  it  waa  convenient  for  him  to 
^o  ao.    Id. 

Payment  on  Account.] — Semble,  part  payment 
will  not  bar  the  interest,  where  the  debt  to  which 
it  is  applied  consists  of  several  itema.  firigstock 
«.  Smith,  2  Tyr.  445 ;  1  C.  &  M.  483.  1471 

The  payment  of  intereat  on  a  note,  giyen  by 
churehwardena  on  the  parish  account  from  time 
to  time  by  the  vestry,  ia  a  sufficient  acknowledg- 
ment of  the  debt  to  take  the  caae  out  of  the  Sta- 
tute oi  Limitations,  aa  against  the  maken :  k  for- 
tiori, where  one  of  them  has  audited  the  pariah 
«ccount8,  in  which  paymenta  of  interest  on  the 
note  are  entered.  Crew  v.  Petit,  3  Nev.  &  M. 
456 :  8.  C.  nom.  Rew  v.  Pettet,  1  Adol.  <3^  Ellis, 
196.  1471 

Payment  of  interest  upon  a  promiaaory  note 
bv  the  makers  to  the  personal  repreaentativea  of 
tne  payee  within  six  yeaia  of  the  commencement 
of  toe  action : — Held,  a  aofficient  acknowledg- 
ment to  take  the  caae  out  of  the  statute  of  li- 
mitationa, although  the  lettera  of  adminiatntion 
tinder  which  the  party  claimed  to  whom  the  pay- 
menta were  made  were  not  obtained  in  the  dio- 
cese in  which  the  note  waa  bouum  notabile. 
Clarke  v.  Hooper,  4  M.  &  Scott,  353;  10  Bing. 
489.  1471 

A  teatator  hequeaUwd  to  hia  two  daoghten 


250L  each,  to  be  paid    when  they  apiwd  at  the 
age  of  twenty-one,  and,  till  that  period,  the  ez- 

Knaea  of  board,  dothea,  and  education,  to  be 
me  and  paid  by  hia  ezecoton.  He  appointed 
ezecuton  and  alao  truateca,  with  all  neceasary 
powere  to  fulfil  the  will.  At  a  meeting  of  the 
iruateea  and  ezecoton,  for  the  purpoae  of  set- 
tling the  teatator*a  aflUra,  the  ezecuton  paid 
over  to  the  trusteea,  inter  alia,  50(U.,  to  be  aet 
apart  for  the  payment  of  the  legaciea  to  the 
daughters,  when  they  attain  the  age  of  twenty* 
one.  Thia  aum  waa  afterwards  lent  by  the  tma- 
teea  to  the  defendant  on  a  promiasory  note,  which 
deacribed  them  aa  *' trusteea  acting  under  the 
will  of  the  late  Mr.  W.  B."  (the  teatator)  :— 
Held,  that  a  payment  of  principal  and  intereat 
to  one  of  the  legateea  within  aiz  yean  waa  aolfi- 
cient  to  take  the  caae  ont  of  the  atatute  ef  li- 
mitationa, and  that  the  tniateea  had  a  right  to 
maintain  an  action  on  the  note.  Megginaon  v. 
Harper,  2  C.  A  M.  322;  4  Tyr.  94.  1471 

The  mere  fact  of  the  payment  of  a  aum  by 
defendant  to  plaintiff  ia  not  enough  to  take  a  caae 
out  of  the  atatute  of  limitationa  without  aome 
evidence  to  aatiafy  a  jury,  first  that  it  waa  a  pay- 
ment of  a  debt,  and  nezt  that  it  waa  not  the  dia- 
charge  of  a  balance  due,  but  a  payment  intended 
to  be  applied  to  the  part  diacharge  of  the  parti- 
cular debt  TippeUa  v,  Heane,  1  C.  M.  dt  R.  252 ; 
4  Tyr.  772.  1471 

In  order  to  take  a  caae  out  of  the  atatute  of 
limitationa  a  payment  of  ]2ff.  aa  intereat  money 
waa  proved  :  thia  doea  not  juatify  a  verdict  fino- 
ing  a  debt  for  121, 10a.  Leeson  «.  Smith,  4  Nev. 
A  M.  304.  1471 

A  verdict  for  nominal  damagea  only  could 
upon  thia  evidence  have  b6en  auatained,  aemble. 
Id. 

Though  a  verbal  acknowledgment  of  part  pay- 
ment, or  of  payment  />f  interest  thereon,  ia  in- 
sufficient, withm  the  9  Geo.  4,  c.  14,  s.  1,  to  take 
a  caae  out  of  the  statute  of  limitationa ;  yet,  if 
the  payment  of  a  sum  of  money  ia  proved  aa  a 
fact,  and  not  by  a  merd  admiaaion,  ita  appropria- 
tion to  a  particular  account,  whether  in  respect 
of  principal  or  interest,  may  be  ahown  by  decla- 
rations of  the  party  miaking  the  payment,  and 
such  declarationa  need  not  have  been  at  the  time 
of  such  payment.  Waten  «.  Tompkina,  1  TVr. 
A  G.  137 ;  2  C.  M.  A  R.  723.  1471 

To  ahow  a  part  payment  within  aiz  yeara,  ao 
aa  to  brinir  the  caae  within  the  ezception  in  the 
statute,  the  plaintiff  proved  a  payment  of  a  por- 
tion of  hia  demand  by  one  F.,  the  truatee  under 
a  deed  of  compoaitioo,  who  waa  ezpressly  in- 
structed to  make  the  payment  aa  a  full  satiafae- 
tion,  instead  of  which  ne  handed  the  money  over 
aa  a  part  payment,  and  took  a  receipt  according- 
ly. Thia  payment  ao  made  waa  ezpreaaly  re- 
pudiated by  the  defendant : — Held,  that  thia  waa 
not  a  payment  within  the  ezception.  Linley  or 
Linsefl  V.  Bonaor,  2  Scott,  399 ;  2  Bing.  N.  R. 
241;  lHodgea,305.  1471 

A  delivery  of  goods  by  a  debtor  to  hia  credi- 
tor in  liquidation  of  a  previous  debt,  ia  a  auffi* 
cient  part  payment  to  take  the  caae  out  of  the 
atatute  of  lunitationa.    Hooper  e.  Stevensi  7  C 


[LIMITATION  OF  ACTIONS  AND  SUITS] 


2531 


&  P.  260 ;  J  Har.  ik,  Woll.  480 :  S.   P.  Hart  v.  |  4,  c.  14,  and  a  nonsait  was  entered  aooordingly. 
Naiah  or   Naah,  2  C.  M.  i&  R.  337j  1  Gale,  171     Wilby  v.  Henman,  4  Tyr.957;  2C.  A  M.gW. 

1471  1471 


1471 

ladorsements  on  a  promissory  note,  admitting 
the  receipt  of  interest  are  presumed  to  have  been 
written  at  the  time  tbey  bear  date.  Smith  v.  Bat 
tens,  I   M.  &  Rob.  341— Taunton.  1471 

An  entry  in  a  bankrupt's  examination,  of  a 
certain  sum  being  due  to  /I.,  is  evidence  of  an 
accoant  stated  between  them,  and  is  a  sufficient 
acknowledgment  to  take  the  case  out  of  the 
statute  of  limitations.  Eicke  v.  Noakes,  1  M. 
dt  Rob.  3S1>— Tindal.  1 471 


PleadimgsJ] — A  plea  of  set-off*  stated,  that  the 
plaintiff  made  his  promissory  note  payable  to  A. 
C,  which  was  duly  indorsed  and  delivered  to  the 
defendant  at  A.  C.'s  death,  by  A.  C.'s  adminis- 
trator, and  was  unpaid.  Replication,  that  the 
supposed  cause  of  set-off  on  the  said  note  did  not 
accrue  to  defendant  within  six  years,  in  manner 
and  form,  &c. : — Held,  that  this  replication  ad- 
Riitted  not  only  the  making  of  the  note,  but  the 
indorsement  of  it  to  the  defendant  by  A.  C.'s  ad- 
ministrator, and  that  the  defendant  might,  there- 
fore, avail  himself  of  memorandums  of  the  pay- 
ment of  interest,  written  on  the  note  by  A.  C. 
(before  Lord  Tenterden's  Act)  to  bar  the  statute 
of  limitations.  Gale  v.  Capern  or  Capron,  1  Adol. 
Sl  Ellis,  102 ;  3  Sev.  ds.  M.  863.  1471 

In  an  action  on  a  promisory  note  drawn  in  a 
foreign  country,  and  due  about  twenty  years  since, 
the  defendant  pleaded  the  statute  of  limitations, 
and  the  plaintiff  replied  that  he  resided  abroad 
until  wimin  six  years  of  the  commencement  of 
the  action.  The  court  afterwards  (upon  terms) 
allowed  the  defendant  to  add  a  plea,  setting  up  a 
provision  of  the  law  of  the  country  where  the 
note  was  made  and  the  parties  resided,  similar  in 
its  effects  to  the  statute  of  limitations.  Huber 
V.  Steiner,  4  M.  Al  Scott,  328.    See  tit.  *'  Fo 


reigner 


i> 


1471 


Declaration,  that  the  defendant  sixteen  years 
before  delivered  his  promissory  note^ayable  on 
<lemand,  with  interest,  to  the  plaintiff,  but  neg- 
lected to  pay  except  interest,  which  he  paid  up 
to  a  day  within  six  years.  Plea,  that  the  cause 
of  action  did  not  accrue  within  six  years : — Held 
sufficient.     HoUis  v.  Palmer,  2  Bing.  N.  R.  713. 

1471 

In  assumpsit  for  goods  sold  and  delivered,  the 
general  issue  and  a  plea  of  the  statute  of  limi- 
tations were  pleaded.  The  plaintiff^s  replica- 
tion traversed  the  latter  plea.  His  evidence  con- 
sisted of  such  an  admission  by  the  defendant  as 
would  have  been  evidence  to  go  to  a  jury,  on  the 
general  issue,  that  a  debt  was  owing  from  him  to 
the  plaintiff,  but  he  did  not  prove  when  the  debt 
was  contracted.  No  evidence  was  given  for  the 
defendant  in  support  of  his  plea : — Held,  that  it 
was  incumbent  on  the  plaintiff  to  support  the 
affirmative  terms  of  his  replication,  by  showing 
that  the  debt  was  contracted  within  six  years,  or 
that  the  acknowledgment  or  promise  was  made 
in  some  writing  signed  by  the  defendant,  so  as  to 
take  the  ease  out  of  the  statute,  pursuant  to  9  Geo 

Vol.  IV.  33 


1471 

Claim  to  Realty. ]^\n  ejectment,  it  is  no  an- 
swer to  a  prima  facie  title  from  twenty  years'  pos- 
session, that  such  possession  was  in  continuation 
of  that  of  a  sister,  who  entered  bv  abatement  into 
the  land  to  which  her  elder  brother  (whose  issue 
is  alive)  was  entitled  as  heir,  and  who  died  more 
than  twenty  years  before  the  ejectment  was 
brought.  Doe  d.  Draper  v.  Lawley,3  Nev.  &.M. 
331.  1473 

The  lord  of  the  manor  is  barred  by  the  statute 
of  limitations  from  entering  for  a  forfeiture 
after  twenty  years.  Whitton  v.  Peacock,  3  Mylne 
4&  K.  325.  1473 

A  wrongful  continuation  of  possession  for 
twenty  years  after  the  expiration  of  a  titl^,  under 
which  the  tenant  lawfully  entered,  constitutes 
such  an  adverse  possession  as  will,  under  the 
statute  of  limitations,  create  a  bar  to  an  entry, 
or  to  an  action  of  ejectment.  Doe  d.  Parker  v. 
Gregory,  4  Nev.  &  M.  308.  1473 

As,  where  husband  of  tenant  for  lifb  holds 
over  twenty  years  after  her  decease.     Id. 

A  fine  could  be  levied  only  by  a  person  having 
the  freehold  either  by  right  or  by  wrong.     Id. 

L.  R.  died  seised  of  freehold  premises,  leav- 
ing a  widow  and  a  son  (by  her),  R.  R.,  his  heir 
at  law,  twelve  years  old.  The  widow  entered 
into  receipt  of  the  rents,  and  two  years  after- 
wards married  again,  and  went  to  reside  on  the 
premises,  which  she  occupied  with  her  second 
nusband  during  his  life,  and  from  his  death  un* 
til  her  own,  the  whole  period  of  such  occupation 
by  her  beinjr  more  than  fifty  years.  During  her 
occupation  sne  frequently  said  that  the  premises 
afti'r  her  death  belonged  to  R,  R.,  but  sne  left  a 
will  devising  the  property  to  H.,  her  son  by  her 
second  husband,  and  describing  it  as  having  de- 
scended to  her  from  her  mother.  After  her  death, 
H.,  then  in  possession,  promised  that  he  would 
sign  an  agreement  to  rent  the  premises  under  R. 
R.,  but  he  never  did  sign  it : — Held,  that  upon 
these  facts  a  jury  were  oound  to  find  an  adverse 

fossession  of  the  widow  during  the  fifty  years. 
>oe  d.  Roffey  v.  Harbrow,  3  Adol.  <k  Ellis,  67. 

1473 

Q.,  under  whom  defendsnt  claimed,  was  let 
into  possession  twenty-two  years  before  action 
brought,  by  virtue  of  a  contract  with  P.  for  the 
purchase  of  an  allotment  accruing  to  P.  under 
an  inclosure  act,  which  provided  that  a  purchaser 
let  into  possession  of  an  allotment  should  have 
the  same  rights  as  the  vendor.  G.  paid  inter- 
est on  a  portion  of  the  purchase  monev  for 
some  years,  but  never  completed  the  purchase : 
— Held,  that  even  after  a  lapse  of  twenty  vears 
his  possession  was  not  adverse  to  P.'s  Utle ;  neld, 
also,  that  it  did  not  lie  in  the  mouth  of  G.,  or 
any  claiming  under  him,  to  raise  as  an  objection 
to  P.*s  title,  that  the  commissioners  of  inclosure 
had  made  no  formal  award.  Doe  d.  Milburn  v^ 
Edgar,  2  Bing.  N.  R.  496.  1473 

Where  a  lease  for  years,  determinable  on  lives^ 


25a2      [LIMITATION  OF 


AND  SOTS— MANDAMUS] 


WW  pmtpd  in  I73S,  ana  m  17S4  ikt 
gnnhed  a  stBtihr  Inae  of  tlK  amv  tHLiiia  to 
another  Inoee,  who  aliraji  aftrmds  paid  rrat ; 
and  anothpr  penoo,  who  was  in  piiawiiw  at  thp 
(p«nting  of  the  aeeoiui  lease,  claimed  to  be  enti- 
tled to  the  estate,  on  the  groond  that  one  of  the 
lives  in  the  fiist  lease  was  in  eiistenoe,  and  ooa- 
tjnoed  to  hold  it  until  hb  death  in  1?11  "Held, 
that  he  had  no  adverse  possession  to  ^ve  him 
the  freehold.  Rexr.  Axbndge,4  Nev.&  M.477: 
1  Har.  &  Woa.  74.  1475 

Held,  also,  that  his  widow,  who  cuMtiniifd  to 
hold  after  bis  death  in  the  same  manner  nntO  she 
died  in  1627,  had  only  a  claim  on  the  eontinna- 
tion  of  the  estate  whieh  her  husband  Iwd,  and 
theielbre  acqaiied  no  riefat  bv  adverse 
Id. 


of  the 
to  maintain 
land  incksed 


Cr«wn,did 


leave  oT  the  C 
Binf.  X.  IL  1=9 


the 
entitle  the  puichaaer 
the  possessore^ 
the  waste  of  the  manor,  more 
before  the  eonvejance,  without 
d.  Watt  r.  Morris,  2 


LUNATIC. 


Land  was  devised  in  17^  by  a  man  to  his 
in  fee ;  and,  aAer  havii^  married  afain,  she  lived 
on  the  property  with  her  second  hodiand  for  nine 
or  ten  years,  and  then  went  to  reside  ebewbeie, 
and  were  never  aAerwaids  in  posKssion,  bat  un- 
der what  circnmstanoes  they  left  was  not  ex- 
plained. The  wile  died  in  18%,  before  her  hus- 
band, who  survived  antil  1832  :— Held,  in  eject- 
ment,  that  the  heir  of  the  wife  was  barred  by  the 
adverse  poasesnon  of  above  foi^  years ;  thoogfa 
the  wife  was  always  nnder  the  disability  of  cover- 
ture, and  the  husband  had  a  tenancy  by  the 
courtesy  during  his  life,  and  it  was  admitted 
that  no  fine  had  been  levied.  Doe  d.  Corbyn  r. 
Branston,  4  Nev.  &  M.  664 ;  3  Adol.  A  EUis,  63 ; 
1  Har.  A  Woll.  162.  1473 

A  lease  for  years  wss  granted  to  a  married 
woman  living  apart  from  her  husband,  under  the 
supposition  Uiat  she  was  a  feme  sole  : — Held,  on 
a  question  whether  there  had  been  an  adverse  pos- 
session, that  it  was  not  a  misdirection  to  put  it 
as  a  question,  whether  the  possession  had  been 
adverse  as  against  the  wife,  instead  of  as  against 
the  husband  ?  Doe  d.  Wilkinsr.  Wilkins,  5  Nev. 
Sl  M.  434 ;  1  Har.  &  WoII.  574.  1473 

A.,  thirty  years  ago,  died  seised  of  a  cottage, 
having  a  son,  B.,  and  a  daughter,  C.  At  his  death, 
C.,  his  daughter,  then  unmarried,  took  posses- 
sion of  it;  and  afterwards  married  D.,  and  after 
his  death,  W.  After  her  death,  W.  remained  in 
possession  sixteen  years:— Held,  that  the  son  of 
B.,  who  was  the  heir  of  C.  as  well  as  being  the 
heir  of  A.  A  B.,  might  recover  in  ejectment, 
although  W.,  including  the  term  he  had  occupied 
the  cottage  with  his  wife,  had  had  more  than 
twenty  years*  possession  of  it  Doe  d.  Tranter  r. 
Wing,  6  C.  &  P.  533— Williams.  1473 

In  a  plea  under  the  stat.  2  A,  3  Will.  4,  c.  71,  it 
is  sufficient  to  sllege  that  the  user  had  existed 
for  forty  years  before  the  commencement  of  the 
suit,  and  it  need  not  be  alleged  to  have  been  for 
forty  years  before  the  act  complained  of  in  the 
declaration.  Wright  v.  Williams,  1  Mees.  A 
Wels.  77.  1473 

A  replication  of  a  life  estate  to  a  plea  of  en- 
joyment for  forty  years  under  the  stat.  2  dt  3  Will. 
4,  c.  71,  must  show  that  the  plaintiff  is  the  per- 
son entitled  to  the  reversion  expectant  on  the 
determination  of  the  life  estate.    Id. 

Held,  that  the  conveyance  of  a  manor  by  the 


An  order  of  removal  of  a  lonatic  to  an  asjflum, 
_sde  bv  two  jnstiees  under  the  9  Geo.  4,  c.  40, 
staled  that  the  joabees,  **  having  made  inquiry 
into  the  cucnmstanees  and  place  of  last  legal 
settlement  of  the  said  H.  B.  (the  lunatic),  we 
have  adjudged  that  his  said  settlement  is  in  the 
parish  of  Si.  N. :"— Held,  that  it  was  sufficiently 
with  the  fonn  in  the  schedule  to 


m 


that  stat.;  and  wit  ob|ectiooble  on  the  ground 
that  it  contained  no  present  adjudication  upon  the 
place  of  settlement.  Rex  v.  Sl  Nicholas,  Leicester, 
4  Nev.dk  M.tfi4;  SAdoL  &  £llk,7d;  1  Har.& 
WoU.  141.  1477 

A  snbseqoeBt  order  under  the  same  statute, 
after  reciting  the  former  order  of  removal,  di- 
rected the  overreeis  of  the  pansh  where  the  set- 
tlement was,  to  pay  a  weekly  snm  **  for  the  main- 
tenance, medicine,  and  care  of  the  said  H.  B. 
(the  lunatic)  during  so  long  time  ss  the  said 
H.  B.  hath  been  and  shall  be  nnder  the  care  of 
the  keeper  of  the  asylum  :*'— Held,  that  it  was 
bad  as  to  so  much  as  was  retrospective  in  its 
operation,  but  valid  for  the  residuow  Id. 

Two  justices  ordered  F.  C,  the  wife  of  R.  C, 
a  Scotchman,  having  no  settlement  in  England, 
and  a  lunatic,  to  be  removed  Irom  parish  A. 
where  she  had  became  chargeable  to  parish  B., 
which  was  adjudged  to  be  her  lawful  settlement. 
The  order  did  not  state  where  the  husband  was 
when  it  was  made : — Held,  that  the  order  was  not 
void  on  the  ground  that  it  would  effect  the  sepa- 
ration of  husband  and  wife,  because  it  was  not  to 
be  presumed  that  when  it  was  made  the  husband 
was  residing  in  parish  A.,  or  was  not  residing  in 
parish  B.     Rex  tu  Stockton,  5  B.   dt  AdoL  546. 

*  1477 

A  hab.  corp  ad  testificandum  may  be  obtained 
to  bring  up  the  body  of  a  confined  lanatic  to  give 
evidence  in  a  cause  upon  an  affidavit,  showing 
that  he  is  not  a  dangerous  lunatic,  and  that  he 
is  in  a  fit  state  to  he  brought  up.  Fennell  *. 
Tait,  1  C.  M.  &  R.  584  ;  5  Tyr.  218 ;  3  Dowl. 
P.  C.  161.  1477 


MANDAMUS. 

Generally.] — A  mandamus  will  not  go,  unless 
it  is  clear  that  there  has  been  a  direct  refusal  to 
do  that  which  it  is  the  object  of  the  mandaiAus 
to  enforce,  either  in  terms  or  by  circumstances, 
which  distinctly  show  an  intention  in  the  party 
to  withhold  from  doing  the  act  required.  Rex  v. 
Brecknock  and  Abergavenny  Canal  Company,  4 
Nev.  &  M.  871 ;  3  Adol.  A  EUis,  817 :  1  Har. 
A  WoU.  279.  1479 

Where  upon  being  required  to  do  a  particular 
act,  the  party  said  that  he  was  ready  to  do  it 
upon  being  indemnified,  which  the  applicant  re- 


[MANDAMUS] 


2533 


foaed  to  do,  but  afterwards  tnok  no  further  steps 
by  making  a  direct  application  or  otherwise  to 
obtain  an  unconditional  refusal : — Held,  that  the 
refusal  was  not  sufficient  to  warrant  the  court  in 
granting  a  mandamus.    Id. 

By  statute  incorporating  a  canal  company, 
the  affairs  of  the  company  were  to  be  managed 
by  a  committee,  who  were  authorized  to  ap- 
point a  clerk  for  better  carrying  into  execution 
the  purposes  of  the  act ;  the  committee  were 
required  to  enter  in  books  an  account  of  their  dis- 
borsements,  receipts,  and  transactions,  and  the 
books  were  to  be  open  at  all  seasonable  times  to 
the  inspection  of  the  proprietors.  A  proprietor 
applied  to  the  clerk  for  an  inspection  of  the  books 
which  were  under  his  charge.  The  clerk  said  he 
would  refer  the  demana  to  the  committee. 
The  proprietor  attended  the  committee,  and 
there  repeated  his  request;  and  the  chairman 
said  they  would  take  time  to  consider  it ;  ten  days 
afterwards  the  proprietor  applied  again  to  tne 
clerk,  who  refused  the  inspection  of  we  books : — 
Held,  that  there  had  been  no  sufficient  refusal 
by  the  committee  to  warrant  the  application. 
Rex  v.  Wilts  and  Berks  Canal  Navigation,  3  Adol. 
&  Ellis,  477.  1479 

Semble,  that  a  part^  applying  for  a  mandamus 
to  give  inspection  of  such  documents,  ought  to 
show  that  when  he  demanded  the  inspection,  he 
stated  the  object  for  which  he  wanted  it.  Id. 

To  ground  an  application  for  a  mandamus  to 
inspect  books,  qnere,  whether  it  is  sufficient  to 
show  that  the  party  entitled  to  inspect  demanded 
liberty  to  do  so,  that  his  claim  was  disputed,  but 
inspection  offered  him  as  a  favor,  and  that  he 
refused  to  accept  it  otherwise  than  as  a  right  P 
— Per  Oenman,  C.  J.  Rex  v.  Trustees  of  North- 
iieach  and  Witney  Roads,  5  B.  &  Adol.  ^8.  1479 

Where  it  Hes.] — Where  a  sheriff*  has  set  aside 
•  judgment  in  the  county  court: — Held,  that 
whether  he  could  do  so  or  not  a  mandamus  could 
not  be  ^rranted  to  compel  bim  to  issue  execution 
on  the  judgment.  Eldridge  v.  Fletcher,  I  Har. 
A  WoU.  199.  *  1480 

A  mandamus  will  not  lie  to  a  treasurer  of  a 
borough  to  compel  him  to  pay  costs  to  witnesses 
under  the  order  of  a  judge,  founded  on  the  7  Oeo. 
4,  c.  64,  the  treasurer  being  a  ministerial  officer, 
and  subject  for  his  refusal  to  an  indictment. 
llezv.  Jeyes,  5  Nev.  &  M.  101 ;  3  Adol.  &  Ellis, 
416;  1  Har.  di  Woll.  325.  1479 

Where  a  statute  does  not  allow  a  removal  of 
proceedings  by  certiorari,  the  court  will  not  in- 
directlybring  them  under  review  by  a  mandamus. 
Rex  v.Torkshire  W.  R.  (Justices),  1  Adol.  dt  Ellis, 
563 ;  3  Nev.  &.  M.  802.  1480 

'  A  mandamus  was  granted  commanding  the 
lord  of  the  manor  to  hold  a  court  leet  for  the 
purpose  of  appointing  a  high  constable  of  a  hun- 
dred, though  the  day  on  which  the  court  had 
been  usually  held  for  sixty  years  past  had  gone 
by,  it  not  being  distinctly  sworn  that  the  court 
was  held  on  tluit  particular  day  by  prescription. 
Rex  V.  M'dverton  (Lord  of  Manor),  3  Adol.  & 
Ellis,  984;  1  Har.  A  WoU.282.  1480 


under  the  General  Turnpike  Act.    Rex  v.  Ches- 
hunt  Roads  (Trustees),  5B.  ^k  Adol.  439.     1479 

Where  a  charter  is  granted  to  a  corporation 
to  bold  a  court  for  the  trial  of  causes,  the  disuse 
of  that  court  for  two  hundred  years,  and  the  want 
of  funds  to  liold  it,  are  no  answer  to  a  rule  for  a 
mandamus  commanding  them  to  hold  it.  Rex  r. 
Wells  (Mayor),  4  Dowl.  P.  C.  562.  1486 

The  lords  of  the  treasury  recommended  a 
retired  allowance  to  a  public  officer,  and  obtained 
a  vote  of  parliament  for  a  particular  sum,  which 
was  received  from  time  to  time  under  the  Ap- 
propriation Act,  by  the  proper  officer.  In  seve- 
ral letters  written  by  their  secretary,  these  facts 
were  stated,  and  directions  given  as  to  the  mode 
of  obtaining  payment.  The  lords  of  the  trea- 
sury refused  to  give  an  authority  to  him  to  pav 
it  over  to  the  individual  to  whom  it  was  granteu, 
unless  upon  conditions  to  which  he  would  not 
agree : — Held,  that  he  had  a  legal  right  to  the 
amount  so  recommended,  which  the  court  would 
enforce  by  mandamus.  Rex  v.  Treasury  (Lords), 
5  Nev.  d^  M.  569 ;  1  Har.  &.  Woll.  533.        1480 

The  mandamus  was  directed  to  the  lords  of  the 
treasury  to  issue  the  proper  minute  or  authority 
to  insure  the  payment,     id. 

Whether  the  lords  commissioners  might  re- 
turn, that  the  state  of  public  affairs  rendered  it 
expedient  to  withhold  such  payment,  quiere  .•*  Id. 

Where  under  a  parliamentary  vote,  money 
was  placed  under  the  control  of  the  lords  of  the 
treasury  for  the  benefit  of  A.,  tliey  are  not  au- 
thorized to  impose  on  A.  a  collateral  condition 
of  payment.     Id. 

A  mandamus  will  not  lie  to  the  lords  of  the 
privy  council,  commanding  them  to  receive  a 
petition  praying  them  to  rehear  a  decision  upon 
a  ease  heard  before  and  determined  by  them, 
upon  an  appeal  from  an  ecclesiastical  court  to 
the  judicial  committee,  instead  of  a  court  of  de- 
legates. £x  parte  Smith,  4  Nev.  &  M.  582 ;  1 
Har.  4&  Woll.  128.  1480 

Semble,  that  a  mandamus  will  not  go  to  an 
inferior  court,  merely  for  the  purpose  of  com- 
pelling the  hearing  of  a  case  already  determined. 

Justices  and  Sessi4ms.] — ^The  court  will  not 
issue  a  mandamus  to  a  magistrates  to  do  an  act 
subjecting  them  to  an  action,  of  which  the  event 
may  be  doubtful.  Rex  v.  Buckinghamshire 
(Justices),  3  Nev.  &  M.  68.  1480 

On  motion  for  a  mandamus  to  justices  to  issue 
a  warrant  to  distrain  for  a  poor's  rate,  it  must 
appear  clearly  to  the  court  that  the  warrant 
would  be  legal,  and  that  the  parties  applying 
have  no  other  remedy  to  enforce  the  rate.  Rex 
V.  HaU,  1  Har.  &  WoU.  83.  1480 

Where  a  highway  rate  was  made,  and  there 
was  no  appeal  against  it,  and  on  application  to 
two  magistrates,  they  refused  to  issue  a  distress 
warrant,  though  an  offer  to  indemnify  them  was 
made,  but  not  acutually  tendered ;  and  it  appeared 
there  was  reasonable  doubts  as  to  the  validity  of 
the  rate,  and  as  to  whether  the  magistrates  would 
A  mtndamqs  lies  to  admit  a  clerk  of  trustees    not  be  liable  to  in  action  if  they  issued  the  war- 


S534 


[MANDAMUS— MASTER  AND  SERVANT] 


rant : — Held,  that  the  eourt  would  not  grant  a 
niaadamua  to  compel  them  to  do  so.  Rez  v. 
Soroersetsbire  (Justices),  1   Har.  &  WoU.  82. 

1480 

The  adjudication  of  the  court  of  quarter  ses- 
sions upon  an  appeal  relating  to  an  act  done  in 
pursuance  of  a  local  turnpike  act,  is  final ;  and 
a  mandamus  does  not  lie  to  require  the  court  to 
rehear  such  appeal.  Rex  v.  W.  R.  Yorkshire 
(Justices),  3Nev.  &M.  86;  I  Adol.  &  Ellis,  606. 

1481 
The  court  will  not  grant  a  mandamus  requir- 
ing the  justices  at  sessions  to  direct  the  putting 
in  suit  of  a  bond  given  b^  a  high  constable,  for 
the  due  performance  of  his  office,  for  the  pur- 
pose of  procuring  reimbursement  to  a  parish  upon 
which  the  high  constable  has  leyied  excessive 
rates  in  disobedience  of  an  order  of  sessions. 
Ex  parte  Carlton  High  Dale,  4  Nev.  &  M.  312. 

1481 

JVrii  and  Retum.]^A  rule  for  a  mandamus  to 
the  archdeacon,  to  administer  the  oath  of  office 
to  a  churchwarden,  is  absolute  in  the  first  in- 
stance, where  there  is  no  rival  candidate,  and  no 
reason  assigned  for  the  refusal  to  administer  the 
oath.  Rexw.  Litchfield  &  Coventry  (Archdeacon), 
5  Nev.  ^  M.  42 ;  1  Har.  &  Woll.  463.  1487 

The  rule  is  absolute  in  the  first  instance  for  a 
mandamus  to  swear  in  a  chapel- warden,  where, 
on  the  vacancy  of  a  living,  there  is  a  dispute  be- 
tween the  curate  and  8e(|ue8trator  who  should 
appoint,  and  each  has  appomted  one.  Ex  parte 
Penruddock,  1  Har.  A  Woll.  347.  1487 

A  party  whose  right  to  an  office  has  been  esta- 
blished by  a  verdict  cannot  have  a  peremptory 
mandamus  to  restore  him  to  his  office  until 
he  has  signed  judgment  in  the  action.  Neale  v» 
Bowles,  1  Har.  &  Woll.  584.  1487 

Where  a  rule  for  a  mandamus  to  execute  the 
office  of  mayor  was  moved  so  late  in  Trinity  term, 
that  the  party  had  not  time  to  answer  the  affida- 
vits, the  court  enlarged  the  rule  until  the  foUow- 
ihg  term,  though  the  charter  day  for  electing  a  new 
mayor  would  previously  occur,  until  whicii  time 
the  public  would  be  deprived  of  the  services  of 
the  mayor,  and  though  it  was  suggested  that  the 
party  could  have  no  answer  to  make  to  the  rule 
In  re  Walsall,  1  Har.  &  Woll.  370.  1487 

To  a  mandamus  requiring  A.,  a  way-warden, 
to  deliver  to ,  the  churchwardens  ccrtam  books  of 
account,  assessments,  &.c.  in  his  custody,  power, 
or  possession,  it  is  a  good  return  to  say,  that  on 
and  since  the  teste  of  the  writ,  A.  had  not  nor 
has  had  the  books,  &c.,  or  any  of  them,  in  his 
custody,  power,  or  possession.  Rex  v.  Round, 
5  Nev.  <t  M.  427;  1  Har.  <&  Woll.  546.         1488 

If  A.  goes  on  unnecessarily  to  state  that  he 
had  them  not  on  a  prior  day,  when  it  is  surmised 
in  the  mandamus  that  they  were  demanded  by 
the  churchwardens,  he  is  not  bound  to  negative 
a  possession  intermediate  between  the  demand 
and  the  teste  of  the  writ.  Id. 

Whether,  under  the  circumstances,  the  books, 
Ac.  were  in  the  power  of  A.,  is  a  question  to  be 


raised  by  a  traverse  to  the  return  or  by  an  action 
for  a  false  return.    Id. 

Where,  on  return  to  a  mandamus  (to  admit 
a  copyholder),  a  concilium  has  been  obtained, 
and  tne  return,  on  argument,  held  sufficient  in 
law,  and  a  peremptory  mandamus  awarded,  the 
court  will  not,  at  the  instance  of  the  party  mak* 
ing  such  return,  direct  the  prosecutor  to  demur, 
in  order  that  the  case  may  go  to  a  court  of  error. 
Quiere,  whether,  by  the  stat  9  Ann,  c.  20,  s.  2, 
the  return  to  a  mandamus  nan  be  demurred  to  f 
Rex  V.  The  Lord  of  the  Manor  of  Oundle,  1  Adol. 
&  Ellis,  283 ;  3  Nev.  <&  M.  484.  1488 


MASTER  AND  SERVANT. 

A  contract,  by  which  a  servant  hires  himself  to 
a  master  as  a  footman  and  groom,  is  not  dis- 
solved by  a  subsequent  contract,  by  which  he  en- 
gages to  bind  himself  to  serve  in  a  difiereiit  char* 
acter  at  higher  wages  and  in  a  foreign  country, 
although  uie  servant  accompanies  his  master 
into  such  foreign  country ;  the  service  performed 
abroad  being  the  same  as  that  originally  con- 
tracted for.  Rex  v.  Buckingham,  3  Nev.  A  M. 
72.  1493 

A  hiring  at  so  much  per  month  is  a  hiring  for 
ayear.  Fawcettt).  Cash,  3  Nev.  &M.  177;  5  B. 
<&  Adol.  904.  1493 

A  general  hiring,  in  the  absence  of  any  custom 
to  rebut  the  presumption,  is  to  be  presumed  to 
have  been  a  hiring  for  a  year.    Id. 

A  clerk  hired  at  121.  lOs.  per  month  for  the 
first  year,  to  advance  10/.  per  annum  until  the 
salary  is  180Z.,  is  hired  for  at  least  one  year.  Id. 

A  head  gardener  was  engaged  on  an  agreement 
that  he  should  have  yearly  wages,  and  a  house  to 
live  in  rent  free.  Several  inferior  gardeners  were 
subjert  to  his  directions,  and  the  house  he  lived 
in  was  not  under  the  roof,  or  a  part  of  the  mas- 
ter s  dwelling-house.  The  jury  having  found 
that  he  was  a  menial  servant ;  it  was  held  the 
verdict  was  right,  and  that  he  was  consequently 
liable  to  be  discharged  on  a  month's  notice. 
Nowlan  t».  Ablett,  2  C.  M.  <&  R.  fA  ;  1  Gale,  72. 

1493 

An  agreement  for  the  hiring  of  a  servant  may 
be  proved  by  parol,  although  the  terms  of  the 
agreement  are,  by  the  direction  of  the  parties, 
written  down  by  a  third  person ;  such  writing, 
though  read  over  to  the  parties,  not  being  signed 
by  them.  Rex  v.  Wrangle,  4  NfV.  &  M.  375 ;  2 
Adol.  <&  Ellis,  314 ;  1  Har.  <&  WoU  41.        1493 

If  a  servant,  when  he  is  taken  into  a  service, 
brings  a  written  character,  and  is  aflerwards  dis- 
missed for  ill  behavior : — Semble,  that  the  mas- 
ter does  no  wrong,  if  before  he  returns  the  cha- 
racter to  the  servant,  he  writes  upon  it  that  the 
person  was  aflerwards  in  his  service  and  dis- 
missed for  ill  behavior.  Taylor  v.  Rowan,  7  C. 
&  P.  70— Abinger.  1495 

Every  man  has  a  right  to  work  for  the  best 
price  he  can  get ;  but,  if  others  choose  to  work 
for  less  than  the  usual  prices,  the  law  will  not 
permit  that  violence  should  be  committed  to- 
wards them,  or  towards  those  by  whom  they  are 


[MASTER  AND  SERVANT] 


2535 


employed,  or  tho«e  with  whom  they  aie  con- 
nected.   Rex  V.  Batt,  6  C.  <&  P.  399.  1493 

A  bequest  of  a  year's  wages  to  each  of  the 
testator's  servants,  over  and  above  what  may  be 
due  to  them  at  the  time  of  the  testator's  decease, 
applies  to  such  servants  only  as  are  usually  hired 
by  the  year.    Booth  v.  Dean,  1  Mylne  &  K.  560. 

1493 

Where  a  servant  under  a  general  hiring  at  the 
rate  of  so  much  per  annum  is  dismissed  for  mis- 
conduct, he  is  not  entitled  to  any  portion  of  the 
wages  of  the  current  year.  Turner  v.  Robinson, 
2  Nev.  &  M.  829;  6  C.  &  P.  15;  5  B.  «fc  Adol. 
789.  1495 

So,  although  the  master  has  previously  reco- 
vered damages  against  him  for  the  same  act  of 
misconduct.    Id. 

A  clerk  hired  generally  by  the  year  at  a  cer- 
tain salary,  may,  upon  a  dissolution  of  the  con- 
tract by  mutual  consent  within  the  year,  recover 
salary  pro  rata,  without  any  express  agreement 
to  that  effect.  Thomas  v.  Williams,  3  Nev.  d^  M. 
545 ;  1  Adol.  &,  Ellis,  685.  1493 

So,  also,  he  may  recover  pro  rata  where  the 
contract  has  been  dissolved  by  mutual  consent 
within  the  year,  but  afler  the  issning  of  a  com- 
mission of  bankruptcy.    Id. 

The  departure  of  the  clerks  upon  the  ceasing 
of  the  trade  is  evidence  of  a  dissolution  of  such 
contract.    Id. 

Where  a  yearly  servant  is  dismissed  by  his 
master  before  the  year  is  expired,  for  a  cause 
which  in  law  is  sufficient  to  justify  such  dis- 
missal, he  cannot  recover  any  wages ;  even  pro 
rata  for  such  a  period  as  has  elapsed  before  his 
dismissal.  Ridgway  v.  Hungerford  Market  Com- 
pany, 4  Nev.  &  M.  797 ;  3  Adol.  &  Ellis,  171 ; 
1  Har.  &  WoU.  244.  1493 

Where  a  justifiable  cause  of  dismissal  exists, 
it  is  sufficient  to  prevent  the  recoverinj^  of  wages, 
though  the  servant  might  not  in  fact  have  been 
dismissed  upon  that  ground ;  and  it  is  not  neces- 
sary that  the  cause  relied  on  in  answer  to  an 
action  for  wages,  should  have  been  stated  at  the 
time  of  the  dismissal.    Id. 

A  clerk  to  a  public  company,  who  was  hired 
at  a  yearly  salary ,  having  received  on  the  29tb 
March  a  communication  that  it  was  the  intention 
of  the  directors  to  make  a  new  appointment  to 
the  situation  of  clerk,  entered,  on  the  11th  April, 
on  the  minutes  a  protest  to  an  entry  of  that  com- 
roanication,  tojiretner  with  an  order  for  calling  a 
special  court  on  the  17th  April  for  the  purpose 
of  appointing  a  fit  person  to  be  clerk.  On  the 
17th  April,  the  directors,  by  a  resolution,  de- 
clared the  clerk  to  be  displaced  from  his  situa- 
tion. It  was  put  as  a  question  to  the  jury,  in  an 
action  for  salary,  whether  the  entry  of  ihe  protest 
was  a  sufficient  ground  to  justify  the  dismissal, 
and  they  found  that  it  was.  A  verdict  having 
been  found  for  the  plaintiff,  the  court  made  ab- 
solute a  rule  for  entering  a  nonsuit.    Id. 

An  appointment  of  clerk  to  a  public  company, 
was  by  a  resolution  which  stated  the  salary  to  be 
2002.  per  annum,  but  said  nothing  as  to  the 
period  of  payment:  the  clerk  acted  as  such,  and 


was  paid  several  sums  of  502.  each,  at  periods 
just  afler  the  usual  quarter  days  of  the  year : — 
Held,  that  proof  of  these  facts  warranted  a  de- 
claration in  an  action  for  salary,  which  alleged 
the  contract  to  be  at  a  salary  of  200/.  per  annum, 
payable  quarterly  on  the  usual  quarter  days.     Id. 

Qusre,  whether  a  special  action  is  not  neces- 
sary  to  enable  a  yearly  servant  to  recover  wages, 
where  the  contract  is  put  an  end  to  before  the 
year  is  expired  ^     Id 

A  servant  is  liable  for  an  action  of  trover  for 
aconversion  for  the  benefit  of  his  master.  Cranch 
V.  White,  1  Scott,  314  ;  1  Hodges,  61.  1494 

The  defendant  received  from  one  R.  a  bill  of 
exchange,  with  notice  that  it  was  the  plaintiff's 
property,  and  that  it  had  been  placed  in  the  hands 
of  R.,  for  the  purpose  of  his  procuring  it  to  be  dis- 
counted for  the  plaintiff.  R.  being  indebted  to 
the  defendant's  mother,  in  whose  employ  the  de- 
fendant was,  the  latter  appropriated  tlie  bill  in 
dischar^  of  R.'s  debt : — Held,  that  this  was  a 
conversion  for  which  the  defendant  was  liable  in 
trover.     Id. 

In  an  action  on  the  case  for  damage  done  to  the 
plaintiff 's  cabriolet,  against  which  the  defendant's 
cart  was  driven,  the  defendant  will  be  liable, 
although  it  should  appear  that  the  defendant's 
servant  was  not  driving  at  the  time  of  the  acci- 
dent, but  had  intrusted  tlie  reins  to  a  stranger 
who  was  riding  him,  and  who  was  not  in  the  ser- 
vice of  the  defendant.  Booth  v.  Mister,  7  C.  &  P. 
66— Abinger.  1496 

If  a  servant  driving  his  master's  cart,  on  his 
master's  business,  make  a  detour  from  the  direct 
road  for  some  purpose  of  his  own,  his  master  will 
be  answerable  in  damages  for  any  injury  occa- 
sioned by  his  negligent  driving  while  so  out  of  the 
road.    Joel  v.  Aiorison',  6  C.  &   P.  501 — Parke. 

1496 

But  if  a  servant  take  his  master's  cart  without 
leave,  at  a  time  when  it  is  not;  wanted  for  the 
purposes  of  business,  and  drive  it  about  solely 
for  11  is  own  purposes,  the  master  will  not  be  an- 
swerable for  any  injury  he  may  do.     Id. 

A.  ordered  of  B.  two  suits  of  livery  a  year  for 
her  coachman.  B.  supplied  one  suit  of  livery, 
and  at  the  desire  of  the  coachman  supplied  plain 
clothes  instead  of  the  other: — Held,  that  B. 
could  only  recover  from  A.  the  price  of  the 
livery  actually  supplied.  B.  had,  on  a  previous 
bill  delivered,  been  paid  for  a  livery  suit  which 
he  had  furnished  and  immediately  taken  back 
from  the  coachman  : — Held,  that  A.  was  entitled 
to  be  allowed  the  amount  paid  for  this  suit,  on  a 
plea  of  setroff  for  money  had  and  received  plead- 
ed in  an  action  for  the  amount  of  a  subsequent 
account  for  clothes.  B.,  who  was  a  tailor,  pqt 
lace,  with  the  arms  of  A.,  his  customer,  wrought 
in  it,  on  the  livery  suits  he  made  for  A.  B.  had 
the  lace  made  in  pieces  of  fifly  yards  each  at  a 
certain  price,  but  when  he  made  a  livery  suit,  he 
charged  A.  with  the  quantity  of  lace  used  on  that 
suit,  i)ut  at  a  higher  price  per  yard  than  he  gave 
for  it : — Held,  that  when  A.  ceased  dealing  with 
B.,  she  was  not  bound  to  pay  for  any  of  this  lace 
that  B.  then  had  in  his  hands.    Hunter  o.  Berk- 


2596 


[MASTER  AND  SERVANT— MISNOMER] 


elej  (ConnteM  Dowager),  7  C.  &  P.  413— Abin- 
gcr.  1496 

llie  provisions  of  5  Geo.  4,  c.  18,  apply  only 
to  cases  of  penalties  and  forfeitures.  Wiles  r. 
Cooper,  5  Nev.  &.M.276;  I  Uar.  &  WoU.  560. 

1497 

Therefore  magistrates  baye  no  power,  under 
tbat  Btat.,  to  commit  a  partj  to  prison  for  the 
non-payment  of  a  sum  of  money  adjudged  by 
them,  under  20  Geo.  2,  c.  19 ;  31  Geo.  2,  c.  11 ; 
and  4  Geo.  4,  c.  34,  to  be  due  as  wages.    Id. 

In  an  information  before  magistrates,  under 
20  Geo.  2,  e.  19;  31  Geo.  2,  c.  11,  and  4  Geo.  4, 
c.  34,  for  non  payment  of  wages,  it  should  appear 
that  the  relation  of  master  and  servant  existed  in 
one  of  the  occupations  therein  specified  between 
the  debtor  and  tne  informant.    Id. 


MINES. 

In  ejectment  for  a  mine  and  land  in  Cornwall, 
the  defendant  cannot  defend  for  a  right  of  entry 
to  dig  for  mines,  and  take  the  minerals  known 
there  by  the  name  of  "  tin-bounds."  Doe  d.  Fal- 
mouth (Earl)  V.  Alderaon,  4  DowL  P.  C  701  ;  1 
Mees.  &  Wels.  210.  1498 

A  tenant  agreed  to  work  a  coal  mine  so  long 
as  it  was  "  fairly  workable."  There  were  coals 
in  the  mine,  but  of  such  a  description  tbat  it 
would  not  pay  to  work  it : — Held,  that,  under 
these  circumstances,  the  tenant  was  not  bound  lo 
work  the  mine,  and  that  under  the  words  '*  fairly 
workable,"  a  tenant  was  not  bound  to  work  at  a 
clead  loss.  Jones  v.  Shears,  7  C.  &  P.  346^Cole- 
ridge.  1496 

A  claim  by  an  owner  of  a  copper  mine  to 
Bink  pits  on  his  own  land,  to  fill  such  pits  with 
iron,  and  to  cover  the  same  with  water  pumped 
from  the  mine,  for  the  purpose  of  precipitating 
the  copper  contained  in  such  water,  and  afler- 
wards  to  let  off  the  water  impregnated  with 
metallic  snbstanoes  into  a  water-course  upon 
the  land  of  another,  is  a  claim  to  a  water-course 
within  the  2nd  sect,  of  2  &  3  Will.  4,  c.  71. 
Wright  V.  Williams,  1  Mees.  &  Wels.  77.      1498 

If  a  down  be  let,  by  an  instrument  not  under 
•eal,  ibr  the  purpose  of  digging  copper  ore,  an 
action  for  use  and  occupation  may  be  main- 
tained, if  the  defendant  has  ever  taken  posses- 
ion ;  and  if  he  has  once  taken  possession,  he  is 
liable  to  all  subsequent  rent  until  the  determi- 
nation of  the  tenancy,  whether  he  has  continued 
to  work  the  minerals  or  not ;  but  if  the  defen- 
dant merely  caused  holes  to  be  dug  on  the  down, 
and  had  them  filled  up  immediately,  witb  a  view 
merely  to  ascertain  what  sort  of  bargain  he*  was 
about  to  make  or  had  made,  that  would  not  be  a 
taking  of  possession.  Jones  v.  Reynolds,  7  C.  &. 
P.  335— Colendge.  1498 


MISNOMER. 

Qoere,  whether,  since  the  3  &  4  Will.  4,  c.  42, 
«.  11,  a  defendant  who  hat  been  arrested  by  a 
wrong  christian  name  is  entitled  to  be  discharged 


on  motion  ?    Galium  v.  Leeson,  2  C.  &  M.  406  ; 

2  Dowl.  P.  C.  381 ;  4  Tyr.  266.  1502 

Where  a  defendant  was  arrested  by  a  wrong 
name,  the  afiidavit  to  ground  a  motion  that  the 
bail-bond  be  delivered  up  to  be  cancelled  must 
be  intituled  in  the  defendant's  right  name, 
"  sued  by  the  name  of."  Finch  v.  Cocken,  2  C. 
&  M.  412;  2  Dowl.  P.  C.  383;  4  Tyr.  285. 

1503 

A  defendant  whose  name  was  Cocken,  was  ar- 
rested upon  a  capias  a^inst  him  by  the  name  of 
Cocker ;  he  ^ve  a  bail-bond  to  the  sheriff  in  the 
name  of  Cocken  sued  as  (docker ;  and  the  bail- 
bond  being  aflerwards  assigned  to  the  plaintiff, 
he  declared  thereon  against  the  defendant  as 
Cocken  sued  by  the  name  of  Cocker.  The 
defendant  pleaded  that  no  such  writ  as  that 
stated  in  the  declaration  was  issued  against  him. 
It  was  admitted  that  he  was  the  real  defendant. 
The  plaintiff  was  nonsuited,  but  the  court  set 
aside  the  nonsuit,  and  ordered  a  verdict  to  be 
entered  Ibr  the  plaintiff^  because,  in  point  of 
fact,  there  was  a  writ  against  the  defendant  bv 
the  name  of  Cocker.  Finch  v.  Cocken,  3  Dowl. 
P.  C.  678;  2  C.  M.  &  R.  196;  1  Gale,  130. 

1502 

Held,  also,  upon  motion  in  arrest  of  judgment, 
that  the  declaration  was  bad,  because  a  writ 
afirainst  Cocker  did  not  authorize  an  arrest  of 
Qjcken,  unless  he  was  known  as  well  by  one 
name  as  the  other,  and  there  was  no  averment  of 
that  fact  in  the  declaration ;  and  that  neither  the 

3  <&  4  Will.  4,  c.  42,  s.  1 1,  nor  the  rule  of  H.  T. 
2  Will.  4,  s.  ^,  had  made  any  alteration  in  the 
law  in  this  respect.    Id. 

A  copy  of  a  writ  of  summons  was  served  on  a 
person  by  a  wrong  name  : — Held,  that  he  was  not 
bound  to  make  application  to  set  it  aside.  Hin- 
ton  V.  Stevens,  1  Har.  <&  WoU.  621.  1508 

A  notice  of  declaration,  in  which  he  was 
rightly  named,  was  aflerwards  served: — Held, 
that  he  was  bound  to  apply  to  a  judge  at  cham- 
bers within  four  days.    Id. 

A  Sunday  not  being  either  the  first  or  the  last, 
is  to  be  reckoned  one  of  the  four  days.    Id. 

Since  3^4  Will.  4,  c.  42,  s,  11,  a  defendant 
arrested  by  a  wrong  christian  name  may  be  dis- 
charged on  motion,  if  due  dilligence  has  not  been 
used,  according  to  Reg.  32  il.  T.  2  Will,  4. 
Ladbrook  n.  Phaiips,  1  Bar.  &  Woll.  109.      1502 

Inquiry  of  a  partaer  of  the  defendant,  who 
gave  a  wrong  christian  name,  and  at  a  banker's, 
where  no  information  was  obtained,  was  held 
sufficient.    Id. 

No  advanta^  can  be  taken  at  the  trial  of  a 
misnomer  of  the  plaintiff,  though  there  be  a  per- 
son  of  the  name  erroneously  used.  Moody  o. 
Aslatt,  1  C.  M.  4&  R.  771 ;  5  Tyr.  492;  1  Gale« 
47.  1504 

It  is  a  question  of  fact  who  is  the  real  plain- 
tiff.   Id. 

Plaintiff  declared  by  the  name  of  «« W.  M.,  * 
and  the  cause  proceeded  to  issue  in  that  name. 
It  was  sworn  that  the  party  intended  as  plaintilF 
was  J.  M.y  but  there  appeared  to  be  a  W.  M.,  a 


[MISNOMER— MORTGAGE] 


3537 


■on  of  J.,  who  was  connected  with  the  traniaction 
in  qaestioD.  The  court  refused  a  rule  to  amend 
the  proceedings  by  inserting  the  name  of  J.  in- 
steaa  of  W.,  obserring,  that  if  he,  J.  M.,  were 
really  the  person  originally  intended  as  plaintiff, 
the  misnomer  could  not  be  taken  advantage  of  at 
the  trial.    Id. 

A,  defendant  waives  an  objection  of  misnomer 
by  takmg  out  a  judge's  order,  wherein  he  uses 
tne  name  by  which  he  was  arrested.  Nathan  v. 
Cohen,  3  Dowl.  P.  C  370.  1507 


MORTGAGE. 

Br  agreement  in  writing,  preliminary  to  an  in- 
tended mortgage,  the  plamtiff  undertook  to  ad- 
vance the  defendant  a  sum  on  the  mortgage  of 
certain  named  premises ;  the  defendant  was  to 
deliver  a  complete  abstract  of  title  to  the  plain- 
tiff's solicitor  within  a  week  afler  the  date  of  the 
agreement,  and  to  produce  the  title  deeds  neces- 
sary to  verify  the  abstract,  and  deduce  a  market- 
able title  within  a  month  from  such  delivery.  If 
the  defendant  did  not  do  so  at  either  period,  the 
plaintiff  was  to  have  the  option  of  considering 
the  agreement  void.  It  was  then  agreed  that 
the  defendant  should  forthwith  pay  the  plaintiff 
all  costs  and  charges  incurred  by  him -in  investi- 

gating  the  title  to  the  premises.  Abstracts  were 
elivered,  but  disclosed  no  title  to  some,  and  a 
defectitle  title  to  other  parts  of  the  premises. 
The  time  for  completing  the  title  expired  on  S24th 
of  September,  1831,  but  the  negotiations  went  on 
till  14th  of  May,  1832 ;  the  defendant  had  re- 
peated notice  between  those  dates  that  the  plain- 
tiff's money  was  lying  idle,  but  he  tried  to  amend 
his  title  till  the  latter  day,  when  it  remained 
defective,  and  the  bargain  was  broken  off: — 
Held,  that  the  original  contract  remained  in 
force,  and  that  its  terms  were  not  sufficiently 
comprehensive  to  enable  the  plaintiff  to  recover 
interest,  or  more  than  the  costs  of  investigating 
the  defendant's  title.  Sweetland  v.  Smith,  3 
Tyr.  421.  1508 

To  trespass  qnare  clausum  fregit,  by  a  mort- 
gagor of  a  customary  tenement,  a  justification 
under  an  entry  by  the  mortgage  trustee,  who  had 
by  the  mortgage  deed  no  express  power  to  sell  on 
non-payment  of  the  mortgage  money,  if  the 
mortgagee  requested  him  to  do  so,  is  not  suffi- 
cient, unless  it  allege  that  such  a  request  was 
made,  and  that  the  entry  was  for  the  pur- 
poses of  the  mortgage  trusts,  though  there  be 
also  in  the  deed,  a  covenant  by  the  plaintiff  for 
the  qniet  enjoyment  of  the  trustee,  for  that  can 
only  be  intended  to  be  in  accordance  with  the 
trusts.  Watson  v.  Waltham,  4  Nev.  &M.  537 ; 
2  Adol.  <&  EUis,  485;  1  Har.  A  Woll.  24. 

1508 


in  trust  to  sell  it,  and  for  6.  to  pay  himself  the 
sum  advanced,  and  to  pay  22Z.  to  C.  as  part  of 
his  claim,  and,  af\er  other  payments,  which  y^xe 
specified,  to  pay  the  surplus  to  3.  C.  was  not 
only  aware  of  this  arrangement,  but  was  at  one 
time  intended  to  have  ^en  a  trustee  under  the 
deed  of  assignment: — Held,  that  this  conveyance 
was  a  mortgage  within  the  meaning  of  the  under- 
taking, but  that  C.  could  not  recover,  in  an  ac- 
tion upon  the  undertaking,  the  22£.  mentioned  in 
the  deed,  as  he  had  allowed  that  to  become  a 
subject  of  the  trusts.  Crook  v.  Beetham,  7  C. 
&  ?.  761— Tindal.  1508 

An  equitable  mortgage  may  be  created  by  de- 
posit of  one  title  deed,  where  the  other  deeds  are 
in  the  hands  of  the  depositor's  solicitors,  but  not 
as  equitable  mortgages.  Ex  parte  Chippendale, 
2  Mont  &.  Ayr.  299.  1506 


A  power  given  to  a  trustee,  in  a  mortgage  deed, 
to  sell,  if  tlie  mortgagee  requests,  does  not  neces- 
aarily  imply  a  right  to  enter  upon  the  premises. 
Id. 

A.  gave  an  undertaking  to  pay  C.  352.  upon 
the  execution  of  a  mortgi^re  from  S.  to  B.  S. 
conveyed  to  B.  the  property  intended  to  be  the 
subject  of  the  mortgages,  by  assigning  it  to  him 


2  Mont  &,  Ayr.  299. 

Where  an  equitable  security  is  given  by  the 
deposit  of  deeds,  the  plaintiff,  on  a  bill  brought 
to  give  effect  to  his  security,  is  entitled  to  a  decree 
for  a  sale.     Pain  v.  Smith,  2  Mylne  &  K.  417. 

1508 

In  the  decree  upon  a  bill  by  an  equitable  mort- 
gagee, the  equitable  mortgagor  will  be  allowed 
six  months  to  redeem  the  deposited  deeds,     id. 

An  equitable  mortgage  ma^  be  created  of 
copyholds,  by  the  mere  deposit  of  the  copy  of 
court  roll.    It  is  therefore  not  sufficient  for  the 

Erotection  of  a  purchaser  or  mortgagee  of  copy- 
olds,  that  he  should  search  the  ccnirt  rolls  for  in- 
cumbrances ;  he  ought  to  require  the  vendor  or 
mortgagor  to  produce  an  abstract  of  his  title,  and 
the  copy  of  his  administration  to  the  copyhold 
premises ;  and  if  the  latter  document  is  forthcom- 
ing, its  non-production  must  be  reasonably  ac- 
counted for.  Whitbread  v.  Bouluois,  1  Y.  &  Col. 
303.  150S 

Where  the  creditors  of  a  publican  in  London 
took  from  the  latter  a  legal  mortgage  of  copyhold 
premises  as  a  security  for  an  antecedent  debt> 
and,  at  the  time  of  taking  this  security,  knew 
that  the  publican  was  indebted  to  his  brewers^ 
and  likewise  was  aware  of  the  ordinary  practice 
in  London  of  publicans  depositing  their  leasee 
with  their  brewers  by  way  of  mor^ge : — Held» 
that  the  creditor  had  such  notice  of  the  transac- 
tions between  his  debtor  and  the  brewers,  ae 
would  have  put  a  prudent  man  on  further  in- 

?[uirv ;  and  that,  having  omitted  to  make  such 
iirther  inquiry,  the  equitable  security  of  the 
brewers  had  priority  over  his  legal  security.    Id. 

M.  dc  Co.  deposited '  with  S.  &  Co.,  the  mort- 
gage deeds  of  certain  colonial  property,  for  se- 
curing a  floating  balance  from  M.  Hl  Co.  to  S.  & 
Co.,  and  afterwards  executed  an  assignment  of 
the  mortgage  debt,  "  in  addition  to  the  securities 
then  already  held  by  S.  &  Co.,"  but  without  mak- 
ing any  actual  assignment  of  the  mortgage  itself, 
or  the  mortgage  property : — Held,  that  S.  &  Co. 
continued  nevertheless  the  equitable  mortgagees 
of  the  mortgaged  property.  Ex  parte  Smith,  2 
Deac.  <&Chit27].  1506 

An  equitable  mortgagee  will  not  be  preferred 
to  a  subseouent  legal  mortgagee,  who  has  no 
notice  of  the  equitable  mortgage  ',  and  the  onus 
lies  upon  the  former,  claiming  a  priority,  to  prove 


2538 


[MORTGAGE— NAVIGATION] 


that  the  Utter  had  soeb  notice.     £z  parte  Hardy, 
2  Deac.  A  Chit  3»3.  1509 

A.,  haying  mortgaged  to  B.,  demises  to  C, 
resenring  a  power  of  re-entry,  and  afterwards 
nioitgaaes  to  D.  all  his  interest.  C  mav  set  up 
the  title  of  D.  as  an  answer  to  an  ejectment 
brought  by  A.  under  the  clause  for  re-entry. 
Doe  d.  Marriott  v.  Edwards,  3  Nev.  &  M.  11)3; 
5  B.  &  Adol.  1065.  1511 

The  declaration  stated,  that,  by  a  certain  in- 
denture of  mortoage,  it  was  witnessed,  that,  in 
consideration  or  the  sum  of  140(M.  then  doe  to 
the  plaintiffii  from  the  defendants,  the  latter  con 
▼eyed  certain  premises  to  the  former,  subject  to 
a  proviso,  that,  if  the  defendants  should  pay  or 
cause  to  be  paid  to  the  plaintiffs  the  said  sum  of 
14001.  on  the  19th  of  March,  1833,  the  plaiotifis 
should  recouTey  the  premises  to  the  defendaiits ; 
and  the  defendants  covenanted  that  they  would 
pay  to  the  plaintiffs  the  said  sum  of  14001.  at  the 
time  and  in  manner  thereinbefore  appointed  for 
payment  of  the  same  :  breach,  non-payment  of 
the  1400Z.,  and  interest,  at  the  time  and  in  the 
manner  in  the  said  indenture  appointed  for  pay- 
ment of  the  same  : — Held,  a  sufficient  allegation 
of  the  day  of  payment;  and  that  the  claim  for  in- 
terest in  the  breach,  none  being  reserved  by  the 
indenture,  did  not  vitiate  the  declaration,  but 
might  be  struck  out.  Tildas^ey  v.  Stephenson,  4 
M.  &  Scott,  442;  10  Bing.  545.  1512 


NAVIGATION. 

A  river  navigation  act  directed  that  the  salary 
of  the  clerk  to  the  commissioners  should  be  paid 
by  the  proprietors  of  the  tolls.  A  person  seised 
in  fee  of  a  part  of  the  navigation  and  tolls,  granted 
annuities,  and  conveyed  her  part  of  the  tolls,  «&c. 
to  a  trustee  to  secure  the  annuities,  and  to  per- 
mit her  to  hold  the  conveyed  premises  and  the 
profits  thereof  to  her  own  use  till  default  in  pay- 
ment of  such  annuities.  By  a  subsequent  deed 
she  conveyed  the  premises  m  fee  to  Y.,  together 
with  other  property,  in  trust  to  sell  as  in  the  deed 
was  directed,  and  to  receive  the  proceeds  of  such 
sale,  and  the  tolls  and  profits  of  the  navigation, 
and  out  of  the  several  receipts  and  profits  to  de- 
fray the  costs  and  expenses  necessary  for  carrying 
the  trusts  into  effect,  to  pay  up,  and  if  possible 
discharge  the  annuities,  to  pay  off  certain  cre- 
ditors, and  to  hold  the  surplus,  if  any,  for  her 
benefit.  The  trustees  under  the  last- mentioned 
deed  entered  into  receipt  of  the  tolls,  appointed  a 
collector,  and  represented  hifn  self  to  the  com- 
missioner as  a  mortgagee  of  the  tolls,  and  as 
having  a  control  over  them,  and  over  the  repairs 
of  the  navigation,  but  refused  to  pay  the  salary 
of  the  clerk.  The  annuities  were  still  subsisting. 
The  clerk  sued  the  trustee  for  non-payment  of 
his  salary : — Held,  that  it  lay  upon  the  trustee, 
having  conducted  himself  as  above  stated,  to 
show  that  he  was  not  a  proprietor  within  the 
meaning  of  the  act : — Held,  further,  on  reference 
to  the  several  deeds,  that  he  was  such  proprietor, 
although  he  only  held  the  tolls  in  trust  to  pay 
creditors  and  discharge  incumbrances,  and  al- 
though there  was  a  legal  estate  outstanding  in  a 
trustee  to  secure  the  annuities.  Tibbits  v.  Yorke, 
5  B.  &  Adol.  605.  1513 


I     The  act  passed  in  1794  reqahcd,  that  certain 
,  notices  shoidd  be  given  in  the  Northampton  and 
i  Cambridge  newspapers.    There  was  at  that  time 
I  one  newspaper  published  at  each  place.    A  news- 
!  paper  was  suboeqaently  established,  called  the 
I  Huntingdon,  Bedford^  and  PeierboroDgh  Gaaette, 
i  and  Cambridge  and  Hertford  Independent  Press^ 
and   it  was  published  (among  other  places)  at 
Cambridge  : — Held,  that  publication  of  the  no- 
tices in  the  former  papers  was  sufficient.  Id. 


The  plaintiff  claimed  a  right  to  use  a  naviga- 
tion, in  respect  of  his  occopation  of  a  close  abut- 
ting on  the  stream.  It  appeared  that  this  close 
had  formed  a  part  of  the  King's  Head  Inn,  until 
five  years  before  the  action  was  brought,  when  it 
was  detached,  and  all  the  acts  of  the  user  of  the 
navigation  which  were  proved,  were  exercised  by 
the  ocf-upiers  of  the  King's  Head  Inn,  before  the 
property  was  divided  -. — Held,  that  there  was  no 
evidence  to  support  the  plaintiff's  right  to  a  ver- 
dict, as  on  such  evidence  a  grant  conld  only  be 
presumed  to  the  occupiers  of  the  inn.  Bower  v. 
HiU,  2  Scott,  535 ;  1  Hodges,  334.  1514 

Where  a  canal  act  gave  to  the  proprietors  of  a 
navigation  a  power  of  making  a  canal,  and  of 
using  the  waters  of  a  river  for  supply'mg  it,  but 
provided  at  the  same  time  for  securing  to  the 
owners  of  certain  works  the  use  of  the  surplus 
waters  of  that  river.  The  making  of  the  canal 
ascertained  and  fixed  the  rights  w*  the  parties, 
and  the  canal  proprietors  ban  no  right  afterwards 
to  enlarge  the  canal,  and  draw  a  much  larger 
quantity  from  the  river,  so  as  injuriously  to  af- 
fect the  works  in  question.  A  declaration  charg- 
ing it  to  have  been  the  duty  of  the  canal  proprie- 
tors to  abstain  fi-om  thus  enlarging  their  canal, 
and  alleging  a  breach  of  that  duty  sets  forth  a 
sufficient  cause  of  action  against  them.  Glamor- 
gan Canal  Company  v.  Blakemore,  1  Clark  &, 
Fin.26:J;  5  Bligh,  N.  S.  547.  1514 

A  clause  in  a  second  act  of  parliament  relating 
to  the  same  canal,  declared  that  the  works  there- 
by authorized  should  be  completed  within  two 
years  from  the  time  of  iU  passing,  and  that  the 
money  to  be  raised  by  it  should  not  be  applied 
to  defray  the  expenses  of  any  of  the  works  not 
made  within  thai  time : — Held,  that  this  clause 
not  only  limited  the  application  of  the  money  to 
the  works  completed  within  that  time,  but  that 
no  works  should  be  carried  on  adversely  to  the 
interests  of  individuals,  after  the  expiration  of 
two  years.  Id. 

A  declaration  framed  on  such  a  clause,  and 
alleging  for  breach  that  works  were  so  adversely 
carried  on  afler  the  expiration  of  the  two  years, 
was  held  to  contain  a  sufficient  legal  statement 
of  a  cause  of  action,  id. 

The  Swansea  canal  act,  34  Geo.  3,  c.  109, 
gives  the  company  tolls  for  all  goods  carried 
alon?  the  canal,  which  tolls,  if  not  paid  upon  de- 
mand, they  are  empowered  to  recover  by  action ; 
or  they  may  seize  the  goods  or  other  thinffs  in 
respect  whereof  such  rates  ought  to  have  oeen 
paid,  and  the  boat  or  other  vessel  laden  there- 
with, and  detain  the  same  until  payment  of  sach 
rates,  and  all  arrears  due  from  the  owner  of  the 
boats ;  and  if  such  goods  are  not  redeemed  with- 


[NAVIGATION— NEW  TRIAL] 


2539 


in  seven  dayi  after  the  taking  thereof,  the  same 
are  to  be  appraised  and  sold  as  in  case  of  a  dis- 
tress : — Held,  that  this  clause  does  not  empower 
the  company  to  sell  the  boats  : — Held,  also,  tliat 
their  right  to  seize  is  confined  to  the  limits  of 
the  canal ;  and  that,  therefore,  they  are  '  not  au- 
thorized to  seize  goods  aAer  they  have  been 
landed.  Fraser  v.  Swansea  Canal  Cfomp.  3  Nev. 
&  M.  391.  1516 

A  canal  company  were  authorized,  by  statute, 
to  demand  and  sue  for  certain  tolls  upon  the 
carriage  of  goods,  in  respect  of  which  any  such 
tolls  ought  to  be  paid,  and  to  detain  the  same 
until  payment  made  of  such  tolls,  and  of  all 
arrears  of  the  same  then  due  from  the  owner  of 
such  carriage  or  goods ;  and  in  case  such  distress 
should  not  be  redeemed  within  five  days,  to  ap- 
praise and  sell  the  same,  as  in  a  ease  of  a  distress 
for  rent ;  they  were  not  expressly  authorized  to 
levy  any  toll  upon  carriages : — Held,  that  teams 
could  not  be  distrained  for  arrears  of  tolls  due 
from  the  owners  for  goods  carried  in  them,  if 
they  were  not  carrying  goods  of  such  owners  at 
the  time  of  his  distress.  Jenkins  v.  Cooke,  1 
Adol.  A  EUis,  3^.  1516 

1 
The  statute  enacted,  that  any  action,  brought 
for  anjr  thins  done  in  pursuance  of  the  act,  or  in 
execution  of  the  powers  and  authorities  granted 
by  it,  should  be  brought  within  six  calendar 
months  next  after  the  fact  committed : — Held, 
first,  that  such  a  distress  was  a  thing  done  in 
pursuance  of  the  act.  But,  held,  secondly,  that 
where  an  owner  of  teams  let  them  to  a  third  per- 
son, and  during  such  letting  they  were  illegally 
distrained  for  arrears  due  from  the  person  hiring, 
while  not  carrying  such  person's  goods,  and 
afterwards  sold,  such  owner  miffht  sue  within 
six  months  from  the  time  of  sale,  on  a  count 
complaining  of  injury  done  to  his  reversionary 
interest  by  the  seizure  and  sale.    Id. 

Under  a  local  act,  proprietors  of  lands  were 
aathoriKd  to  **  contract  ror,  sell,  and  convey" 
their  lands  to  a  canal  company ;  such  **  contracts, 
agreements,  sales,  exchanges,  conveyances,  and 
assoranees''  were  to  be  valid  to  all  intents  and 
pnrpoees ;  were  to  be  inrolled  with  the  clerk  of 
the  peace,  and  copiesthereof  to  be  evidence ;  and 
upon  payment  of  the  sum  agreed  on  for  the  pur- 
chase of  lands,  such  lands  were  to  be  vested  in 
the  canal  company  : — Held,  that  a  conveyance  of 
land  under  this  act  must  be  in  writing.  Doe  d. 
Robins  v,  Warwick  Canal  Company,  2  Bing.  N. 
R.  483.  1516 

By  a  canal  act,  a  company  of  proprietors  were 
restricted  from  any  alterations  or  the  canal  after 
the  expiration  of  two  years.  By  the  same  act,  a 
proprietor  of  a  mill  near  the  lower  part  of  the 
canal,  was  entitled  to  all  the  surplus  water  of  it : 
— Held,  that  the  erection  of  a  steam-engine  after 
the  two  years,  to  pump  water  into  the  upper  part 
of  the  canal,  by  which  the  carrying  power  of  the 
canal  was  increased,  and  the  surplus  water  di- 
minished by  the  enlarged  trade,  was  an  injury  to 
the  mill-owner,  for  which  he  was  entiued  to 
damages.  Blakemors  v.  Glamergan  Canal  Com- 
pany, 2  C.  M.  db  R.  133;  1  Gale,  78.  1516 

Vol.  IV.  '^      34 


The  statute  directed  that  a  mill -owner  should 
be  entitled  to  receive  the  surplus  water  by  a  weir 
above  a  certain  lock,  which  the  company  were 
bound  to  keep  water  tight : — Held,  that  it  was  to 
be  inferred  tnat  the  company  should  not  have 
the  rif  ht  of  passing  any  water  through  the  lock, 
though  necessary  to  the  lower  part  of  the  canal, 
except  that  which  passed  when  barges  were 
lowered  through  the  lock.    Id. 


NEW  TRIAL. 

In  wkat  Ctues.'] — The  rule  which  forbids  a  mo- 
tion for  a  new  trial  where  the  amount  is  under 
20/  ,  except  for  misdirection  of  the  judge,  does 
not  apply  to  trials  before  the  sheriff,  under  the 
3  &  4  Will.  4,  c.  42,  s.  17.     Edwards  e.  Dignam, 

2  Dowl.  P.  C.  642.  1519 

In  a  cause  decided  by  the  judge  of  an  inferior 
court  on  a  writ  of  trial,  this  court  will  hear  a 
motion  for  a  new  trial,  on  the  ground  that  the 
verdict  was  against  evidence,  though  the  danuures 
were  below  ^.  Taylor  v.  Helps,  5  B.  &  Adol. 
1068.  1519 

It  seems  that  issues  tried  before  the  sheriff 
are  within  the  rule  adopted  by  the  courts  where 
the  verdict  is  for  less  than  202.  Henning  v. 
Samuel,  2  Dowl.  P.  C.  766.  1519 

In  the  case  of  a  writ  of  trial,  ne  new  trial  will 
be  granted  on  the  ground  of  the  verdict  being 

r'nst  evidence,  when  the  verdict  is  for  less  than 
Packham  v-  Newman,  1  C.  M.  &  R.  586 ;  5 
Tyr.  215.  1519 

Where  a  new  trial  from  the  sheriff's  court  has 
been  granted  at  the  instance  of  the  plaintiff,  who 
afterwards  neglected  to  re-try  the  cause,  the  de- 
fendant must  take  down  the  record  by  proviso. 
Corone  v.  Garment,  1  Hodges,  74.  1520 

An  inferior  court  cannot  grant  a  new  trial,  ex- 
cept on  the  ground  of  fraud,  or  irreffularity  in 
obtaining  the  verdict.    Rex  v,  Oxfora  (Mayor), 

3  Nev.  £  M.  877.  1520 


Far  tokai  Cause.] — Where  in  trespass  for  a  for- 
cible entry  into  a  mansion-house  under  color  of 
making  a  distress  for  rent,  and  remaining  there 
for  three  or  four  days,  the  defence  was  lib.  ten., 
and  a  justification  under  a  distress  for  rent,  to 
enforce  a  claim  to  the  property,  for  which  there 
was  not  the  slightest  foundation,  and  the  jury 
gave  lOOOf.  damages,  the  court  refused  to  grant 
a  new  trial  on  the  ground  of  excessive  damages. 
Bland  v.  Bland,  1  Bar.  A  WoU.  167.  mi 

No  new  trial  will  be  granted  merely  for  the 
purpose  of  reducing  the  amount  of  damages  in 
an  action  on  a  bill  of  exchange.  Seally  v.  Powis, 
1  Har.  A  WoU.  2.  1521 

35002.  having  been  awarded  by  a  jury  as 
damages,  in  an  action  a^nst  an  attorney  for 
breach  of  promise  of  marriage,  the  court  renised 
to  set  aside  the  verdict  on  the  ground  that  the 
damages  were  excessive.  Wood  v.  Hurd,  2  Bing. 
N.  R.  166.  1521 

The  absence  of  a  witness  is  no  ground  for  a 


2540 


[NEW  TRIAL] 


new  trial :  applteation  ought  to  be  made  to  post- 
pone the  trial.  Edwards  v.  Oiffoam,  2  Dowl.  P. 
C.  642.  1522 

If  a  witness  who  is  necessary  to  the  plaintiff's 
case  is  not  sent  for  in  time,  owing  to  the  fraudn- 
lent  management  of  the  defendant's  attorney  in 
negotiating,  till  too  late  for  the  plaintiff  to  pro- 
cnre  his  presence  at  the  assizes,  the  plaintiff 
should  apply  to  a  judge  at  nisi  prius  to  put  off 
the  trial,  and  if  refused,  should  withdraw  the  re- 
cord ;  but  he  must  not  take  his  chance  of  suc- 
cess, for,  if  nonsuited,  the  court  will  not  grant  a 
new  trial.  Tarquand  v.  Dawson,  1  C.  M.  &  R. 
709;  5Tyr.488.  1522 

A  rule  for  a  new  trial  will  not  be  granted  on 
affidavits  alleging  that  a  material  witness  has 
been  prevented  from  attending  the  trial,  without 
showing  grounds  for  a  belief  that  the  successful 
party  is  implicated  in  such  misconduct;  and  it 
will  not  suffice  to  state  merely  a  belief  that  the 
witness  has  been  kept  away  at  his  instance. 
Marsh  v.  Monckton,  1  tyr.  &  G.  34.  1522 

Where  a  plaintiff  had  been  nonsuited  on  the 

Sronnd  of  a  non-production  of  a  bill  of  exchange, 
le  court  granted  a  new  trial,  npon  an  affidavit 
stating  that  the  bill  had  been  out  of  the  juris- 
diction of  the  court ;  had  been  sent  for  in  doe 
time,  but  not  received  until  too  late  for  the  trial ; 
and  that  it  was  then  in  the  plaintiff's  possession. 
Atkins  V.  Owen,  4  Nev.  &.  M.  123.  1522 

Where  evidence  is  rejected  which  is  tendered 
for  one  purpose,  and  it  is  inadmissible  for  that 
purpose,  but  is  admissible  in  another  view  of 
the  case  not  alluded  to  at  the  trial ;  the  court 
will  not  grant  a  new  trial  as  upon  an  improper 
rejection  of  evidence.  Rex  v.  Grant,  3  Nev.  &. 
M.  106 ;  5  B.  &  Adol.  1081 .  1524 

An  affidavit  to  contradict  the  statement  of  a 
judge  as  to  what  occurred  at  the  trial  before  him 
IS  inadmissible.    Id. 

Semble,  where  a  number  of  facts,  which  singly 
may  be  ambiguous,  amount  collectively  to  an 
unequivocal  proof  of  a  fact,  e.  g.  the  surrender 
of  a  term,  a  judge  is  not  bound^  to  submit  them 
formally  to  a  jury,  unless  the  counsel  expressly 
desires  it.  Reeve  v.  Bird,  1  C.  M.  &  R.  31 ;  4 
Tyr.  612.  1524 

It  is  no  ground  for  a  new  trial  for  misdirection, 
that  the  judge  expresses  a  strong  opinion  upon 
the  facts  either  way ;  the  whole  oeing  left  to  the 
discretion  of  the  jury,  where  the  question  is  one 
peculiarly  for  their  consideration.  Belcher  v. 
Prittie,  4  M.  &  Scott,  295 ;  10  Bing.  408.      1524 

Where  a  jury  had  not  acted  according  to  a 
misdirection,  but  had  given  damages,  the  court 
woald  not  grant  a  new  trial,  on  the  ground  of  the 
misdirection.    Twigg  v.  Potts,  1  C.  M.  &  R.  89. 

1524 

Where  the  defendant  permitted  the  examina- 
tion of  an  incompetent  witness  for  the  plaintiff 
to  proceed,  on  the  plaintiff 's  attorney  undertaking 
to  produce  a  release  after  the  trial,  his  refusing 
to  do  so  is  no  ground  for  a  new  trial.  Hemming 
V.  English,  1  C.  M.  A  R.  568 ;  3  Dowl.  P.  C.  155 ; 
6  C.  &  P.  542;  5  Tyr.  185.  1524 


Where  evidence  has  been  improperly  rejected, 
the  court  will  grant  a  new  trial,  unless  with  the 
addition  of  the  rejected  evidence  a  verdict  given 
for  the  party  of&ring  it  would  be  clearly  and  ma- 
nifestly against  the  weight  of  evidence.  Crease 
V.  Barrett,  1  C.  M.  db  R.  919 ;  5  "Tyr.  456.    1524 

When  a  judge  at  nisi  prius  offers  to  receive 
such  of  a  certain  set  of  documents  as  are  evidence 
of  reputation,  having  rejected  others  that  stated 
particular  fecis- only,  a  new  trial  will  not  grant- 
ed if  one  of  the  latter  kind  is  afterwards  put  in, 
and  his  attention  be  not  called  to  its  contents  by 
objection  made.    id. 

Where  evidence  is  rejected  improperly,  a  new 
trial  will  be  granted,  unless  it  is  quite  clear  that 
had  the  rejected  evidence  been  admitted,  a  verdict 
founded  upon  it,  as  well  as  on  the  rest  of  the 
proofe  on  the  same  side,  would  have  been  clearly 
and  manifestly  against  the  weight  of  evidence, 
and  certainly  set  aside  on  motion  as  an  improper 
verdict.    Id. 

in  trespass,  qnare  clausum  firegit,  on  a  plea 
of  a  right  over  the  locus  in  quo,  a  witness  for  the 
plaintiff,  in  cross-examination,  spoke  of  the  ex- 
ercise of  the  same  right  by  other  persons  besides 
the  defendant;  on  his  re-examination  he  £ave 
evidence  of  the  exercise  of  the  right  over  puices 
other  than  the  locus  in  quo,  and  we  jury  found 
for  the  plaintiff: — Held,  that  the  improper  recep- 
tion of  this  evidence  was  no  ground  for  a  new 
trial  on  the  part  of  the  defendant ;  the  judge  ought 
to  have  requested  to  expunge  it  from  his  notes 
at  the  trial.  Blewitt  v.  Tregonning,  1  Har.  db 
Woll.  432.  1524 

Where  in  trespass  there  is  a  plea  of  prescrip- 
tion, and  several  pleas  claiming  under  non-exist- 
ing grants  from  different  persons,  and  the  evi- 
dence is  usage,  without  snowing  any  time  at 
which  such  usage  commenced,  it  is  no  misdirec- 
tion to  tell  the  jury  there  is  no  evidence  on  the 
pleas  of  non-existing  grants.    Id. 

In  trespass  qnare  clanbum  (regit,  there  was 
a  plea  claiming  a  right  by  custom,  and  another  by 
prescription,  and  several  others  by  non-existing 
grants,  the  judge  called  the  attention  of  the  inry 
to  the  nature  of  the  mode  of  claim,  and  told  them 
that  in  order  to  support  the  prescription  exclusive 
enjoyment  was  necessary : — Held,  that  it  was  no 
misdirection,  as  the  expression  '*  exclusive,*'  was 
used  to  point  their  attention  to  the  different  na- 
ture of  the  claim  by  custom  as  a  public  right, 
and  by  prescription  as  a  private  right,    id. 

It  is  no  ground  for  a  new  trial  that  the  judge, 
in  his  summing  up,  omits  specially  to  leave  to 
the  jury  a  point  made  in  the  course  of  the  trial, 
if  the  whole  case  was  substantially  left  to  them. 
Robinson  v.  Gleadow,  2  Scott,  l^;'l  Hodges, 
245;  2  Bing.  N.  R.  156.  mi 

The  alleged  immateriality  of  evidence  impro- 
perly admitted,  is  not  a  ground  for  refusing  a  new 
trial  unless  the  court  can  see  that  the  evidence 
did  not  weigh  with  the  jury  in  forming  their 
opinion,  or  that  an  opposite  verdict  given  upon 
the  remainder  of  the  evidence  must  have  been 
set  aside  as  against  evidence.  Die  Rutxen  v.  Fkrr, 
5  Nev.  ^  M.  617.     '  1524 


[NEW  TRIAL] 


3541 


Wbeie  eTidence  tendered  at  the  trial  of  a  cause 
ifl  formally  objected  to,  and  received,  and  the  party 
by  whom  the  evidence  is  tendered  obtain  a  ver* 
diet,  the  court  will,  upon  the  application  of  the 
opposite  party,  ffrant  a  new  trial,  if  the  evidence 
appears  to  have  oeen  inadmissible,  without  enter- 
ing into  any  inqoirv  as  to  the  materiality  of  such 
evidence.  Doe  d.  llitham  v.  Wright, 6  Nev.  &  M. 
132.  1524 

Where  the  judge  who  tried  the  issue  stated 
that  he  was  not  dissatisfied  with  4.he  verdict, 
though  he  should  have  found  otherwise  had  he 
been  himself  upon  the  jury,  the  court  woitld  not 
direct  a  new  trial  of  the  issue,  if  the  application 
for  a  new  trial  rested  solely  upon  the  ground  that 
the  verdict  was  against  the  weight  of  evidence. 
Gibbe  v.  Hooper,  2  Mylne  &  K.  353.  1525 

Where  the  jury  find  a  verdict  in  opposition  to 
the  evidence  of  a  witness,  and  the  credibility  of 
the  witness  is  left  to  the  jurv,  the  court  will  not 
^rant  a  new  trial,  though  there  was  nothing  to 
impeach  the  credit  of  the  witness.  Lacey  v.  For- 
rester, 3  Dowl  P.  C.  668.  1525 

In  tiespasi  for  shooting  a  dog,  the  only  witness 
called  to  prove  the  value  jitated  it  to  be  2{.  10»., 
and  that  was  not  contradicted ;  yet  the  jury  found 
a  verdict  for  20*.  The  court  refused  to  interfere 
either  by  increasing  the  damages  or  bygranting 
a  new  trial.  Cann  v.  Facey,  1  Har.  A  WoU.  482  ; 
5  Nev.  Sl  M.  406.  1525 

A  new  trial  will  be  ordered  after  a  verdict  for 
the  defendant,  if  the  jury  find  their  verdict  against 
an  the  evidence  in  a  cause  on  a  misapprehension 
of  the  law,  whether  arising  from  their  own  mis- 
take, or  the  misdirection  of  a  judge.  Gregory  v. 
Toflb,  1  C.  M.  dk  R.  300 ;  2  Dowl.  P.  C.  711 ;  4 
Tyr.  880.  1525 

Where,  in  an  action  for  penalties  for  keeping 
an  unlicensed  house  for  music  and  dancing,  &c., 
the  evidence  for  the  plaintiff  was  clear  and  posi- 
tive, and  might,  if  it  was  false,  have  been  answered 
by  evidence  on  the  other  side,  the  jury  requested 
to  have  the  act  of  parliament  handed  up  to  them, 
with  which  they  retired  to  consider  their  verdict, 
and  found  in  favor  of  the  defendant.  The  court, 
under  these  circumstances,  granted  a  rule  for  a 
new  trial,  eonsidering  that  toe  jury  must  have 
pat  a  misoonstmction  upon  the  act,  and  that  it 
wae  equivalent,  therefore,  to  a  misdirection,  on 
which  ground  alone  a  new  trial,  in  such  an  ac- 
tioa  is  usually  granted.    Id. 

Where,  in  consequence  of  the  affirmative  of 
the  iwue  being  on  the  defendant,  and  his  begin- 
ning, the  jury  made  a  mistake,  and  found  a  ver- 
dict for  the  defendant,  when  they  intended  to  find 
for  the  plaintifiT,  the  court  refused  to  grant  a  new 
triaL    Bridgewood  v.  Wynn,  1  Har.  £  Well.  574. 

1527 

Where  a  verdict  by  consent  was  taken  against 
a  defendant,  who  was  present  in  court,  a^inst  his 
ezprees  instructions  and  directions,  given  pri- 
vatelv  in  court  to  his  counsel,  but  he  did  not 
openly  assent  or  communicate  his  refusal  to  the 
other  aide,  the  court  refused  to  interfere.  Wright 
9.  Soreaby,  2  C.  dk  M.  671 ;  4  Tyr.  434.         1527 


and  the  jury  found  upon  both,  but  the  judge  be- 
fore whom  the  cause  was  tried  discharged  tlie 
jury  upon  the  second  issue,  upon  misapprehen- 
sion that  the  verdict  upon  one  issue  rendered  the 
other  issues  immaterial,  the  court  held  that  the 
proper  course  was  not  to  move  for  a  new  trial,  but 
to  apply  to  a  judge  to  have  the  verdict  corrected 
according  to  his  notes,  lies  v.  Turner,  3  Dowl. 
P.  C.  211.  1527 

Where,  upon  showing  cause  against  a  rule  for 
a  nonsuit  or  new  trial,  it  appears  that  the  verdict 
has  been  entered  for  an  amount  not  warranted  by 
the  evidence,  the  court  will  make  the  rule  abso- 
lute, unless  the  parties  consent  that  the  damages 
shall  be  reduced.  Leeson  v.  Smith,  4  Nev.  dk  M. 
304.  1527 

Where,  in  an  action^tried  under  a  writ  of  trial 
upon  a  promisory  note  for  two  guineas,  in  which 
the  requisites  of  the  statute  17  Geo.  3,  c.  30,  had 
not  been  coinplied  with,  the  under-sheriff  directed 
the  jury  to  find  for  the  defendant,  snd  the  jury 
brought  in  the  verdict,  "  We  find  that  the  money 
is  due,  but  that  there  is  an  informality  of  the 
note : " — Held,  that  if  the  verdict  were  not  ro  clear 
that  it  could  be  entered  for  the  defendant,  that  it 
amounted  to  a  perverse  verdict,  and  a  new  trial 
was  granted,  although  the  sum  was  under  52. 
Owen  V.  Pugh,  1  Tyr.  A  G.  26.  1527 

In  an  action  by  the  indorsee  against  the  indor- 
sor  of  a  note,  made  specially  payable  at  a  parti- 
cular place,  where  the  allegation  of  presentment 
in  the  declaration  was  general,  but  no  objection 
was  taken  on  account  ox  the  variance  at  the  trial : 
— Held,  that  it  was  no  ground  for  a  new  trial. 
Trinder  v.  Smedley,  1  Har.  A  WoU.  164.    1528 

Where  the  issue  was  delivered  with  notice  of 
trial  indorsed  for  one  day,  and  a  separate  notice 
for  another,  and  the  defendant,  acting  on  the  no- 
tice on  the  back  of  the  issue,  did  not  attend  at  the 
trial  on  the  day  mentioned  in  the  separate  notice, 
the  court  granted  a  new  trial,  without  costs. 
Kerry  v.  Reynolds,  4  Dowl.  P.  C.  234.        1528 

If  a  judge  at  nisi  prius  decides  erroneously  as 
to  the  right  to  begin,  the  court  will  not  on  this 
account  (at  least  without  other  reasons)  grant  a 
new  trial.  Bird  v.  Higginson,  2.  Adol.  A  Ellis, 
160.  1529 

At  the  assizes  in  Yorkshire,  the  causes  are  en- 
tered by  the  marshiU  in  two  lists,  one  for  the  £. 
R.  and  the  other  for  the  W.  R.  A  cause  having  by 
mistake  been  entered  in  the  wrong  list,  was  tried 
Bs  an  undefended  cause,  the  defendant's  attorney 
having  searched  only  one  list,  without  finding  it ; 
the  court  granted  a  new  trial,  and  held,  that  the 
attorney  was  not  bound  to  search  both  lists. 
Hunter  v.  Homblower,  3  Dowl.  P.  C  491.    1529 

The  court  will  not  grant  a  new  trial  upon  an 
affidavit  by  the  defendant,  stating  that  he  was  kept 
in  ignorance  by  his  late  attorney  of  the  state  of 
the  action;  that  he  had  a  good  defence  upon  the 
merits,  and  that  the  verdict  passed  against  him 
by  reason  of  the  negligence  or  such  late  attorney. 
Moody  V.  Dick,  4  Nev.  A  M.  348.  1529. 

Semble,  that  the  defendant's  remedy  is  by  ac- 
tion against  the  attorney  for  negligence.    Id. 


Where  two  issnes  were  raised  by  the  pleadings,       Where  a  plaintiff  gave  notice  that  he  should 


2543 


[NEW  TRIAL] 


taketbe  tmm  down  to  tiki  m 
cause,  uid  when  it  was  ealled  oo  the  defendaiit's 
eoanae]  nid  H  was  defended,  wbereapon  it  was 
sot  tried ;  but  the  plai  ntiir  again  took  the  record 
down  and  got  the  caoae  tned  as  ondelended, 
without  any  new  notice  or  setting  it  down  in  the 
paper,  the  court  gianted  a  new  trial,  withoot 
payment  of  costs.  Spriege  v.  ftntberford,  2  Dowl. 
F  C.  429.  **  !&» 


Where  a  caoae  which  stood  thirty  off  was  taken 
out  of  its  torn,  as  ondefended,  in  the  absence  of 
the  defendant's  attomej,  who  was  easoallj  absent, 
no  notice  haring  been  giTcn  that  it  woold  be 
taken  as  an  undefended  caose,  the  coort  set  the 
▼erdict  sside,  and  granted  a  new  trial,  the  costs 
to  abide  the  event.  Aost  v.  Fenwick,  2  Dowl. 
P.  C.  246.  1529 

Where  a  verdict  was  obtained  in  the  absence 
cfthe  defendant,  on  account  of  no  notice  of  trial 
being  given,  the  coort  set  aside  the  verdict, 
though  the  defendant  did  not  swear  positively  tu 
a  good  defence  on  the  ineriU.  Williams  v.  Wil- 
liams, 2  Dowl.^  P.  C.  350.  1529 

Upon  the  trial  of  an  issoe  in  an  action  of  debt 
on  bond,  before  the  sheriffjjiffder  the  Writ  of 
Trial  Act,  a  variance  appeared  between  the  bond 
as  stated  in  the  declaration  and  the  bond  pro- 
duced in  evidence,  the  penalty  in  one  being  26(M., 
and  the  penalty  in  the  other  20(M. :  but  the  sher- 
iff refused  to  nonsuit,  and  the  plaintiff  obtained  a 
verdict ;  the  court,  however,  refused  a  rule  for  a 
new  trial,  on  the  ground  of  the  variance,  though 
no  amendment  had  been  made,  nor  the  facts 
found  specially,  as  directed  by  the  24th  section. 
Hill  V.  Salter,  1  Dowl.  P.  C.  &0.  1529 

Where  upon  the  trial  of  an  issue  to  try  whe- 
ther there  was  a  good  petitioning  creditor's  debt, 
the  bankrupt  took  an  obiection  to  the  constitu- 
tion of  the  debt,  which  he  never  alledged  in  his 
petition,  to  supersede  the  commission,  and  the 
jury  found  a  verdict  against  the  petitioning  cre- 
ditor, the  court  of  Review  granted  a  new  trial,  on 
the  ground  of  surprise.  Ex  parte  Christie,  2 
Deac.  &  Chit.  461.  1529 

On  what  7enii«.]— Where  a  rule  nisi  for  a  new 
trial  ia  granted,  on  the  terms  of  bringing  the 
amount  of  the  verdict  into  court,  the  money  must 
be  brought  in  before  the  rule  nisi  is  drawn  up. 
Clare  V.  Fiestel,  2  Dowl.  P.  C.  617.  1530 

The  court  will  not  make  the  payment  of  the 
costs  of  the  day  a  condition  precedent  to  the 
plaintiff's  proceeding  to  a  second  trial.  Doe  d. 
Evans  i?.  Edwards,  2  Dowl.  P.  C.  572.  1530 

Motions  for  ^fncraHy.]— The  court  refaaed  to 
allow  affidavits  to  be  used  on  showing  cause 
against  a  rule  for  a  new  trial,  where  the  rule  had 
been  moved  for  on  the  report  alone,  without  any 
affidavits.  Doe  d.  Johnson  v.  Baytnp,  1  Har.  6l 
Woll.  270.  1530 

In  the  King's  Bench,  the  court  may  look  at  the 
record  on  discussing  a  motion  for  a  new  trial,  al- 
though the  rule  is  not  drawn  up  on  reading  it  -, 
therefore,  the  court  may  look  at  the  record  on  an 
application  to  set  aside  an  award  made  pursuant 


to  aa  Older  of  warn  ptioi,  ahkNigk  the  f«k  is  not 
drawn  op  oo  reading  iL  Sfaenr  v.  CMEe,3  Dowl. 
P.  C.  349.  1530 

Where  a  motion  for  a  new  trial  is  by  accident 
delayed  beyond  the  limr  days,  notice  ought  to  be 
given  to  the  other  side,  otherwise  the  expense  of 
mtermediaie  proceedings  will  fell  on  the  partv 
delaying  to  move.  Lester  v.  Laxams,  4  Dowl. 
P.  C.  444.  1530 

Though  by  the  4  &  5  Wifl.  4,  e.  62,  s.  26, 
where  a  caose  is  tried  in  the  Common  Pleas  at 
Lancas|er,  the  motion  (or  a  new  trial,  Ac.  is  di- 
rected to  be  made  in  any  amt  of  the  coorts  at 
Westminster,  vet  the  eoorts  reqoire  it  to  be  made 
in  the  court  if  which  the  judge  who  presided  at 
the  trial  is  a  member.  Forster  v.  JoUifle,  1  Scott, 
54.  1530 

A  motion  for  a  new  trial  under  4  4k  5  Will.  4, 
c.  62, 8.  26,  in  an  acticm  brooght  in  the  Common 
Pleas  at  Lancaster,  most  be  made  in  the  coort  of 
which  the  judge  who  presided  at  the  trial  is  a 
member.  Foster  v.  JoUy,  1 C.  M.  &  R.  703 ;  5  Tyr. 
239.  1^ 

While  a  role  nisi  was  pending  for  a  new  trial, 
in  an  action  lor  invading  the  plaintiff's  patent^ 
the  defendant  soed  out  a  sci.  fe.  for  the  porpose 
of  trying  the  same  right,  but  the  court  would  not 
defer  the  discussion  of  the  rule  until  a  decision 
on  the  sci.  fe.  should  be  obtained.  Ha  worth  v. 
HardcaaUe,  4M.  db  Bcott,  448;  10  Bing.  551 ;  2 
Dowl.  P.  C.  802.  1532 


Writ  of  TriaL'i — On  the  motion  for  a  role  nisi 
for  a  new  trial,  of  a  cause  tried  before  the  sheriff 
or  judge  of  an  inferior  court,  under  the  3  &.  4 
Will.  4,  c.  42,  s.  17,  the  court  require  that  the 
notes  of  the  under-sheriff  or  judge  sliould  be  pro- 
duced, together  with  an  affidavit  verifying  them, 
or  that  it  should  be  sworn  that  an  application 
has  been  made  for  them,  with  a  statement  of  the 
reasons  why  they  are  refused,  so  that  the  omis- 
sion to  produce  them  may  be  accounted  for. 
Hall  r.  Middletown,  4  Nev.  &  M.  368 ;  1  Har.  & 
Woll.  7 :  S.  P.  Mansfield  v.  Brearev,  1  Adol.  & 
Ellis,  347 ;  Bumey  v.  Mawson,  I  Adol.  6l  Ellis^ 
248.  n.  1532 

The  proper  course  is  to  have  the  notes  of  the 
presiding  officer  verified  by  affidavit,  without  affi- 
davits of  the  facts.  Grainge  v.  Shoppee,  2  Dowl. 
P.  C.  645 ;  4  Tyr.  1000.  1532 

Motions  for  new  trials  under  the  Writ  ofTrial 
Act  can  only  be  made  on  an  affidavit  of  the 
facts ;  or  on  the  under-sheriff's  notes,  verified  by 
affidavit ;  and  the  court  will  not  pay  the  same 
regard  to  the  notice  of  the  under-sheriff  as  they 
do  to  a  judge's  notes  of  a  trial.  Johnson  v.  Wells, 
2  Dowl.  P.  C.  352;  2  C.  &M.  428;  4  "Tyr.  270. 

1532 

Where  a  motion  for  a  new  trial  of  a  cause  tried 
before  the  under-sheriff,  under  the  3  dk  4  Will.  4^ 
c.  42,  was  made  on  the  notes  of  the  under-rber- 
iff,  certified  under  his  seal  only,  and  not  verified 
by  affidavit,  the  court  discharged  the  rule.    Id. 

On  a  motion  for  a  rule  nisi  to  set  aside  the  ver- 
dict found  on  a  trial  before  the  sheriff  on  a  writ 
of  trial,  the  court,  under  special  circumstances. 


[NEW  TRIAL—OFFICER] 


2543 


will  not  require  the  prodaction  of  the  sheriff's 
notes,  if  the  motion  be  made  by  counsel  engaged 
at  the  triaL  Barnet  v.  Glossopp,  3  Dowl.  r .  C. 
G25.  1332 

If  an  under-sheriff  refnses  to  transmit  his 
notes  taken  on  the  trial  of  an  issue,  the  court  will 
compel  him  to  pay  the  costs  consequent  on  his 
refusal.     Metcalf  v.  Parry,  2  Dowl.  P.  C.  589. 

1532 

If  an  under-sheriff  withholds  his  notes  taken  on 
a  writ  of  trial  after  the  court  has  required  their 
production,  he  may  be  compelled  to  pay  the  ex- 
penses caused  to  the  parties  by  their  non- prod  ac- 
tion ;  bat  he  is  not  answerable  for  his  agent's  con- 
duct in  withholding  them,  unless  it  is  shown  that 
the  latter  acted  under  his  direction.  Metcalf  v. 
Parry,  3  Dowl.  P.  C.  93.  1532 

Jf  a  sheriff,  before  whom  a  trial  takes  place 
under  3  &  4  Will.  4,  c.  42,  s.  17,  does  not,  after 
promising  to  do  so,  send  his  notes  of  the  trial 
within  the  time  proper  for  moving  for  a  new  trial, 
the  court  will  enlarge  the  time  for  moving,  and 
permit  the  facts  proved  at  the  trial  to  be  laid  be- 
ibre  it  on  affidavit.  Thomas  v.  Edwards,  2  Dowl. 
P.  C.  664;  1  C.  M.  <&  R.  382;  4  Tyr.  835.   1532 

On  moving  to  set  aside  a  verdict  on  a  trial  be~ 
fore  the  under-sheriff,  on  an  objection  founded 
upon  the  pleadings,  it  is  not  necessary  to  have  an 
aiBdavit  of  the  pleadings,  as  the  postea  is  sup- 
posed to  be  in  court.  Milligan  v.  Thomas,  4 
Dowl.  P.C.  373;  2  C.  M.  d&  R.  756;  1  Tyr.  & 
G.  134  ;  1  Gale,  320.  15*32 

Where  a  rule  for  a  new  trial  is  moved  for  on 
the  under-sheriff's  notes,  on  the  ground  of  the 
absence  of  evidence  to  warrant  the  verdict  of  the 
jury,  it  is  not  competent  for  the  other  party  to 
use  affidavits.  Jones  v.  Howell,  4  Dowl.  P.  C. 
176.  1532 

Upon  trials  before  the  sheriff,  neither  party  is 
entitled  to  the  sheriff's  notes  for  the  purpose  of 
makinif  a  motion  for  a  new  trial.  Vickers  v. 
Cocks,  3  Dowl.  P.  C.  492.  1532 

A  motion  for  a  new  trial  must  in  all  cases  be 
made  ^thin  the  four  days,  even  thou£^  the  case 
may  bave  been  tried  before  the  sheriff  in  a  dis- 
tant county.  If  the  four  days  are  insufficient,  a 
special  application  must  be  made  to  the  court  for 
further  time.  Wheeler  v.  Whitmore,  4  Dowl.  P. 
C.  235:  S.  P.  Muppin  v.  Gillatt,  4  Dowl.  P.  C. 
190.  1532 

In  a  case  tried  before  the  sheriff,  the  court  re- 
fused to  allow  a  motion  for  a  new  trial  after  the 
fourth  day  of  the  term,  though  the  sheriff's  notes 
had  not  been  received  until  the  fifth  day,  when 
the  motion  was  made.  Anon.  1  Har.  ^  WoU. 
146.  1532 

The  affidavit- verifying  the  sheriff's  notes,  on 
a  trial  had  under  a  writ  of  trial,  pursuant  to  3 
A  4  Will.  4,  c.  72,  s.  17,  need  only  state  that  the 
paper  annexed  contains  the  notes  sent  by  the 
sheriff  to  the  court.  Hellings  v.  Stevens,  4  Tyr. 
1001.  1^ 

Upon  moving  for  a  new  trial  of  an  inquiry  of 
damans  under  a  judgment  upon  demurrer,  it  is 
sufficient  to  produce  the  under-sheriff's  notes 


verified  by  affidavit. 
P.  C.  629. 


Stephens  v.  Pell,  2  Dowl. 

1S(32 


OFFICER. 

Public  officers.  Smith  v.  Latham,  1  C.  dk  M. 
547;  3  M.  dt  Scott,  251 ;  3  Tyr.  509;  9  Ring. 
692.  1534 

In  order  to  maintain  an  action  against  the 
commissioners  of  the  police,  for  money  detained 
by  an  officer  after  the  trial  of  a  prisoner,  it  must 
be  distinctly  shown  that  it  was  accounted  for  by 
the  officer  to  the  commissioners.  Green  v.  Rowan,. 
7  C.  &  P.  48— Gurney.  1534 

To  justify  a  constable  in  apprehending  a  party 
withoat  warrant  for  an  affiny,  it  is  essential  that 
the  party  should  have  been  engaged  in  the  affray, 
and  that  the  constable  should  have  view  of  the 
affray  while  the  party  was  so  engaged  in  it)  and 
that  the  affray  was  still  continuing  at  the  time  of 
the  apprehension.  Cook  v.  Netbercote,  6  C.  db  P. 
741— Alderson.  1541 

A  constable  cannot  execute  the  warrant  of  a 
judge  of  the  Kine*B  Bench,  directed  to  "all  con- 
stables, &c.,"  and  not  addressed  to  him  by  name» 
in  any  other  district  than  his  own ;  for  stat.  5  Geo. 
4,  c.  18,  s.  6,  by  which  the  constable  of  every 
parish,  ^c.  may  execute  any  warrant  of  any  jus- 
tice, &c.,  withm  any  parish,  die,  situate  within 
the  jurisdiction  for  which  the  justice  shall  have 
acted  in  granting  it,  though  not  directed  to  him 
by  name,  and  notwithstanding  the  parish  in  which 
such  warrant  is  executed  is  not  that  for  which  he 
shall  be  constable,  is  confined  to  warrants  issued 
by  such  justices  of  peace  as  have  only  a  limited 
jurisdiction.  In  trespass  against  a  constable  for 
assaulting  and  falsely  imprisoning  the  plaintiff, 
a  plea,  justifying  the  arrest  under  a  judge's  war- 
rant, not  directed  to  the  de&ndant  by  name,  is 
bad,  if  it  does  not  state  the  arrest  to  have  taken 
place  within  the  defendant's  own  jurisdiction. 
Glad  well  v.  Blake,  1  C.  M.&R.636;  5  Tyr.  186. 

1542 

If  a  constable  execute  a  warrant  of  a  judge  of 
K.  B.,  not  directed  to  him  by  name,  out  of  his 
own  district,  and  is  sued  in  trespass,  no  demand 
need  be  made  of  perusal  and  copy  of  the  warrant 
under  24  Geo.  2,  c.  44,  s.  6.    lo. 

A  fine  of  300Z.,  for  not  serving  an  office,  is  ex- 
cessive, where  the  highest  previous  fine  was  lOOZ., 
and  was  found  sufficient  to  produce  an  accept- 
ance of  the  office.  Rex  r.  Mosley,  5  Nev.  d^  M. 
261.  1540 

So,  although  since  the  last  refusal,  the  office 
has  become  more  burthensome,  and  the  number 
of  persons  qualified  to  serve  has  much  diminish- 
ed.   Id. 

A  man  may  be  liable  to  serve  the  office  of  con- 
stable in  several  constablewicka ;  but,  if  chosen 
constable  in  two  constablewicka  for  the  same  year, 
acceptance  of  the  first  appointment  will  excuse 
his  non-acceptance  of  the  second,  semble.     Id. 

A  person  who  occupies  and  is  rated  for  a  ware- 
house, and  occupies  lodings,  in  which  he  sleeps 
four  or  five  nights  in  every  week,  within  the  same 


[OFFICER— OCTLA  WRY] 


'mWMeU  W 


A  j^dge  has  no  power  nader  3  A  4  WiD.  4,  c  ^ 

42,  s.  32,  to  eertHj  to  depmre  a  potkc  offierr  of        ^  _ .   . 

b'0  coatj  wbo  is  a  Mradant  in  an  aetkm  and  ob-   ^  ^Vf^    ^  *  T*!* 

tuM  a  rrrdieU  ■»  «*»<  •tatoU'  does  not  ivpnl  a.   «»*■  f*™*?  ™*  »«^ 

41  oftbe  Police  Act,  10  Geo.  4,  c  44,  wiiiefa   ™1*J^*?!" 

'  Bar.  &.  i%oIL  olX 


nej  mad  client  abaoIalelT.  Hnrnpluej  r.  Wood- 
koiiae,  1  8coCt,  3B&;  3  DowL  P.  C.416;  1  Binr. 
N.  R.  506;  1  Hodgea,  64.  15&  | 

It  ia  nnneeeaaarj  to  demand  peinaal  and  copy  I 
of  a  warnuBt  in  a  caae  wbeie  tfaeie  ia  no  rrmed j  | 
acainat  tlie  niafiattatea.  Cotton  9.  Kadwell,  21 
HcT.  &  M.  399.  1543 


OUTLAWRY. 

By  2  WitL  4,  c.  30,  a.  5,  trpon  ike  rebtrm  of  aon 
€gt  tmf emtus  as  to  amy  dtfoMont  against  mom  a 
writ  tf  capias  shaUkare  been  issuti,  and  also  upon, 
ike  retttm  of  won  est  inrentas  and  nsUa  bona  as  to 
any  defendant  against  whom  suek  writ  of  capias  or 
distringas  shau  have  issued,  whether  such  writ  of 
capias  or  distringas  shall  have  issued  against  such 
drfendant  on/y,  or  against  such  defendant  and  any 
other  jperson  or  versons^  it  shall  be  lawful,  untd 
otherwise  vroriaed  for,  to  proceed  to  outlaw  or 
waive  suck  defettdant  ky  wrtts  of  exigi  facias  and 
pmdamation,  and  otkeneise,  in  such  and  the  same 
wanner  as  may  now  be  lawfuUy  done  upon  the  re- 
turn  of  non  est  inventus  to  aylwrits  writ  of  capias 
ad  respondendum  issued  after  an  original  writ: 
provided  always,  that  every  such  writ  of  exigent, 
proclamation,  and  other  wrU  subsequent  to  the  writ 
of  capias  or  distringas,  shall  be  made  rektmable  on 
M  day  certain  in  term;  and  every  such  first  writ  of 
exigent  and  proclamation  shall  bear  teste  on  the 
day  of  the  return  cf  the  writ  of  capias  or  distringas, 
whether  such  writ  be  returned  in  term  or  in  vaea^ 
tion ;  and  every  subsequent  writ  of  exigent  and 
proclamation  shall  bear  teste  on  the  day  of  the  re- 
turn of  the  next  preceding  writ ;  and  no  suek  writ 
<qf  capias  or  distringas,  shall  be  svMcient  for  the 
purpose  of  outlawry  or  waiver  if  the  same  be  re- 
turned wUhin  less  than  fifteen  days  a^ter  the  deli- 
very thereof  to  the  sheriW  or  other  ofieer  to  whom 
the  same  JkaU  be  directea.  1545 

By  a«  6,  after  judgment  giten  in  any  action  com- 
sneneed  by  writ  of  summons  or  capias  under  the  au- 
thority of  that  statute,  proceedings  to  outlawry  or 
waiver  may  be  had  and  taken,  and  judgment  of 
4mUawry  or  wavcer  given,  in  suek  manner  and  in 
suek  cases  as  may  be  now  lawfuUy  doneafter  judg- 
ment in  an  action  commenced  by  original  wnt  : 
provided  always,  that  every  outlawry  or  waiver  had 
under  the  authority  of  that  statute  shall  and  may 
be  vacated  or  set  aside  by  writ  of  error  or  motion 
in  like  manner  as  outlawry  or  waiver  founded  on 
an  original  writ  may  now  be  vacated  or  set  aside. 

By  I.  7,  for  the  purpose  of  proceeding  to  out- 
lawry  and  waiver  upon  such  writs  of  captas  or  dis- 
tringas returnable  in  the  court  of  Exchequer,  it 
shau  and  may  be  laiu^  for  the  Lord  Chi^  Baron 
of  the  said  court,  and  he  ' 
rom  time  to  time  a 


ine  cuBorButy 
tbalthecapiaa 
kch  the  defen- 
Da¥ia,l 
1S15 

ibr 


%• 


deteia 

in^  to  ootlawry,  notwimaTiniiiBg  lae  cicanor  may 
know  that  the  drlilnr  faaa  an  amit  in  Englana. 

S.  R.  114.        1545 

Wbeie  a  pbintiil^  knowing  the  defendant  to  be 
abroad,  and  that  be  bad  an  aUamey  in  thia  coon- 
try,  aecfetly  piucnied  a  ivCnm  of  non  eat  inTen* 
tos  to  a  writ  of  capiaa,  and  fumjeeded  then  to 
outlaw  the  defendant,  the  eoort  oidfied  the 
ootlawry  to  be  rereraed,  with  eoata.  Picon  r. 
Dmmmood,  1  ScoCt,  1^64;    1  Binf.  N.  R.  354. 

1545 


Where  a  defendant  moved  to  aet 
ing»  to  outlawry  fer  irrcwulanty,  the  hat  of  the 
proclamationa  being  in  Auguat,  and  the  motion 
being  made  at  tbe  commencement  of  Michaelmaa 
term : — Held,  too  late,  it  not  appearing  that  the 
defendant  was  not  apprized  of  tbe  firat  com- 
mencement of  the  proceedingap  but,  on  the  con- 
trary, there  being  reaaon  to  belicfe  that  he  was ; 
the  onoa  lying  on  the  defendant  Id  ahow  that  he 
waa  ignorant  of  the  proceedinga.  Anderdon  r. 
Alexander,  2  Oowl.  P.  C.  2b7.  1545 

On  a  motion  to  aet  aaide  proceedinga  to  out- 
lawry,  on  the  ground  that  the  writ  of  capiaa 
varied  from  the  form  given  by  the  Uniformity  of 
Proceaa  Act,  it  appeared  that  the  writ  waa  aoed 
out  by  the  plaintiff  in  peraon,  and  that  the  in- 
doraement  on  the  writ  waa — **Thia  writ  waa 
iaeoed  by  C.  L.,  of  No.  6,  Bemer*a-atreet,  Bmna- 
wick-aquare,  the  }>Iaintiff  within  named,  in  per- 
aon ;**  the  form  given  by  the  act  being  ^  who 
reeidea  at,**  &c.  The  wnt  waa  filed  cm  tbe  4th 
of  Jane,  and  might  have  been  aeen  br  the  defen- 
dant at  any  time  aflerwarda  in  the  omoe : — ^Held, 
that  it  waa  too  late  in  M.  T.  to  take  advantage  of 
the  objection,  even  if  it  were  maintainable,  though 
it  waa  poaitively  awom  that  the  plaintiff  never 
knew  ofthe  outlawry  till  ai  z  weeka  belbre.  Le  w- 
ia  V.  Daviaon,  1  C.  M.  d^  R.  655 ;  3  Oowl.  P.  C. 
272;  5  Tyr.  196.  1545 


lid  he  is  required,  to  appoint 
fit  person^  holding  sowu  other  ^ 


Held,  alao,  that  it  waa  a  mere  irregularity  in 
the  writ,  and  tliat  the  objection  ou^t  to  have 
been  taken  hj  aummona  at  chambera.    Id. 

In  thia  caae  the  writ  was  iaaued  on  the  17th 
of  April,  and  waa  returned  non  eat  inventua  on 
tbe  4th  of  June,  the  practice  being  that  it  could 
not  be  returned  within  four  months,  except  under 
a  judge 'a  order : — Held,  that  it  waa  no  objection 
to  the  writ  that  it  waa  returned  before  the  four 
months  expired,  as  it  waa  not  necesaar^  to  atate 
the  judge'a  order  in  the  writ,  and  that  it  must  be 
asaomea  it  waa  done  correctly.    Id. 

Held,  also,  that  the  exigent  is  not  a  writ  within 
the  meaning  of  the  12th  aection  ofthe  Uniformity 
of  Procesa  Act    Id. 

The  writ  of  exigent  dixeeted  the  proclaitiationf 


[OUTLAWRY— PA  RLIAMENT  J 


3545 


to  be  made  at  the  parish  church  of  the  parish  in 
which  the  defendant  resided : — Held,  that  it  was 
sufficient,  it  not  appearing  from  any  affidavit  that 
there  was  any  nearer  church  or  chapel ;  and  that, 
at  all  events,  it  was  not  necessary  to  mention 
that  in  the  exigent.  Id. 

A  party  outlawed  on  civil  process  afler  }uAg- 
ment,  and  on  his  petition  subsequently  made 
to  the  Insolvent  Debtors'  court,  adjudged  to  be 
discharged,  is  not  entitled  to  a  reversal  of  the 
oatlawrv,  though  the  debt  on  which  the  outlaw 
is  founded  be  included  in  his  schedule.  Dickson 
V.  Baker,  3  Nev.  &  M.  775;  2  Dowl.  P.  C.  517 ; 

1  Adol.  &  Ellis,  853.  1546 

Semble,  the  court  will  make  a  conditional 

\>rder  for  setting  aside  an  outlawry,  in  order  to 

prevent  an  insolvent  from  remaining  in  custodv 

unnecessarily.   Nicholson  v,  Nichols,  3  Dowl.  r. 

C.  326.  1546 

The  mere  fact  of  a  pnecipe  not  being  found,  is 
no  ground  for  setting  aside  proceedings  to  out^ 
lawry :  it  is  sworn  that  a  pnecipe  was  at  one  time 
left  m  the  office.  Probert  v.  Itogers,  3  Dowl.  P. 
C. 170.  1546 

Where  a  plaintiff  proceeded  against  a  defen- 
dant here  and  in  America  for  the  same  cause  of 
action,  and  the  defendant  was  arrested  in  Ame- 
rica, and  took  the  benefit  of  the  Insolvent  Act 
there,  the  court  would  not,  on  that  ground,  set 
aside  the  proceedings  to  outlawry  which  had 
been  taken  here,  but  left  the  defendant  to  plead 
these  facts,  it  being  sworn  that  he  went  abroad 
to  avoid  his  creditors.     Id. 

Rule  for  setting  aside  proceedings  in  outlawry 
will  be  discharged  with  costs,  unless  it  appear 
that  the  application  is  made  by  an  attorney 
authorized  by  defendant    Houlditch  v.  Swinfen, 

2  Bing.  N.  ft.  712.  1547 


PARLIAMENT. 

In  order  to  convict  a  person  of  an  indictment 
for  taking  a  false  oath  of  a  qualification  to  sit  as 
member  of  parliament  for  a  borough,  the  jury 
must  be  satisfied  beyond  all  doubt  that  the  pro- 
perty was  not  worth  3002.  a  year,  and  also  that 
the  defendant  well  knew  that  it  was  not  of  that 
value.  Rex  v.  De  fieauvoir,  7  C.  dk  P.  17 — Den- 

1548 


In  an  action  against  an  overseer  for  a  penaltv 
under  section  76  of  the  Reform  Act,  2  Will  4, 
c.  45,  for  vnlfiiUy  inserting  in  the  list  of  voters 
the  names  of  persons  not  entitled  to  vote,  it  is 
not  essential  that  the  defendant  should  have  acted 
from  any  corrupt  motive;  it  is  sufficient  if  he  has 
acted  wilfully.  Tarr  v.  M'Gahey,  7  C.  &  P.  380 
— Denman.  1548 

A.  was  indicted  under  s.  58  of  the  Parl'ta- 
mentaxy  Reform  Act,  2  Will.  4,  c.  45,  for  giving 
a  fidae  answer  to  the  question,  whether  be  had 
the  same  qualification  to  vote  as  that  for  which 
he  was  registered.  A.  had  oceupied  a  house  at 
the  time  of  the  registration,  for  which  he  was  on 
the  register  as  a  voter,  but  he  had  lefl  it  before 
the  election,  and  the  landlord's  agent  had,  before 
the  tIeotioD,  given  the  key  of  it  to  B.,  who  bad 


put  horses  into  the  stable  and  beer  into  the 
cellar;  butB.'s  rent  did  not  commence  till  after 
tlie  election  : — Held,  that  in  the  absence  of  evi- 
dence of  the  determination  of  the  tenancy  of  A., 
the  indictment  could  not  be  supported.  Rex  v. 
Harris,  7  C.  &  P.  253— Denman.  1548 

Quere,  whether,  since  the  statute  4  &  5  Will. 
4,  c.  51,  the  keeper  of  an  excise-office  is  an  officer 
of  excise  within  the  meaning  of  the  7^8  Geo. 
4,  c.  53,  s.  9,  so  as  to  be  liable  to  the  penalties 
imposed  thereby  on  such  officers  for  voting  at 
elections  for  members  of  parliament.  Gooday  v. 
Clark,  2C  M.  <&  R.  273  ;  1  Gale,  177.        1548 

Where,  in  an  action  for  such  penalties,  the 
only  evidence  against  the  defendant  was  that  he 
kept  an  inn,  over  the  door  of  which  was  a  board 
with  the  words  '* excise-office"  painted  on  it; 
that  his  vote  being  objected  to  l>efore  the  revis- 
ing barrister  in  October,  1834,  and  his  commis- 
sion being  called  for,  he  had  produced  what  the 
witnesses  described  as  "  something  framed  and 
glazed  like  a  picture ;"  that  he.  had  received  en- 
tries of  buildings  before  the  passing  of  the  4  &  5 
Will.  4,  c.  51,  (August,  1834),  but  had  since 
ceased  to  do  so ;  and  a  witness  stated  that  he  had 
seen  the  defendant's  commission,  which  was 
partly  written  and  partly"  printed,  and  appointed 
him  to  collect  duties  of  excise  : — Held,  Uiat  this 
was  not  evidence  to  go  to  the  jury ;  that,  on  the 
19th  of  January,  1835,  when  the  defendant  voted 
at  the  election,  he  was  an  officer  of  excise.    Id. 

This  court  will  not  grant  a  habeas  corpus  to 
enable  a  prisoner,  in  custody  upon  a  conviction 
of  misdemeanor,  to  vote  at  an  election  of  a  mem- 
ber of  parliament.  In  re  Jones,  4  Nev.  &,  M.  340 ; 
2  Adol.  &,  Ellis,  436;  1  Har.  &  WoU.  7.       1543 

An  unfounded  objection  to  a  voter*s  name  in 
the  list,  pursuant  to  the  2  Will.  4,  c.  45,  s.  47,  by 
which  he  is  prejudiced,  having  to  attend  the  re- 
vising barrister,  does  not  give  such  a  legal  or 
equitable  claim  for  compensation  for  loss  or  time, 
6lc.  as  will  enable  him  to  sue  under  the  West- 
minster Court  of  Requests  Act;  and  therefore, 
if  the  commissioners  under  it  proceed  on  the 
claim,  they  may  be  restrained  by  prohibition. 
Soames  t?.  Rawlings,2  G.  M.  &,  R.  744 ;  4  Dowl. 
P.  C.  501 ;  1  Tyr.  &  G.  46 ;  1  Gale,  299.    1548 

To  constitute  the  ofi^nce  of  bribery  at  an  elec- 
tion, under  2  Geo.  2,  c.  23,  s.  7,  bv  '*  corrupting 
a  voter  to  give  his  vote"  by  giving  nim  a  bribe,  it 
is  not  necessary  that  the  voter  should  vote  in 
accordance  wito  the  wishes  of  the  person  who 
gives  the  bribes.  Henslow  v.  Fawcett,  4  Nev.  dt 
M.  585;  3  Adol.  &  Ellis,  51;  1  Har.  <&  Well. 
125.  1549 

The  oflence  Is  complete,  so  far  as  the  corrupt- 
er is  concerned,  by  the  act  of  giving  the  monejTt 
whether  the  voter  nave  at  the  time  of  receiving  it 
any  intention  of  voting  according  to  the  bribe  or 
not.    Id. 

A  VQ.ter  who  agrees  or  contracts,  for  any  monej 
or  other  reward,  to  give  or  forbear  to  give  his 
vote  at  an  election,  is  liable  to  the  penalties  of  2 
Geo.  2,  c.  24,  s.  7,  though  he  never  intended  to 
perform  the  corrupt  agreement    Id. 


2546 


[PARLIA  MENT— PARTNER] 


If  a  penon  who  is  not  himaelf  a  candidate,  and 
who  is  not  known  to  the  party  who  nipplies  re- 
fresbmenta  to  be  an  agent  of  a  candidate,  open  a 
poblic-honse  at  an  election,  and  order  supplies 
for  the  yoters,  be  is  personallj  liable  to  pay,  and 
tbfe  Treatinjf  Act,  7  &  8  Will.  3,  c.  4,  will  afford 
him  no  defence,  if  the  goods  were  supplied  en- 
tirely on  bis  credit  Thomas  v.  Harries,  6  C.  dt 
P.  6l5->Parke.  1551 

Assumpsit  for  the  "work  and  labor  of  the 
plaintiff  as  an  attorney.  Plea,  as  to  all  but  902., 
that  the  work  and  labor  was  performed  by  the 
plaintiff  in  endeavoring  to  secure  the  defendant's 
letorn  to  parliament,  on  two  occasions,  under 
an  agreement,  on  the  first  occasion,  that  the 
plaintiff  should  receiTe  no  remuneration,  but 
only  his  disbursements ;  and  that  no  express  con- 
tract was  made  between  the  plaintiff  and  defen- 
dant on  the  second  occasion,  and  that  90/.  was 
a  fair  remuneration  for  the  plaintiff's  seryices  on 
that  occasion : — Held  bad,  on  special  demurrer, 
as  amounting  to  the  general  issue.  Jones  r. 
Nanney,  1  Mees.  Sl  Wels.  333.  1552 

The  court  will  not  allow  judgment  to  be  entered 
up  under  9  Geo.  4,  c  22,  on  the  certificate  of  the 
Speaker  of  the  House  of  Commons,  for  the  costs 
or  opposing  an  election  petition,  when  it  appears 
upon  affi<Uyit  that  the  certificate  was  founded 
upon  the  report  of  a  select  committee  for  trying 
tne  merits  of  the  petition,  which  was  not  duly 
appointed  according  to  the  proyisions  of  that  act. 
Bruyeres  v.  Halcomb,  5  Ney.  &  M.  149;  3  Adol. 
&  £Uis,  381 ;  1  Har.  &  Woll.  410.  1552 

Where  a  party,  who  has  presented  a  petition  to 
the  Houseof  Commons,  complaining  of  an  undue 
return,  does  not  ap|>ear  at  the  time  appointed  for 
taking  the  petition  into  consideration,  or  within 
an  hour  afterwards,  a  committee  for  the  trial  of 
the  merits  of  the  petition  cannot  be  elected ;  but 
the  petition  should  be  discharged.    Id. 

Quere,  as  to  the  mode  in  which  the  Speaker's 
certificate  for  costs  under  9  Geo.  4,  c.  22,  should 
refer  to  the  report  of  the  examiners  appointed  to 
tax  those  costs .'    Id. 

The  court  witt  inquire  into  the  propriety  of  the 
appointment  of  a  select  committee,  when  it  is 
called  upon  to  giye  efi!eet  to  the  Speaker's  certifi- 
cate, by  allowing  judgment  entered  up  on  it.    Id. 

The  judges  declined  to  answer  a  question  pro- 
posed to  them  by  the  House  of  Lords,  it  being 
doubtful  whether  it  was  confined  to  the  strict 
legal  construction  of  existing  statutes,  or  whether 
it  did  not  also  embrace  that  of  a  bill  pending  be- 
fore the  house.  In  re  London  and  Westminster 
(Bank),  1  Scott,  4.  1553 

Where  a  person  haying  privilege  of  Parliament, 
has  been  sued  by  bill  and  summons  before  the 
Uniformity  of  Process  Act  passed,  and  afief  tlie 
commencement  of  the  action  he  loses  his  privi- 
lege, the  process  should  be  continued  by  di&- 
tnn^,  treating  him  as  an  M.  P.,  in  order  to 
ayoid  the  statute  of  limitations.  Taylor  v.  Dun- 
combe,  2  Dowl.  P.  C.  401.  1553 


PARTNER. 

Canlraet.] — Where  parties  enter  into  a  contract 
of  partnership  in  yiolation  of  the  law.  It  is  yoid, 
and  will  confer  no  right  on  either  party  as  against 
the  other.  Armstrong  r.  Lewis  (in  error),  2  C.  & 
M.  274 ;  4  M.  &  Scott,  1.  1566 

Where  a  personal  office  or  empkmnent  is  pur- 
chased with  the  partnership  funds  for  the  benefit 
of  the  partnership,  the  partner  in  whose  name  it 
is  purehased  is  not  necessarily  a  trustee  of  the 
profits  for  the  other  partners,  aner  the  term  of  the 
partnership  has  expired.  Clarke  v.  Richards,  1 
T.  &Col.35L    '  1556 


UahUity  to  others.] — ^A  solvent  partner  may, 
afier  a  secret  act  of  bankruptcy  committed  by 
his  co-partner,  make  the  firm  liable  by  accepting 
a  bill  for  a  previous  liabiUty.  £x  parte  Robinson, 
1  Mont.  A  Ayr.  18.  1557 

Quaere,  whether  a  partner  can  bind  his  co- 
partners by  a  parol  submission  to  arbitratiun  of  | 
question  of  the  legal  liability  of  the  partnership  ? 
Boyd  17.  Emmerson,  4  Ney.  &  M.  99 ;  2  Adol.  & 
EUis,  184.  1557 

One  partner  has  no  implied  authority  to  bind 
his  co-partner  to  a  submission  to  arbitration,  re- 
specting the  matters  of  the  partnetshp.  Adams 
9.  Baukart,  1  C.  M.  &  R.  7m ',  5  Tyr.  425 ;  1 
Gale,  48.  1557 

One  F.,  a  partner  in  the  plaintiff's  house, 
transferred  certain  stock  out  of  the  defendant's 
name  in  the  books  of  the  bank  of  England,  un- 
der a  forged  power  of  attorney,  and  without  any 
authority  from  her,  and  caused  the  produce  to  be 
mixed  with  the  money  of  the  firm ;  F.  hayinr 
been  convicted  of  another  forgery,  committed 
under  similar  ciroumstances,  and  executed : — 
Held,  that  the  defendant  might  recover  the 
amount  in  an  action  against  the  surviving  part- 
ners for  money  had  and  received  to  her  use. 
Marsh  v.  Keating,  1  Scott,  5.  1557 

If  a  firm  of  three  be  dissolved  by  the  retire- 
ment of  one,  and  after  the  dissolution  a  credi- 
tor of  the  three  draw  on  the  three,  and  the 
two  accept  in  the  style  of  the  three,  the  two  are 
liable.    Ex  parte  Liddiard,  2  Mont  &  Ayr.  87. 

1560 

Assumpsit  against  two  defendants,  S.  and  M., 
for  money  had  and  received.  Plea  as  to  25/., 
parcel,  drc,  that,  on,  Ac,  the  defendants  were 
carrying  on  business  in  partnership,  and  employ- 
ing many  servants ;  that  whilst  they  were  such 
partners  the  plaintiff  deposited  with  tnem  as  such 
partners  the  said  sum  of  252.,  as  a  security  for 
his  fiiithfully  accounting  for  all  monies  received 
by  him  as  their  servant,  to  be  repaid  to  him  on 
quitting  their  employ ;  that  they  dissolved  part- 
nership, and  it  was  thereupon  agreed  between 
them  that  the  defendant,  S.,  should  take  upon 
himself  the  payment  of  part  of  the  debts,  and  re- 
tain in  his  employ  certain  of  the  servants ;  and 
that  the  defendant  M.  should  take  upon  himself 
the  payment  of  other  debts,  and  retain  in  hia 
employ  others  of  the  servants ;  and  that  in  pur^ 
suance  of  such  agreement,  M.  took  upon  himself 
the  payment  of  &Z.  to  the  phuntifi^  ^  and  retained 


[OUTLAWRY] 


2647 


the  plaintiff  in  his  sole  emploj  :  that  the  plaintiff 
had  notices  of  all  the  premises,  and  assented  to 
such  agreement  and  retainer  by  M.,  and  ,in  con- 
sideration thereof  discharged  S.  from  his  promise 
as  to  the  25/.  Replication,  that  M.  did  not  re- 
tain the  plaintiff  in  his  sole  employ,  nor  did  the 
plaintiff  assent  to  such  agreement  and  retainer,  or 
discharge  the  defendant|j&c.,  and  issue  thereon. 
After  Terdict  for  the  dtendant  on  this  issue: — 
Held,  that  the  plaintiff  was  entitled  to  judgment 
non  obstante  veredicto,  on  the  ground  that  no 
contract  was  shown  which  made  M.  solely  liable 
to  the  plaintiff.  Thomas  v.  Shillibeer,  1  Mees.  &, 
Wels.  124.  1560 

LUUnUty  to  each  other.] — A.  recovers  against 
B.,  C,  and  D.,  partners  in  trade,  upon  their  joint 
contract,  and  takes  in  execution  a.  only,  who 
thereupon  pays  the  whole  sum  recovered,  il. 
cannot  recover  in  a  court  of  law  against  his  eo- 
deiendants  for  contribution.  His  remedy  is  in 
equity,  as  in  cases  of  a  voluntary  payment  by 
one  partner  of  a  debt  due  from  himself  and  his 
CO- partners  upon  their  joint  contract.  Sadler  v. 
Hickson  or  Nixon,  2  Nev.  A.  M.  258 ;  5  B.  dt 
Adol.  936.  1565 

A.  Sl  B.  entered  into  partnership  to  work  a 
eoal-mine,  and  the  coal-mine  being  worked  out, 
and  the  coal-pit  being  filled  up,  A.  said  he  would 
join  in  no  more  coal-pits,  and  A.  &  B.  agreed 
to  divide  the  materials  and  utensils,  each  party 
taking  one  half  in  value,  article  by  article,  ac- 
cording to  a  valuation  to  be  made  ;  and,  after  the 
valuation  had  been  made,  B.  agreed  to  take  the 
whole  at  the  valuation,  and  accordingly  took  pos- 
session thereof: — Held,  that  A.  had  an  immedi- 
ate right  of  action  for  a  moiety  of  the  value  of  the 
niatenais  and  utensils.  Jackson  v.  Stopherd,  2 
C.  dk  M.  361 ;  4  Tyr.  330.  1565 

Plaintiff  agreed  with  defendant  to  convey  by 
horse  and  cart  the  mail  between  N.  and  B.,  at  w, 
a  mile  per  annum,  and  to  pay  his  proportion  of 
the  expense  of  the  cart,  &c. ;  mone  v  received  for 
the  carriage  of  parcels  to  be  divided  between  the 
parties,  and  the  damage  occasioned  by  loss*  of 
parcels,  dkc.  to  be  borne  m  equal  portions : — Held, 
that  the  agreement  constituted  a  partnership,  and 
not  a  mere  measure  of  wages,  and  consequently, 
phmtiff  could  not  sue  derendant  for  the  SM.  per 
mile.  Green  v.  Beesley,  2  Scott,  164 ;  2  Bing. 
N.  R.  108;  1  Hodges,  199.  15& 

A.,  at  the  suggestion  of  B.,by  letter,  orders  a 
cargo  of  timber  of  C.  The  invoice  is  made  out 
in  the  name  of  A.,  and  a  bill  of  exchan^  is 
drawn  by  B.  on  A.,  for  the  amount  of  the  freight, 
which  is  paid  by  A.  In  an  action  brought  by 
C.  againat  A.  and  B.  for  the  price  of  the  goods, 
H  is  competent  to  C.  to  show  that  A.  and  B. 
were  jointly  interested  in  the  purchase.  Buppell 
V,  Roberts,  4  Nev.  &.  M.  31.  1565 

A.  lends  money  to  B.  to  enable  him  to  com- 
mence a  trade  at  5  per  cent,  interest.  Afler  the 
loan,  B.  agrees  to  pay  A.  one-eighth  of  the  an- 
noal  profits,  by  monthly  bay ments,  which  offer  A . 
accepts,and  B.  accordingly  makes  several  monthly 
payments,  for  which  A.  gives  B.  receipts  on  ac- 
ocmnft :— Held,  that  the  balance  of  the  principal 

Vol.  IV.  35 


and  interest  due  from  B.  to  A.  was  a  g6od  peti- 
tioning creditor's  debt,  not  arising  out  of  a  part- 
nership, nor  affected  by  usury.  £x  parte  Briggs, 
3  Deac.  &  Chit.  :i67.  fS^ 

Assumpsit  for  money  paid,  for  interest,  and  on 
an  account  stated.  Plea,  that  at  the  time  of  the 
commencing  of  this  suit,  and  at  the  time  of  the 
accruing  of  the  causes  of  action  in  the  declaration 
mentioned,  the  plaintiff  and  defendant  carried  on 
business  in  co-partnership,  and  that  the  causes 
of  action  arose  out  of  transactions  between  the 
plaintiff  and  defendant  as  such  co-partners ;  and 
that,  at  the  time  of  the  commencement  of  the 
suit,  the  accounts  of  the  partnership  were  not 
settled  or  sdjusted,  or  any  balance  struck  between 
the  plaintifir  and  defendant.  On  special  demur- 
rer : — Held,  that  the  plea  was  ill ;  first,  because 
it  did  not  show  that  this  was  a  partnership  trans- 
action ;  secondly,  nor  that  the  debt  was  due  to 
the  plaintiff  and  defendant  jointly  ;  thirdly,  that 
if  it  was  to  be  taken  to  be  so  alleged,  the  plea 
was  bad  as  amounting  to  the  general  issue. 
Worrall  v.  Grayson,  1  Mees.  d^  Wels.  166;  4 
Dowl.  P.  C.  718.  1564 

By  articles  of  partnership,  it  was  agreed  that 
just  and  true  accounts  should  be  made  out  half- 
yearly,  and  siffned  by  the  partnera,  and  that  such 
accounts  should  not  afterwards  be  called  in  ques- 
tion except  for  erron  discovered  in  the  lifetime 
of  all  the  partners.  The  accounts  were  made  out 
by  one  of  the  partnera,  and  aller  the  death  of 
two  of  the  other  partnera,  it  was  discovered  that 
the  accounts  were  fraudulent : — Held,  that  the 
fourth  partner  was  entitled  to  have  the  accounts 
of  the  partnerahip  taken  from  the  date  of  the 
articles.     Oldaker  v.  Lavender,  6  Sim.  239.  . 

1564 

C,  M.  &  N.  carried  on  business  under  the 
name  of  J.  K.  A.  Sons;  and  being  indebted  to 
A.,  C.  retired  from  the  partnerahip,  ^d  M.  dk 
N.  agreed  to  liquidate  all  the  concerns  of  the 
partnerahip.  M.  afterwards  retired,  and  adver- 
tisements of  the  dissolutions  of  both  partnerahips 
were  at  the  same  time  inserted  in  tne  (Gazette.  - 
N.  then  took  in  a  new  partner,  and  the  business 
was  caned  on  in  the  original  name  of  J.  K.  dk 
Sons.  A.'s  account  was  transferred  to  the  new 
firm,  and  hfi  received  accounts  and  payments 
from  them ;  but  it  did  not  appear  that  he  ever 
saw  the  Gasette,  or  that  either  he  or  the  new 
partner  ever  agreed  to  the  substitution  of  the 
responsibility  of  the  new  firm  for  that  of  the  old : 
— Held,  that  the  three  original  partnera  were  not 
released  from  their  responsibili^,  bat  were  liable 
at  the  suit  of  A.  Kirwan  v.  Kirwan,  2  C.  dk  M. 
617;  4T>r.491.  1565 

JHaooUaion.] — ^The  lunacy  of  a  partner  is  not 
ipso  facto  a  dissolution  of  tne  partnerahip,  but  is 
a  ground  for  the  dissolution,  if  the  other  pahaer 
or  partnera  come  to  the  court  for  a  decree  of  dis- 
solution, on  the  ground  of  each  hinaey.  Jones  v. 
Noy,  2  Mylne  dk  K.  125.  1567 

One  of  two  partners  having  eontinoed  the 
partnership  business  for  some  time  after  the 
lunacy  of  the  other,  and  having  then  sold  the 
business  of  the  representative  of  the  deceased 


'254S 


^OUTLAWRY— PATENT] 


loBslie  p«toer< 
mrfiienbip    pn 


wts  held  to  be  entitled  to  tbe 
ip    ptofits  ap   to  the   period  of  nJe. 


Tbe  coart  will  direct  an  aceoant  of  post  part- 
nenbip  tiana^Btiona,  ihon^  the  biU  doe*  not 
pray  a  diasolution ;  but  it  wdl  make  no  otder  for 
canyingr  on  partnerabip  concerns,  nnless  with  a 
Tiew  to  a  dinolation.  Richards  v.  DaTies,  2 
Aoss.  A  Mylne,  347.  1367 

The  condition  of  a  bond  recited  a  d^d  of  dis- 
•olotion  of  partnership  between  the  plaintiff  and 
T.,  in  which  was  recited  an  agreement,  that,  sub- 
ject to  the  adjustment  of  the  partnership  accounts 
as  therein  mentioned,  the  stock-in-trade  and  part- 
nenhip  e^ets  should  belong  absolutely  to  T., 
and  au  debts  due  from  the  partnership  should  be 
paid  by  T. ';  and  that  T.,  and  the  defendant  as  his 
surety,  should  indemnily  the  pluntiff  by  their 
joint  and  seTeial  bond  against  the  partnership 
debts ;  and  the  condition  was,  that  T.  and  the 
defendant,  or  one  of  them,  should  indemnify  the 
plaintiff  against  the  payment  of  the  said  partner- 
ship debts,  and  all  costs,  dbc.,  and  all  actions  to  be 
brought  in  fespect  thereof.  To  a  declaraUon  on 
this  bond,  which  set  out  the  conditioUt  and  a 
breach  of  it  in  non-payment  of  a  debt  due  from 
the  partnership  to  M.,  who  in  consequence  sued 
the  plaintiff  and  T.  for  it,  the  defendant  pleaded, 
that  if  the  plaintiff  was  damnified,  it  was  through 
his  own  defeult : — Held,  that  under  this  plea  the 
defendant  could  not  give  in  eyidenoe  the  deed  of 
dissolution,  to  show  that  it  contained  certain  sti- 
pulations as  to  the  adjustment  of  the  accounts, 
which  the  plaintiff  had  not  performed,  not  having 
paid  over  to  T.  a  balance  alleged  to  be  due  to 
the  latter  on  such  adjustment : — Held,  also,  that 
the  defendant  could  not  show,  in  reduction  of 
damages,  that  the  costs  of  T.'s  defence  to  the 
action  brought  by  M.,  were  much  leas  than  the 
costs  incurred  by  the  plaintiff.  White  v.  Ansdell, 
1  Mees.  Sl  Wels.  348.  1568 

Jietions.] — A  solvent  partner  may  sue  out  a 
writ  in  the  name  of  hie  co-partners,  or,  if  bank- 
rupt, in  the  names  of  his  assignees,  as  well  as 
his  own,  in  order  to  recover  a  debt  doe  to  the 
partnership.  Whitehead  v.  Hughes,  4  Tyr.  92 ;  2 
C.  ^k  M.  318 ;  2  Oowl.  P.  C.  258.  1571 

But  tbe  partners  who  object  have  a  right  to 
be  indemnined  against  the  costs.  Id. 

One  co-parcener  cannot  sue  separately  for  hts 
portion  of  rents  accruing  to  him  and  his  feUows. 
Decharms  v.  Horwood,  4  M.  dz,  Scott,  4C0  ;  10 
Bing.  526.  1571 

An  action  will  not  lie  at  the  suit  of  one  of 
three  co-parceners  to  recover  his  proportion  of 
rents  of  the  estate  received  by  an  agent,  where 

^;the  agent  claims  the  rents  under  a  devise  to  him- 

^   self.  Id. 

Seroble,  that  money  had  and  received  was  no^ 
the  plipper  form  of  action  in  which  to  raise  the 
question.    Id. 


PATENT. 

In  case  for  invading  plaintiff's  patent  right  to 
certain  machinery  for  diying  calicoes,  Ac,  where 


tbe  speei§caiioa,  after  aetto^  forth  tbe 
which  tbe  cloth  waa  to  be  enmdcd  fer  the  pur- 
pose of  drying,  ptoceedeJ  to  stale  that  it  nught 
be  taken  op  again  by  the  same  mnefainetj ;  a 
jnrr  having  fennd  thai  the  invention  was  new 
ana  uselul  on  the  whole,  hot  that  the  machine 
was  not  osefol  in  some  cases  fertaking  up  goods, 
the  court  refused  to  aetjnside  the  venlict  fer  the 
plaintiff  and  enter  a  ooftmt.  Haworth  s.  Hard- 
4  M.  dk  Seott,  7»;  1  Bing.  N.  R.  18S. 

1577 


A  patent  was  granted  to  the  plaintiff  fer  cer- 
tain machinery  in  the  year  1824.  In  March, 
1832,  the  Vice-Cbancellor  made  an  order  for  the 
trial  of  the  plaintiff's  right  in  an  actitm  in 
C.  P.  A  verdict  in  shat  action  being  found  for 
the  plaintiff,  and  a  rule  nisi  having  been  granted 
for  entering  a  nonsuit  or  for  a  new  trial,  on  the 
fround  of  the  supposed  -  invalidity  of  the  patent 
by  reason  of  an  insufficient  specification,  and 
that  rule  being  ready  for  argument,  the  defen- 
dant obtained  a  scire  facias  to  repeal  the^  patent. 
The  court  refused  to  postpone  the  discussion 
upon  the  rule,  until  after  the  decision  of  the 
court  of  King's  Bench  upon  the  scire  facias. 
Haworth  v.  Hardcastle,  i  M.  A  Scott,  448 ;  10 
Bing.  551 ;  2  Dowl.  P.  C  802.  1580 


By  5&6  Will.  4,  c.  83,sjigrper; 

mid  Utters  pmiemt  for  anw  hnaUumj 
a  diadamer  of  ami  pari  of  kit 
memorandam  of  any  ai<ersfm 
jUed  is  to  ke  dfeaud  port  of  smek 


or  a, 


1577 

A  patent  claimed  the  invention  of  manufw- 
turing  tubes  by  drawing  them  through  roUefs, 
using  a  maundnl  in  the  course  of  the  operation. 
A  later  patent  claimed  the  invention  <tt  manu- 
facturing tubes  by  drawing  them  through  fixed 
dies  or  holes,  but  the  specification  was  silent  as 
to  the  use  of  the  maundril: — Held,-  that  the 
court,  taking  the  whole  of  the  latter  specificatioa 
together  would  infer  that  the  maundril  was  not 
to  oe  used,  and  that  the  latter  patent  was  good. 
Russell  V.  Cowley,  1  C.  M.  dt  R.  864.  1577 

Where,  in  summing  up  his  inventory,  a  pa- 
taniee  stated  it  thus : — ^  My  invention  is  the 
application  of  a  self-adjusting  leverage  to  the 
back  and  seat  of  a  chair,  whereby  the  weight  cm 
the  seat  acts  as  a  counterbalance  to  the  pressure 
against  the  back  of  such  chair  as  above  describ- 
ed :" — Held,  that  this  was  not  a  claim  to  the  prin- 
ciple of  the  lever,  but  to  an  application  of  that 
principle  to  a  certain  purpose  by  certain  means, 
and  that  the  patent  was  good.  Minter  e.  Wells, 
1  C.  M.  dt  R.505;  5  Tyr.  163.  1577 

A  patent  was  granted  for  an  invention  of 
**  certain  improvements  in  extracting  sugar  or 
syrups  from  cane  juice,  and  other  snbstanees 
containing  sugar."  The  specification  stated  the 
invention  to  consist  ^*  in  a  means  of  discoloring 
syrups  of  every  description  by  means  of  chareoal 
produced  by  the  distillation  of  bituminous  sohts- 
ttts,  or  mixed  with  aniimal  charcoal,  and  even  of 
animal  charcoal  alone.**  It  then  stated  that  tbe 
**  discoloration*'  was  to  be  produced  by  means 
of  a  filter  made  of  the  charcoal,  and  that  there 
was  *<  nothing  particular"  in  the  carbonixation  of 


[PATENT— PA  WNBR0KEI4] 


2549 


the  bituminoiu  ichistus,  *'  only  it  is  convenient 
before  the^carboniiation  to  separmtc  the  sal* 
phurets  of  iron  which  are  mixed  with  it"  The 
specification  said  nothing  as  to  any  previous 
operation  on  the  ayTup  before  it  was  Bubmitted 
to  the  filter,  but  it  did  state  that  syrup,  in  a 
proper  state,  might  be  obtained  by  a  mixture  of 
•agar  and  water.  In  an  action  for  the  infringe- 
ment of  the  patent,  the  defendant  pleaded  that 
the  plaintiff  did  not,  by  any  instrument  in  writ- 
ing, describe  and  ascertain  the  nature  of  his  said 
invention,  and  in  what  manner  the  same  was 
to  be  performed ;  and  also  that  the  plaintiff  did 
not  cause  any  such  iustruhient  to  be  inrolled  in 
Chancery  : — Held,  that  the  defendant  sufficiently 
specified  his  invention,  upon  proof  that  it  was 
applicable  with  advantage  to  the  syrup  afler  it 
had  undergone  a  certain  degree  of  heat,  though 
it  fiiiled  when  applied  to  the  first  drawings  of  the 
■yrup,  and  that  a  "  discoloration"  of  such  syrup 
and  of  syrup  of  sugar  and  water,  warranted  the 
title  of  improvements  "  in  extracting  sugar  or 
syrup  from  cane  juice."  Derosne  v.  Fairie,  2  C. 
M.  i  R.  476  :  5  Tyr.  393 ;  1  Gale,  109.        1577 

Quaere,  whether  an  iUlegation  that  the  patentee 
has  specified  his  invention  is  not  supported  by 
proot  that  he  has  specified  all  that  he  has  in- 
vented, thoagh  the  invention  be  not  so  large  as 
the  title  of  tne  patent  would  impiv  ? — Hela,  to 
be  necessary  that  the  plaintiff  should  prove  bitu- 
minous schistus  woulcl  answer,  that  the  presence 
of  inm  in  it  would  not  be  injurious,  and  that  if 
it  would  it  mi^ht  be  removed  by  means  known 
to  persons  ordmarily  acquainted  with  the  sub- 
jeet;  that  the  schistus  might  be  purchased  in 
a  proper  state  in  the  market  as  an  article  of  com- 
merce, or  that  it  might  otherwise,  without  anv 
secret  or  unknown  means,  be  obtained  in  a  nt 
stete.    Id. 

Where  a  licence  to  use  certain  patent  ma- 
chines  is  granted  by  indenture,  in  which  it  is 
recited  that  the  grantor  has  invented  the  ma- 
chines, and  has  obtained  letters  patent  for  the 
ade  nse  of  the  invention,  and  inrolled  the  speci- 
fication,—-parties  (and  privies^  to  the  deed  are 
estopped  from  pleading  either  that  the  invention 
is  not  a  new  invention,  or  that  the  grantor  was 
not  the  first  inventor,  or  that  no  specification  was 
inrolled.  Bowman  v.  Taylor,  4  Nev.  dt  M.  264 ; 
2  Adol.  Sl  Ellis,  278.  1579 

Whether  in  covenant  by  the  patentee  of  an  in- 
vention, brought  to  recover  rent  reserved  in  re- 
spect ofa  licence  to  use  the  invention,  a  plea 
merely  alleging  that  the  invention  was  not  new, 
or  that  the  plaintiff  was  not  the  first  inventor, 
without  showing  that  the  defendant  had  in  con- 
sequence failed  to  have  the  excllisive  enjoyment 
covenanted  for,  is  a  good  plea  by  analogy  to  a 
plea  of  eviction,  qunreP  Id. 

Declaration  in  covenant  stated  that,  by  inden- 
ture, after  reciting  that  plaintiff  had  invented  cer- 
tain improvements  in  the  constmction  of  looms, 
and  had  obtained  letters  patent  for  snch  invention, 
and  that  he  had  agreed  with  defendants  to  let  him 
naa  the  said  invention  for  a  certain  part  of  the 
term  granted  by  the  letters  patent,  in  considera- 
tioiLoP  certain  covenants,  Ac.    Plaintiff  cove- 


nanted to  permit  defendants  to  use  and  have  the 
benefit  of  such  invention  and  patent,  and  defen- 
dants, in  consideration  of  the  grant,  Ac,  cove- 
nanted to  perform  the  agreement  on  their  part. 
Breach,  non- performance.  Pleas,  afler  setting 
out  the  patent,  that  the  supposed  invention 
therein,  and  in  the  declaration  mentioned,  was 
not  nor  is  a  new  invention  ;  and  the  plaintiff  was 
not  the  first  or  true  inventor  of  the  improvements 
of  the  said  indenture  and  letters  patent  men- 
tioned : — Held,  on  general  demurrer,  that,  if  the 
pleas  amounted  to  a  denial  of  the  plaintiff  having 
m vented  the  improvements,  or  in  the  sense  in 
which  they  alleged  him  to  have  done  so,  the  de- 
fendants were  estopped  by  their  recital  in  the 
deed  from  contradicting  the  fact ;  and  that  if 
the  pleas  did  not  amount  to  such  denial,  but 
were  intended  merely  to  allege  that  the  plain- 
tiff was  not  the  sole  inventor,  or  that  the  inven- 
tion had  taken  place  long  before  the  patent  was 
granted,  such  pleas  were  no  answer  to  the 
action.  Id. 

Brown  being  patentee  of  an  engine.  Broad- 
hurst  bought  a  licence  of  him  to  erect  it  in 
Cornwall  only.  Ridgway,  by  asency  of  Brown, 
contracted  with  '*  Brown  ik,  Co/'  to  erect  such 
an  engine  in  Cambridgeshire,  Brown  tellinjg 
Ridgway  that  Philip  d^  Broadhurst  were  his 
patners.  During  the  building  of  the  Cam- 
bridgeshire en^pne,  Broadhurst  frequently  came 
to  inquire  how  it  went  on,  and  when  it  would  be 
finished.  Afler  the  engine  had  failed  in  its  ob- 
iect,  Ridgway  previous  to  suing  Philip  dk  Broad- 
hurst, inquirea  from  Broadhurst  if  Brown  1>ad 
been  correct  in  declaring  that  Broadhurst  Sl 
Philip  were  his  partners ;  to  which  he  answered 
that  ne  had.  He  then  sued  Philip  &  Broad* 
hurst.  The  jury  having  found  a  verdict  for  the 
defendants,  on  the  ground  that  Broadhurst  was 
not  a  partner,  the  court  refused  to  set  it  aside 
and  grant  a  new  trial.  Ridgway  v.  Philip,  I 
C.  M.  &  R.  415 ;  5  Tyr.  131.  1579 

A  patent  granted  to  the  patentee  the  exclusive 
privilege  of  making,  using,  exercising,  and  vend- 
mg  the  invention,  and  prohibited  oUier  persons 
from  making,  using,  or  putting  in,  practice  the 
invention : — Held,  that  the  merely  "  exhibiting 
to  sale"  imitations  of  the  invention  was  not  any 
infrin^fement  of  the  patent ;  and  a  count  in  a  de- 
claration which  only  alleged  an  exposure  to  sale, 
was  held  bad  on  generu  demurrer.  Minter  v. 
Williams,  5  Nev.  &  M.  647 ;  1  Har.  &  WoU.  585. 

1579 


PAWNBROKER. 

An  agreement  for  a  secret  partnership  is  a 
contravention  of  the  law,  made  for  regulaUiiy 
the  business  of  a  pawnbroker,  and  no  legal  P&i^^^  / 
nership  is  thereby  constituted.  Warner  v.  Arid^^  • 
strong,  3  Mylne  &  K.  45.  ^  158Q^^  '  , 

A.  db  B.  carried  on  the  business  of  a  pawn- 
broker in  partnership,  under  a  deed.  -  *''tbe  busi-  ' 
ness  was  conducted  solely"^  by  Alf  and  his  name 
alone  appeared  ove*r  the  shop  door  and  upon 
the  printed  ticketr^ahd  duplicates  used  by  per* 
sons  in  that  trade,  and  the  licences  contained  the 


2550 


[PAWNBROKER— PAYMENT] 


name  of  A.  only.  Semble,  that  althoagfa  the 
parties  might  by  this  contract  have  rendered 
themselves  liable  to  penalties  imposed  by  the 
sUt.  39  ^t  40  Geo.  3,  c.  99,  yet,  that  there 
being  no  actual  agreement  for  an  infraction  of 
the  law,  the  contract  was  not  void.  Armstrong 
V.  Lewis  (in  error),  4  M.  &  Scott,  1 ;  2  C.  &  M . 
274.  1580 

A.  having  deposited  with  B.  certain  goods  as 
a  security,  a  dispute  arose  concerning  the  goods, 
upon  which  B.  obtained  from  C,  a  police  magi^- 
tmte,  a  summons  requiring  A.*6  appearance  on 
a  day  named.    Upon  the  appearance  before  'C, 

B.  made  oath  to  a  written  information,  that  he 
believed  the  ffoods  to  have  been  illegally  pawned 
or  disposed  of  by  A.  C.  ^ve  a  further  day  to 
the  parties,  when,  after  evidence  being  gone  mto, 

C.  committed  A.  for  re-examination  on  a  charge 
of  suspicion  of  having  unlawfully  disposed  of  the 
goods  of  B. : — Held,  that  the  charge  was  not  suf- 
ficiently made  so  as  to  give  the  magistrate  juris- 
diction over  the  matter  under  the  Qui  sect,  of  the 
Pawnbrokers'  Act,  39  &  40  Geo.  3,  o.  99.  Tate 
V.  Chambers,  3  Nev.  &  M.  523.  1580 

Quosre,  whether,  in  a  case  upon  this  statute, 
properly  brought  before  a  magistrate,  the  party 
may  be  committed  for  re-exammation  ?    Id. 

PAYMENT. 


I.  Payment  into  Court. 

Intohat  Actions.] — An  action  for  damages,  oc- 
casioned by  the  negligently  running  down  the 
plaintiff's  boat  by  the  defendant's  vessel,  is  not 
an  action  for  a  debt  or  demand  within  the  mean- 
ing of  the  3  A,  4  Will.  4,  c.  42,  8.  17.  Watson 
V.  Abbott,  2C.A  M.  150.  1531 

In  an  action  against  a  sheriff  for  a  false  return, 
and  for  an  excessive  levy,  and  for  not  paying 
over  the  residue,  the  court  refused  to  allow  the 
sheriff  to  pay  money  into  court  with  costs, 
though  it  appeared  that  the  sheriff  had  by  mis- 
take returned  money  to  pay  hop-duty  to  the 
crown,  but  which  was  subsequently  discovered 
to  have  been  paid,  and  had  also  made  charees 
for  possession,  and  other  charges  usually  made, 
but  in  strictness  not  allowable.  Woodgate  «. 
Baldock,  2  Dowl.  P.  C.  256.  1561 

Where  a  whole  count  applies  to  a  demand  for 
unliquidated  damages,  money  cannot  be  paid 
into  court  on  a  part  of  it.  Hodges  v.  Lord  Litch- 
field, 2  Dowl.  P.  C.  741.  1581 

Where  there  are  several  eonnts  for  several 
causes  of  action,  or  several  breaches  are  assigned 
in  covenant,  the  defendant  may  plead  payment 
into  court  of  one  entire  sum  in  full  satismction 
i(»f  all  the  counts  or  breaches.  Marshall  v.  White- 
side, 1  Mees.  &,  Wels.  188 ;  4  Dowl.  P.  C.  766. 

1581 

Money  may  be  paid  ipto  court  on  one  of  se- 
veral breaches  of  covenant  contained  in  a  lease 
set  forth  in  declaration,  if  the  plaintifTs  parti- 
cular specifies  the  sum  he  claims  on  that  breach. 
Smith  V.  King,  2  Dowl.  P.  C.  751.  1581 

In  an  action  by  landlord   against  tenant  for 


not  repairing,  the  court  refused  to  allow  the  de' 
fendant  to  pay  money  into  court  by  way  of  com- 
pensation and  amends,  3  &  4  Will.  4,  c.  42,  s.  21, 
under  the  plea  given  by  Reg.  17,  H.  T.  4  Will. 
4,  and  a  plea  of  tender  before  action  brought. 
Serle  v.  Barrett,  4  Nev.  ^Ib  M.  200  :  S.  C.  nom. 
Dearie  v,  Barrett,  2  Adol.  &  Ellis,  82.  1581 

Proceedings.^ — Where  an  action  of  ejectment 
is  brought  on  certain  breaches,  and  money  is 
paid  into  court  on  one  of  them,  and  the  plaintiff 
takes  it  out  and  does  not  proceed  to  trial,  the 
defendant  is  entitled  to  judgment  as  in  case  of  a 
nonsuit.  Doe  d.  Stanley  v.  Towgood,  2  Dowl.  P. 
C.  .404.  1583 

Where  a  defendant  has  several  defences  to 
different  parts  of  the  plaintiff's  demand,  and  in- 
tends to  plead  payment  into  court,  as  to  other 
parts  of  the  demand,  he  should  first  of  all  plead 
those  pleas,  and  then  the  plea  of  payment  of  mo- 
ney into  court  as  to  the  residue  only.  Coats  v. 
Stephens,  3  Dowl.  P.  C.  784  :  2  C.  M.  &  R.  118 ; 
1  Gale,  75.  1583 

To  a  declaration  in  assumpsit,  brought  to  re- 
cover the  sum  of  30Z.,  the  defendant  pleaded,  first 
to  the  whole  declaration,  payment  of  the  sum  of 
27/.  4s.  4d.  into  court,  and  that  the  plaintiff  had 
not  sustained  damages  to  a  greater  amount;  se- 
condly, except  as  to  27/.  4s.  Ad.  non  assumpsit ; 
thirdly,  payment  bf  the  sum  of  102.  before  action  ; 
and  fourthly,  as  to  all  except  27/.  4s.  4i/.,  a  set- 
off. The  plaintiff  replied,  that  he  accepted  the 
monev  paid  into  court,  and  was  satisfied  : — Held^ 
that  the  defendant  was  not  justified  in  signing 
judgment  of  non  pros,  for  want  of  a  replication 
to  the  said  pleas.     Id. 

Upon  a  declaration  of  two  counts,  the  defen- 
dant paid  into  court  enough  to  cover  the  demand 
in  the  first  instance,  and  obtained  a  verdict  on 
the  second  ;  but  having  omitted  to  plead  the  pay- 
ment as  required  by  the  new  rules  : — Held,  tbiat 
he  was  not  entitled  to  costs.  Adlard  v.  Booth, 
1  Bing.  N.  R.  693;  1  Scott,  644.  1583 

In  an  action  to  recover  a  sum  of  Ql.  2f .  (na 
claimed  by  the  particulars  of  demand),  the  ae- 
fendantpaid  ]/.  I85.  into  court,  under  rule  19  of 
H.  T.  4  Will.  4,  which  the  plaintiff  took  ont  in 
full  satisfaction  of  the  action.  The  caupe  of  ac- 
tion arose,  and  both  parties  lived  within  the  ju- 
risdiction of  the  county  court  of  Cardiganshire  ; 
and  by  the  order  of  a  judge,  the  defendant  was  al- 
lowed to  enter  a  suggestion  on  the  roll  of  these 
facts,  and  that  the  action  was  brought  for  a  sum 
under  40s. ^  and  further  proceedings  were  stayed, 
with  the  view  of  depriving  the  plaintiff  of*^  his 
costs ;  but  the  court  set  aside  the  order,  on  ac- 
count of  the  form  of  the  rule  for  paying  money 
into  court,  the  lateness  of  the  application,  and  its 
not  clearly  appearing  that  the  action  was  brought 
for  less  than  40s.  Farrent  v.  Morgan,  3  Dowl.  P. 
C.  792.  1582 

Ejfect.'] — Efiect  of  payment  of  money  into 
court  as  an  admission.  Lechmere  v.  Fletcher,  I 
C.  ^k  M.  623 ;  3  Tyr.  450.  1584 

Effect  as  an*  admission.  Reid  v.  Dickons,  5  B. 
&  Adol.  499;  2  Nev.  A  M.  369.  1584 


[PAYMENT] 


2551 


In  an  ftctlon  of  mdebitatUB  assampsit  bv  the  fbut  Uie  plaintiff  having  absconded  without  enter- 


master  of  a  ship,  for  wa^es,  against  A.  W.,  D 
S.  W.,  and  S.  W.,  the  plaintiff  proved  a  con- 
tract in  the  handwriting  of  W.,  signed  "  A.  W. 
St  Co.,"  by  which  contract  he  was  eugajj^ed  as 
m^ter  of  a  vessel,  at  a  yearly  salary.  He  also 
proved  services  ander  the  contract  for  several 
years;  and  he  then  put  in  a  rule  to  pay  into 
court  a  sum  of  money  which  was  not  equal  to 
the  amount  of  the  wages.  It  appeared,  on  the 
part  of  the  defendants,  that  D.  S.  W.  was  not  a 
member  Qf  the  firm  of  A.  W.  &  Co.,  and  was 
not  an  owner  of  the  ship  in  question.  The  de- 
fendant, in  the  course  of  his  case,  went  into  ac- 
counts, including  a  variety  of  items,  being  dis- 
bursements on  ship's  account  on  the  one  hand, 
and  items  to  the  credit  of  the  owners  on  the 
other : — Held,  that  under  the  circumstances,  the 
whole  account  was  referable  to  one  contract,  and 
that  the  four  defendants,  having  paid  money  into 
csoart,  were  precluded  firom  setting  up,  that  one 
of  the  defendants,  D.  S.  W.,  was  not  a  party  to 
the  contract.  Ravenscroft  v.  Wise  or  Wyhe,  1 
C.  M.  &  R.  203;  ?  Dowl.P.  0.676;  4  Tyr.  741. 

15d4 

in  assumpsit,  the  defendant  pays  money  into 
court,  and  the  plaintiff  agrees  to  take  the  money 
and  his  costs.  The  costs  are  taxed,  and  paid 
by  the  defendant,  and  received  by  the  plaintiff. 
The  plaintiff  altering  his  mind,  does  not  take  the 
money  out  of  court,  and  offers  to  return  the 
costs,  which  the  defendant  refuses  to  take.  The 
plaintiff  discontinues  the  action,  and  the  costs 
of  the  discontinuance  are  taxed  and  paid  to  the 
defendant.^  These  facts  will  not  support  a  plea 
in  another  action  for  the  same  demand,  alleging 
that  the  plaintiff  received  the  roonev  paid  mto 
court, and  the  costs  in  full  discharge  ot  the  action. 
Power  V.  Butcher,  5  M.  &  R.  337.  1584 

Payment  of  money  into  court  on  a  declaration 
in  assumpsit,  contaiQin^  special  and  common 
eooixts,  founded  on  a  variety  of  dealings  between 
the  parties,  cannot  be  applied  by  the  plaintiff  to 
any  particular  count  only,  but  the  defendant  may 
so  apply  it  to  the  damage  therein  stated  to  hnve 
been  incurred.    Drake   v.   Lewin,  4  Tyr.  730. 

1584 

Where  pajrment  into  court  was  made  generally 
on  a  declaration  containing  one  count,  charging 
the  defendant  for  the  produce  of  sales,  as  fiictor  on 
a  del  credere  commission,  and  another,  charging 
him  with  having  negligently  sold  plaintiff's  nooi 
to  an  insolvent  person,  the  defendant,  in  order  to 
show  the  transaction  in  question  to  be  one  which 
was  not  admitted  by  the  payment  into  court  on 
the  first  count,  jrave  letters  in  evidence  to  show 
that  the  plaintin  had  admitted  the  sale  in  ques- 
tion io  be  his  own  affair,  and  not  guaranteed  by 
the  defendant.  The  jury  found  a  verdict  for  the 
defendant,  and  the  court  did  not  disturb  it,  on 
the  ground  that  this  evidence  was  improperly 
received.    Id. 

Where  a  defendant  was  sued  at  law  for  a  sum 
of  money,  and  the  court  allowed  him  to  pay  it 
into  court  to  abide  the  event  of  an  application  by 
him  to  the  coort  of  Chancerv  for  an  injunction, 
which  was  accordingly  macle  in  January,  1834, 


ing  an  appearance,  the  defendant  was  unable  to 
get  an  injunction  on  the  merits,  though  he  had 
got  the  common  injunction,  the  court  of  Ex- 
chequer refused  to  make  an  order  that  the  defen- 
dant might  receive  the  money  out  of  court,, 
though  a  considerable  time  had  elapsed  since  the 
bill  was  filed.    Bestt?.  Argles,  3  Dowl.  P.  C.  701. 

^  1683 

11.  Plea  of  pAYMKieT. 

The  new  rules  of  pleading,  Hil.  4  Will.  4,. 
which  direct  payment  and  acceptance  to  be 
pleaded  and  replied,  make  no  difierence  as  to 
tlie  operation  of  the  statute  of  limitations.  Brooks 
V.  Rigby,  2  Adol.  ^  Ellis,  21.  1586 

Diet.  A  plea  of  payment  of  a  less  sum  of  money 
into  court,  on  a  general  indebitatus  count  or 
counts,  is  ^ood,  though  the  amount  intended  to 
be  appropriated  to  each  count  is  not  shown. 
Jouraain  v.  Johnson,  4  Dowl.  P.  C.  534 ;  1  Gale, 
312;  5  Tyr.  524.  1586- 

But,  semble,  that  if  there  be  a  count  on  a  bill 
of  exchange,  the  defendant  must,  in  pleading, 
answer  the  whole  amount  of  the  bill ;  and  that  a 
plea  of  payment  of  money  into  court  alone,  of  a 
sum  less  than  the  amount  of  the  bill,  would  be 
bad ;  and  that  it  would  be  also  bad,  though  of  a 
larger  amount,  if  he  pleaded  to  a  count  on  a  bill 
and  any  other  count,  unless  a  sufficient  amount 
be  specifically  appropriated,  in  the  plea  to  the 
bill.  Id. 

In  indebitatus  assumpsit,  the  defendant  pleada 
ptayment  and  acceptance  in  satisfaction ;  the  plain- 
tiff new  assigns  a  different  debt  of  the  same 
amount  with  that  confessed  in  the  plea ;  non-as- 
sumpsit is  pleaded  to  the  new  assignment.  The 
only  question  for  the  jury  is,  whether  two  debts 
were  incurred  or  one  only.  If,  therefore,  the 
plaintiff  proves  one  debt,  and  the  defendant 
proves  payment  of  the  amount,  the  effect  of  the- 
defendant  s  evidence  is  to  show,  that  the  debt 
proved  by  the  plaintiff  is  the  debt  confessed  and 
avoided  by  the  plea,  and  not  the  debt  newly  as- 
signed; which  latter  debt,  therefore,  remains 
unproved  upon  the  issue  of  non-assumpsit. 
Hall  V.  Middleton,  5  Nev.  &>  M.  410;  1  Har.  & 
WoU.531.  1585 

In  an  action  of  covenant,  if  the  defendant 
pleads  payment  to  the  plaintiff  on  the  record^ 
who  is  only  the  nominal  party  to  the  suit,  there 
being  no  iraud  alleged,  the  court  will  not  take 
the  plea  off  the  file.  Gibson  v.  Winter,  1  Har. 
<&  WoU.  436.  1586* 

Debt  for  goods  sold  and  delivered  : — Plea,  that 
tiefore  the  commencement  of  the  suit,  and  when 
the  said  sum  of  202  became  due  and  payable,  to 
wit,  on  ^kc.,  the  defendant  paid  the  plaintiff  the 
said  sum  of  20^  according  ^to  the  defendant's 
said  contract  and  liabiltiy ;  concluding  to  the 
country: — Held,  bad  on  special  demurrer,  for 
not  concluding  with  a  verification.  Goodchild  v. 
Pledge,  1  Mees.  dk  Wels.  363.  1586^ 

To  a  declaration  on  a  bill  of  exchange  with  a 
count  for  work  and  labor,  the  defendant  pleaded 
as  to  352.,  part  of  the  money  in  the  declaration 


2552 


[PAYMENT— PHYSIC] 


mentioned,  that  the  bill  a§  to  that  sum  was  an  ac- 
commodation bill,  conclading  with  ayerification  ; 
and  as  to  the  sum  of  40/.,  other  parcel  of  the 
sams  mentioned  in  the  declaration,  he  pleaded 
payment  of  that  money  into  court,  concluding 
with  a  verification;  and  as  to  the  residue  of  the 
■urns,  and  the  promise  in  the  last  count  of  the 
declaration  mentioned,  and  not  before  pleaded  to, 
non-assumpsit.  Upon  the  first  plea  the  plaintiff 
took  issue,  and  as  to  the  last  plea,  added  a  simili- 
ter, bat  said  nothing  as  to  the  plea  of  payment 
of  money  into  court :  at  the  trial  the  plaintiff*  ob- 
tained a  verdict,  with  30/.  damages  : — Held,  that 
there  was  no  ground  for  arresting  the  judgment. 
Fallows  V.  Bird,  4  Dowl.  P.  C.  le)3.  1586 

A  plea  of  payment  into  court  must  follow  the 
form  given  by  the  new  rules,  and  if  other  pleas 
are  pleaded  to  part  of  tlie  plaintiff's  demand,  the 
plea  of  payment  into  court  should  be  put  last,  and 

5 leaded  to  the  residue.     Sharman  v.  Stevenson, 
Dowl.  P.C.  709;  2  C.  M.  &  R.  75;  5  Tyr. 
564 ;  1  Gale,  74.  1586 

A  special  demurrer  to  a  plea  of  payment  of 
money  into  court,  that  **  it  varies  from  the  form 
given  by  the  rule,"  is  sufficient  to  raise  an  objec- 
tion, that  the  plea  is  bad  for  want  of  a  proper  con- 
clusion of  a  prayer  of  judgment.    Id. 

To  a  declaration  in  indebitatus  assumpsit  for 
money  had  and  received,  and  on  an  account 
Btated,  the  defendant  pleaded  as  to  252.  parcel, 
6lc.  that  the  plaintiff  ought  not  further  to  main- 
«  tain  his  action,  because  the  defendant  brings  into 
court  here  the  said  sum  of  25/.  ready  to  be  paid  to 
the  plaintiff.  And  the  defendant  further  saith, 
that  the  plaintiff  has  not  sustained  damage 
to  a  greater  amount  than  25/.  in  respect  of 
the  causes  of  action  in  the  declaration  men* 
tioned,  as  to  the  sum  of  25/.,  concluding  with  a 
verification.  The  defendant,  as  to  the  residue  of 
the  monies  in  the  declaration  mentioned,  pleaded 
non  assumpsit: — Held,  on  special  demurrer,  that 
the  plea,  as  to  the  payment  of  money  into  court, 
was  ill,  for  not  concluding  with  a  prayer  for  judg- 
ment to  the  further  mamtenance  of  the  action. 
Id. 

To  a  plea  of  payment,  3/.  8«.  2<2.  in  satisfaction 
and  discharge  ol  defendant*s  promise ;  replica- 
tion, that  derendant  did  not  pay  it  in  satisfaction 
and  discharge,  nor  did  plaintiff  receive  it  in  satis- 
faction and  discharge : — Held,  on  demurrer,  un- 
objectionable. Webb  V.  Weatherby,  1  Bing.  N. 
R.  o02.  1586 

In  an  action  for  sheep  sold  and  delivered,  the 
defendant  pleaded  a  payment  of  175/.  It  was 
proved  by  J.  J.  that  he  received  a  sum  of  175/. 
from  the  defendant's  wife,  and  ^ve  it  to  the 
plaintiff: — Held,  that  evidence  might  be  gfiven, 
that  when  the  defendant's  wife  gave  him  the 
money,  she  told  J.  J.  to  take  it  to  the  plaintiff 
for  the  sheep.  Walter  v.  Lewis,  7  C.  &r  P.  344 
—Coleridge.  1586 

To  a  declaration  in  assumpsit  for  non-per- 
formance of  a  contract  to  receive  and  pa^  for  a 
eopper,  made  to  order  at  a  specified  pnce  per 
pound  weight,  the  defendants  pleaded  inter  alia, 
the  payment  into  court  of  15/.,  and  that  the  plain- 


lion  oi  acunages  unaer  a  piea  oi 
Shirley  v.  Jacobs,  2  Bins.  N.  R. 
iard  v.  Boucher,  7  C.  &  r.  1. 


tiff  had  not  sustained  damage  to  a  greater  amoont : 
— Held,  that  they  could  not,  nnder  this  plea,  give 
in  evidence  that  they  had  countermanded  the 
order  when  only  a  part  of  the  work  had  been  done. 
Stevens  v.  Ufford,  7  C.  dbP.  97— Tindal.      1586 

On  a  plea  of  payment,  if  that  be  the  only  one, 
the  defendant  is  liound  to  begin.  Richardson  v. 
Fell,  4  Dowl.  P.  C.  10.  1586 

Payment  cannot  be  given  in  evidence  under 
the  plea  of  non-assumpsit  in  bar  of  the  action. 
Milligan  v.  Thomas,  4  Dowl.  P.  C.  373.        1586 

In  assumpsit,  payments  which  do  not  amount 
to  a  bar  to  the  action,  bnt  merely  go  to  reduce 
the  plaintiff's  demand,  need  not  be  specially 
pleaded,  but  may  be  given  in  evidence  in  mitiga- 
tion of  damages  under  a  plea  of  non-assumpsit. 
«..  ,  ,      .     ««.       .,    «   gg.  s.  p.  Led- 

1586 

Where  it  appeared  that  a  sum  of  money  had 
been  paid  to  the  plaintiff  after  action  brought,  and 
there  was  no  plea  of  payment,  the  court  on  mo- 
tion, the  payment  not  bleing  denied,  allowed  the 
damages  to  be  reduced  by  that  sum.  Richardson 
V.  Robertson,  1  Mces.  &,  Wels.  463.  1586 

Quaere,  whether  payment  either  before  or  after 
action  brought  is  admissible  in  evidence  in  re- 
duction of  damages  ?  Id. 

Where  in  debt  on  simple  contract  the  defend- 
ant  pleads  payment  of  a  certain  sum,  he  muat 

{>rove  payment  of  that  sum,  (even  though  it  be 
aid  under  a  videlicet),  in  order  to  entitle  him  to 
a  verdict  on  the  whole  plea.  But  the  plea  may 
be  taken  distributively,  and  the  issue  round  for 
the  defendant  as  to  the  amount  proved  to  be  paid, 
and  as  to  the  residue  as  to  the  plaintiff.  Couainf 
i;.  Paddon,  2  C.  M.  &  R.  547 ;  4  Dowl.  P.  C.  488 ; 
1  Gale,  306 ;  5  Tyr.  535.  .  1586 

Therefore,  where  in  debt  for  goods  sold  and  de- 
livered, and  work  and  labor  done,  the  defendant 
pleaded,  first,  nunquam  indebitatus  ;  secondly,  as 
to  parcel  of  the  sum  demanded,  to  wit,  338/.,  pay- 
ment of  338/.  in  discharge  of  that  parcel ;  thirdly, 
a  set-off  for  money  paid ;  the  plaintiff  proved  a 
special  contract  for  good,  sound,  saleable  bricks,  to 
be  made  for  him  hj  the  defendant  at  a  certain 
price  per  thousand,  and  delivery  of  so  many  as 
amounted,  at  that  rate,  to  396/. ;  the  defendant 
proved  payment  of  314/.  and  a  set  off  for  21/.,  and 
proved  also,  that  the  bricks  were  badly  made  ;  and 
the  jury  found  the  value  of  those  delivered  not 
to  be  more  than  335/.  The  court  directed  the 
verdict  to  be  entered,  on  the  plea  of  payment  as 
to  314/.,  for  the  defendant ;  as  to  the  residue,  for 
the  plaintiff:  on  the  plea  of  set-off  as  to  21/.,  for 
the  defendant ;  as  to  the  residue,  for  the  plaintiff: 
on  the  plea  of  nunquam  indebitatus  as  to  the 
whole  sum  demanded,  except  335/ ,  for  the  defen- 
dant: so  as  to  give  the  defendant  judgment  on 
the  whole  record.  Id. 


,      PHYSIC. 

A  person  created  a  doctor  of  medicine  by  a 
Scotch  university  cannot  practise  as  a  physician 
in   England,  unless  licensed  by  the  College  of 


[PHYSIC— PLEADING] 


2553 


Fhvsioians.    Collins  v.  Carnegie,  3  Nev.  &  M. 
70J ;  1  Adol.  &  Ellii,  695.  1589 

A  fortiori,  where  the  degree  is  granted  without 
residence.    Id. 

Where  a  person,  previously  a  stranger  to  the 
place,  goes  to  a  town  which  is  the  seat  of  a 
university,  and  is  told  that  a  certain  building  is 
the  college,  that  a  certain  person  whom  he  sees 
in  it  is  the  librarian,  and  this  person  shows  him 
a  seal  in  his  custody,  which  he  states  to  be  the 
seal  of  the  university,  and  produces  a  book  which 
he  states  to  be  the  Book  of  Acts  (statute  book)  of 
the  university,  and  such  person  compares  such 
seal  with  the  seal  upon  a  diploma,  the  genuine- 
ness of  which  is  in  question,  and  makes  a  copy 
(which  is  duly  examined)  from  the  Book  of  Acts 
€j£  an  entry  of  an  act  conferring  the  degree  of  M. 
D. : — Held,  that  by  a  statement  in  evidence  of 
these  facts,  the  diploma  is  authenticated,  and 
the  act  conferring  the  degree  properly  proved. 
Id. 

Where  a  declaration  alleged  that  plaintiff  had 
been  and  was  a  physician,  and  exercised  that 
profession  in  England,  and  on  that  account  had 
been  and  was  called  doctor,  meaning  doctor  of 
medicine,  and  then  stated  that  defendant  slan- 
dered plaintiff  in  his  character  of  a  physician 
practising  in  England,  and  denied  his  right  to  be 
cidled  a  doctor  of  medicine: — Held,  that  the 
plaintiff  must  prove  that  he  was  entitled  to  prac- 
tice as  a  physician  in  England.  Such  proof  is 
not  furnished  by  showing  the  fact  of  his  having 
M>  practised;  nor  by  showing  that  he  has  re- 
eeived  the  degree  of  doctor  of  medicine  at  the 
university  of  ot.  Andrews.    Id. 


A  surgeon  is  responsible  for  an  injury  done  to 
a  patient,  through  the  want  of  proper  skill  in  his 
apprentice;  but,  in  an  action  against  him,  the 
plaintiff  must  show  that  the  injury  was  produced 
Dy  such  want  of  skill,  and  it  is  not  to  be  inferred. 
And  if  a  person  goes  into  a  snrgeon*s  shop  and 
asks  to  be  bled,  saying  he  has  found  relief  from 
it  before,  and  does  not  consult  the  person  there 
as  to  the  propriety  of  performing  the  operation  ; 
if  there  are  no  external  indications  of  its  being 
improper,  such  person  is  justified  in  performing 
it,  ana  the  surgeon  will  not  be  answerable  for  its 
not  producing  a  beneficial  result.  Hancke  v. 
Hooper,  7  C.  &  F.  81— Tindal.  1590 


It  is  not  necessary  to  plead  as  a  defence  to  an 
action  on  an  apothecary  s  bill,  that  he  has  not  a 
oertificate  to  practise  from  the  society  of  apothe- 
caries, as  that  is  part  of  the  plaintiff's  case.  Mor- 
gan V.  Ruddock,  4  Dowl.  P.  C.  311 ;  1  Har.  & 
Woll.  505.  1590 

Practisini^  as  an  apothecary,  is  the  mixing  up 
and  preparmg  medicines  prescribed  by  a  phy- 
sician or  by  any  other  person,  or  by  the  apothe- 
cary himself.  Woodward  9.  Ball,  6  C.  &  F.  577 
— Williams.  1590 

The  acting  as  a  surgeon  or  accoucheur  is  not 
practising  as  an  apothecary ;  nor  would  the  party 
supplying  medicine  to  a  friend  be  so.  But  if  the 
pazty  sought  his  living  by  practising  as  an  apo- 
thecary, that  is  sufficient,  as  it  is  not  essential 


that  he  should  have  gained  his  whole  livelihood 
by  his  pn^tice.    Id. 

When  a  surgeon  attended  patients  in  cases  re- 
quiring surgical  aid,  and  also  dispensed  medicines 
to  them,  not  being  certificated  as  an  apothecary 
under  55  Geo.  3,  c.  194: — Held,  that  he  mi^ht 
recover  for  his  surgical  advice.  Simpson  v.  Ralfe, 
4  Tyr.  325.  1590 

Semble,  a  surgeon  may  dispense  medicines  to 
his  patient  in  a  case  which  he  attends  requiring 
surgical  aid.    Id. 


PLEADING. 


I.  General  Points. 

The  date  of  the  writ  need  not  be  stated  in  the 
declaration,  notwithstanding  the  pleading  rules 
of  H.  T.  4  Will.  4.  Du  Fr6  v.  Langridge,  2  Dowl. 
P.  C.  584.  1593 

It  is  irregular  to  entitle  a  declaration  of  the 
court  on  the  back  of  it  only.  Rip  ling  v.  Watts, 
4  Dowl.  P.  C.  290;  1  Har.  <&  Well.  585.       1593 

Declarations  must  be  intituled  on  the  face  with 
the  name  of  the  court.    Id. 

A  count  for  goods  sold  and  delivered,  stating 
that  the  defendant  was,  on,  dsc,  indebted  to  the 
plaintiff  in,  d^c,  for  goods  sold  and  delivered  by 
the  plaintiff  to  the  defendant  at  his  request,  with- 
out anjr  further  allegation  of  time: — Held  good 
on  special  demurrer.  Lane  v.  Thelwell,  1  JViees. 
&  Wels.  140 ;  4  Dowl.  P.  C.  705.  1594 

No  objection  on  the  ground  of  superfluity  of 
contents  can  be  taken  on  demurrer,  but  it  must 
be  the  subject  of  motion.  (Reg.  Gen.  Hil.  4 
Will.  4,  No.  6.)    Gardner  v.  Bowman,  4  Tyr.  412. 

1594 

If  a  good  cause  of  action  at  common  law  ap- 
pear in  the  declaration,  the  defendant  must,  un- 
der the  pleadinff  rules  of  H.  T.  4  Will.  4,  plead 
any  statutable  illegality  in  the  contract  on  which 
it  is  founded,  in  answer.  Barnet  n.  Glossop,  3 
Dowl.  P.  C.  625.  1594 

A  plea  alleging  a  contract,  must  aver  it  to  be 
in  writing,  if  it  be  required  by  a  statute  to  be  so. 
Taylor  v.  Hillary,  1  Gale,  22.  1596 

Whether  upon  a  traverse  of  a  grant  alleged  to 
be  made  by  a  party  seised  in  fee,  the  title  of  the 
grantor  can  be  questioned,  qusre.^  Morris  v. 
Dimes,  3  Nev.  &  M.  671.  1597 

A  plaintiff  sued  on  an  account  stated  on  the 
5th  February,  the  balance  of  which  was  in  his 
favor.  The  defendant  sought  to  give  in  evi- 
dence a  subsequent  account  stated  on  March  10th, 
in  which  the  balance  was  against  the  plaintiff: — 
Held,  that,  as  the  action  was  commenced  after 
the  new  general  rules  of  H.  T.  4  WiU.  4  came 
into  operation,  the  defendant  could  not  prove  the 
second  account  stated,  on  the  plea  of  non-assump- 
sit only,  but  should  have  pleaded  payment  or  a 
set-off.  Fidgett  v.  Penny,  4  Tyr.  650;  1  C.  M. 
&  R.  108.  1598 

The  record,  in  an  action  for  sUnd^r,  stated  that 


2554 


[PLEADING] 


the  writ  issued  on  the  4th  of  Jane,  and  that  the 
words  were  spoken  on  the  27th : — Held,  that  this 
diaerepancy  on  the  record  was  no  ground  for  ar- 
resting the  judgment.  Steward  v.  Layton,  3 
Dowl.  P.  C.  430.  1599 

If  a  plea  is  a  good  plea  when  pleaded,  but  by 
the  occorrence  of  subsequent  matter  becomes  no 
answer  to  the  action,  the  court  will  not  on  that 
account  direct  it  to  be  taken  off  the  file ;  there- 
fore, when  to  a  sci.  fa.  to  revive  a  judgment,  the 
plaintiff  pleaded  the  pendency  of  a  writ  of  error, 
the  court  refused  to  direct  tnat  plea  to  be  taken 
off  the  file  on  the  writ  of  error  being  quashed. 
Snook  V.  Maddoz,  1  Har.  A  WoU.  584.         1599 

The  rules  of  H.  T.  4  Will.  4,  made  under  the 
power  given  to  the  judges  by  the  3  &  4  Will.  4, 
c.  42,  8. 1,  apply  only  to  cases  in  which  the  cour^ 
have  a  c«>mmon  jurisdiction,  and  theirefbre  em- 
brace neither  revenue  causes  or  real  actions. 
Miller  dem..  Miller  ten.,  3  Dowl.  P.  C.  40dj  1 
Scott,  387;  1  Hodges,  31 :  S.  P.  Barnes  v.  Jack- 
son, 1  Scott,  525 ;  3  Dowl.  P.  C.  404 ;  1  Hodges, 
69.  1599 

The  rules  of  pleading  of  H.  T.  4  Will.  4,  are 
part  and  parcel  of  the  law  of  the  land.  Rofiey  r. 
Smith,  6  C.  &  P.  G62— Denman.  1599 

To  a  sci.  fa.  in  this  court,  on  a  judgment  ob- 
tained in  the  court  of  Great  Semion,  before  its 
abolition  by  the  II  Geo.  4  dt  1  Will.  4,  c.  70, 
the  defendant  pleaded  that,  by  the  practice  of  the 
court  of  Great  Session,  an  affidavit  ought  to 
have  been  first  made  of  the  amount  of  the  debt 
really  due,  which  had  not  been  done : — Held  bad 
on  demurrer,  as  well  because  it  was  a  mere  mat- 
ter of  practice,  as  because  that  practice  was  in 
fact  abolished  with  the  court ;  and  that  the  only 
mode  of  making  the  objection  available  was  by 
motion  to  the  discretion  of  the  court,  who  would 
have  ordered  such  an  affidavit  to  be  made  or  not, 
as  might  appear  right  under  the  circumstances. 
Howell  V.  Bowers,  4  Dowl.  P.  C.  366;  2  C.  M. 
A  R.  621 ;  1  Tyr.  A  G.88.  1600 


II.  Declaratioit. 

FormA — Declaration  in  trespass  commencing 
— ^*  A.  B.  and  C.  D.  complains,"  &c.,  and  stat- 
ing that  the  defendant  was  summoned  to  answer 
the  plaintiff-— not  demurrable.  Lyng  v.  Sutton, 
4  M.  &  Scott,  417.  1600 

Actions  commenced  in  inferior  courts,  and  re- 
moved by  habeas  corpus,  are  not  within  the  Uni- 
formity of  Process  Act  or  the  rule  of  M.  T.  3 
Will.  4.    Dod  V.  Grant,  6  Nev.  &  M.  70.     1600 

Therefore,  in  such  cases  the  plaintiff  may  still 
declare  against  the  defendant  in  tne  old  form,  thus : 
**  A.  B.  complains  of  C.  D  being  in  the  custody 
of  the  marshal  of  the  marahalaea  of  our  lord  the 
king,  before  the  king  himself :  For  that,"  ^k«.    Id. 

And  the  court  will,  in  all  cases  of  demurrer  to 
such  a  declaration,  assigning  for  special  cause 
the  supposed  informality  of  toe  commencement, 
presume  that  the  action  commenced  in  an  inferior 
court.    Id. 

But  if  the  declaration  did  not  in  &6t  commence 


I  in  an  inferior  conrt,  such  a  declaration  is  inega- 
.  lar,  and  may,  upon  motion,  be  set  aside.    Id. 

Aecardttnte  tcUh  Process.'] — A  declaration,  lay- 
ing the  venue  in  a  different  countv  from  that 
mentioned  in  the  process,  shall  not  be  deemed  a 
waiver  of  Uie  bail.  Reg.  Gen.  R.^.,  C.  P.,  and 
Exch.  H.  T.  2  Will.  4.  1600 

This  was  the  case  before  in  C.  P.,  Reg.  Gen. 
22  G.  3.  1600 

But  in  K.  B.  the  plaintiff  lost  his  bail  when  he 
declared  differently  from  his  writ.  Hally  v.  Tip- 
ping, 3  Wils.  61.  ^  160O 

Upon  a  writ  against  several,  the  plaintiff  may 
declare  against  one  only ;  but,  if  he  declares 
against  any  other  defendant  afterwards,  he  will 
be  irregular.  Coldwell  v.  Blake,  3  Dowl.  P.  C. 
^6;  2  C.  M.  &  R.  ^9 ;  1  Gale,  157.  1600 

A  plaintiff  may,  since  the  passing  of  the  Uni- 
formity Act,  sue  out  bailable  process  against  two, 
and  declare  against  one  only.  Carson  v.  Dow- 
ding,  4  Dowl.  P.  C.  2D7 ;  I  Har.  &,  WoU.  507. 

1600 

A  capias  quare  clausum  fregit  was  issued 
avainst  A.  and  B.,  witban  ac  etiam  in  debt,  upon 
which  A.  was  arrested  and  put  in  bail ;  writs  of 
special  capias,  alias,  and  pluries,  grounded  on  an 
original  in  debt,  and  writs  of  exigent  and  procla- 
mation were  issued  against  both.  A  supersedeas 
issued  as  to  A.,  and  an  exigent  returned  that  B. 
'was  outlawed.  A  declaration  in  debt  waa  deli- 
vered against  A.  only,  alleging  the  outlawry  of 
B.  in  that  suit.  On  a  motion  to  discharge  the 
bail  by  entering  an  exoneretur,  on  the  ground  of 
a  variance  between  the  declaration  ana  process : 
— Held,  that  they  were  not  entitled  to  it,  aa  the 
objection  might  be  a  ground  of  defence,  in  case 
the  plaintiflb  proceeded  againet  them.  Grent  v. 
Abbott,  2  Moore,  301 .  1600 

Where  the  plaintiff,  having  a  joint  cause  of 
action  against  five  several  defendants,  sued  out 
bailable  process  against  one  alone,  under  which 
he  was  arrested  and  put  in  bail,  and  afterwards 
sued  out  serviceable  process  against  the  other 
four,  and  all  the  defendants  were  named  in  the 
affidavit  to  hold  to  bail,  and  a  declaration  was 
delivered  in  which  they  were  all  included,  but  the 
bail-piece  was  taken  in  the  name  of  the  defendant 
only,  against  whom  bailable  process  had  issued ; 
the  court  of  C.  P.  refused  to  enter  an  exoneretur 
on  the  bail- piece,  as  there  was  no  variance  be- 
tween the  process  and  declaration,  on  the  grounds 
that  the  plaintiff  might  sue  out  bailable  process 
against  one  defendant,  and  serviceable  against 
others ;  that  four  only  could  be  included  in  one 
writ ;  that  the  bail-piece  must  agree  with  the  writ 
under  which  the  one  defendant  was  arrested,  and 
that  the  affidavit  of  debt  corresponded  with  the 
declaration,  which  had  been  delivered  as  arainst 
all.  Christie  V.  Walker,  7  Moore,  362;  IBing. 
48.  1600 

The  names  of  two  defendants  having  been  in- 
serted in  the  writ  of  summons,  separate  proceed- 
ings were  taken  against  each : — Held  irregular. 
Pepper  ©.  Whalley,  1  Bing.  N.  R.  71 ;  2  Dowl  P. 
C.&l.  J'*        "«  '  160O 


[PLEADING] 


2555 


A  writ  bein^  jreneral,  and  the  declaration  f  pe- 
eial,  as  aasi^ nee,  neld  to  be  no  ground  for  aettinff 
the  in  aside  as  irregular.  Knowles  v.  Johnson,  2 
Dowl.  P.  C.  6S3.  1600 

Plaintiff  having  sued  outgeneral  process,  and 
declared  specially  as  administratrix,  the  court 
of  K.  B.  refused  to  enter  an  exoneretur  on  the 
bail-piece.    Ash  worth  «.  Ryal,  1  B.  &  Adol.  19. 

1600 

If  a  plaintiff  make  an  affidavit  of  debt,  and  sue 
out  a  writ  in  his  own  right,  and  afterwards  declare 
ae  executor,  the  bail  are  discharged.  Manesty  o. 
Stevens,  2  M.  &  Scott,  563;  9  Bing.400;  1  Dowl. 
P.  C.  711.  But  see  Ilsley  v.  Usley,  3  Tyr.  2t4 ; 
2  C.  dk  J.  330 ;  1  Dowl.  P.  C.  310.  1600 

Where  the  plaintiffs  issued  a  writ  against  the 
defendant  in  their  own  names,  and  declared  in 
their  own  right,  and  described  themselves  iq  the 
affidavit  to  hold  to  bail  as  surviving  partners,  it 
was  a  fiital  variance;  and  the  court  of  C.  P.  or- 
dered the  bail-bond  to  be  cancelled,  and  would 
Dot  allow  the  plaintiflb  to  amend  their  writ  and 
declaration  on  payment  of  costs.  Attwood  v. 
Ratfenbury,  5  Moore,  909.  1600 

A  defendant,  having  been  held  to  bail  on  an 
mflldavit  of  a  debt  due  from  three  defendants  as 
surviving  partners  of  another  deceased,  was  dis- 
charged on  filing  common  bail,  the  declaration 
being  for  a  debt  due  from  the  three  defendants 
alone.    Spalding  o.  Mure,  6  T.  R.  363.  1660 

Accordance  with  process.  Thompson  v.  Dieas, 
IC.SlU,  768;  2  Dowl.  P.  C.  93;  3  Tyr.  873 

1600 

Where  a  defendant  has  been  arrested  for  goods 
sold  and  delivered,  and  money  lent  and  advanced, 
though  the  declaration  contains  no  count  for 
goods  sold  and  delivered,  the  court  will  not  enter 
an  exoneretur  on  the  bail-piece.  Gray  o.  Harvey, 
1  Dowl  P.  C.  114.  1600 

Where  the  writ  was  in  debt,  and  the  declara- 
tion was  jointly  in  assumpsit,  the  court  refbsed 
to  set  them  aside  as  being  irregular,  but  left  the 
party  to  demur.  Rotton  v.  Jeffrey,  2  Dowl.  P. 
C,&r.  1600 

A  variance  between  the  writ  and  count  (the  ac 
etiam  being  in  case  en  promises,  but  the  declara- 
tion in  debt,)  is  not  a  ground  for  entering  an  ez- 
•neretur  on  the  bail-piece,  where  the  sum  sworn 
to  is  under  4M.    Lockwood  v.  Hill,  1  H.  Black. 

aia  1600 

But  where  it  exceeds  that  sum  it  is.  Mayfleld 
r.  Davison,  10  B.  db  C.  223.  1600 

Where  a  declaration  was  delivered  in  debt,  the 
ac  etiam  in  the  writ  being  in  assumpsit,  the  court 
of  C.  P.  ordered  an  eioneretur  to  be  entered  on 
the  bail-piece  on  the  application  of  the  bail.  Ma- 
berly  v.  Benton,  5  Moore,  483.  1600 

Where  the  writ  was  in  trespass,  but  indorsed 
for  a  debt,  and  the  declaration  delivered  was  in 
an  action  of  assumpsit ;  althouffh  no  objection  was 
taken  to  the  writ  until  afler  uw  declaration  was 
Mivered,  the  court  aet  aside  both  the  writ  and 
declaration.  Edwards  v.  Dignam,  3  C  &  M.  346; 
4Tyr.2J8.  1600' 

Vol.  IV.  36 


Where  the  writ  is  irregular,  as  being  in  **  tres- 
pass," and  yet  claiming  a  debt,  and  the  defendant 
neglects  to  move  to  set  it  aside  within  proper 
time,  yet,  if  it  is  followed  by  a  declaration  vary- 
ing from  the  writ  as  in  assumpsit,  the  court  wiU 
set  aside  both  declaration  and  writ.    Id. 

Afler  issue  joined  in  assumpsit  for  goods  sold, 
the  plaintiff  added  a  special  count  for  not  deliver- 
ing a  bill  of  eichanee,  and  having  recovered  on 
that  count  only : — Held,  that  the  bail  were  dis- 
charged. Thompson  v.  Macirone,  4  D.  &>  R. 
619;  3  fi.  <&  C.  1.  1600 

A  declaration,  which  originally  corresponded 
with  the  process,  had  been  amended  by  a  judge's 
order,  by  increasing  damages,  and  adding  counts 
for  interest  and  commission : — Held,  that  this  was 
no  ground  for  exonerating  the  bail,  the  amount 
of  damages  being  before  an  arbitrator,  who  mi^ht 
apportion  them  so  as  to  prevent  the  bail  being 
improperly  charged.  Taylor  o.  Gregory,  2  B.  £ 
Adol.  257.  J600 

A  writ  being  to  answer  the  plaintiff  in  an 
action  of  trespass  on  the  case,  followed  by  a  de- 
claration in  trover: — Held,  irregular.  Bate  v. 
Bolton,  4  Dowl.  P.  C.  161.  1600 

A  declaration  in  an  action  on  the  case  is  a  va- 
riance firom  a  writ  in  an  action  on  promises,  and 
will  be  set  aside,  with  costs.  Scrivener  v.  Wat- 
ling,  1  Har.  &.  WoU.  8.  1600 

The  writ  of  summons  was  in  an  action  **  on 
promises,"  and  those  words  were  omitted  in  the 
declaration,  but  which  appeared  a  good  declara- 
tion in  assumpsit: — Held,  not  to  be  an  irregu- 
larity. Stranghan  «.  Buckle,  1  Hai.  A  WoU. 
519.  1600 

Where  Tsince  the  Uniformity  of  Process  Act) 
the  defenuant  is  arrested  upon  capias  in  as- 
sumpsit, and  the  plaintiff  aflerwards  declares  in 
covenant,  the  court  will  set  aside  the  declara- 
tion, but  will  not  direct  that  the  bail  be  discharg- 
ed.   Ward  V.  Tummon,  4  Nev.  &  M.  876. 

1600 

A  writ  was  to  answer  the  plaintiff  in  a  special 
action ;  "  The  declaration  was  on  promises."  A 
rule  to  set  aside  the  declaration  for  irregularity 
was  discharged,  with  costs.  More  v.  Archer,  4 
Dowl.  P.  C.  214.  1600 

Where  the  writ  of  summons  was  to  answer  in 
trespass  on  the  case,  and  had  no  indorsement  of 
the  sum  demanded ;  and  the  particulars  of  de- 
mand, which  had  been  delivered  with  the  notice 
of  declaration,  showed  a  claim  for  wages,  the 
court  refused  to  set  aside  the  writ  for  irregula- 
rity, the  plaintiff  not  having  declared.  Davies 
V.  Jones,  1  C.  M.  db  R.  582;  5  Tvr.  182:  S.  C. 
nom.  Addis  v.  Jones,  3  Dowl.  P.  Cf.  164.        1600 

Bail  are  not  liable  on  their  recognizance,  for 
anv  cause  of  action  which  is  not  stated  in  the 
affidavit  to  hold  to  bail.  Where  an  affidavit  to 
hold  to  bail  is  for  1&TL  and  upwards,  on  a  bill  of 
exchange  only,  and  the  plaintiff  recovers  a  ge- 
neral verdict  for  a  greater  amount,  as  well  on  tne 
bill  as  for  goods  8(3d,  the  bail  are  onW  liable  for 
so  much  as  is  recoveied  on  the  bill  of^  exchange. 
Wheelwright  v.  Jutting,  1  Moore,  51 ;  7  Taunt. 


2556 


[PLEADING] 


304 :  8.  P.  Lsrender  v.  Kiliier,  1  Tidd's  Pnc. 
292.  1600 

Where,  in  an  affidavit  to  hold  to  bail  on  a  bill 
of  exchange  for  5232.  17s.  &{.,  the  plaintiff  de- 
clared on  a  bill  for  523  liTreti,  17  loua,  and  6 
deniera,  sterling : — Held,  that  there  waa  no  va- 
riance, so  as  to  entitle  the  defendant  to  be  dis- 
charged on  filinj^  common  bail,  the  meaning  of 
the  two  expressions  being  the  same.  Gould  v. 
Logette,  1  Chit.  659.  1600 

And  where  an  affidavit  to  hold  to  bail  stated, 
'*  that  J.  8.  was  indebted  to  the  deponent  in  the 
snm  of  442.  tlr,"  being  the  amount  of  a  certain 
inland  bill  of  exchange,  drawn  by  the  said  J.  8. 
on  the  deponent,  and  bj  him  accepted  for  the 
honor  of  the  said  J.'  8.  payable  to  the  order  of 
the  said  J.  8.  at  a  day  now  past ;  and  which  said 
bill  of  exchange  was  paid  oy  Uie  deponent : — 
Held,  that,  although  the  declaration  contained 
only  the  moneys  counts  for  the  amount  of  the  bill, 
it  was  no  variance  from  such  affidavit  Brooks 
V.  Clark,  2  D.  &  R.  148.  1600 

It  is  too  late  to  apply  to  have  an  exoneretur 
entered  on  the  ground  of  a  variance  between  the 
affidavit  of  debt  and  declaration,  afier  plea  de- 
manded and  time  to  plead  given.  Kni^t  v.  Dor- 
sy,  1  B.  &  B.  48.  1600 

If  a  plaintiff  makes  an  affidavit  of  debt  against 
two  delendants,  and  issues  a  capias  against  both, 
but  declares  against  one  only,  it  is  irregular. 
Woodcock  V.  Knby,  1  Mees.  &.  Wels.  41 ;  4  Dowl. 
P.  C.  730:  8.  P.  BellotU  v.  Barella,  4  Dowl.  P. 
C.  719.  1600 

Where  the  defendant,  in  vacation,  took  out  a 
summons  at  chambers,  to  set  aside  the  declara- 
tion for  such  irregularity,  which  the  judge  dis- 
missed, and  refused  the  defendant  time  to  apply 
to  the  court  in  term,  and  the  defendant  then  took 
out  a  summons  for  time  to  plead: — Held,  that 
this  was  not  a  waiver  of  the  irregularity.  Id. 

When  the  affidavit  of  debt  was  for  goods 
sold  and  delivered, but  the  writ  was  <'  in  an  action 
'On  the  case,"  though  indorsed  with  the  amount 
of  the  debt ; — Held,  that  though  the  writ  was  not 
irregular  on  that  account,  the  arrest  was  irregular, 
as  there  could  not  be  a  good  declaration  on  the 
writ,  and  the  defendant  was  discharged.  Barker 
V.  Weedon,  4  Tyr.  860;  1  C.  M.  &  R.  396;  2 
Dowl.  P.  C.  707.  1600 

Where  the  substantive  cause  of  action  does  not 
require  special  bail  without  an  order,  if  the  plain- 
tiff holds  the  defendant  to  bail  on  the  money 
counts,  and  recovers  nothing  thereon,  the  court 
of  C.  P.,  on  motion,  will  discbarge  the  bail  from 
their  recognizance.  Caswel  v.  Coare,  2  Taunt. 
1Q7.  1600 

AlUgatum  af  Venue.] — Where,  by  consent  of 
both  parties,  ue  venue  was  laid  in  L. : — Held, 
that  no  objection  could  aflerwards  be  taken  to  the 
venue,  notwilhstanding  it  ou^hl,  under  an  act  of 
parliament,  to  have  bMB  laid  in  8.  Furnival  v 
Siiinger,  1  Bing.  N.  R.  .68.  1601 

In  assumpsit  for  not  repairiog,  the  venue  is 
not  localf  though  the  contract  he  onl^  implied 


from  the  situation  of  the  parties.    Buckworth  v. 
8impson,  1  C.  M.  &  R.  834;  1  Gale,  38.       1600 

In  covenant  bv  assignee  of  lessee  against  les- 
sor, the  plainUfr  laid  the  venue  in  Middlesex, 
notwithstanding  the  lands  to  which  the  covenant 
applied  lay  in  Surrey.  The  locality  not  appear- 
ing on  the  declaration,  and  no  issu^  being  raised 
on  it : — Held,  that  the  defendant  was  not  entitled 
to  a  nonsuit.  Boyes  v.  Hewetson,  2  Bing.  N.  R. 
575 ;  7  C.  &  P.  127.  1600 

Covenant  asainst  the  personal  representative 
of  the  lessee  of  a  term,  sued  as  assignee,  in  re- 
spect of  the  privity  of  estate,  is  a  local  action. 
Tremeere  v.  Morrison,  4  M.  dt  8cott,  609.     1600 

But  where,  in  an  action,  the  venue  was  laid  in 
Middlesex,  and  the  declaration  alleged  that  the  de- 
fendant **  entered  into  the  premises,  and  became 
possessed  thereof,  to  wit,  m  the  county  afore- 
said:"— Held,  (on  demurrer),  that  it  sufficiently 
appeared  that  the  premises  were  situate  in  the 
county  in  which  the  venue  was  laid.    Id. 

Semble,  that,  to  let  in  the  objection,  it  most 
appear  on  the  face  of  the  record  that  the  venue  is 
laid  in  the  wrong  county.    Id. 

The  insertion  of  a  venue  in  a  declaration,  con- 
trary to  the  6th  rule  of  H.  T.  4  Will.  4,  is  not 
cause  of  demurrer.  Fanner  v.  Champneys,  1  C. 
M.  dt  R  369;  4  Tyr.  859:  8.  C.  nom.  Harper  v. 
Champneys,  2  Dowl.  P.  C.  680 ;  Fisher  v.  8now,  3 
Dowl.  P.  C.  27.  1601 

The  improper  introduction  of  a  venue  into  a 
declaration,  contrary  to  the  rules  of  H.  T.  3  &.  4 
Will.  4,  c.  42,  is  no  ground  for  setting  aside  the 
declaration,  the  proper  course  being  to  apply  to  a 
judge  at  chambers  to  strike  it  out.  Townsend  v. 
Gumey,  3  Dowl.  P.  C.  168;  I  C.  M.  «&  R.  590; 
5  Tyr.  214.  1601 

Change  of  Venue.'] — ^The  venue  will  not  be 
changed  in  an  action  on  a  written  but  unstamped 
agreement.    Slack  v.  Chew,  3  Tyr.  810.        1604 

The  venue  having  been  changed  from  L.  to 
W. ;  in  an  action  of  covenant  on  a  lease  for  non 
payment  of  rent  for  premises  situate  in  H.,  the 
court  refused  to  bring  it  back.  Arden  e.  Morning- 
ton,  4  T>r.  56.  1604 

In  an  action  on  a  deed,  the  venue  may  be 
changed  under  special  circumstances,  thou|[h  an 
undertaking  to  try  at  sittings  has  been  given. 
Johnson  v.  Nevison,  2  Dowl.  P.  C.  260 :  8.  C.  nom. 
Johnson  v.  Berresford,  4  Tyr.  57 ;  2  C.  &  M.  222. 

1604 

In  an  action  for  a  libel  published  in  a  country 
local  newspaper,  the  court  allowed  the  venue  to 
be  changed  upon  special  affidavit.  Robson  v. 
Blackwell,  2  Dowl.  P.  C.  635.  1604 

In  an  action  on  a  bill  of  exbange,  the  defen- 
dant is  too  late  to  change  the  venue  after  an 
order  fbr  time  on  the  usuS  terms,  and  an  under- 
taking to  try  at  the  sittings  though  it  is  sworn 
that  all  the  witnesses  reside  in  the  county  to 
which  the  venue  is  required  to  be  moved.  Hay- 
thorn  V.  Bush,  2  Dowl.  P.  C.  240.  1604 

In  covenant  on  a  farming  lease  of  land  in 


[PLEADING] 


2567 


Essex,  for  br  eachet  of  covenintB  relatiii|r  to  the 
cultivation  of  the  land,  the  court  refused  to  allow 
the  venue  to  be  changed  from  Middlesex  to 
Essex  before  issue  joined.  Bohra  v.  Sessions,  2 
Dowl.  P.  C.  699;  4  Tyr.  275:  S.  C.  Maude  v. 
Sessions,  1  C.  M.  &  R.  86.  1604 

Semble,  that  the  venue  may  now  be  changed 
in  a  local  action.  Briscoe  v.  Roberts,  3  Dowl.  P. 
C.  434.  1604 

An  alleffation  that  an  impartial  trial  cannot  be 
had  must  be  satisfactorily  made  out  to  induce  the 
court  to  interfere.    Id. 

In  an  action  on  a  promissory  note,  and  for 
goods  sold  and  delivered,  the  defendant  cannot 
change  the  venue,  without  disclosing  his  ground 
of  defence ;  and  his  application  cannot  be  made 
before  plea  pleaded.  Parmeter  v.  Otway ,  3  Dowl. 
P.  C.  a.  1604 

Where  part  of  the  cause  of  action  arises  on  a 
bill  of  exchange,  the  venue  cannot  be  changed 
on  the  common  affidavit ;  but  in  such  a  case  the 
Tenue  can  only  be  changed  under  special  circum- 
stances. Wafthew  v.  Syers,  3  Dowl.  P.  C.  160 ; 
1  C.  M.  &  R.  596;  5  TjT.  217.  1604 

In  ejectment,  to  try  the  validity  of  a  will,  on 
the  ground  of  insanity,  the  court  refused  to  enter 
a  suggestion  on  the  roll,  under  3  &  4  Will.  4,  c. 
42,  s.  22,  to  change  the  venue  from  Somersetshire 
to  LondoD,  on  the  ground  that  the  testator  lived 
in  London  at  the  time  of  his  death,  and  that  the 
evidence  of  an  eminent  medical  man  living  in 
London  was  essential,  where  it  appeared  that  the 
testator  was  most  visited  and  best  known  at  his 
csountry  estate  in  Somersetshire,  where  the  will 
was  made,  and  in  which  county  there  were  also 
many  witnesses.  Doe  d.  Baker  v.  Uarmer,  1  Har. 
&  WoU.  80.  1602 

If  a  motion  to  change  the  venue  rests  on  soe- 
cial  grounds,  it  ought  not  to  be  made  till  after  plea 
nleaded.  Cotteril  v.  Dixon,  3  Tyr.  705 ;  1  C.  dt 
M .  661.  1606 

An  application  b^  the  plaintiff  to  change  the 
Tenue  in  a  local  action,  under  the  3  db  4  Will.  4, 
e.  42,  8.  22,  cannot  be  made  till  issue  is  joined. 
BeU  V.  Harrison,  4  Dowl.  P.  C.  181 ;  2  C.  M.  & 
R.  733 ;  1  Gale,  269.  1606 

Where  the  plaintiff  knew  the  application  would 
be  made,  leave  was  granted  to  change  the  venue 
after  issue  joined,  tnough  the  witnesses  might 
already  be  on  their  way  to  attend  the  trial.  Jones 
r.  Gee,  1  Har.  db  Woll.  183.  1606 

If  a  defendant  applies  to  change  the  venue 
after  plea,  the  onus  of  showing  special  grounds 
for  the  change  lies  on  him.  Higgins  v.  House- 
man, 3  Dowl  P.  C.  549 ;  1  Har.  A  WoU.  218. 

1606 

In  an  action  on  a  specialty,  an  application  to 
change  the  venue  cannot  be  made  until  after 
issue  joined.  Toude  r.  Toude,  4  Dowl.  P.  C.  32 ; 
1  Har.  dt  Woll.  338.  1606 

• 

Where  a  rule  for  changing  the  venue  has  been 
obtained  on  the  common  affidavit,  in  a  ease  in 
which  the  venue  can  only  be  obtained  on  special 
grounds,  and  a  rule  is  obtained  for  bringing 
sack  the  venue,  it  will  be  no  answer  to  the  lat- 


)  ter  rule  to  show  that  there  are  special  grounds 
for  keeping  tlie  venue  at  the  place  to  which  it 
has  been  changi;d ;  but  those  grounds  must  be 
made  the  subject  of  an  independent  motion  for 
changing  the  venae  in  the  first  instance.  Daw- 
son V.  Bowman,  3  Dowl.  P.  C.  160;  1  C.  M.  dt 
R.  594.  1607 

If  an  application  to  change  the  venue  has 
been  improperly  granted  on  ue  usual  affidavit, 
and  a  rule  is  obtained  to  discharge  it,  it  is  no 
answer  to  that  rule  that  there  are  specialgrounds 
for  changing  the  venue,  and  the  plaintiff  will  be 
entitled  to  retain  it ;  for  the  special  grounds  of 
changing  the  venue  should  have  been  made  the 
subject  of  a  distinct  motion.  Dalton  v.  Trevillion, 
5  Tyr-  816.  1607 

Where  a  defendant  had  changed  tlie  venue  to 
the  county  where  the  cause  of  action  arose,  it 
was  held  to  be  no  reason  for  bringing  back  the 
venue,  that  the  action  was  for  the  baJanoe  of  an 
election  dinner,  and  that  the  defendant  was  trea- 
surer of  the  county,  and  an  electioneering  agent, 
and  a  person  of  great  influence  there — it  bemg  a 
special  jury  cause.  Hill  v.  Payne,  3 Dowl.  P.  C. 
695.  1608 

Where  in  an  action  for  libel,  a  rule  was  grantp 
ed  to  change  the  venue  from  London  to  Lincoln- 
shire ;  on  the  usual  affidavit,  a  rule  to  bring  it 
back  to  London,  on  affidavit  that  the  libel  was 
published  there  as  well  as  in  Lincolnshire,  was 
made  absolute,  without  calling  on  the  plaintiff  to 
undertake  to  give  material  evidence  m  London. 
Clements  or  CTementson  v.  Newcome,  3  Dowl.  P. 
C.  425;  I  C.  M.  &  R.  776;  6  Tyr.  492;  1  Gale, 
60.  1608 

In  an  action  on  the  case  for  a  libel  published 
in  a  county  newspaper,  called  the  Liverpool 
Chronicle,  the  venue  having  been  changed  by  the 
defendant,  upon  an  affidavit  that  the  cause  of 
action  arose  in  the  county  of  Lancaster,  and 
not  elsewhere ;  and  upon  special  grounds  as  to 
residence  of  witnesses,  the  court  refused  to  bring 
back  the  venue  to  the  former  county,  upon  an 
affidavit  that  the  plaintiff  had  eight  witneiwes  in 
Loiulon,  and  that  notice  of  trial  had  been  given 
and  brieft  prepared,  it  appearing  that  several 
witnesses  for  the  defendant  lived  at  Liverpool, 
and  the  defendant  agreeing  to  withdraw  the 
general  issue,  rely  upon  his  plea  of  justification, 
and  furnish  the  plamtiff  with  a  copy  of  the 
newspaper.  Greenslade  o.  Ross,  3  Dowl.  P.  C. 
697.  1606 

It  is  not  of  itself  a  sufficient  objection  to  an 
affidavit  for  changing  the  venue,  that  it  is  made 
by  the  attorney  in  the  cause,  and  not  by  the  de- 
fendant ;  but,  semble,  that,  if  defendant  is  in 
the  country,  it  ought  to  be  made  by  him.  Biddell 
V.  Smith,  2  Dowl.  P.  C.  219.  1607 

An  affidavit  of  a  good  defence  on  the  merits 
is  not  necessary  in  order  to  changing  the  venue 
on  special  grounds,  where  the  facts  sworn  to 
amount  to  a  good  defence;  e.  g.  where  it  is 
sworn  that  the  debt  has  been  satisfied.  Johnson 
17.  Beresford,  2  C.  dk  M.  222 ;  4  Tyr.  75 :  8.  C. 
nom.  Johnson  v.  Nevison,  2  Dowl.  P.  C.  260. 

1607 

If  a  defendant  moves  to  change  the  venue  as 


2558 


[PLEADING] 


of  rights  it  is  not  salBcient  to  swear  that  the  cause 
of  action  did  not  arise  in  the  county  stated  in  the 
declaration,  and  that  it  will  be  inconvenient  lor 
him  to  tiy  there.  He  most  make  the  ordinarj 
affidavit,  showing  in  which  county  the  cause  of 
aetion  did  arise.  Palmer  v.  Terry,  2  Dowl.  P-  C. 
566.  1607 

An  attorney  is  entitled  to  retain  his  venue  in 
Middlesex,  notwithstanding  the  Uoiformity  of 
Process  Act,  and  his  not  having  entered  his  cer- 
tificate. Partington  v.  Woodcock,  2  Dowl.  P.  C. 
650.  1607 

The  venue  cannot  be  changed  in  an  indict- 
ment for  conspiracy,  until  issue  is  joined.  Rei 
V.  Forbes,  2  Dowl.  P.  C.  410.  1607 


Joinder  of  Countsl—Two  actions  for  penal* 
ties  having  been  brought  for  the  same  oronce, 
and  the  de&ndant  having  pleaded  the  prior  action 
in  bar  of  the  second,  in  which  the  declaration 
contained  sii  counts,  though  the  declaration  in  the 
former  action  contained  only  four,  a  judge  made 
an  order  that  two  of  the  counts  should  be  struck 
out  as  being  unnecessary ;  and  the  court  refused 
to  set  aside  that  order.  Jones  v.  Key,  2  Dowl. 
P.  C.  265;  2  C.  &  M.  340  ;  4  Tyr.  238.        1612 

Sembk,  that  under  the  R.  H.  T.  4  Will.  4,  the 
court  or  a  judge  has  no  jurisdiction  to  disal- 
low two  or  more  counts  in  a  declaration,  where 
thev  show  different  causes  of  complaint  not  va- 
ried in  statement,  description,  or  circumstances 
only.    Lawrence  v.  Stevens,  1  Gale,  164.     1612 

The  common  counts  are  separate  and  distinct 
counts  ibr  the  purposes  of  pleading.  Jourdain 
9.  Johnson^  4  Dowl.  P.  C.  534 ;  5  Tyr.  524 ;  1 
Gale,  312.  1611 

The  declaration  in  assumpsit  contained,  first, 
a  count  on  a  bill  of  exchange  by  the  indorsee 
against  the  drawer,  and  then  stated  various  debts 
of  1001.  each  for  |;oods  sold,  &c.,  with  the  com- 
mon oonolusion  m  the  form  given  by  the  rule 
T.  T.  I  Will.  4.  The  defendant  pleaded  as  to 
the  first  eount  of  the  declaration,  ana  as  to  121, 2f., 
parcel  of  IWU.  in  the  second  count,  claimed  to  be 
due  for  goods  sold,  and  as  to  lOOI.  in  the  second 
count  al&ged  to  be  due  on  an  aooount  stated,  and 
the  promises  made  by  the  defendant  in  respect 
thereof,  payment  of  6\L  9s.  Id.  into  court  in  the 
form  given  by  the  rule  of  H.  T.  4  Will.  4,  and 
the  general  issue  was  pleaded  to  the  residue : — 
HelcU  that  this  pica  would  have  been  clearly 
good  to  the  declaration,  except  to  the  count  on 
tnc  bill  of  exchange ;  but,  quere,  whether  it  was 
good  for  not  specifying  how  much  was  paid  in  on 
the  bill .' — field,  secondly,  that  the  plea  was  bad 
on  special  demurrer,  for  treating  the  claims  for 
goods,  monies,  &c.,  as  one  count,  inasmuch  as 
ttioM  demands  being  stated  in  the  form  given  by 
the  role  of  T.  T.  1  Will.  4,  aie  not  onljr  to  be 
oonsidered  as  separate  counts  with  a  view  to 
costs,  but  also  for  the  purpose  of  pleading.  But, 
semble,  that  if  that  form  is  not  strictly  lollowed, 
and  there  should  be  several  debts  or  causea  of 
action  stated  by  way  of  indebitatus  assomwit, 
with  one  promise  only,  and  without  any  words  to 
make  the  promise,  several  quoad  each  of  the 


debts,  such  count  must  be  treated  as  several  for 
the  Durpose  of  costs,  under  the  rule  of  H.  T.  4 
Will.  4,  though  it  might  not  be  so  for  Uie  pur- 
pose of  pleading.    Id. 

A  declaration  contained  one  count  claiming  a 
fee  or  reward,  in  the  name  of  meiage  on  coals 
imported  into  the  port  of  T.,  alleged  to  be  due 
to  the  plaintiff  as  lessee,  under  the  corporation 
of  T.,  of  an  ancient  office  of  meter,  to  which  the 
fee  was  stated  to  be  incident ;  and  another  count 
claiming  the  same  sum  as  a  port  duty : — Held, 
that  these  counts  were  only  different  statements 
of  the  same  subject-matter  of  complaint,  within 
the  meaning  of  the  rule  of  H.  T.  4  Will.  4,  and 
that  one  or  them  must  be  struck  out.  Jenkins 
9.  Treloar,  1  Meee.  dt  Wels.  16;  4  Dowl.  P.  C. 
690.  1612 

A  declaration  contained  one  count  for  double 
rent,  on  the  11  Geo.  2,  c.  19,  s.  18,  and  another 
count  for  use  and  occupation.  The  court  refused 
a  rule  to  strike  out  one  of  the  two  counts. 
Thornton  v.  Whitehead,  1  Mees.  di  Wels.  14  ;  4 
Dowl.  P.  C.  747.  1619 

Applications  to  strike  out  counts  ought  to  be 
made  to  a  judge  at  chambers  in  the  first  mstance. 
Ward  V.  Graystock,  4  Dowl.  P.  C.  717.         1612 

In  If^erior  Courts.'] — In  an  action  of  debt  on 
a  judgment  of  an  inferior  court,  the  declaration 
is  bad  on  demurrer,  if  it  does  not  contain  an  aver- 
ment that  the  cause  of  action  arose  within  the 
jurisdiction  of  the  court  below  :  it  is  not  enough 
to  allege  that  the  plaintiff  recovered  his  damages 
within  that  jurisdiction.  Read  o.  Pope,  4  Tyr. 
403 ;  1  C.  M.  &  R.  302.  1613 

Declaration  stated  that  defendant  was  in- 
debted to  plaintiff  within  the  jurisdiction  of  the 
county  court  for  the  wages  of  and  due  and 
owing  to  plaintiff  within  the  jurisdiction,  as 
the  servant  of  the  defendant.  Admitted,  that 
this  was  a  sufficient  allegation  of  the  cause  of 
action  having  accrued  within  the  jurisdiction. 
Chitty  V.  Dendy,  3  Adol.  A  Ellis,  319;  4  Nev.  & 
M.  843 ;  1  Har.  dt  Woll.  169.  1613 

Whether,  in  indebitatus  assumpsit  in  an  infe- 
rior court,  an  omission  to  state  that  the  debt  ac- 
crued within  the  jurisdiction,  it  being  alleged 
that  the  defendant  was  indebted  within  the  juris- 
diction, and  that  the  promise  was  made  there,  is 
error,  quere  ?    Salter  v.  Slade,  3  Nev.  &  M.  717. 

1613 

nnu  of  dtdaHng.]'~By  2  WUl.  4,  c.  39,  s.  11, 
no  deeUtration,  or  pUading  ^fter  deelaratUtn^  ^uiU 
be  filed  or  doUverid  behoten  the  IQtk  day  of  Aur 
gyst  and  2itk  of  October  ^  in  any  y$ar.  1614 

It  is  no  ground  for  setting  aside  a  declaration, 
that  it  has  been  delivered  in  defiance  of  an  in- 
junction of  a  court  of  equity,  restraining  the 
plaintiff  from  proceeding  at  law.  Home  v.  Took, 
4M.&.Scott,183.  1614 

If  a  plaintiff  proceeds  by  writ  of  summons,  be 
cannot  declare  against  the  defendant  until  eight 
days  aAer  the  service,  indosive  of  the  dajr  oi 
serving  the  writ,  have  expired :  and  if  he  does,  he 


[PLEADING] 


255$> 


will  Dot  be  entitled  to  the  costs  of  his  declaration. 
Fish  V.  Palmer,  2  Dowl.  P.  C.460.  1()14 

It  it  not  too  late  on  the  25tb  to  take  advantage 
of  an  irregularity  in  declaring  too  soon,  which 
has  occared  on  the  7th.    Id. 

It  is  no  inegalaritj  to  declare  before  the  ex- 
piration of  eight  diiys  afler  service  of  the  writ  of 
summons,  if  the  defendant  has  appeared.  Mor- 
ris V  Smith,  2  C.  M.  dc.  R.  314 ',  4  Dowl.  P.  C. 
198 ',  1  Gale,  IbT.  1614 

The  nile  H.  T.  2  Will.  4,  No.  35,  applies  to 
all  eourts  and  to  all  causes,  whether  originally 
brought  in  a  superior  court,  either  bj  servu^eable 
or  bailable  process,  or  removed  there  by  habeas 
corpus.  NorrisU  v.  Richards,  5  Nev.  &  M.  268 ; 
1  Har.   &  WoU.  437.  1614 

Where  a  cause  is  removed  by  habeas  corpus 
fh>m  an  inferior  court,  the  cause  is  not  out  of 
court  for  want  of  declaration,  until  four  terms 
from  the  time  of  bail  put  in.    Id. 

Where,  therefore,  a  party  arrested  in  a  suit 
commenced  in  a  borough  court,  removes  the 
cause  by  habeas  corpus  into  the  K.  B.,  and  no 
further  proceeedings  are  had,  the  suit  is  not  de- 
termined, so  as  to  support  an  action  for  a  mali- 
cious arrest,  until  a  year  alter  the  return  of  the 
habeas.     Id. 

Upon  such  a  removal,  the  defendant  is  not 
bound  to  accept  a  declaration  after  the  expiration 
of  two  terms ;  but  the  plaintiff  cannot  be  non- 
prossed.    Id. 

A  plaintiff  may  declare  de  bene  esse,  when  a 
bail  bond  has  been  taken,  and  special  bail  has 
not  been  put  in  within  eight  days  after  the  arrest 
Hodson  V.  Mee,  5  Nev.  &  M.  302 ;  1  Har.  &.  Woll. 
398.  1614 

After  the  expiration  of  eight  days  from  an  ar- 
rest upon  a  writ  of  capias,  and  before  special  bail 
have  Deen  perfected,  the  plaintiff  may  declare 
de  bene  esse,  whether  special  bail  have  been  put 
in  or  not,  and  the  rule  in  which  it  is  a  condi- 
tion of  the  bail-bond  standing  as  a  security  that 
the  plaintiff  shall  have  declared  de  bene  esse  is 
stiU  m  force.  Baisley  v.  Newbold,  2  C.  M.  &  R. 
395 ;  4  Dowl.  P.  0. 177 ;  1  Gale  245.  1614 

Where  a  defendant  pnta  in  bail,  but  does  not 
justify,  a  declaration  de  bene  esse  is  properly 
iled  and  not  delivered.  Rex  v.  Sheriff  of  Mid- 
iflesex,  3  Dowl.  P.  C.  186.  1614 


A  plaintiff  will  be  allowed  time  to  declare, 
where  in  a  joint  action  he  cannot  bring  one  of 
the  defendants  before  the  court,  in  conseauenee 
of  his  absence  from  this  coautry.  Richaroaon  v. 
Pollen,  1  Hodges,  75.  1615 

Where  one  of  two  defendants  is  in  custody, 
and  the  plaintiff  is  proceeding  to  outlawry  a^inst 
the  oUier,  he  must  apply  to  the  court  or  a  judge 
for  time  to  declare  against  the  prisoner  until  the 
outlawry  of  the  other  is  peifeeled.  De  Lannoy 
i».  Benton,  1  Scott,  386.  161% 

If  a  plaintiff's  proceedings  on  a  writ  of  sum- 
mons are  stayed  by  rule,  he  is  boond  to  declare 
within  a  year  after  the  expiration  of  that  rule,  or 
be  win  be  out  of  oourt.  Unite  v.  Humphrey,  3 
Dowl.  P.  C.  532.  1615 


The  rule  that  the  plaintiff  must  declare  within 
one  year  from  the  return  day  of  the  process,  ap- 
plies to  real  as  well  as  personal  actions.  Barnes 
V.  Jackson,  1  Bing.  N.  R.  545;  3  Dowl.  P.  C. 
404  ;  1  Hodges,  59.  1615 

The  year  within  which  a  plaintiff  roust,  ac- 
cording to  the  rule  of  law,  deliver  his  declara- 
tion, is,  in  real  as  well  as  personal  actions,  to  be 
reciioned  from  the  return  day  of  the  writ,  and 
not  from  the  date  of  the  defendant's  appearance. 
Id. 

In  quare  impedit  the  writ  was  returnable  Jan* 
8th,  1834  ;  defendants  appeared  Jan.  11th,  1634  ; 
plaintiff  declared  Jan.  10th,  1835.  The  court 
set  aside  the  declaration  as  too  late.     Id. 

After  a  summons  had  been  taken  out  for  set- 
ting aside  an  irregular  declaration,  and  both  par- 
ties having  attended  before  the  judge,  who  re- 
ferred them  to  the  court : — Held,  that  the  plain- 
tiff could  not  withdraw  the  declaration  without, 
paying  costs.  Belloti  v.  Barella,  4  Dowl.  P.  C. 
719.  1615 

A  declaration  delivered,  although  in  disobe- 
dience to  an  injunction  in  equity,  is  regular. 
Home  V.  Took,  2  Dowl.  P.  C.  776.  1615 

/Notice  of  DeclartUums.] — Interlocutory  judg- 
ment cannot  be  set  aside  because  the  notice  of 
declaration  is  irregular.    Smith  v.  Clarke,  2  Dowl. 
P.  C.  S«18.  1617 

An  obiection  to  a  notice  of  declaration,  on  the- 
ground  of  variance  from  the  writ,  must  be  taken 
within  four  days  from  the  term  of  serving  the 
notice,  whether  in  term  or  vaction.  An  mter 
mediate  Sunday  counts  as  one  of  those  days. 
Some  of  the  days  falling  within  the  term,  and 
some  in  vacation,  is  immaterial.  Hinton  v,  Ste- 
vens, 4  Dowl.  P.  C.  283.  161(^ 

When  the  oourt  will  not  allow  service  of  a 
declaration  by  sticking  it  up  in  the  office,  see 
Heming  v.  Duke,  2  Dowl.  P.  C.  637.  1617 

In  order  to  render  good  the  service  of  a  decla^ 
ration,  by  sticking  it  up  in  the  King's  Bench 
Office,  more  than  one  attempt  must  be  made  to 
find  the  defendant  Fry  v.  Riogers,  2  Dowl.  P.  C. 
412.  1617 

A  notice  of  declaration  being  filed,  served  ini 
the  countrjr  at  150  miles  distance  on  the  day  the 
declaration  is  stated  to  be  filed,  is  regular.  Rboke^ 
V.  Sherwood,  4  Dowl.  P.  C.  363.  1617 

A  motion  to  set  aside  a  judgment  as  irregular- 
for  being  signed  to  early,  on  the  13th,  notice  or 
declaration  not  having  been  given  till  the  5th,. 
was  held  to  be  answered  by  an  affidavit  that  the 
notice  was  served  on  the  4tb ;  though  it  was  not 
shown  whether  the  notice  was  served  on  that  day 
before  or  afler  declaration  filed.    Id. 

Where,  in  the  service  of  a  notice  of  declara- 
tion, the  probabilities  are  that  it  has  come  to  the- 
hands  of  the  defendant,  and  the  latter  does  not 
deny  that  it  had  come  to  his  knowledge,  the 
court  will  not  set  aside  the  service.  Rolfe  v^ 
Brown,  3  Dowl.  P.  C.  628.  |6I7 

Where  the  defendant's  residence  is  unknown^ 


2560 


1  PLEADING] 


applicatioD  moBt  be  made  to  the  court  in  the 
fint  instance  for  leave  to  seire  the  declaration  in 
a  particular  manner ;  and  if  the  declaration  it 
left  at  the  defendant's  last  place  of  abode,  the 
court  will  not  afterwards  declare  such  service  to 
be  good.  Trouffhton  v.  Craven,  3  Dowl.  F  C 
436.  161 7 

III.  Imparlaitca. 

Where  a  plaintiff  declares  in  vacation,  the  de- 
fendant is  entitled  to  an  imparlance,  notwith- 
standing the  2  Will.  4,  c.  39,  s.  11,  and  2  Reg. 
G^n.  H.  T.  4,  Will.  4,  (Pleading  Rules).  Frean 
V.  Chaplin,  2  Dowl.  P.  C.  523.  1618 

The  2  &  3  Will.  4.  c.  39,  s.  II,  abolished  im- 
parlances.   Wiglej  V.  Tomlins,  3  Dowl.  P.  C.  7. 

1618 

Since  the  Uniformity  of  Process  Act,  a  de- 
fendant is  not  in  any  case  entitled  to  an  imparl- 
ance. Nurse  v.  Geeting,3  Dowl.  P.  C.  157;  1 
C.  M.  d&  R.  567 ;  5  Tjr.  179.  1618 

IV.  TiMX  OF  pLVADiira. 

Where  a  prisoner  has  been  served  with  a  rule 
to  plead,  the  omission  of  an  indorsement  of  notice 
to  plead,  on  the  declaration,  will  not  render  irre- 
gular a  judgment  signed  for  want  of  a  plea.  Cle- 
mentson  v.  Williamson,  1  Bing.  N.  R.  356 ;  1 
Scott,  267.  1619 

A  plea  was  allowed  after  the  plaintiff  had  repli- 
ed, and  the  cause  was  in  the  paper  under  special 
circumstances.  Jones  v.  Roberts,  2  Dowl.  P.  C. 
668.  1619 

If  a  plaintiff  treats  a  plea  as  a  nallitj,  and 
signs  judgment  as  for  want  of  a  plea,  he  so  treats 
it  Tor  all  purposes,  and  cannot  afterwards  say  that 
it  was  merely  irregular,  so  as  to  be  a  waiver  of  the 
demand  of  a  plea.  Hough  v.  Bond,  1  Mees.  & 
Wels.  314.  1620 

Necessity  of  rule  to  plead.  Mould  v.  Murphy, 
2  Tyr.  538;  Pryer  v.  Smith,  3  Tyr.  820.        1621 

A  rule  to  plead  in  a  wrong  name  is  a  nullity. 
Wame  v.  fieresford,  4  Dowl.  P.  C.  361.         1621 

A  judgment  signed  (after  a  defective  plea)  as 
for  want  of  a  plea,  is  irregular,  unless  a  rule  to 
plead  has  been  given.    Id. 

Taking  out  a  summons  for  time  to  plead  is  a 
waiver  of  a  rule  to  plead.  Nugee  v.  M'Donell,  3 
Dowl.  P.  C.  579.  1621 

After  a  rule  to  plead  in  Easter  Term,  in  an 
action  on  a  bill  of  exchange,  defendant  paid  a  por- 
tion of  the  bill,  with  costs  to  that  time,  and  agreed 
to  pay  the  residue,  with  the  costs  of  the  action,  on 
the  1st  October  following,  if  it  were  not  previously 
paid  by  another  party :  no  payment  having  been 
made  according  to  the  agreement : — Held,  that 
plaintiff  might  sign  judgment  in  Michoelmas 
Term  without  a  fresh  rule  to  plead.  Usbome  v. 
Pennell,  1  Bing.  N.  R.  320 ;  1  Scott,  277.      1621 

Rules  to  replv,  or  to  plead  any  subsequent 
pleading,  must  m  served.  Pound  v.  Lewis,  2 
bowl.  P.  C.  744.  1G21 

Where  the  declaration  wan  delivered  on  the  7th 


to  plead  in  four  days,  and  on  the  10th  an  order 
for  particulars  was  obtained,  which  were  delivered 
on  the  13th : — Held,  that  judgment  for  want  of  a 

{>lea,  signed  at  ten  o'clock  on  the  15ih,  was  regu- 
ar.    Tate  v.  Bodfield,  3  Dowl.  P.  C.  218.       1624 


Where  three  months*  time  to  plead  are  g^^ 

"  Tu 


Tiven 
uner 
months,''and  not  calendar  months.  Soper  e.  Cur- 
tis, 2  Dowl.  P.  C.  237.  1622 

If  the  time  for  pleading  does  not  expire  until 
after  the  10th  of  August,  although  it  may  be  en- 
larged time,  the  deTendant  has  still  the  same 
time  for  pleading  as  if  the  declaration  had  been 
filed  or  delivered  on  the  24th  qf  October.  Wilson 
V  Bradslocke,  2  Dowl.  P.  C.  416.  1622 

If  a  plaintiff  gives  a  greater  number  of  da^s  for 
pleading  than  by  the  practice  of  the  court  is  re* 
quired,  the  defendant  is  entitled  to  avail  himself 
of  that  greater  number.  Solomonson  o.  Parker, 
2  Dowl.  P.  C.  405.  1623 

An  order  for  seven  days'  time  to  plead,  was 
obtained  on  May  15th;  on  the  22nd,  pleas  were 
delivered,  but  irregularly  in  several  res]>ects,  and 
on  the  evening  of  that  day,  the  plaintiff  signed 
judgment  as  for  want  of  a  plea :  the  court  set 
aside  the  judgment  as  having  been  signed  too 
early.  Pepperell  v.  Burrell.  2  Dowl.  P.  C.  674  ; 
1  C.  M.  at  R.  372;  4  Tyr.  611.  1622 

Seven  days  time  for  pleading  gives  the  whole 
of  the  seventh  day  to  plead  in,  after  excludiof 
the  day  on  which  the  oraer  is  made.    Id. 

If  a  defendant  obtains  an  enlarged  time  for 
pleading  previous  to  the  10th  August,  but  which 
does  not  expire  on  that  day,  he  is  entitled  to  the 
remainder  of  the  enlarged  time  after  the  24th  of 
October  for  the  purpose  of  pleading.  Trinder  v. 
Smedley,  3  Dowl.  P.  C  87.  1622 

An  indefinite  time  to  plead  will  not  be  grant- 
ed, on  the  ground  that  the  defendant  couul  not 
safely  plead,  till  a  rule,  pending  in  another  court, 
and  mvolving  the  same  matter  of  defence,  is  de- 
termined; but  the  court  granted  time  to  plead, 
fixing  a  certain  day.  Clarke  r.  AUbutt,  1  Tjt.  A 
G.7?.  ^        1622 

Where  the  master  of  a  ship  was  served  with 
process  in  an  action  on  the  eve  of  his  departure 
on  a  foreign  voyage,  the  court  allowed  twelve 
months'  time  to  plead.  Hunt  v.  Barkley,  3  Dowl. 
P.  C.  647 ;  1  Hodges,  103.  1628 

Though  the  time  for  pleading  be  out,  a  judg- 
ment is  irregular  which  is  signed  after  a  plea  has 
been  delivered.  Leigh  v.  Bender,  4  Dowl.  P.  C. 
201 ;  1  Gale,  269.  1623 

A  plaintiff  has  no  right  to  sign  judgment  for 
want  of  a  plea,  before  the  time  for  pleading  is 
out,  although  a  bad  plea  may  have  been  deliver- 
ed.   Dakins  v.  Wagner,  3  Dowl.  P.  C.  535.  1623 

A  defendant  who  had  obtained  time  to  plead, 
and  afterwards  an  order  for  particulars  of  plain- 
tiff's  demand,  delivered  a  plea  not  eigped  by 
counsel,  though  concluding  with  a  vermcation, 
three  days  before  the  time  toT  pleading  expired. 
The  plaintiff  treated  the  plea  as  a  nullity,  and 
signed  judgment  the  da^  before  that  on  which 
tM  time  fer  pleading  expired : — Held,  that,  as  the 


[PLEADING] 


2561 


defendant  had  all  that  last  day  for  delivering  a  | 
plea  signed  by  counsel,  the  judgment  was  signed 
too  soon.    Macher  v.  Billing,  3  Dowl.  P.  C  246 ; 
1  C.  M.  &  R.  577 ;  4  Tyr  5l2.  1623 

A  declaration  was  delivered  on  the  4th  of 
August,  with  notice  to  plead  in  four  days : — Meld, 
that  judgment  could  not  properly  be  siffoed  till 
the  aflernoon  of  the  9th,  for  want  of  a  plea. 
Kemp  0.  Tyson,  3  Dowl.  F.  C.  265.  1623 

The  afternoon  in  the  Exchequer,  for  the  pur 
pose  of  signing  judgment,  does  not  commence  in 
term  till  three  o'clock.  Tata  v.  fiodfield,  3  Dowl 
P.  C.  218.  1®3 

A  plea,  being  delivered  after  nine  o'clock  in 
the  evening,  cannot  be  treated  as  a  nullity  ;  and 
a  judgment  signed  on  that  ground,  and  no  notice 
having  been  given  of  the  objection  to  the  defen- 
dant, was  set  aside.  Horsley  v,  Purdon,  2  Dowl. 
P.  C.  228.  1623 

A  motion  to  set  aside  an  interlocutory  judg- 
ment for  irregularity,  which  was  signed  because 
a  plea  was  {ueaded  in  the  name  ofa  person  who 
was  not  an  attorney : — Held  in  time,  on  the  23rd, 
the  day  of  executing  the  writ  of  inquiry,  though 
the  notice  of  executing  the  inquiry,  was  served  on 
the  15th  of  May.  Uiil  v.  Mills,  2  Dowl.  P.  C. 
G96.  1623 

A  plaintiff  cannot  treat  such  a  plea  as  a  nullity. 
Id 

The  rule,  that  an  application  to  set  aside  a 
judgment  by  default  on  affidavit  of  merits,  must 
1MB  made  witnin  a  reasonable  time,  applies  as  well 
to  a  prisoner  as  other  persons.  Five  v.  Bruere,  4 
Dowl.  P.  C.  329.  1623 


V.  What  arx  issuablk  Plkas. 

Where  a  defendant,  in  an  action  against  him  as 
adminstrator,  beinff  under  terms  to  plead  issua- 
bly,  pleads  plene  administravit  and  his  own  bank- 
ruptcy, the  plaintiff  may  sign  judgment  as  for 
want  ofa  plea.  Serle  v.  Bradshaw,  2  C.  dt  M. 
148;  2  Dowl.  P.  C.  289;  4  Tyr.  69.  1623 

Where  a^  judgment  was  set  aside  on  payment 
of  costs,  with  feave  to  plead  de  novo,  tne  court 
refused  to  allow  the  defendant  to  plead  that  the 
i^ntiff,  an  attorney,  had  not  delivered  a  signed 
bill  of  costs,  in  pursuance  of  the  statute,  that  not 
being  a  plea  to  the  merits.    Becke  9.  Mordaunt, 

2  Scott,  178;  1  Hodges,  196.  1623 

Where  a  defendant  is  under  terms  to  plead  is- 
•uably,  the  plaintiff  cannot  reply  double  ;  and  if 
he  do,  the  court  will  give  leave  to  the  defendant 
to  assign  it  as  cause  of  demurrer,  and  will  allow 
it  to  be  argued*  Gisboume  v.  Wyatt,  3  Dowl.  P. 
C.  505;  1  Gale,  35.  1623 

The  term  of  '*  rejoining  gratis"  does  not  ex- 
tend to  a  joinder  in  demurrer.  Jones  v.  Key,  2 
C.  &  M.  340;  2  Dowl.  P.  C.  265 ;  4  Tyr.  238. 

1623 

Where  a  defendant  was  under  terms  of  rejoin- 
ing gratis,  and  the  plaintiff  signed  judgment  for 
want  of  a  rejoinder,  when  he  might  have  himself 
added  a  similiter,  the  court  set  aside  the  judg- 
ment,  but  without  costs.  Beaton  «.  Scale  or  Skev, 

3  Dowl.  P.  C.  537 ;  1  Har.  &  WoU.  210.        1^ 


Although  a  defendant  is  under  terms  to  rejoin 
gratis,  and  take  short  notice  of  trial,  the  plaintiff 
cannot  sign  judgment  of  non  pros  for  want  of  a 
rejoinder,  unless  a  demand  for  that  purpose  has 
been  made.  Id. 


Vll.  Plkas  in  Abatehknt. 

In  an  action  against  A.,  a  plea  in  abatement, 
alleging  the  nonjoinder  of  B.  as  joint  contractor, 
is  not  sufficiently  verified  by  an  affidavit  statins 
that  A.  «&  B.  were  partners  during  the  period 
within  which  the  cause  of  action  was  stated  in 
the  special  counts  of  the  declaration  to  have  ac- 
crued, but  which  does  not  show  that  they  con- 
tinued in  partnership  down  to  the  time  laid  in  the 
common  counts.  Dobbin  v.  Wilson,  3  Nev.  &,  M. 
260.  1625 

Upon  a  plea  in  abatement  of  pendency  of  another 
action  in  another  court  for  the  slime  cause,  con- 
cluding with  a  prout  patet  per  recordum,  it  ia 
sufficient  to  satisfy  the  plea  if  a  record  of  a  writ 
is  produced.  Kerby  v.  Siggers,  2  Dowl.  P.  C. 
659.  1625 

The  plaintiff  issued  two  writs,  one  out  of  thia 
court  and  the  other  out  of  the  Exchequer.  The 
first  was  never  served ;  on  the  second  the  plain- 
tiff declared.  The  defendant  pleaded  to  the  se- 
cond action,  another  action,  pending  for  the  same 
cause  in  this  court.  The  plaintiff  replied  nul 
tiel  record,  and  served  the  defendant  with  a  no- 
tice to  produce.  The  defendant  made  up  a  roll 
from  the  precipe  of  this  court.  The  court  di- 
rected it  to  be  cancelled,  with  costs.  Kirby  v. 
Siggers,  2  Dowl.  P.  C.  813.  1625 

Since  the  rule  of  H.  T.  4  Will.  4.  No.  15,  it  is 
not  necessary  to  set  out  in  the  issue  and  Nisi 
Prius  record  a  previous  plea  in  abatement,  and 
judgment  of  respondent  ouster  thereon,  the  omis- 
sion to  do  so  is  no  gnmnd  for  setting  aside  a  ver- 
dict, or  arresting  the  judgment,  even  where  the 
defendant  had  reiused  to  receive  the  issue  on  that 
ground.  Pepper  v.  Whalley,  5  Nev.  &  M.  437 ;  1 
Har.  &  Woll.  480.  1625 

A  plea  of  privilege  cannot  be  distinguished 
from  a  plea  in  abatement,  and  must  be  accompa- 
nied by  an  affidavit  of  verification.  Davidson  v. 
Watkms,  3  Dowl.  P.  C.  129.  1625 


Vlll.  Pleas  in  bar  aitp  subsequxht 
Plxadihgs. 

Form} — A  plea  must  still  conclude  with  a 
verification  or  to  the  country,  notwithstanding 
the  rules  of  H.  T.  4  Will.  4.  Snow  v.  Stevens, 
2  Dowl.  P.  C.  664 :  S.  C.  nom.  Knowles  «.  Ste- 
vens, 1  C.  M.  db  R.  26.  1628 

The  rule  of  Hil.  4  Will.  4,  that  a  plea  pleaded 
in  bar  of  the  whole  action  generally  need  not  com- 
mence with  actionem  non,  nor  praying  judgment, 
applies  to  a  plea  answering  the  whole  or  one  count, 
although  there  are  other  counts  which  it  did  not 
answer.  Bird  v.  Higginson,  2  Adol.  A  Ellis,  697 ; 
4  Nev.  &  M.  505 ;  1  Har .  A  Woll.  61 .  1628 

The  expression  "  the  whole  action  generally," 
in  Reg.  Gen.  U.  T.  4  Will.  4,  No.  9,  means  only 


[PLEADING] 


eoetoiBed  intheeoeM  to  which 
Id. 


Ibe  whole 
the  plea  b 

To  a  declintion  upon  moaey  had,  aad  abo 
upon  an  accoant  stated,  the  defendant  may  in  his 
plea  allege  that  the  sereral  sams  mentioned  in 
the  two  coants  are  the  same  debt  and  not  distinct 
debts,  and  then  plead  orer  to  the  debt  so  consul i. 
dated.    Meev.Tomlioson,5NeT.&M.(8l.  le^b 

But  where  the  plaintiff  declares,  first,  for  work 
and  labor;  secondly,  for  money  paid ;  and  thirdly, 
oo  the  aecoont  stated ;  a  plea  alleging  that  2M., 
parcel  of  the  sam  mentiooied  in  tte  tnird  coont, 
and  3(M.,  parcel  of  the  serenil  sums  demanded  in 
the  first  and  second  coants,  are  one  ard  the  same 
debt  of  90L,  and  not  distinct  debts  of  2M.,  was 
held  bad,  on  special  demnrrer,  for  not  showing 
how  much  of  the  201.,,  admitted  to  be  doe  on  the 
first  two  coants,  is  admitted  to  be  oo  doe  on  each 
of  those  two  coants  separately.    Id. 

Whether  a  plea,  directly  and  expressly  deny- 
big  the  la£ts  alleged  in  one  coant  of  the  declara- 
tion, and  wholly  inapplicable  to  the  other  caases 
of  action  stated  in  the  declaration,  but  without 
any  introdactory  statement  professedly  limiting 
its  application  to  the  first  count,  is  to  be  consider- 
ed as  a  plea  to  that  eount  only,  or  as  an  informal 
answer  to  the  whole  declaration,  qu«re .'  Wor- 
ley  r.  Harrison,  5  Ner.  &  M.  173;  I  Har.  A 
WoU.  426.  IC^ 

To  a  declaration  containing  the  common  counts, 
the  defendant  pleaded  as  to  part,  that  he  was 
not  indebted ;  as  to  the  residue,  that  be  paid  it 
before  the  commencement  of  the  action,  and  con- 
cluded to  the  country.  Upon  special  demurrer 
to  the  last  plea:— Held  bad.  Mack  v.  Rust,  4 
Dowl.  P.  C.  206.  less 

A  plea  to  an  action  of  debt  for  goods  sold  and 
delivered,  and  on  an  account  stated,  that  the  de- 
fendant was  dischaiged  by  order  of  the  insolvent 
debtors'  court,  '«of^and  from  the  said  several 
debts  and  causes  of  action,  if  any,*'  is  bad  on  spe- 
cial demurrer,  for  hypothetically  and  not  directly 
confessing  the  cause  of  action  sought  to  be  avoidf- 
€d.  Gould  V.  Lasbury,  1  C.  M.  &  R.  254 ;  2 
Dowl.  P.  C.  707 ;  4  Tyr.  863.  1628 


Semble,  *«  supposed"  only  amooata  to  ^  alleged." 
Id. 

The  new  rules  of  pleading  do  not  apply  to  re- 
plications. Brown  «.  Daubney,  4  Dowl.  P.  C. 
565.  1628 

A  replication  is  bad,  although  it  follows  the  very 
words  of  the  plea,  if  it  does  not  answer  it  in  sub- 
atance.  Mooie  v.  Bolcott,  3  Dowl.  P.  C 145.  1628 

Debt  for  money  lent  and  paid.  The  plea  first 
alleged,  that  the  sums  so  lent  and  paid  were  lent 
for  the  purpose  of  paying,  and  were  paid  to  J.  R., 
the  master  of  a  ship  then  in  a  foreign  port,  for  the 
lepairs  of  such  ship,  and  not  on  Uie  security  or 
liability  of  the  defendant;  and  then  went  on  to 
state  an  agreement  made  in  such  foreign  port  be- 
tween the  plaintiff  and  J.  R.  for  the  defendant  for 
bottomry,  and  a  bottomry  bond  given  by  J.  R.  to 
the  plaintiff  m  pursuance  of  such  agreement;  by 
means  of  which  it  was  alleged  that  the  plaintiff 
desired  to  obtain  exorbitant  interest  for  his  ad- 
vances.   The  replication  alleged,  first,  that  the 


[  "^T  was  lent  aad  paid  o«  the  secnnty  aad  lia- 
bility  of  the  defimdaat ;  aceeoodly,  that  there  w^ 

1  Bo  such  agicrmrnt;  aad,  thirdly,  that  there  was 
no  sach  bond  as  was  staled  in  the  plea :— Held, 
on  special  dprnorrer,  that  the  replication  was  bad, 
for  tendenng  issues  oa  several  matters,  having  by 
the  fiiat  allegatioa  put  in  issue  tlK  whole  sub- 
stantial matter  oTdefeace.  Regil  r.  Green,  I  Mees. 
4kWe]s.328.  ifflg 

Qnw«  whether,  in  an  action  of  assumpsit, 
where  the  plaintiff  does  not  reply  de  injuria  gene- 
j  rally  to  the  facts  sUted  in  a  |^  the  circum- 
!  stances  of  his  only  taking  issue  on  one  of  them 
entitle*  the  jury  to  treat  Uie  &cte  alledged  in  the 
plea,  and  not  denied  in  the  replication,  as  admit- 
ted.    Noel  ».  Boyd,  4  Dowl.  P.  C.  416.  1638 

Sererml  Plma.l — A  summons  to  plead  several 
matters,  is  a  staj  of  proceedings  if  it  is  returnable 
at  the  time  the  judgment  oflSce  opens  on  the  day 
after  the  time  kx  pleading  expires.  Wells  v.  Secret, 

2  Dowl.  P.  C.  447.  leap 

Since  the  sUtnte  I  Will.  4,  c.  21,  several  pleas 
mav  be  pleaded  to  an  action  in  prohibition.  Hull 
».  Maak,  5  Nev.  4k  M.  455 ;  I  Har  &  WoU.  583. 

1630 

It  is  no  objection  to  pleas  that  they  are  incon- 
sistent WUkinson  r.  Small,  3  Dowl.  P.  C.  564  : 1 
Har.  &  Woll.  sd4.  1630 

Inconsistent  pleas  may  be  pleaded  under  the 
new  rules,  if  intended  bona  fide  to  support  different 
substantial  grounds  of  defence.  Dneer  v.  Triebuer , 

3  Dowl.  P.  C.  133.  1630 

A  defendant  may,  mithwithstanding  the  new 
rules  of  pleading,  plead  the  general  issue,  and 
another  plea  apparently  inconsistent,  if  he  has 
reasonable  grounds  for  supposing  both  are  neces- 
sarv  to  meet  the  exigencies  of  the  case.  Hart  v. 
Befi,  1  Hodges,  6.  1630 

To  a  declaration  on  a  bill  of  exchange  with 
the  common  counts,  the  defendant  pleaded  that 
the  bin  of  exchange  in  the  first  count  mentioned 
was  paid  when  due;  and  also,  as  to  the  first 
count,  that  he  did  not  promise ;  and,  as  to  the 
other  counts,  that  he  puts  himself  upon  the  coun- 
try :---Held,  that  the  plaintiff  was  justified  in 
treating  each  as  a  separate  plea,  though  the  se- 
cond was  declared  inadmissible  by  the  new  rules, 
and  the  last  put  nothing  in  issue ;  and  that  he 
was  therefore  justified  in  signing^  judgment,  there 
being  no  signature  to  the  pleas,  or  rule  to  plead 
double.    Hockley  v.  Sutton,  2  Dowl.  P.  C  700. 

1630 

A  defendant  may  plead  to  the  same  demand, 
first,  the  general  issue ;  and,  secondly,  that  the 
demand  accrued  for  carrying  into  effect  illegal 
wagers.  Triebnerr  v.  Duerr,  1  Scott,  102;  1 
Bing.  N.  R.  266.  1630 

Motion  fbr  leave  to  plead  several  matters ;  first, 
non-assumpsit;  secondly,  payment  as  to  part; 
thirdly,  as  to  part,  that  the  goods  were  warranted 
like  the  sample;  fourthly,  as  to  part,  that  the 
goodi  were  warranted  to  be  of  good  merchantable 
quality ;  fifthly,  that  they  were  warranted  to  be 
one  ton  weight  of  black  lead  :--FirBt  and  foorth 
disallowed.    Steel  v.  Sterry,  1  Scott,  101.      1690 


[PLEADING] 


2563 


The  court  refuaed  to  allow  a  plea  that  the  de- 
fendant had  probable  eauae,  together  with  a  plea 
of  not  ffuiltj,  in  an  action  for  a  malicious  prosecu- 
tion.   Cotton  V.  Brown,  1  Har.  &,  WoU.  419. 1630 

In  such  an  action  the  plea  of  not  euiltj  puts 
in  issue  the  want  of  probable  cause.    Id. 

A  plea,  that  the  defendant  was  not  detained  in 
easUxJv,  as  alleged  in  the  declaration,  was  held 
not  to  De  such  a  vexatious  and  frivolous  plea  as 
to  deprive  the  defendant  of  his  riffht  to  add  the 
general  issue,  there  being  an  affidavit  of  merits. 
Rex  V.  Kingston,  3  Dowl.  F.  C.  159.  1630 

In  assumpsit,  the  defendant  pleaded,  as  to  ]4«., 
parcel,  &c.,  that,  before  the  commencement  of  the 
sait,  he  paid  the  same  to  the  plaintiff ;  and,  as  to 
the  residue  of  the  said  monies,  that  he  did  not 
promise,  as  in  the  declaration  is  alleged,  and  of 
this  he  puts  himself  upon  the  country.  I'he 
plaintiff,  having  specially  demurred,  alleging 
duplicity,  and  the  want  of  a  proper  conclusion 
with  a  verification,  the  court  helci  the  plea  bad, 
and  that  judgment  for  the  plaintiff  must  be  upon 
the  whole  plea.  Ansell  v.  Smith,  3  Dowl.  P.  C. 
193.  1630 

To  a  declaration  in  trover,  the  defendant  was 
allowed  to  plead  a  right  of  lien  by  agreement, 
a  right  of  lien  by  usage,  and  the  same  usage  in 
two  other  pleas,  but  with  reference  to  a  delivery 
of  the  goods  by  two  different  parties.  Leuokhart 
V.  Ckx^r,  3  Dowl.  P.  C.  415.  1630 

Pleas  of  non-assumpsit  and  part  payment  will 
not  be  allowed  together,  nor  a  plea  of  a  warranty 
with  sample,  and  a  plea  founded  on  the  warranty' 
implied  in  law.    Steele  v.  Sturry,  3  Dowl.  P.  C. 
13&.  1630 

To  a  declaration  of  two  counts,  one  on  a  bill 
of  exchange,  the  other  on  an  account  stated,  de- 
fendant, without  a  rule  to  plead  several  matters, 
pleaded,  ^*  that  he  did  not  accept  the  bill ;  and  for 
a  luther  plea,  that  he  did  not  account :" — Held, 
that  the  informality  of  omitting  to  confine  each 
plea  to  the  count  to  which  it  applied,  did  not 
authorize  plaintiff  to  sign  judgment.  Vere  v, 
Goldsborough,  1  Scott,  %5 ;  1  Bing.  N.  R.  353. 

1630 

Where,  to  debt  on  simple  contract  in  an  infe- 
rior court,  not  of  record,  the  defendant  pleaded 
both  the  general  issue  and  setoff,  and  the 
plaintiff  treated  the  latter  plea  as  a  nullity,  re- 
plied only  to  the  first,  and  obtained  a  verdict  and 
judgment : — Held,  on  a  writ  of  false  judgment, 
that,  as  the  defendant  could  not  plead  double,  and 
the  first  plea  was  complete  in  itself,  the  second 
was  surplusa^,  and  the  plaintiff  was  justified  in 
taking  no  notice  of  it ;  and  the  judgment  was  af- 
firmed. Chittyo.  Dendy,4  Nev.  &  M.  842:  3 
Adol.  dt  Ellis,  319 ;  1  Har.  db  WoU.  169.       1630 

A  court  of  error  will  take  judicial  notice  that  a 
eonnty  court  cannot  give  leave  to  plead  double. 
Id. 

The  rule,  that  duplicity  in  pleading  most^be 
taken  advantage  of  by  special  oemurrer,  does  not 
apply  to  the  case  of  two  distinct  pleas,  pleaded 
without  leave.    Id. 

Where,  by  any  statute  made  before  3  &  4  Will. 
Vol.  IV.  37 


4,  c.  42,  a  defendant  had  a  right  to  give  special 
matter  in  evidence  under  the  general  issue,  that 
right  is  reserved  to  him  by  section  1  of  the  last- 
mentioned  act ;  but  since  Reg.  Gren.  H.  T.  4 
Will.  4,  he  cannot  plead  the  general  issue,  and 
also  a  special  plea  of  justification.  Neale  v. 
Mackenzie,  1  C.  M.  &  R.  61 ;  2  Dowl.  P.  C. 
702;    4Tyr.6r0.  1630 

Semble,  that  the  general  issue,  with  power  to 
^ve  the  special  matter  in  evidence,  is  abolished 
in  all  cases  whatever,  except  where  specially 
allowed  by  statute.  Barnett  v.  Glossop,  3  Dowl. 
P.  C.  625.  1630 

The  mere  fact  of  a  plea  being  clearly  insufii- 
cient  in  point  of  law,  is  not  a  ground  for  signing 
judgment  as  for  want  of  a  plea.  Cowper  v.  Jones, 
4  Dowl.  P.  C.  591.  1631 

The  court  will  not,  upon  affidavit,  set  aside  a 
plea  upon  which  issue  may  be  taken.  La  Forrest 
V.  Langan,  4  Dowl.  P.  C.  642.  1631 

Where,  on  issues  of  nul  tiel  record,  the  plain- 
tiff draws  up  the  record  for  the  defendant,  a  four- 
day  rule  to  produce  the  record  most  be  served  on 
the  defendant.  Begbie  v.  Grenville,  3  Dowl.  P. 
C.  502;  5Tyr  485.  1633 

Upon  an  issue  of  nul  tiel  record,  the  plaintiff 
gave  notice  to  the  defendant  to  produce  the  re- 
cord ;  and  upon  his  neglect  to  do  so,  moved  for 
judgment : — The  court  held  the  notice  to  be  ir- 
regular, and  refused  the  rule.  Id. 

The  plaintiff  issued  two  writs ;  one  out  of  this 
court,  which  was  never  served,  the  other  out  of 
the  £xcheauer,  on  which  he  proceeded  to  declare. 
The  defendant  pleaded  to  the  action  in  the  Ex- 
chequer, another  action  pending  for  the  same 
cause  in  this  court.  The  plaintiff  replied  nul  tiel 
record,  and  served  the  defendant  with  a  rule  to 
produce.  The  defendant  made  up  a  roll  from  the 
precipe  on  the  file  of  this  court : — ^The  court  or- 
dered it  to  be  cancelled,  with  costs.  Kirby  v. 
Siggers,  4  M.  db  Scott,  481.  1633 

The  court  rescinded  a  rule  for  judgment  on  a 
false  plea  of  nul  tiel  record,  to  a  sci.  fe.,  on  the 
^und  that  four  days  had  not  been  soared  to 
mtervene  between  the  delivery  of  the  issue  and 
the  rule  to  produce  the  record.  Wood  v.  Frost, 
4  M.  &  Scott,  746.  '  1633 

Signing.'] — The  old  rule  of  practice  in  Common 
Pleas,  requiring  pleas  to  be  signed  by  a  serjeant, 
is  virtually  repealed  by  his  Majesty's  warrant  of 
24th  April,  1834,  throwing  open  that  court. 
Power  V.  Fry,  3  Dowl.  P.  C.  140  :  S.  C.  nom. 
Power  V.  Izod,  1  Scott,  119;  1  Bing.  N.  R.  304. 

1684 

A  plea  of  the  statute  of  limitations  requires  to 
be  signed  by  counsel.  Macber  v.  Billing,  1  C.  M. 
&R.577;  3Dowl.  P.C.246;  4Tyr.8]S.    1634 

The  general  issue  being  pleaded  to  part  of  a 
declaration,  and  the  statute  of  limitations  to  the 
remainder,  without  the  signature  of  counsel  to- 
Held,  that  the  whole  plea  was  a  nullity.  Id. 

A  demurrer  on  the  part  of  the  crown,  in  a 
revenue  cause,  must  be  signed  by  the  attorney- 


^64 


[PLEADING] 


S(nenl.    Rex  v.  WooUett,  2  C.  M  A  R.  256 ;  3 
owl.  P.  C.  G94 ;  1  Gale,  157.  1634 

The  rate  of  H.  T.  4  Will.  4,  vequiritig  pleading 
■abaequent  to  the  declaration  to  be  delivereo 
between  the  partiea,  doea  not  apply  to  action*  of 
ejectment,  which  are  left  to  the  old  practice. 
Doe  d.  Williama  v.  Williams,  4  Nev.  6l  M.  'A9  ; 
2  Adol.  &  EUia,  381.  1634 

IX.  Demurrers. 

Form  and  Cause.] — A  defendant,  who  is  under 
terms  to  **  rejoin  gratis,"  is  not  bonnd  to  join  in 
demarrer  gratis.  Jones  v.  Key,2  C.  &  M.  340 ; 
2  Dowl.  P.  C.  265  ;  4  Tjr.  238.  1636 

Where  a  defendant,  on  the  last  day  for  joining 
in  demurrer,  obtained  a  rule  nisi  for  setting  aside 
the  plaintiff's  proceedings,  with  a  stay  of  proceed- 
ings in  the  meantioie,  which  rule  was  afterwards 
discharged  with  costs : — Held,  that  the  defendant 
was  in  time  to  join  in  demurrer  at  any  time  in 
the  day  that  the  rule  was  disposed  of,  and  that  a 
judgment  previously  sifirned  by  the  plaintiff  was 
irregular.    Vernon  v.  Hodgins,  4  Dowl.  P.  C.  665. 

1636 

If  a  demurrer  be  pleaded  to  the  whole  of  a  de- 
claration, consisting  of  several  counts,  and  any 
one  count  is  good,  the  demurrer  is  too  large,  and 
the  plaintiff  is  entitled  to  judgment.  Ferguson 
V.  Mitchell,  2  C.  M.  A.  R.  687 ;  4  Dowl.  P.  C.  513 : 
S.  P.  Spyeri^.  Thelwell,  2  C.  M.  &R.  692;  4 
Dowl.  P.  C.  509.  1636 

A  demurrer  to  the  whole  of  a  declaration,  on 
which  several  breaches  are  assigned,  on  the 
ground  that  one  of  the  breaches  is  ill  assigned,  is 
too  large,  if  it  appear  that  any  one  breach  is  well 
assigned,  and  the  plaintiff  is  entitled  to  judgment. 
Price  V.  Williams,  1  Mees.  &  «Vels.  6.  1636 

A  ttatement  in  the  margin  of  a  demurrer  to  a 
plea,  that  the  matters  disclosed  in  the  plea  con- 
tain DO  answer  to  the  declaration  : — Held,  insuffi- 
cient, within  the  meaning  of  R.  G.  2  H.  T.  4 
Will.  4.  Rosa  v.  Robinson  or  Robison,  3  Dowl.  P. 
C.779;  1  Gale,  102.  16 '6 

A  defendant,  after  having  had  time  to  plead, 
demurred  to  the  declaration,  which  was  in  debt 
on  a  bill  of  exchange,  with  the  common  counts  m 
this  form.  The  defendant  by  his  attorney  says, 
'*  that  the  declaration  is  not  sufficient  in  law ; 
and  also,  that  an  action  of  debt  will  not  lie,  and 
that  the  bill  should  have  been  stated  to  be  for 
value  received  :'•— Held,  that  the  plaintiff  was 
not  justified  in  signing  judgment  atf  upon  a  sham 
demurrer.    Lyons  v.  Cohen,  3  Dowl.  P.  C.  24:J. 

1636 

It  is  not  a  sufficient  objection  to  a  demurrer 
being  argued,  that  the  point  intended  to  be  raised 
is  not  stated  in  the  margin  of  the  demurrer. 
The  rule  only  enables  the  opposite  party  to  set 
aside  the  demurrer.  Lacy  r.  Umbers,  3  Dowl.  P. 
C.  732.  1636 

The  rule  of  Hil.  Term,  4  Will.  4.  which  re- 
quires the  grounds  of  the  demurrer  to  be  stated 
in  tlie  margin,  does  not  extend  to  revenue  cases, 
in  which  &e  three  courts  have  not  a  concurrent 
jurisdiction.  Rex  r.  Woollett,  2  C.  M.  &  R.  2o6  : 
3  Dowl.  P.  C.  694 ;  1  Gale,  157.  1636 


FrivoUnu.J — If  the  groand  of  demurrer  slated, 
pofsuant  to  2  Beg.  Gen.  H.  T.  4  Will.  4,  (Prac- 
tice Rules),  in  the  margin,  appears  sufficient,  the 
court  will  not  set  the  d<^unrer  aside  as  frivolous. 
Tyndall  v.  UUeshome,  3  Dowl.  P.  C.  2.        1636 

Where  a  demurrer  is  frivolous,  and  a  motion 
is  made  to  set  it  aside,  the  court  will  grant  "•  a 
rale  for  that  purpose  to  be  absolute,  unless  cause 
is  shown  on  a  particular  day."  Kinnearv.  Keane, 
3  Dowl.  P.  C.  154.  1636 

A  rule  obtained  on  Reg.  Gen.  Hil.  4  Wdl.  4 « 
No.  2,  for  setting  aside  a  demurrer  as  frivolous* 
must  be  drawn  up  on  reading  the  pleadings  de- 
murred to  with  the  demurrer  and  marginal  state- 
ment, or  will  be  discharged.  Howarui  v.  Hub- 
bersty,  3  Dowl.  P.  C.  455 ;  5  Tyr.  391.  1636 

A  declantion  in  one  count  stated  a  promise  to 
the  plaintiff,  and  H.  in  his  lifetime,  now  deceased. 
In  another  count,  it  stated  that  in  the  lifetime 
of  the  said  H.  the  defendant  was  indebted  to  the 
plaintiff  and  the  said  H.,  and  promised  the  plain- 
tiff and  the  said  H.  in  his  lifetime  to  pay,  with- 
out stating  that  H.  was  since  dead.  Defendant 
pleaded  to  the  first  count,  and  demurred  to  the 
second,  for  not  averring  the  death  of  H.  The 
demurrer  was  set  aside  as  frivolous,  under  Reg. 
Gen.  H.  4  Will.  4,  No.  2.  Undershell  v.  Fuller, 
5  Tyr.  392.  1636 

Paper    Books  and  j^jwneiif.lj- Argument  ot 
demurrers.  Wilson  v.  Tucker,  3  Tyr.  SSS.      1638 

Where  the  concilium  is  served  so  late  that  the 
opposite  party  has  not  time  to  prepare  and  de- 
liver the  demurrer  books  two  days  before  the  day 
for  argument,  the  court  will  not  allow  the  de. 
murrer  to  be  argued,  though  it  is  stated  to  be  a 
plea  pleaded  for  delay ;  and  the  defendant  will 
be  entitled  to  his  costs  for  appearing  to  make  the 
objection.    Britten  v.  Britten,  2  DowL  P.  C.  239. 

1638 

Where  one  party  has  omitted  to  leave  de- 
murrer books  with  the  judges,  and  the  other  has 
delivered  them  on  his  default,  and  objects  to  bis 
being  heard  till  he  shall  have  paid  the  costs  of 
such  delivery,  pursuant  to  Reg.  Gen.  Hil.  4 
Will.  4,  s.  7,  notice  must  be  given  to  such  partr 
before  the  objection  is  made  in  court.  It  will 
not  be  entertained  on  an  ex  parte  applicatioD, 
Sandell  v.  Bennett,  4  Nev.  &  M.  89;  1  Adol.  &. 
Ellis,  204.  1638 

If  a  party  seeks  to  make  his  opponent  pay  the 
costs  of^  copies  of  demurrer  books,  pursuant  to 
7  Reg.  Gen.  H.  4  Will.  4,  he  must  deliver  them 
on  the  day  afler  the  time  for  his  opponents  de- 
liverinfT  them  expires.  Fisher  r.  Snow,  3  Dowl. 
P.  C.  27.  1638 

If  one  side  neglects  to  deliver  bis  demurrer 
books  to  the  judge,  the  other  side  should  do  so  for 
him,  and  then  he  will  be  entitled  to  judgment ; 
but  otherwise  the  case  will  be  struck  out.  Abra- 
ham V.  Cook,  3  Dowl.  P.  C.  215.  1638 

Where  the  defendant  has  neglected  to  deliver 
his  demurrer  books,  and  does  not  appear  at  the 
argument  to  support  his  pleadings,  but  has  <^r- 
ed  to  give  a  cognovit,  the  court  will  give  jadg- 


[PLEADING] 


2565 


men!  for  the  plaintiff  withoat  Teqiiirin|r  the 
delivery  of  the  defendant's  demurrer  hooka.  Scott 
«.  RobaoQ,  2  C.  M.  &  R.  29.  1638 

A  'Caaie  was  entered  in  the  paper  for  ar^- 
ment.  A  defendant  having  demurred  to  a  repli- 
cation, the  plaintiff  ^ot  the  case  put  into  the 
paper  as  for  argument,  and  the  defendant  came 
prepared  to  ar^ue  the  point :  but  it  appeared  that 
the  plaintiff  had  not  joined  in  demurrer,  and  of 
course  no  proper  books  were  delivered  to  the 
judges : — Held,  that  the  delendant  was  not  en- 
titled  to  his  costs  of  appearing  for  argument. 
Howarth  v,  Hubberstv,  3  Dowl.  P.  C.  457 ;  5  Tyr. 
391.  im 

Proposed  rule  as  to  demurrer  not  intended  for 
argument.    Harvey  v.  King,  3  Dowl  P.  C.  730. 

.1638 

Judgment.']  —  Afler  argument  and  judgment 
for  the  plaintiff  on  a  special  demurrer,  the  court 
will  not  allow  the  defendant  to  withdraw  his  de- 
morrer,  and  plead  or  rejoin  issuably,  without  an 
affidavit  distinctly  exhibiting  a  defence  upon  the 
merits.    Bramah  v,  Roberts,  1  Scott,  364.      1639 

* 

Where  a  defendant  pleaded  a  frivolous  de- 
murrer so  late  in  the  term  that  there  was  not 
■officient  time  to  set  it  down  for  argument,  and 
a  motion  was  made  to  set  it  aside,  the  court  would 
only  let  the  defendant  in  to  plead  on  an  affidavit 
of  merits,  pleading  instanter,  and  paying  the  costs 
of  the  demurrer  and  the  application.  TJnderhill 
V,  Humey,  3  Dowl  P.  C.  495.  1639 

Where  there  are  two  pleas  to  the  whole  action, 
upon  one  of  which  issue  is  joined  to  the  country, 
and  upon  the  other  judgment  is  given  for  the 
defenoant  upon  demurrer,  the  court  will  allow 
the  defendant  to  strike  out  the  general  issue. 
Young  17.  Beck,  3  Dowl.  P.  C.  804.  1639 

Where  a  defendant  became  bankrupt  afler  a 
cause  was  set  down  for  argument  on  demurrer, 
the  court  refused  to  strike  it  out  of  the  paper  at 
the  suggestion  of  the  plaintiff,  althoui^h  the  as- 
signeea  refused  to  give  security  for  costs.  Flight 
V,  Gloasop,  4  Dowl.  P.  C.  1& ;  1  Hodges,  S«2. 

1639 

X.  Issue. 

If  the  issue  is  now  made  up  with  the  memo- 
imndum  formerly  introduced,  that  the  plaintiff 
has  brought  his  bill  into  court,  &c.,  it  is  irregu- 
lar, and  the  court  will  compel  the  plaintiff  to  set 
it  right    Hart  v.  DaUy,  2  Dowl.  P.  C.  257. 

1639 

The  form  of  issue  directed  by  Reg.  Gen.  Hil. 
4  Will.  4,  form  No.  1,  should  contain  the  dates 
of  the  pleadings,  but  not  the  form  of  action.  Ball 
«.  Hamlett,  1  C.M.4fcR.575;  3Dowl.P.  C.188; 
6  Tyr.  201.  1639 

The  declaration  was  delivered  in  Michaelmas 
vacation,  as  of  Mich.  T.,  and  the  plea  entitled  on 
11th  Januaij,  was  delivered  as  of  that  day, 
(being  the  first  day  of  H.  Term.)  The  issue 
was  made  up  and  delivered  as  of  Bfich.  T.  The 
court  refused  a  motion  to  set  it  aside,  for  not 
.being  made  np  of  H.  T.,  as  the  plea  might  have 


been  delivered  before  the  sitting  of  the  court  on 
11th  January,  and  no  damages  appeared  from  the 
issue  being  entered  in  Mich.  T.  Dickenson  v. 
Reynolds,  2  C.  &  M.  474  ;  4  Tyr.  374.  1639 

If  a  replication  conclude  to  the  country,  with 
an  **  &c.,'*  and  no  similiter  be  added,  the  judge 
will  try  the  cause,  as  the  *'  6ic"  is  sufficient. 
Clark  V.  Nicholson,  6  C.  &  P.  712— Parke.   1639 


Xm.  Oyxr. 

Oyer,'] — Oyer  is  demandable  at  any  period  be- 
fore the  time  for  pleading  is  out,  though  it  has 
been  extended  by  a  judge^s  order  on  terms ;  un- 
less the  order  expressly  except  the  right  to  de- 
mand oyer.  Goodricke  v.  Turley,  2  C.  M.  A  R. 
694 ;  4  Dowl.  P.  C.  431  j  1  Tyr.  &  G.  149. 

1642 

And  the  right  is  not  waived  by  pleading,  un- 
less the  plea  be  to  the  bond  or  other  instrument 
of  which  oyer  is  demanded.    Id. 

In  an  action  of  debt  upon  a  bail-bond,  the  de- 
fendant having  demanded  oyer,  which  the  plain- 
tiff refused  to  grant,  pleaded  that  the  bond  had 
not  been  assigned  to  the  plaintiffs  for  the  pur- 
pose of  preventing  the  plaintiffs  from  signing 
judgment  for  want  of  a  plea: — Held,  that  the 
defendant,  by  pleading  such  plea,  had  not  thereby 
waived  his  right  to  have  an  inspection  of  the 
bond.    Id. 

A  party  has  not  a  riffht  to  have  his  demand  of 
oyer  entered  of  record,  unless  it  was  regularlv 
made  according  to  the  practice  of  the  court.    Id. 

Where  a  declaration  in  covenant  sets  out  the 
deed,  according  to  its  le^  effect,  and  the  defen- 
dant sets  it  out  on  oyer  m  hsc  verba,  he  cannot 
demur  to  the  declaration  on  the  mere  ground  of 
variance;  because  the  deed,  asset  out  on  oyer, 
becomes  part  of  the  declaration.  Paine  v.  Eme- 
ry, 2  C.  M.  &  R.  304.  1642 


XV.   AlDBR  BY  VXRDICT. 

The  statute  of  32  Hen.  8,  c.  30,  providing  that 
a  discontinuance  shall  be  cured  by  verdict,  applies 
only  to  courts  of  record.  Chitty  v.  Dendy,  4  Nev. 
A  M.  842;  3  Adol.  &  EUis,  319;  1  Har.  ^  WoU. 
169.  1643 

To  a  declaration  on  a  bill  of  exchange  for  65^. 
with  the  other  common  eounts,  concluding  to  the 
plaintiff's  damage  of  2002..  the  defendant  pleaded 
as  to  352.,  part  of  the  bill,  tnat  it  was  an  accommo- 
dation bill,  concluding  with  a  verification ;  as  to 
402.  parcel,  &c.,  payment  into  court,  concluding 
with  a  verification ;  and  as  to  the  residue,  non- 
assumpsit.  The  replication  denied  that  the  bill  was 
an  accommodation  bill,  and  on  the  non-assump- 
sit joined  issue,  but  said  nothing  as  to  the  pay- 
ment into  court : — Held,  after  verdict,  that  there 
was  no  discontinuance  on  the  record,  or  that,  if 
there  was,  it  was  cured  by  verdict,  or  that  a  nolle 
prosequi  might  be  entered  as  to  the  AOL  Fallows 
1;.  Bird,  2  C.  M.  &,  R  457 ;  1  Gale,  246.        1643 

To  an  action  on  a  bill  of  exchange  against  an 
indorser,  the  defendant  pleaded  that  he  had  no 
notice  of  presentment,  and  concluded  his  plea  to 


3566 


[PLEADING— POOR] 


the  cooniry.  The  plaintiff  omitted  to  add  the 
similiter ;  and  after  a  verdict  for  the  plaintiff,  the 
defendant  moved  for  a  new  trial,  became  there 
was  no  issue  joined ;  but  as  the  plea  concluded 
with  an*<&c.:"~Held,  that,  after  verdict,  the 
"  dec."  might  be  considered  to  include  the  simi- 
liter, and  that  the  record  was  sufficient.  Swain 
V.  Lewis,  3  Dowl.  P.  C.  700.  1643 

A  partj  cannot  take  advantaire  of  an  ambiguity 
in  a  traverse,  after  having  taken  an  issue  upon  it, 
and  gone  to  trial.  finuOey  v,  Milnes,  I  Scott, 
626;  1  Bing.  N.  R.  644;  1  Hodges,  158.       1643 


POOR. 

Overseers.'} — If  a  private  act  of  parliament  di- 
rect that  overseers  shall  be  appomted  ^*  for  the 
term  of«  three  years  then  next  ensuing,"  semble, 
that  an  appointment  ^*  for  the  space  of  three  years 
next  eusuinff  the  date  hereof,  or  until  other  over- 
seers  shall  oe  appointed,"  is  bad.  Bristol  (Go- 
vernors, 6lc.  of  Poor)  V.  Wait,  6  C.  &  P.  ^l — 
Alderson.  1649 

It  is  not  the  imperative  du^  of  an  overseer  to 
endeavor  to  prevent  the  spread  of  small-pox 
amongst  the  poor,  by  furnishing  the  means  of 
vaccination  ;  the  court  refused  an  application  for 
a  criminal  information  against  an  overseer,  as  for 
a  breach  of  duty,  in  a  case  where  he  had  in  the 
first  instance  agreed  to  the  vaccination,  but  after- 
wards refused  to  furnish  the  means  of  doing  it. 
Anon.  5Nev.  ^^  M.  12;  1  Har.  &  Woll.  315. 

1649 

By  59  Geo.  3,  o.  12,  s.  17,  the  parish  property 
is  vested  in  the  churchwardens  and  overseers  for 
the  time  being.  Doe  d.  Higgs  v.  Terry,  5  Nev. 
AM.  556;  1  Har.  &  WoU.^- 


7. 


1649 


Evidence  of  payment  of  rent  to  the  church- 
wardens in  respect  of  premises  in  the  parish,  and 
that  leases  have  been  made  by  the  churchwar- 
dens, in  one  of  which  the  property  is  described 
as  parcel  of  the  lands  of  the  parish  church,  is 
prima  facie  evidence  that  the  premises  were  pa- 
rish property.    Id. 

A  person  holding  under  a  lease  granted  by 
parish  officers  before  the  statute,  is  a  tenant  from 
year  to  year.    Id. 

Whether  the  ordering  of  goods  by  one  over- 
seer for  the  use  of  the  parish,  creates  a  contract 
binding  upon  a  co-overseer,  is  a  question  of  fact, 
depending  upon  the  particular  circumstances  of 
each  case.  Eaden  v.  Titch marsh,  3  Nev.  &  M. 
712 ;  1  Adol.  6l  Ellis,  &91 .  1649 

])y  the  practice  of  a  parish,  the  two  overseers 
were  always  appointed  once,  but  one  of  them 
acted  solely  for  one  of  the  two  years,  and  another 
for  another.  The  acting  overseer  for  one  year 
ordered  coals,  which  were  sent  to  him  and  dis- 
tributed by  him  among  the  poor  of  the.  parish ; 
the  seller  debited  the  parish  with  them,  and  after- 
wards sued  both  overseers.  The  acting  overseer 
su&ied  judgment  by  de&ult  :-^H«ld,  Uiat,  upon 
these  facts,  the  jury  were  properly  told  to  con- 


sider whether  the  coals  were  supplied  for  the  pa- 
rish, by  whom  they  were  ordered,  and  whether 
credit  was  given  to  the  acting  overseer  only,  or  to 
both  as  overseers ;  and  to  find  for  the  defendant, 
(the  overseer  who  had  not  acted),  if  the  plaintiffii 
relied  solely  on  the  responsibility  of  the  acting 
overseer,  but  otherwise  for  the  plaintiff.  And 
the  joiy  having  found  for  the  pluntiff,  saying  that 
the  coals  were  supplied  to  the  parish,  and  the 
overseers  were  jointly  liable  as  such,  the  court  re- 
fused to  disturb  the  verdict.    Id. 

In  an  action  against  five  defendants,  as  church- 
wardens and  overseers,  for  goods  furnished  to  the 
poor  by  their  joint  order,  it  is  sufficient  for  the 
plaintiff  to  prove  that  they  all  acted  as  church- 
wardens ana  overseers,  and  signed  orders  for  the 
delivery  of  the  articles  furnished,  although  one  of 
them  be  only  an  assistant  overseer.  Kirby  v. 
Bannister,  3  Nev.  &  M.  1 19 ;  5  B.  dc  Adol.  1069. 

1649 

Money  advanced  to  the  poor  by  the  direction 
of  an  overseer  may  be  recovered  as  money  lent 
to  such  overseer.    Id. 

An  overseer  cannot  charge  the  parish  with  a . 
sum  bona  fide  paid  by  him  to  other  persons  for 
making  a  poor  rate.    Rex  v.  Gwyer,  4  Nev.  A 
M.  156 ;  1  Adol.  &.  Ellis,  216.  1649 

Nor  can  he  charge  a  sum  so  paid  for  making 
two  divisions  of  the  same.    Id. 

Nor  a  sum  paid  fmr  making  a  copy  for  collec- 
tors.   Id. 

Nor  a  sum  paid  to  an  accountant  for  examin- 
ing, making  up,  and  entering  the  accounts  of  the 
year,  and  list  of  defaulters.    Id. 

Nor  a  poundage  paid  to  persons  employed  in 
collecting  the  rates,  although  it  is  found  at  the 
sessions  that  the  charges  are  fair  and  reasonable, 
and  that  the  overseers  require  assistance.    Id. 

Nor  can  a  vestry,  even  though  all  the  then 
rated  inhabitants  be  present,  auworize  the  over- 
seers to  charge  the  parish  with  such  expenses. 
Id. 

Averment  that  plaintiff  had  been  appointed 
snd  was  assistant  overseer ;  that  he  had  passed 
certain  accounts  of  him  as  such  overseer,  and  had 
verified  them  on  oath : — Held,  sufficiently  proved 
by  evidence  that  he  had  acted  as  assistant  over- 
seer under  a  warrant  of  appointment  signed  by 
magistrates ;  that  he  had  kept  the  accounts  of  the 
parish  in  a  book  headed  **  Overseers'  Accounts ;" 
and  that  he  had  verified  those  accounts  on  oath. 
Cannell  v.  Curtis,  2  Bing.  N.  R.  228;  2  Scott, 
379 ;  1  Hodges,  342.  1^1 

Where  magistrstes,  acting  under  the  50  Geo. 
3,  c.  49j  examine  overseers  accounts,  declare  a 
balance,  and  make  an  order  for  the  payment  of 
that  balance,  and  then  issue  a  warrant  to  levy  the 
amount  by  distress,  they  cannot,  merely  on  the 
ground  or  a  doubt  whether  they  have  correctly 
ascertained  the  balance,  withdraw  the  warrant, 
and  so  render  the  constable  liable  as  a  trespasser. 
Barrens  v,  Luscombe,  5  Nev.  &  M.  330 ;  1  Har. 
&  Woll.  467.  1651 

In  such  a  case,  there  must  be  a  demand  of  the 


[POOR] 


2567 


copy  of  the  wftrrant  before  any  actiou  broaght 
agunst  the  constable.  Id. 

In  moving  for  a  mandamns  to  an  overseer  to 
deliver  up  books,  &c.  belonging  to  the*  parish, 
on  account  of  his  having  been  convicted  under  4 
A  5  Will.  4,  c.  76,  s.  97,  a  copy  of  the  conviction 
ought  to  be  annexed  to  the  affidavits  on  which 
the  rule  is  moved.  Rex  v.  Simms,  4  Dowl.  P.  C. 
294 ;  1  Har.  A  Woll.  514.  1651 

The  prohibition  in  55  Gieo.  3,  c.  147,  s.  6,  of 
the  supplyiBjK  of  goods,  materials,  or  provisions, 
lor  the  use  of  any  workhouse,  or  otherwise  for  the 
support  and  maintenance  of  the  poor,  by  the 
churchwardens  or  overseers,  does  not  extend  to 
materials  supplied  for  the  repair  of  the  work- 
house. Barber  v.  Wait,  3  Nev.  Sl  M.  611  ;  1 
Adol.&  Ellis,  514.  1650 

The  protection  applies  only  to  cases  of  goods, 
&c.  supplied  to  the  poor  people.  Id. 

Semble,  also,  that  the  section  does  not  apply  to 
contracts  for  work  and  labor,  but  only  to  cases 
where  the  action  would  be  for  goods  sold  and  de- 
livered. Id. 

Expenses  of  illness.  Paynter  v.  Williams,  3 
Tyr.  8SM.  1655 

RsUbJ] — Quere,  whether  the  owner  of  a  farm 
composed  partly  of  grass  land,  who,  upon  the  de- 
termination of  a  lease,  takes  possession  of  the 
fiirm  by  a  servant,  who  occupies  it  for  the  pur- 
poses of  protection,  but  without  dealing  with  the 
land,  is  liable  to  be  rated  to  the  poor  as  a  party 
beneficially  occupying.  Rex  v.  Buckingham- 
shire (Justices),  3  Nev.  &>  M.  68 :  S.  C.  nom. 
Rex  V.  Morgan,  2  Adol.  Sl  Ellis,  616.  1657 

Where  a  poor  rate  was  made  for  a  parish,  and 
the  name  of  a  party  who  occupied  lands  for  which 
he  was  rated  in  another  parish,  was  inserted  after 
the  rate  was  made,  the  court  refused  to  grant  a 
mandamus  to  magistrates  to  iisue  a  summons 
and  grant  a  djstress  warrant  for  non-payment  of 
the  rates.  Rex  v.  Cardiganshire  (Justices),  1 
Har.  A  Woll.  274.  1657 

The  rule  nim  was  discharged  with  costs.  Id. 

Semble,  that  a  defect  in  the  enumeration  of 
some  of  the  property  in  a  poor  rate,  is  no  ground 
for  refusing  a  mandamus  to  justices  to  issue  a 
distress  warrant.  Rex  o.  Wilson,  5  Nev.  Sl  M. 
119;  1  Har.  <k  WoU.  607.  1657 

Such  a  delect  is  ground  of  appeal.  Id. 

Quere,  whether  a  confirmation  by  the  sessions 
of  overseers*  accounts,  which  have  been  objected 
to  on  the  ground  that  the  overseers  have  omitted 
to  collect  any  assessment  from  a  party  who,  it  is 
alleged,  is  liaole  to  be  rated,  is  any  answer  to  an 
application  for  a  mandamus  to  justices  to  enforce 
a  rate  on  the  parties  ?  Id. 

Where,  afler  a  rule  nisi  for  a  mandamus  to  jus- 
tices to  issue  a  distress  warrant  for  a  poor  rate 
had  been  obtained,  a  tender  of  the  amount  was 
made  by  a  third  party  to  the  overseers  and  re- 
fused : — Held,  that  it  was  no  ground  for  discharg- 
ing the  rule.  Id. 


On  the  application  for  a  summons  fbr  non-pay- 
ment of  a  poor  rate,  the  overseer  engaged  before 
the  justices  to  procure  evidence  of  a  beneficial 
occupation.  On  the  hearing,  he  failed  to  do  so, 
and  the  justices,  deciding  against  the  validity  of 
the  rate  on  that  ground,  refused  to  issue  a  distress 
warrant : — Helo,  that  without  a  further  applica- 
tion, afler  stating  that  the '  occupation  need  not 
be  beneficial,  a  mandamus  could  not  be  granted. 
Id. 

Semble,  that  an  occupier  of  land  within  a  par- 
ish, to  whom,  on  behalf  of  himeelf  and  the  other 
tithe-payers  of  the  parish,  a  lease  of  the  tithes  of 
the  whole  parish  is  granted  by  the  vicar,  at  an 
annual  rent,  the  amount  of  which  is  apportioned, 
is  liable  to  poor  rate  in  respect  to  tne  tithes, 
though  he  personally  has  no  beneficial  occupa- 
tion. Id. 

Corn-rents  substituted  for  tithes  are  in  JT^ne- 
ral  liable  to  parochial  burthens.  Rex  v.  Nock- 
olds,  3  Nev.  Sl  M.  334.  1662 

Quere,  whether  they  would  be  so  liable,  where 
the  commissioner,  being  directed  by  the  act  to 
deem  the  tithes  equal  to  a  fixed  proportion  of  the 
net  annual  value  of  lands,  in  making  the  calcula- 
tion makes  a  deduction  from  the  gross  value  of 
the  land  for  the  parochial  burthens  ?  Id. 

An  act  of  parliament  enacted  that  the  tithes  of 
a  parish  should  be  held  in  fee  by 'A.,  who  was 
owner  of  part  of  the  lands  in  the  parish,  and  that 
all  A.'s  lands  in  the  parish  should  be  charged 
with  an  annuity  payable  to  the  vicar  for  the  time 
being,  who  had  previously  enjoyed  the  small 
tithes,  and  who,  by  an  agreement  recited  in  the 
act,  was  to  receive  such  annuity  in  lieu  of  all  his 
vicarial  dues: — Held,  that  the  vicar  was  not 
rateable  to  the  poor  in  respect  of  such  annuity, 
for  that  the  tithes  were  not  extinguished.  Rex  v. 
Great  Hambleton,  1  Adol.  &  Ellis,  145.  1662 

Tithes,  for  which  compositions  have  been  en- 
tered into  by  the  respective  occupiers,  may  be 
rated  in  the  nands  of  the  rector  in  one  entire  sum. 
Rex  V.  Sussex  (Justices),  3  Nev.  &  M.  263. 1662 

Upon  the  refusal  of  the  rector  to  pay  such 
rate,  the  justices  are  bound  upon  the  application 
of  the  overseers  to  issue  their  warrant  for  levy- 
ing it,  although  such  mode  of  rating  be  incon- 
venient to  the  rector  and  contrary  to  fonner  prac- 
tice. Id. 

Where,  on  a  question  as  to  the  rateability  of  a 
free-stone  work,  the  sessions  in  a  case  called  it  a 
quarry,  but  stated  all  the  facts  respecting  the 
mode  of  working  for  the  opinion  or  the  court, 
without  determining  the  question  whether  it  was 
a  mine  or  not,  the  court  sent  the  case  back  to  be 
reheard  at  the  sessions,  saying  that  the  question  of 
mine  or  no  mine  is  a  question  of  pure  fiLct,  which 
the  sessions  ought  to  determine.  Rex  v.  Dnn»- 
ford,  4  Nev.  dk  M.  349 ;  2  Adol.  &  Ellis,  568 ;  1 
Har.  A  WoU  93.  1662 

The  method  of  workmg,  and  not  the  nature  of 
the  substance  obtained,  is  the  criterion  to  deter- 
mine the  question  of  mine  or  no  mine,  so  as  to 
exempt  firom  poor  rates.  Id. 


S668 


[POOR) 


By  an  act  incorporating  certain  penoni  for  the 
purpose  of  erecting  an  exchange  in  L.,  it  it  en- 
acted that  the  companj  shall  provide  two  rooms 
to  be  used  as  public  rooms  for  the  parpose  of 
transacting  such  commercial  business  as  the  com- 
pany shall  think  proper ;  such  rooms  to  be  pro- 
vided out  of  the  yearly  profits  of  the  undertak- 
ing, with  such  articles  as  the  company  shall  di- 
rect, to  be  open  to  the  proprietors,  and  not  to  be 
alienable.  The  company  make  and  furnish  a 
news-room,  which  they  provide  with  newspapers, 
&c.,  in  which  public  notice  is  given  of  commer- 
cial and  nautical  information,  by  a  servant  of  the 
company  employed  to  collect  it,  and  to  which 
non-proprietors  are  admitted  upon  payment  of  a 
certain  sum  annually.  Stock  in  trade,  profits, 
and  other  personal  property  are  not  rateable  in  L., 
but  property  is  there  rated  according  to  its  fair 
annual  value  to  let.  Rex  v.  Liverpool  (Exchange 
Proprietors),  3  Nev.  &.  M.  550;  1  Adol.  6l  EHTs, 
465.  1664 

The  company  are  rateable  for  the  room  at  its 
annual  value  to  let,  with  reference  not  only  to  its 
situation,  sixe,  and  accommodations  as  a  news- 
room, but  also  to  its  attendant  revenue  from  the 
annual  subscriptions.  Id. 

But  they  are  not  rateable  in  respect  of  the 
value  of  the  privilege  of  the  proprietors  attending 
free  of  charge,  although,  by  a  regulation  of  the 
company,  proprietors  not  attending  are  entitled 
to  receive  the  same  sum  in  respect  of  their  share 
that  is  paid  by  ordinary  subscribers.  Id. 

Any  advantages  attendant  upon  a  building, 
which  would  enable  the  owner  to  let  it  at  a 
higher  rent,  may  be  taken  into  the  account  in  es- 
timating its  rateable  value,  id. 

By  a  clause  in  a  canal  act,  tolls  were  not  to 
he  rated,  and  the  company  were  to  be  rated  from 
time  to  time  for  and  in  respect  of  the  lands  taken, 
and  the  warehouses  and  other  buildings  to  be 
erected  bv  the  company,  "  In  the  same  propor- 
tions as,  but  not  at  any  higher  value  or  improved 
rent  than  other  lands,  grounds,  and  buildings 
lyin^  near  or  adjacent  Uiereto,  are  or  shall  for 
the  time  being  be  rated,  and  as  the  lands,  ware- 
iiouses,  and  other  buildings  so  taken  and  erected 
would  have  been  rateable  in  case  the  same  had 
tieen  continued  in  their  former  state,  and  not 
f>een  used  for  the  purpose  of  the  said  navigation  : 
'—Held,  1st,  that  the  proper  mode  of  laying  a 
poor's  rate  on  the  company  was  according  to  the 
fluctuating  value  of  adjacent  lands  and  buildings, 
and  not  according  to  their  value  at  the  time  of  &e 
formation  of  the  canal ;  and,  2ndly,  that  the  in- 
creased value  is  to  be  taken  for  tne  time  being, 
from  whatever  source  it  may  arise,  and  not  that 
the^  increase  arising  from  the  canal  itself  is  to  be 
<omitted.  "Rex  v.  Alonmouthshire  Canal  Naviga- 
tion Company,  5  Nev.  &  M.  68:  1  Har.  &  WoU. 
464.  1666 

A  coal  mine  lying  in  several  parishes  is  rate- 
able to  the  relief  of  the  poor  in  each  of  those  pa- 
rishes, although  the  adit  and  the  machinery  be  in 
one  parish  only.  Rex  v.  Foleshill,  4  Nev.  &  M. 
360 ;  3  Adol.  A,  Ellis,  593 ;  1  Har.  &  WoU.  71. 

1668 


By  an  inclosure  act  it  was  declared,  that  all 
the  allotments  to  be  set  out  to  the  several  per- 
sons having  riffht  of  common  upon  a  moor  should 
be  deeraea  to  he  situate  within  the  same  town- 
ships and  places  respectively  wherein  the  land 
lays,  in  respect  of  which  such  allotments  should 
be  made ;  and  it  was  provided  that  nothing  in 
the  act  should  afiTect  the  right  of  W.  P.  to  cer- 
tain coal  mines  under  the  said  moor: — Held, 
that  the  first  clause  afiected  only  those  portions 
of  the  soil  which  were  allotted  to  the  commission- 
ers, and  not  the  coal  mines  under  those  allot- 
ments, and  therefore,  that  such  coal  mines  were 
rateable  to  the  relief  of  the  poor  in  the  parish  in 
which  they  were  actually  situate,  as  they  were 
before  the  act  passed,  though  the  allotments  be- 
came rateable  elsewhere.  Ilex  v.  Pitt,  5  B.  db 
Adol.  565.  1666 

It  is  not  necessary,  in  order  to  create  a  statu- 
tory exemption  from  poor  rates,  that  the  act 
should,  in  express  terms,  exempt  from  such  par- 
ticular rates ;  but  it  is  sufficient,  if  by  fair  con- 
struction of  the  words  of  the  act,  the  exemption 
clearly  appears.  Rex  v.  Barnby  Dun,  4  Nev.  A 
M.  436  ;  SJ  Adol.  A  EUis,  551 ;  1  Har.  &.  Woll. 
89.  IG66 

Therefore,  where  in  a  local  act  (by  which  a 
company  are  empowered  to  make  the  river  D. 
navigable,  and  to  make  new  cuts  through  the  ad- 
joining lands),  it  is  enacted,  that  the  company 
"shall  not  be  taxed  or  assessed  for  the  naviga- 
tion, or  the  profits  thereof,  at  any  place  except 
the  towns  of  A.  and  B,*'  where  account  books  a  re 
directed  to  be  kept : — ^Tbe  court  held,  that  an 
exemption  from  poor  rates  in  respect  of  lands 
taken  for  the  purpose  of  the  act,  elsewhere  than 
in  A.  or  B.,  was  created,  and  this,  although  no 
part  of  the  navigation  is  within  the  town  of  A. 

And  where,  by  a  subsequent  local  act,  after 
reciting  that  it  would  be  advantajreous  to  abandon 
the  existing  navigation  in  certain  parts,  and  to 
make  new  cuts  in  lieu  thereof,  and  empowering 
the  company  to  make  certain  new  cuts,  and  to 
receive  additional  tolls  in  consequence  thereof, 
it  was  enacted,  that  the  cuts  should,  when  made, 
be  considered  and  taken  as  part  of  the  navigation 
of  the  river  D.,  and  that  all  the  provisoes,  direc* 
tions,  restrictions,  penalties  and  forfeitures,  in 
and  by  the  former  acts,  respecting  the  boatmen 
employed  on  the  said  river,  the  owners,  com- 
manders, &c.  of  boats,  &c.  or  other  persons  em- 
ployed thereon,  or  passing  the  locks  of  the  said 
river,  or  making  obstructions  thereon,  or  in  any 
other  respect  relating  to  or  for  the  benefit  or  pro- 
tection of  the  saia  navigation,  and  all  other 
powers  and  authorities  therein  contained,  should 
extend  and  be  applicable  to  the  said  cuts,  drc,  as 
fully  in  every  respect  as  if  the  said  cuts,  &c.  had 
originally  been  part  of  the  river  D.  navigation, 
and  had  been  inserted  in  the  several  acts : — Held, 
that  the  company  were  exempt  from  poor  rates 
in  respect  of  land  not  in  A.  or  B.,  taken  by  them 
under  the  powers  of  this  act,  and  used  for  cuts  in 
lieu  of  parts  of  the  old  navigation.    Id. 

The  words  **  shall,  when  made,  be  considered 


[POOR] 


2569 


and  taken  as  part  of  the  navigation  of  the  river 
D.'*  are  alone  saificient  to  extend  to  the  new  cuts 
the  exemption  from  astspssment  which  had  pre- 
viously exi^ited  in  rosp-.ctof  the  navigal.pn  jr 'uc- 
rally.  Iti. 

The  proprietors  of  a  river  navigation  formed 
under  an  act  of  parliament,  are  rateable  to  the 
relief  of  the  poor  in  every  pariah  through  which 
it  passes,  in  proportion  to  the  profits  derived 
Irom  the  navigation  io  such  parish.  Rex  v. 
Woking,  5  Nev.  &.M.  395}  1  Har.  <&  Woll.  5:39. 

1668 

The  proprietors  of  a  river  navigation  running 
through  several  parishes  were  entitled  to  claim  a 
toll  of  45.  The  trustees  fixed  the  tolls  st  4«.  for 
the  whole  distance,  and  at  different  decreased 
rates  for  fixed  portions  only  of  the  whole  dis- 
tance  : — Held,  that  in  calculating  the  sum  at 
which  the  proprietors  were  to  be  rated  in  any 
one  parish,  the  proportion  was  to  be  ascertained 
on  a  mileage  calculation  with  respect  to  the 
whole  distance  as  regards  the  thorough  trade ; 
and  on  a  mileage  calculation  with  respect  to  the 
distance  gone  ove^  as  regards  the  snort  trade, 
excluding  in  the  latter  case  all  trade  in  parts 
in  which  the  particular  parish  was  not  situated. 

In  calculating  the  amount  of  profit,  a  deduc- 
tion for  the  necessary  repairs  and  expenses  must 
be  made,  the  proportion  of  the  particular  parish 
being  ascertamea  where  the  repairs  are  equal 
throughout  the  whole  distance,  by  a  mileage  cal- 
culation. Id. 

So  a  reasonable  sum  must  be  deducted  for 
tenants*  profits.  In  this  case  10/.  per  cent,  was 
allowed,  that  being  found  by  the  case  to  be  a 
reasonable  sum.  Id. 

No  deduction  is  to  be  made  in  respect  of  sums 
payable  by  the  act  of  parliament,  as  compensa- 
tion to  persons  injured  by  the  navigation,  out  of 
the  profits  of  the  undertaking ;  such  sums  being' 
only  in  the  nature  of  rent  charges,  and  notafiect- 
ing  the  value  of  the  occupation.  Id. 

A  parishioner  rated  only  in  one  of  the  three 
rates,  made  during  a  particular  year,  but  after- 
wards continuing  to  be  a  re^lar  rated  inhabi- 
tant, is  entitled  to  appeal  agamst  the  accounts  of 
the  overseers  for  the  whole  of  that  vear,  and  may 
object  to  the  allowance  of  charges  idt  the  making 
and  collecting  of  those  rates  to  which  he  himseu 
was  not  aascMed.  Rex  e.  Gwyer,  4  Nev.  &  M. 
158 ;  1  Adol.  &  Ellis,  216.  1671 

In  a  declaration  against  an  overseer,  &c.  for 
the  penalty  imposed  by  17  Geo.  2,  c.  3,  for  re- 
fusing inspection  of  a  poor  rate,  it  is  sufficient 
ibr  the  plaintifiT  to  describe  himself  as  an  inhabi- 
tant of  the  parish,  without  stating  that  he  is  a 
rated  inhabitant.  Ratehelor  v.  Hodges,  6  Nev.  &> 
M.  75.  1673 

In  sach  a  declaration  against  an  assistant  over- 
seer, it  is  sufficient  to  charge,  that  the  defendant 
had  the  rate  in  his  possession  as  such  assistant 
overseer,  without  expressly  stating  that  the  de- 
fendant was  such  an  assistant  overseer  as  made 
it  his  duty  to  produce  it,semble.  Id. 

At  all  eveata,  the  omission  of  sach  statement 


could  only  be  taken  advantage  of  on  demorrer. 
Id. 

To  such  a  declaration  it  is  no  plea  that  the 
rat«',  it  ihf  t  mo  t>f  tlie  demand  on  inspccLion, 
was  not  a  subsisting  rale.     Id. 

Still  less  that  it  was  an  old  rate  unappealed 
against,  and  the  time  for  appealing  against 
which  had  expired.     Id. 


Levy  J  Distress^  and  Replevin.] — A  distress  for 
the  arrears  of  tithe  composition  cannot  be  made 
upon  lands  held  by  the  officers  of  ordnance  for 
ordnance  purposes  m  trust  for  the  crown.  Meade 
V.  Warburton,  1  Alcock  &  Napier,  287.     {Irish), 

1669 

On  a  distress  for  arrears  of  a  poor-rate,  under- 
the  50  Geo.  3,  c.  45,  s.  3  :— Held,  that,  although 
the  warrant  made  no  mention  of  the  costs  of  the 
previous  summons,  the  reasonable  costs  of  such 
summons  might  be  levied  under  it,  and  that 
one  shilling  was  a  reasonable  sum  in  that  be- 
half.   Ckrke  V.  Pedley,  4  M.  &  Scott,  321. 

IiJ69 

Where,  by  a  local  act  of  parliament,  power  is 
given  to  two  justices  to  relieve  an  applicant 
hgjsfrieved  by  a  poor-rate,  they  have  power  to 
relieve  in  an  individual  case  by  reducing  the 
amount  in  which  the  party  was  assessed,  although 
the  ground  upon  which  they  consider  him  en- 
titlea  to  relief  is,  thai  the  whole  rate  is  made 
according  to  an  erroneous  principle.  Rex  v.  St. 
James,  Westminster,  4  Nev.  &  M.  252;  2  Adol. 
<&  Ellis,  241.  1669 

By  a  local  act  it  is  provided,  that  if  any  per- 
son shall  find  himself  aggrieved  by  any  rata 
made  under  the  authority  of  that  act,  he  shall 
first  apply  to  two  justice,  and  if  not  relieved,  he 
shall  be  obliged  to  pay  such  rate,  and  may  appeal 
to  the  quarter  sessions : — Held,  that  a  power  in 
the  two  justices  to  relieve  upon  application  made 
to  them,  is  necessarily  implied.  Id. 

The  eourt  will  not  issue  a  mandamus  to  com« 
pel  magistrates  to  issue  a  distress  warrant  to  en- 
force Uie  payment  of  poor-rates,  where  it  is 
doubtful  wnether  the  warrant  would  be  legalj* 
and  the  rates  are  recoverable  hy  another  mode  or 
proceeding.  Rex  v.  Hall,  4  Nev.  &  M.  546 :  S.. 
C.  nom.  Rex  v.  Dyer,  2  Adol.  6l  Ellis,  606. 

1669 

Where,  by  a  local  act  for  the  government  of  a 
parish,  collectors  of  the  rents  of  houses,  &c.  with- 
in the  parish,  the  yearly  assessment  or  valuation 
whereof  respectively  shall  be  less  than  201^  are 
made  liable  to  be  rated,  and  compellable  to  pay 
the  rates  in  respect  of  such  houses,  ^c.  Semble, 
that  the  liability  of  the  collector  would  extend 
only  to  cases  in  which  the  real  and  not  the  assess- 
ed value  of  the  houses  respectively,  &c.  is  under 
m.  Id. 

Where  a  party  is  rated  to  the  poor  in  respect 
of  property  not  in  his  occupation,  ne  is  not  bound 
to  appeal,  out  may  replevy  any  distress  taken  for 
such  poor-rate.  Bristol  (Overseers  of  Poor)  v. 
Wait,  3  Nev.  dk  M.  359;  1  Adol.  dk  Effis,  264. 

167d 


2670 


[POOR] 


So,  if  part  of  the  pretniies  included  in  the  rate 
be  not  occupied  by  him.  Id. 

fiat  if  one  distress  be  taken  under  a  warrant 
to  le?y  the  amount  of  a  poor-rate,  void  by  reason 
of  such  non-occupation,  and  also  under  a  separate 
warrant  to  levy  another  grood  rate,  the  yalidity  of 
such  distress  cannot  be  questioned  in  an  action 
of  trespass  or  replevin.  Id. 

Where,  therefore,  to  an  avowry  for  several 
poor-rates,  the  plaintiff  pleaded  in  bar  that  one  of 
the  rates  was  in  respect  of  property  not  occupied 
by  him,  a  replication  stating  that  such  distress 
was  made  under  several  warrants  for  the  several 
rates  was  (upon  a  demurrer  to  a  frivolous  re- 
joinder) held  to  be  good.    Id. 

If  more  goods  were  seized  than  would  be  a 
reasonable  distress  for  the  good  rate,  the  remedy] 
of  the  distrainee  is  case  for  an  excessive  distress.  | 
Id. 

Parish  officers  cannot  abandon  a  poor-rate 
duly  made,  allowed,  and  published.  Therefore, 
where  an  appeal  had  been  entered  against  a  poor- 
rate,  and  the  parish  officers  served  tne  appellant 
and  clerk  of  the  peace  with  notice  that  the  rate 
was  abandoned,  and  before  the  sessions  tendered 
to  the  appellant  the  amount  of  his  assessment, 
which  he  had  paid,  and  the  sessions  therefore 
refused  to  hear  the  appeal,  the  court  granted 
a  mandamus  to  enter  continuances,  and  hear  the 
appeal.  But  the  court  refused  to  ffive  costs, 
against  the  parish  officers,  of  the  appncation  for 
a  mandamus,  and  of  the  writ.  Rez  v.  Cambridge 
(Justices),  2  Adol.  &  EUis,  370 ;  4  Nev.  &  M. 
238.  1670 

On  the  15th  of  August,  1828,  an  increased  poor- 
rate  was  assessed  on  certain  premises,  against 
which  an  appeal  was  entered  at  the  October  ses- 
sions, and  respited  to  the  following  sessions  in 
January.  On  the  loth  of  December,  1828,  the 
overseers  distrained  for  the  increased  rate ;  but, 
to  prevent  a  sale,  the  amount  was  paid  uuder 
protest,  and  the  distress  relinquished.  The  rate 
was  subsequently  reduced,  in  consequence  of  the 
decision  of  the  court  of  K.  B.  on  a  case  sent  up 
by  the  justices  on  the  hearing  of  the  appeal.  It 
did  not  appear  that  any  notice  in  writing  of  the 
appeal  had  been  given  to  the  overseers,  pursuant 
to  the  41  Geo.  3  (U.  K.)  c.23,  s.  2,  before  the 
levy.  In  an  action  brought  by  the  party  on 
whom  the  increased  rates  was  made,  against  the 
defendant,  one  of  the  overseers,  at  iSs  time  of 
the  levy,  to  recover  back  the  excess  above  the 
last  effective  rate,  as  money  had  ^d  received  to 
his  use : — Held,  that,  as  no  notice  of  appeal 
had  been,  given  to  the  overseers,  pursuant  to 
the  secona  section  of  the  statute,  the  action 
could  not  be  maintained.  Priestly  v.  Watson,  2 
C.  &  M.  691 ;  4  Tyr.  916.  1670 


SedUmaU  by  Birth  and  Parmtage.]~-?roof 
that  A.  and  6.  were  married  in  the  parish  of 
Dale,  and  that  their  children  C,  D.,  E.,  and  F. 
where  baptized  there,  is  not  evidence  from  which 
the  justices  are  bound  to  infer  that  £.  was  bom 
there.  Rez  v,  Labbenham,  3  Nev.  dt  M.  37 ;  5 
B.  &  Adol.  968.  1674 


Quere,  whether  they  would  be  justified  in 
drawing  such  inference  from  the  evidence  ?  Id. 

A  daughter  of  full  age,  in  1829,  hired  herself, 
with  the  consent  of  her  father,  with  whom  up  to 
that  time  she  had  lived,  to  a  farmer,  at  weekly 
wages,  to  work  for  him  during  harvest  She  re- 
mained with  the  farmer  three  weeks,  and  then 
returned  to  her  father.  In  the  following  year, 
the  daughter  hired  herself  again  to  the  same 
farmer  to  assist  in  the  horvest,  and  the  father  on 
this  occasion  received  the  wages  from  his  daugh- 
ter on  her  return.  On  both  occasions,  a  return- 
ing home,  as  soon  as  harvest  should  be  over,  wa« 
intended  by  the  daughter  and  expected  by  the 
father  : — Held,  that  the  daughter  was  emanci- 
pated— Per  Denman,  C.  J.,  Taunton,  J.,  and  Pat- 
teaon,  J.  (Littledale,  J.,  diss.)  Rex  o.  Oulton,  3 
Nev.  &  M.  62;  5  B.  4&  Adol.  958.  1675 

Semble,  when  a  child  is  of  ase,  emancipation 
is  to  be  prima  facie  presumed;  the  contrary 
where  the  child  is  under  age.  Id. 

A  fraudulent  removal  of  an  unmarried  preg- 
nant woman  settled  in  A.,  to  an  extra- parochial 
place,  by  the  putative  father,  does  not  make  a, 
birth  in  the  extra-parochial  place  to  be  in  con- 
templation of  law  a  birth  in  A.,  so  as  to  entitle 
that  parish  to  relief  under  18  Eliz.  e.  3,  s.  2. 
Rex  V.  WUson,  4  Nev.  A  M.  243.  1676 

So,  where  the  removal  is  to  another  parish. 
Id. 

To  do  away  with  a  birth  settlement  by  proof 
of  the  mother's  settlement,  it  is  not  necessary  to 
show  previously  that  the  father's  settlement  can- 
not be  found.  Rex  v.  St.  Mary,  Leicester,  5 
Nev.  A  M.  215;  1  Har.  6l  Woll.  330.  1675 

Setd^maU  by  Hiring  and  Service.'} — A  settle- 
ment is  gained  by  a  private,  who,  whilst  on  the 
permanent  staff  of  the  local  militia,  is  hired  and 
serves  for  a  year.  Rex  v.  St.  Mary,  Colchester,  3 
Nev.  &  M.  113 ;  5  B.  ^k  AdoJ.  1023.  1678 

An  effective  member  of  a  volunteer  corps,  in- 
rolled  under  the  44  Geo.  3,  c.  54,  was  not  suis 
juris,  so  as  to  be  competent  to  make  a  valid  con- 
tract of  hiring,  to  give  him  a  settlement  by  hiring 
and  service.  Rex  v.  Witnesham,  2  Adol.  &  Ellis, 
648 ;  4  Nev.  dc  M.  447 ;  1  Har.  &  WoU.  43. 

1678 

And  it  made  no  difference  that  the  party  never 
took  the  oath  of  allegiance,  as  directed  by  sect. 
20  of  the  act.  Id. 

By  the  regulations  of  a  county  bridewell,  the 
keeper  may  appoint  turnkeys,  subject  to  the 
approbation  and  confirmation  of  the  visiting  jus- 
tices ;  the  keeper  may  suspend  such  turnkeys  for 
disobedience  and  improper  behavior,  but  must 
make  a  report  within  three  days,  and  must  not 
make  new  permanent  appointments  until  the 
visiting  justices  have  made  mquiry ;  the  turnkey 
is  to  be  paid  by  the  county  treasurer,  but  is  to  be 
in  all  other  respects  under  the  immediate  orders 
and  control  of  the  keeper :  any  turnkey  convicted 
of  drunkenness  maybe  dismissed  by  the  justices  : 
— Held,  that  a  turnkey  appointed  in  pursuance 
of  such  regulations,  and  at  an  annual  salary,  is 
not  a  servant  either  to  the  justices  or  the  keeper, 


[POOR] 


2571 


so  as  to  be  able  to  acqaire  a  aettlement  by  hirin|r 
and  aery  ice.    Rex  v.  sparabolt,  6  Nev.  6l  M.  o. 

1678 

A  hirinjBT  under  which  the  servant  is  to  work 
ten  hours  a  day,  from  fiye  in  the  morning  to  six 
in  the  evening,  and  to  leave  off  in  the  middle  of 
the  day  on  Saturday,  to  as  to  make  op  the  ten 
hours  a  day,  is  an  **  exceptive  hiring."  Rex  v, 
Norton-Bavant,  4  Nev.  dt  M.  687;  a  Adol.  & 
Ellis,  161 ;  1  Har.  &  Woll.  149.  1681 

A  question  arising  at  sessions,  as  to  an  alleged 
settlement  by  hiring  and  service  in  a  third 
parish,  the  sessions  quashed  the  order  of  removal, 
sabject  to  a  case  in  which  the  contract  of  hiring 
was  out,  and  the  question  for  this  court  stated 
to  be,  whether  the  pauper  gained  a  settlement  by 
hiring  in  the  third  parish  : — Held,  that  this  len 
the  question  whether  the  contract  was  exceptive 
or  not  open  to  this  court.    Id. 

It  is  a  question  of  fact  for  the  sessions  to  de- 
termine, whether  an  agreement  to  serve  is  a  con- 
tract of-  hiring,  or  or  apprenticeship.  Rex  v. 
Girat  Wishford,  5  Nev.  ^t  M.  540 ;  1  Har.  A 
Vfoll  489.  1684 

And,  where  upon  a  ease  for  the  opinion  of  this 
court,  the  sessions  state  the  facts  and  draw  their 
conclusion,  this  court  will  not  disturb  the  findmg, 
unless  it  appear  that  the  evidence  was  contrary 
to  the  finding,  or-  that  there  was  no  evidence  to 
support  it.     Id. 

The  true  test,  whether  an  agreement  was  a 
contract  of  hiring  or  of  apprenticeship,  is  the 
apparent  object  of  the  parties ;  and  if  that  object 
ia  for  one  party  to  teach,  and  the  other  to  learn, 
the  agreement  is  a  contract  of  apprenticeship.  Id. 

It  is  not  necessary  that  the  precise  words  to 
teach  or  to  learn  should  occur  in  the  agiee- 
ment,  to  constitute  it  a  contract  of  apprentice- 
ship.   Id. 

A  pauper's  mother  applied  to  a  carpet  weaver 
to  take  the  pauper  into  his  employment.  The 
master  agreea  with  her  to  take  him  for  two  years 
on  trial,  after  which,  if  the  pauper  and  master 
agreed,  the  pauper  was  to  be  apprenticed.  He 
was  to  be  found  in  board  and  lodging  by  the 
master,  but  was  to  have  no  wages,  except  what 
the  master  pleased  to  give  him  as  pocket  money. 
He  was  to  draw.  At  the  sessions,  it  was  stated 
by  a  magistrate,  and  assented  to,  that  every  car- 
pet weaver  is  taught  the  art  of  drawing  as  a 
draw  boy.  The  ebairman  left  it  to  the  opinion 
of  the  court,  whether  the  contract  was  an  imper- 
fect contract  of  apprenticeship,  or  of  hiring  and 
service  ;  and  the  court  found  that  it  was  an  imper- 
fect contract  of  apprenticeship : — Held,  on  a  case 
stating  the  above  facts,  that  the  sessions  were 
right     Id. 

J.  8.  agreed  with  a  flannel  manufacturer  for 
twelve  months  to  learn  the  art  of  weaving  flan- 
nel, he  receiving  one-half  of  what  he  earned,  and 
finding  himself  in  meat,  drink,  and  lodging,  and 
the  master  to  have  the  other  half  for  teaching 
him : — Held,  a  defective  contract  of  apprentice- 
ship, and  not  a  cdntract  of  hiring  and  service. 
Rex  9.  Newton,  3  Nev.  dt  M.  3ft;  1  Adol.  A 
Ellis,  938.  1685 

Vol.  IV.  38 


A.,  for  two  successive  years,  was  hired,  by  B. 
as  a  farm  servant,  from  a  tew  days  after  Michael- 
mas-day following,  at  a  certain  amount  of  wages 
for  the  whole  time.  A  few  days  afler  the  Mi- 
chaelmas-day on  which  the  secona  hiring  expired, 
B.  paid  A.  the  wages  agreed  upon,  and  asked 
him  if  he  chose  to  vo  on  with  him,  to  which  A. 
replied  "Te^:" — Held,  that  this  conversation 
was  not  evidence  of  a  yearly  hiring,  so  that  a 
service  under  it  might  be  connected  with  the  an- 
tecedent service,  f&x  v.  Ardington,3  Nev.  &  M. 
304  ;  1  Adol.  A  £Ui8,  k60.  1686 

A  servant,  by  accompanyingr  his  master  into  a 
foreign  country  during  a  portion  of  the  year  for 
whicn  he  hfid  contracted  to  serve,  (the  service 
abroad  being  referable  to  the  jearly  hiring),  is 
not  thereby  disabled  from  acquiring  a  settlement 
by  service  in  England.  Rex  v.  Buckingham,  3 
Nev.  &.  M.  72;  5  B.  &.  Adol.  953.  1687 


SettUmeiU  6y  Appretttieeskip.}~^A  parish  ap- 
prentice letl  his  master,  and  went  to  live  with  his 
father  in  another  parish,  working  with  his  father 
in  the  same  trade  at  which  he  had  lately  worked 
with  his  master.  The  master,  having  claimed  the 
apprentice,  agreed  with  the  father,  in  May,  to 
deliver  up  the  indenture,  upon  paynientof  four 
guineas  m  August.  The  apprentice  continued 
with  his  father  working  at  the  same  trade  until 
Auffust,  when  the  inc&nture  was  delivered  up 
ana  the  money  paid : — Held,  that  there  was  at  all 
events  no  dissolution  of  the  apprenticeship  until 
August,  (if  then),  and  that  the  service  by  the  ap- 
prentice with  the  father  was  referable  to  the  in- 
denture, and  that  the  apprentice  gained  a  settle- 
ment in  the  parish  in  wnich  he  resided  with  his 
fiither.  Rex  v.  Gwinear,  3  Nev.  &  M.  297 ;  1 
Adol.  &  Ellis,  152.  1695 

A.,  by  indenture  executed  by  himself  and  the 
parish  officers,  is  bound  apprentice  in  husband^ 
to  B.  in  respect  of  an  estate  rented  by  B.  of  C. 
A.  never  serves  B.  (who  is  not  shown  lo  be  cog- 
nizant of  the  binding),  but  is  taken  by  the  over- 
seers to  C,  and  serves  him  in  his  trade  of  a  stock- 
ing maker.  A.  gains  no  settlement  by  the  ser- 
vice, either  as  under  an  original  binding  to  C, 
or  as  under  an  assignment  from  B.  to  C.  Rex  e. 
St.  Cuthbert,  WeUs,  3  Nev.  dk  M.  100;  5  B  ^k 
Adol.  939.  1696 

A  pauper  was  bound  apprentice  to  J.  M.  A 
W.  M.,  two  partnere  in  Exeter,  who  afterwards 
dissolved  partnership,  and  W.  M.  never  after- 
wards interfered  witn  the  pauper,  who  continued 
with  J.  M.  and  a  new  partner  in  the  business  at 
Exeter,  bnt  resided  at  Tiverton,  where  they  also 
carried  on  business ;  immediately  after  the  death 
of  J.  M.,  the  pauper  returned  to  Exeter,  and 
continued  in  the  business  there,  until  he  after- 
wards entered  into  an  arrangement  with  the  new 
partner :— ^Held,  that  the  service  in  Exeter,  after 
the  death  of  J.  M.,  was  not  a  service  under  the 
indenture,  with  the  consent  of  W.  M.,  the  sur- 
viving partner,  so  as  to  donfer  a  settlement  in 
Exeter.  Rex  v.  St.  Martin's,  Exeter,  4  Nev.  A 
M.  385 ;  2  Adol.  A  Ellis,  655 ;  1  Har.  &  Woll.  69. 

1605 


2672 


[POOR] 


SettUmaU  by  rendng  a  renamcn/.]— Between 
Uie  paMing  of  59  Geo.  3,  c.  50,  and  6  Geo.  4,  c. 
57,  A.  rented  for  a  year^f  B.  a  dwelling-houae, 
and  of  C.  a  stable,  at  the  respective  renU  of  8/. 
and  Gl.  6ff.,  both  in  the  same  pariah,  but  uncon- 
nected. A.  occupied  and  paid  the  year's  rent  for 
both  : — Held,  that  A.  jrained  adettlem^nt  by  such 
occupation.  Rex  t>.  Gosforth,  3  Nev.  &  M.  303  ; 
1  Adol.  &  Ellis,  226.  1701 

Under  6  Geo.  4,  c.  57,  a  party  gained  a  settle- 
ment, who  rented  two  dwelling-houses  in  differ- 
ent parts  of  the  same  pariah,  for  a  year,  at  a  year- 
ly rent  of  less  than  lOZ.  each,  but  together  ex- 
ceeding that  amount,  although  he  only  occupied 
one  himself,  and  underlet  the  other.  Ilex  v. 
Wootton,  3  Nev.  &  M.  312;  1  Adol.  &  Ellis, 
232.  1701 

The  words  «  separate  and  distinct,"  in  59  Geo. 
3,  c.  50,  6  Geo.  4,  c.  57,  and  1  Will.  4,  c.  18,  ope- 
rate to  exclude  an  occupation  of  one  tenement 
iomtly  with  another  person,  and  not  with  another 
house,  6lc.    Id. 

Payment  of  rent  by  a  trustee,  out  of  the  pro- 
duce of  eifects  assigned  to  him  by  the  tenant,  in 
trust  for  the  payment  of  the  rent  and  taxes,  and 
other  chorees  and  expenses  in  respect  of  the  land 
occupied  by  the  tenant,  and  of  debts,  is  not  a 
payment  by  the  tenant  within  1  Will.  4,  c.  18, 
for  the  purpose  of  gaining  a  settlement.  Rex  v. 
Pakefield,  6  Nev.  &  M.  16.  1703 

A  curate,  licensed  by  the  bishop  at  a  yearly 
salary,  according  to  the  57  Geo.  3,  c.  99,  resided 
m  the  rectory-house  which  was  assigned  to  him 
pursuant  to  the  same  statute,  and  was  above  the 
value  of  10^.  a  year,  for  more  than  forty  days  before 
the  passing  of  59  Geo.  3,  c.  50 :— Held,  that  this 
was  a  commg  to  settle  within  the  stat.  13  &  14 


Car.  2,  c.  12,  and  that  a  settlement  was  gained 
thereby.    ** «,   .-  .,     .  *^ 

Adol.  540. 


^  ,  ^...  ,7aa  gamed 

thereby.    Rex  v.  St.  Mary,  Newington,  5  B.  & 


1706 

In  order  to  constitute  a  "coming  to  settle" 
within  13  &  14  Car.  2,  c.  12,  the  party  must  have 
come  into  the  parish  animo  morandi  or  residenti ; 
but  It  IS  not  necessary  that  he  should  have  come 
with  an  intention  to  reside  permanently.  Rex  v 
Woolpit,  5  Nev.  &  M,  526;  I  Bar.  &  Woll.  483. 

1706 

TJie  residence  intended  need  not  be  for  such  a 
time  and  under  such  circumstances  as  would  at 
the  time  of  passirigof  13  &  14  Car.  2,  c.  12,  have 

??rM^''**'  f  setUement— Per  Patteson,  J,  and 
Williams,  J.    Id. 

Secus  semble— Per  Coleridge,  J.     Id. 

But  whether  a  party  came  to  settle  within  the 
meanmg  of  13  &  14  Car.  2,  c.  12,  is  a  question  of 
fact,  to  be  decided  by  the  sessions  alone.    Id. 

And  whether,  upon  a  case  stating  the  facts,  the 
sessions  find  in  the  negative,  this  court  will  not 
interfere  with  that  finding,  unless  they  see  that 
uym  the  facts  staled  the  iSnding  is  necessarily 
wrong  .^    Id.  ^ 

The  sessions  found  that  A.  hired  and  paid  for 
lodgings  for  the  pauper  in  Dale ;  that  the  pauper 
came  to  Dale  and  resided  in  the  lodgings  for  a 
week,  married,  and  continued  afterwards  to  re- 
side in  the  lodgings  until  his  removal  under  the  * 


order  appealed  ayrainst :— Held,  per  Patieaon,  J., 
and  Williams,  J.,  (disscntiente  Coleridge,  J.), 
that  a  finding  oy  the  sessions  that  the  pauper  did 
not  come  to  settle  in  Dale,  within  the  meaning  of 
13  Sl  14  Car.  2,  c.  2,  was  repugnant  to  the  facts 
found,  and  was  therefore  necessarily  wrong.  Id. 

A  residence  under  an  order  of  suspension  can- 
not be  taken  into  the  account,  in  the  compuia- 
tion  of  the  period  of  occupation,  in  order  to  gain 
a  settlement  by  renting  a  tenement.  Rex  v.  St. 
John,  Hackney,  4  Nev.  &,  M.  336;  2  Adol.  & 
Ellis,  548 ;  I  Har.  <fe  Woll.  39.  1707 

The  pauper  rented  a  house  at  a  rent  above  101., 
from  Michaelmas,  1832,  to  Michaelmas,  1833. 
He  occupied  it  for  the  whole  year ;  and  in  July 
paid  a  half-yejar*s  rent.  Hq  continued  to  occupy 
the  house  until  6th  December,  1833,  without 
paying  any  more  renl.  On  that  day  he  was  re- 
moved by  an  order  to  another  parish.  On  the 
8th  December,  Ja33,  he  returned  to  the  house, 
and  remained  there  until  27th  January,  1834. 
The  order  of  removal  was  appealed  ajramst  and 
confirmed  on  the  1st  January,  1834.  On  the  11  th 
December,  during  the  pendency  ol  the  appeal, 
the  pauper  paid  the  half-year's  rent  due  at  Alich- 
aelmu : — Held,  that  the  pauper  ^ined  a  settle- 
ment by  renting  a  tenement,  notwithstanding  the 
order  of  removal.  Rex  t?.  Willoughby,  5  Nev.  <Sl 
M.  457;  1  Har.  &  Woll.  493.  1707 

Pauper  v^ent  into  the  service  of  B.,  for  whom 
he  was  to  make  and  burn  pots,  and,  to  do  so,  he 
was  to  have  tbe  use  of  yaras,  and  of  a  kiln  and 
sheds,  which  belonged  to  and  were  to  be  repaired 
by  B.,  who  also  was  to  find  and  cart  the  clay  for 
the  pots,  and  provide  certain  other  necessary  ma- 
terials. A  quarter  of  the  produce  of  the  sale  of 
the  pots  was  to  be  paid  to  pauper,  a  quarter  to  B., 
a  quarter  was  to  find  materials,  and  the  other 
quarter  to  be  paid  to  shopkeepers  selling  the  pots. 
Afterwards,  B.,  being  qissatisfied  with  pauper's 
work,  put  an  end  to  the  agreement ;  and  the  par- 
ties made  a  second  agreement,  under  which  pau- 
Eer  was  to  pay  a  sum  to  B.,  after  each  time  that 
e  burned  a  kiln,  (calculated  so  as  to  produce  to 
B.  about  as  much  as  the  quarter  under  the  first 
agreement,)  for  the  use  of  the  yards  and  of  the 
kiln  and  sheds,  which  B  was  to  repair,  and  to  find 
articles  as  before,  pad  per  digging  the  clay,  and 
making  an  allowance  to  B.  for  the  articles  found 
by  him.  Pauper  was  to  have  the  pots.  The  kiin, 
sneds,  f|nd  land  on  which  they  stood,  without  the 
clay,  together  with  a  tenement  rented  in  the  same 
parish  by  the  pauper,  were  worth  more  than  lOi. 
per  annum : — Held,  that  under  the  second  agree- 
ment the  pauper  rented  a  tenement  of  10<.  annual 
value,  and  gained  a  settlement  under  13  &  14 
Car  2,  c.  12.  Rex  v.  Iken,2  Adol.  A  Ellis,  147: 
4  Nev.  &M.  117.  1707 

Where  the  hirer  of  a  tenement,  consisting  of  a 
house  and  land,  sells  the  growing  crops  before  the 
expiration  of  the  year,  and  retams  possession  of 
the  house  only,  he  is  not  the  occupier  of  the  ten- 
ement during  the  whole  year,  so  as  to  gain  a  set- 
tlement under  1  Will.  4, c.  18.  Rex  r. Takefield, 
6  Nev.  &M.  16.  1707 

A.,  hiring  a  house  in  the  pariah  of  D.,  before 
the  end  of  the  year  leaves  tne  parish,  with  bis 


[POOR] 


3573 


^jQods,  and  with  that  part  of  his  family  who  re- 
tided  with  him.  A  sod  of  A.,  who  had  pre- 
Tkmsly  resided  with  A.,  by  the  direction  of  A., 
•lecpa  in  the  house  till  the  end  of  the  jear, 
boarding  with  his  master  in  another  part  of  the 
parish.  This  is  not  a  continuance  of  occupation 
m  A.  for  the  purpose  of  gaining  a  settlement   Id. 

80,  although  A.  leaves  in  the  house  a  portion 
of  his  foods,  'which  cannot  be  conveniently  re- 
moredT    id. 

No  settlement  can  be  gained,  since  1  Will.  4, 
e.  Id,  by  renting  a  tenement  in  which  rooms  are 
underlet  by  the  year.  K«z  v  St.  Nicholas,  Ro- 
chester, 3  Nev.  &  M.  21 ;  5  B.  &  Adol.  219. 

1707 

So,  if  they  are  underlet  for  a  shorter  period, 
semble.     Id. 

Since  1  Will.  4,  c.  18,  there  must  be  an  actual 
occupation  of  the  whole  tenement  by  the  party 
hiring  it,  in  order  to  confer  a  settlement  by  rent- 
ing a  tenement.  Where  a  pauper  took  a  mes- 
suage, consisting  of  two  tenements,  at  a  rent  of 
60/.,  payable  half-yearly,  and  during  the  year's 
occupatioD  underlet  three  rooms  to  a  person  who 
bad  the  exclusive  occupation  of  them  for  three 
weeks,  for  which  he  paid  U/.,  and  a  front  shop  to 
anottier  person,  who  had  the  exclusive  occupation 
of  it  for  a  week  : — Held,  that  the  pauper  did  not 
gain  a  settlement.  Rex  v.  St.  Nicnolas,  Colches- 
ter, 4  NeT.  &  M.  422 ;  2  AdoL  A  Ellis,  599 ;  1 
Bar.  &  WoU.  47.  1707 

Quere,  whether  a  payment  of  rent  by  means 
of  a  distress  on  the  goods  of  the  party  hiring  the 
tenement,  is  sufficient  to  satisfy  the  1  Will.  4,  c. 
18.'    Id. 

Semble,  tliat  a  letting  of  rooms  by  an  inn- 
keeper to  his  guest  is  not  such  an  underletting 
as  would  defeat  the  settlement.  Id. 

The  Ist  section  of  1  Will.  4,  c.  18,  (though 
prospective  only),  applies  to  cases  in  which  the 
occupation  had  commenced,  but  was  not  com- 
plete at  the  time  of  the  passing  of  the  act.  Id. 

A  settlement  may  be  gained  under  1  Will.  4, 
c.  18,  by  a  party  hiring  a  house  and  residing  in  it 
fer  a  year,  notwithstanding  that  he  is  in  the  habit 
of  taking  in  persons  to  sleep  in  some  of  the 
rooms;  sometimes  letting  a  bed  and  sometimes 
half  a  bed,  generally  by  the  night  only,  but  oc- 
casionally by  the  week ;  such  persons  having  no 
ri^rht  to  the  rooms  during  the  day,  and  he  re- 
taming  the  keys  of  all  the  rooms,  and  having 
constant  access  to  and  control  over  the  whole 
bouse.  Rez  v.  St.  Giles  in  the  Fields,  6  Nev.  A 
M.5.  1707 

A.  demised  by  deed  to  B.  and  C.  jointly,  at 
1€I.  a  year.  B.  occupied  and  paid  the  rent  and 
the  rates : — Held,  that  B.  did  not  gain  a  settle- 
ment either  by  renting  a  tenement  or  by  being 
rated  and  paying  the  rates.  Rex  v.  Great  Wa- 
keriag,  3  Nev.  &  M.  47;  5B.  A  Adol.  971. 

1707 

Semble,  that  evidence  was  inadmissible  to 
show  that  it  was  intended  that  B.  should  be  the 
sole  tenant,  and  that  C.  was  merely  a  surety.   Id. 

Under  stAt.  1  Will.  4,  c.  18,  no  settlement  is 
gained  by  occupying  the  same  tenement  for  a 


continuous  year,  the  occupation  during  part  of 
the  year  being  under  one  hiring,  and  during  the 
remainder  under  another  hiring  for  a  year.  Rex 
9.  Banbury,  1  Adol.  <&  Ellis,  i:i6;  3  Nev.  &  M. 
202.  1707 

A.  lets  a  house  for  a  year,  at  20^,  to  B.  B. 
underlets  for  a  year  at  the  same  rent  to  C,  who 
occupies  during  the  whole  year.  In  the  middle 
of  the  year,  B.  surrenders  to  A.,  who  accepts  C: 
fur  his  immediate  tenant,  upon  a  new  demise, 
from  year  to  year,  from  A.  to  C.  C  gains  no  set- 
tlement under  1  Will.  4,  c.  18.   Id. 

Semble,  that  payment  of  rent  by  A.,  the  ven- 
dee of  the  goods  of  B.,  to  prevent  a  distress  for 
rent  due  from  B.,  is  a  good  payment  of  rent  by 
B.  within  1  Will.  4,  c.  18.    Id. 

A  settlement  was  gained,  under  6  Geo.  4,  c. 
57,  by  renting  two  distinct  dwelling-houses,  al-  , 
though  only  one  was  actnully  occupied  by  the 
party  himself.     Rex  v.  Iver,  3  Nev.  d&  M.  28 ;  1 
Adol.  &  Ellis,  228.  1707 

A  person  rented  two  houses  under  one  con- 
tinuous roof,  having  distinct  outer  doors,  and  no 
internal  communication ;  he  took  the  whole  at 
one  hiring,  but  paid  distinct  rents  for  them  at  62. 
per  annum,  occupied  one  himself,  and  allowed 
his  son  exclusive  possession  .of  the  other : — Held, 
that,  by  such  renting  and  occupation  for  a  year, 
he  acquired  a  settlement  under  6  Geo.  4,  c.  57, 
s.  2.    Id. 

Settlement  by  Estate.] — A  surrenderee  gains  a 
settlement  by  a  residence  of  forty  days  upon  a 
copyholdj  to  which  he  is  aAerwards  admitted. 
Rex  V.  Thruscross,  3  Nev.  &  M.  284 ;  1  Adol.  & 
Ellis,  126.  1710 

Semble,  that  the  settlement  is  complete  with- 
out the  admittance.    Id. 

A  devisee  of  a  copyhold  was  admitted  after  he 
had  resided  more  than  forty  days  on  the  copy- 
hold. His  son  became  emancipated  after  the 
expiration  of  the  forty  days,  and  before  admit- 
tance : — Held,  by  Denman,  C.  J.,  Littledale,  and 
Patteson,  Js.,  (Parke,  J.,  diss.),  that  the  father, 
by  such  residence,  gained  a  settlement,  which 
was  communicated  to  the  son.    Id. 

Where  a  man,  having  a  leasehold  interest,  died 
intestate,  leaving  the  pauper  and  three  other  sons ; 
and  one  of  the  sons  having  taken  out  letters  of 
administration,  the  four  brothers  joined  in  mort- 
gaging the  estate,  and  afterwards  the  pauper,  by 
verbal  agreement  only,  parted  with  his  interest 
in  the  equity  of  redemption  to  one  of  his  bro- 
thers, for  a  consideration  paid,  and  subsequently 
joined  with  his  other  brothers  in  an  assignment 
to  him : — Held,  that  the  pauper  parted  with  his 
interest  in  the  equity  of  redemption  by  the  verbal 
agreement,  and  therefore  could  gain  no  settle- 
ment by  estate,  by  virtue  of  a  residence  after  the 
verbal  agreement,  but  before  the  assignment. 
Rex  V.  Cregrina,  2  Adol.  A.  Ellis,  536 ;  4  r^ev.  A 
M.  455 ;  1  Har.  &  Woll.  53.  1710 

A  woman,  being  yearly  tenant  at  50s.  a  year, 
marries.  Her  husband,  by  forty  days'  resioence 
on  the  premises,  gains  a  settlement  by  estate. 


'i574 


[POOR] 


Rex  V.  Barnard  CaHle  (inhabitants),  4  Nev.  & 
M.  1285  1  Adol.  &  EUis,  108.  1710 

Bat  when  a  man,  being  ^earlj  tenant,  dies, 
and  his  wife  occupies  and  pays  rent  aa  one  of  the 
next  of  kin,  but  without  taking  out  letters  of 
administration,  the  wife  neither  gains  a  settle- 
ment herself,  nor  is  a  settlement  gained  by  a 
second  husband,  by  reason  of  his  marriage  With 
her  during  such  occupation,  and  of  forty  days' 
residence.    Id. 

Whether  the  widow  of  a  yearly  tenant,  who, 
without  taking  out  letters  ofad  ministration,  con- 
tinues the  occupation  and  pays  rent,  is  to  be  con- 
sidered as  holding  in  her  own  right,  or  as  next  of 
kin,  with  an  incomplete  representative  character, 
is  a  question  of  fact,  to  be  found  by  the  sessions 
as  a  uict.    Id. 

Semble,  but  the  court  will  not  sejid  back  a 
*  case  of  this  nature  to  be  re-stated,  except  in  case 
of  urgent  necessity.    Id. 

A  settlement  by  estate  was  claimed  for  H., 
under  the  followmg  circumstances  : — Premises 
were  demised  for  three  lives,  which  expired  in 
1784 ;  and  a  lease  for  other  lives  was  then  grantr 
ed  to  a  new  tenant,  who  paid  rent  under  it  dur- 
ing all  the  time  aAer  mentioned.  At  the  time 
of  the  e^fecution  of  the  lease,  W.  was  in  posses- 
sion, and  claimed  to  hold,  on  the  ground  that  one 
of  tne  lives  in  the  first  lease  was  still  iu  exist- 
ence. He  continued  to  hold  for  twenty -six  years, 
and  then  died,  more  than  twenty  years  before 
the  settlement  came  into  question.  His  widow 
retained  possession  for  sixteen  years,  in  the  last 
of  which  she  devised  the  premises  to  her  daughter, 
the  wife  of  H.,  in  fee,  and  appointed  her  execu- 
trix and  residuary  legatee  ;  at  the  same  time  ex- 
Eressing  a  doubt  whether  the  premises  did  not 
elone  to  the  party  who  became  lessee  in  1784. 
She.  Teh  other  sons  and  daughters.  On  her 
death,  H.  and  his  wife,  who  had  been  living  with 
the  mother  on  the  premises,  retained  possession 
for  three  years,  at  the  end  of  which  H.  conveyed 
them  to  a  purchaser,  by  feoffment  and  livery  of 
seisin.  No  prooate  of  the  mother's  will  was  ob- 
tained. Neither  W.  nor  the  parties  holding  after 
him  ever  paid  anjr  rent.  The  lives  in  the  second 
lease  had  not  expired  when  the  settlement  came 
into  dispute: — Held,  that  H.  did  not  acquire  a 
settlement  by  residence  on  the  premises  after  the 
death  of  his  wife's  motlier,  there  having  been  no 
adverse  possession  for  twentv  years  by  W.,  or 
those  who  succeeded  him,  and  H.'s  wife  not  hav- 
ing taken  any  interest  which  could  give  a  settle- 
ment as  executrix  of  her  mother.  Rex  v.  Ax- 
bridge,  2  Adol  Hl  Ellis,  520.  1710 

SeUlement  by  serving  an  Ofice.] — No  settlement 
is  gained  b^  the  execution  of  an  office  (e.  g.  that 
of  pinder)  for  a  town,  to  which  a  party  is  appoint- 
ed at  a  court  held  within  and  for  a  manor,  which 
manor  does  not  extend  over  the  whole  town,  and 
there  being  no  special  custom  warranting  such 
appointment.  Rex  v.  St.  Mary,  Newmarket,  4 
Ncv.  ^b;  M.  693 ;  3  Adol.  &  Ellis,  151 ;  1  Har.  & 
WoU.  154.  1714 

The  parish  of  F.  and  the  town  of  F.  were  co- 
extensive, and  more  extensive  than  the  manor  of 
F.  B.,  which  was  within  them,  as  well  as  four 


other  manors;  bat  there  was  no  paramoaat 
manor.  There  were  two  pounds  in  the  pariah ; 
one  in  the  manor  of  F.  B.,  and  the  other  in  one 
of  the  other  manors.  The  pauper,  residing  un- 
der a  certificate  in  the  parish  of  F.,  was  -appoint- 
ed to  the  office  of  pinder  for  the  town  of  F.  by 
the  homaffe  at  a  court  baron  of  the  baron  of  tlie 
manor  of  F.  B.,  and  was  duly  sworn  to  execute 
the  office,  which  he  did  for  two  vears : — Held, 
that  he  was  not  legally  placed  in  the  office  so  as 
to  acquire  a  settlement  by  serving  an  office,  id. 

QusBre,  whether  the  office  of  pinder  of  a  manor 
be  a  public  annual  office  sufficient  to  confer  a 
settlement .'    Id. 

In  a  parish  governed  by  a  select  vestrv,  public 
notice  was  given  that  the  vestry  shoula  meet  to 
elect  an  organist  for  a  newly  erected  chapel.  At 
the  meeting,  C.  S.  was  elected,  and  it  was  enter- 
ed in  the  minutes  of  the  vestry  that  she  was  ap- 
pointed organist  at  602.  per  annum.  She  per- 
formed the  office  for  several  years,  receiving  the 
salary  half-yearly,  and  residing  in  the  parish, 
till,  on  complaint  made  against  her  bv  the  con- 
gregation, she  was  dismissed  by  an  oraer  of  ves- 
try : — Held,  tbat  the  office  of  organist  held  by  C. 

5.  was  not  a  public  annual  office  bv  which  a  set- 
tlement could  be  gained  under  3  W.  &r  M.  e.  11, 
s.  6.  Rex  V.  St.  George,  Hanover  Square,  5  B. 
&  Adol.  571.  1714 

An  office  in  a  parish,  to  which  the  officer  may 
be  appointed  for  anv  discretionary  period,  is  not 
an  annual  office  within  3^4  W.  it  M.  e.  11,  s. 

6,  and  9  &  10  Will.  3,  c.  U.  Rex  v.  Middlewich, 
4  Nev.  dt  M.  682 ;  3  Adol.  &  EUis,  156 ;  1  Har. 
&  Woll.  152.  1714 

Therefore,  a  man  in  fact  appointed  to  and 
serving  snch  office  for  a  year,  and  residing 
within  the  parish,  cannot  gain  a  settlement  there- 
by.    Id. 

Where,  in  case  of  a  general  appointment  to  an 
office,  such  appointment  will  enure  as  an  ap- 
pointment for  a  year,  the  office  is  an  annual  office 
within  those  statutes.     Id. 

Removal  and  Order.'] — A  house  in  the  parish 
of  W.  was  let  to  A.,  and  B.  his  wife,  for  their 
joint  lives,  and  the  life  of  the  survivor.  A.  and 
B.  were  ejected  wrongfully  from  the  house,  but 
their  furniture,  and  a  person  who  had  lodged  with 
them,  remained  in  tne  house.  Afterwards  A. 
assisted  the  lessor  to  destroy  the  lease: — Held, 
that,  afler  these  transactions,  A.  and  B.  continu- 
ed irremovable  from  W.,  though  tbey  had  become 
actually  chargeable.  Rex  v.  Matlock,  1  Adol.  dk 
Ellis,  124.  1723 

An  order  of  removal,  directed  to  the  overseers 
of  a  parish,  which  has  no  overseers  qua  parish, 
is  bad.  Rex  9.  Cartmel,  4  Nev.  dk  M.  357 ;  2 
Adol.  &  Ellis,  562.  1726 

Therefore,  where  a  pauper  had  gained  a  set- 
tlement by  hiring  and  service  on  waste  land 
within  a  pHrish,  the  remainder  of  which  is  divid- 
ed into  townships,  having  separate  overseers  and 
supporting  their  own  poor,  and  which  parish  qua 
parish  has  no  overseers  or  poor  rate,  a  removal 
to  the  parish  at  large  is  bad,  although  it  is  not 
shown  that  the  waste  land  belongs  to  any  one  of 


[POOR] 


257S 


the  town8hi{Mi.of  the  parish,  and  although  bj  an 
award  made  under  the  antboritj  of  an  act  of  par- 
liakment  for  inclosing  the  commons,  ^c.  in  the 
parish,  it  is  directed  ^  that  the  said  waste  lands 
shall  contribute  in  certain  proportions  to  the  raten 
(parochial  or  otherwise)  of  each  of  the  seyeral 
townships  within  the  parish,    id. 

The  Knglish-bom  and  unemancipated  daugh- 
ter of  Irish  parents  residing  in  England,  but 
not  having  done  any  act  to  gain  a  settlement, 
cannot,  upon  becoming  actually  chargeable,  be 
removed  to  the  place  of  her  birth.  Rex  v'.  Mile 
End  Old  Town,  5  Nev.  &  M.  581 ;  1  Har.  & 
WoU.  551.  1725 

But  in  such  case  the  parents,  together  with  all 
such  of  their  children  as  have  not  acquired  a 
settlement  in  their  own  right,  may  be  passed  to 
Ireland,  under  3  &.  4  Will.  4,  c.  40.    Id. 

Relief  given  to  a  child  of  Irish  parents  above 
sixteen  years  of  age,  but  residing  with  his  fk- 
ther's  family,  renders  the  father  actually  charge- 
able,  within  the  meaning  of  the  3  &  4  Will.  4,  c. 
40,  notwithstanding  sect.  56  of  the  Poor  Law 
Amendment  Act,  4&6  Will.  4,  c. 76,  which  was 
held  not  to  apply  to  Irish  and  Scotch  paupers. 
Id. 

Whether  relief  to  a  child  of  English  parents 
above  sixteen,  but  residing  with  his  father,  given 
aioce  the  passing  of  the  Poor  Law  Amenoinent 
Act,  renders  the  father  chargeable,  quere  ?    Id. 

Where  the  daughter  of  an  Irish  pauper  is  re- 
moved with  herfaUierto  Ireland  under  3  &.  4  Will. 
4,  c  40,  her  bastard  child,  born  in  England,  can- 
not be  removed  with  her,  although  within  the  age 
of  nurture.    Id. 

By  an  order  unappealed  against,  a  pauper  is  re- 
moved from  A.  to  the  parish  of  B.  in  the  county 
of  S.  B.  at  that  time  consists  of  two  townships, 
C.  and  D.,  (jointly  maintaining  their  own  poor), 
in  the  county  of  S.,  and  one  township,  £.,  (sepa- 
ratelv  maintaining  its  own  poor),  in  the  county 
of  W.  This  order  is  conclusive  upon  that  part 
of  B.  which  lies  in  the  county  of  S.,  semble. 
Rex  V.  Oldbury,  5  Nev.  &M.  547;  1  Har.  &. 
Woll.  554.  1728 

After  the  removal,  C.  and  D.  being  required  by 
mandamus  to  elect  separate  overseers  and  main- 
tain their  poor  separately,  the  same  pauper  is 
afterwards  removed  from  A.  to  the  township  of  C. 
C.  is  not  estopped  by  the  former  removal.    Id. 

The  9  Geo.  1,  c.  7,  s.  8,  only  applies  to  the 
first  sessions  after  executing  the  order  of  removal, 
and  therefore  the  court  will  not  interfere  with  the 
discretion  of  the  magistrates  at  the  second,  as  to 
adjournment,  if  it  is  in  fiirtherance  of  a  reasona- 
ble practice.  Rex  i;.  Monmouthshire  (Justices), 
3  Dowl.  P.  C.  306.  1729 

An  order  of  sessions,  quashing  an  order  of  re- 
moval generallv,  is  conclusive  evidence  between 
tile  parties  to  that  appeal,  that  when  the  order  of 
removal  was  made,  the  appellant  parish  was  not 
iiound  to  receive  the  pauper,  but  it  is  only  prima 
&cie  evidence  that  the  pauper  was  not  settled  in 
that  parish;  and  therefore,  upon  the  trial  of  an 
Bpipeil  between  the  same  parishes  against  a  se- 
eond  order  of  removal  of  the  same  party,  the  re- 


moving parish  may  show  by  parol  evidence  that 
the  first  order  of  removal  was  quashed  on  the 
ffround  that  the  pauper  resided  on  a  tenement  of 
his  own,  which  maae  him  irrei^ovable,  though  it 
did  not  confer  a  settlement,  and  that  he  imer* 
wards  sold  the  tenement  and  became  removable. 
Rex  V.  Wick  St.  Lawrence,  5  B.  &  Adol.  526. 

1729 

Th6  parish  of  B.  W.  consists  of  seven  town- 
ships, separately  maintaining  their  poor.  One  is. 
called  B.  W.,  and  another  B.  W.  P.  A  pauper, 
whose  settlement  was  in  Df  W.  P.,  was  removed 
to  the  parish  of  B.  W.  The  pauper  was  taken 
with  the  order  and  delivered  to  the  overseer  of 
the  township  of  B.  W.  P.  He  objected  to  take 
him,  unless  a  demand  for  expenses  was  waived. 
This  was  refused,  and  the  pauper  was  taken  away. 
The  churchwarden  of  the  parish  of  B.  W.  was 
subsequently  served  with  the,  order,  and  the  pau- 
per delivered  to  him.  He  carried  the  pauper  to 
the  workhouse  of  the  township  of  B.  W. : — Held, 
firat,  that  service  on  one  of  the  churchwardens  of 
the  parish  t>f  B.  W.  was  insufficient,  being  ser- 
vice upon  a  mere  stranger;  secondiv,  that  the 
sessions  should  have  quashed  the  order ;  thirdly, 
by  Den  man,  C.  J,  and  Littledale,  J.,  (Taunton 
and  Pattpson,  Js.,  dub.),  that  the  inhabitants  or 
the  township  of  B.  W.  might  appeal  against  this- 
order,  although  they  were  not  bound  to  maintain 
the  pauper  under  it.  Rex  v.  Bishop  Wearmouth, 
3Nev.  &M.  77;  5B.  ^b  Adol.  942.  1731 

Semble,  that  the  order  could  not  be  amended 
by  substituting  the  word  townsh^  for  parish.    Id. 

The  court  of  quarter  sessions  has  no  authority 
to  make  a  rule  of  court  requiring  one  calendar 
month's  notice  of  the  entry  and  respite  of  an  ap- 
peal agfainst  an.  order  of  removal,  m  addition  to 
the  notice  of  appeal  required  by  9  Greo.  1,  c.  7,  s. 
8 ;  and  if  an  appeal  be  dismissed  for  want  of  such 
notice,  a  mandamus  may  be  issued  requiring  the 
sessions  to  hear  it.  Rex  v.  Norfolk,  3  Nev.  A. 
M.  55 ;  5  B.  <Sb  Adol.  990.  1731 

Under  79th  section  of  the  Poor  Law  Amend- 
ment Act,  notice  of  appeal  against  an  order  of  re- 
moval need  not  be  given  wiuiin  twenty-one  days 
from  the  time  of  sending  the  notice  of  charge- 
ability,  and  the  copies  of  the  order  on  examina- 
tion to  the  overseers  of  the  parish  charged  by 
such  order : — Held,  that  the  practice  as  to  notices 
of  appeal  not  being  expressly  altered  hy  the  act» 
remains  as  before,  although,  by  sect.  81,  the 
statement  of  the  grounds  of  appeal  is  required  to 
be  delivered  with  such  notice,  or  at  least  four- 
teen days  before  the  sessions ;  and  therefore, 
where,  by  the  practice  of  the  sessions,  eight  days' 
notice  is  required,  a  notice  of  appeal  given  eight 
days  before  the  sessions,  is  sufficient,  proviued 
such  statements  of  the  ground  of  appeal  be  de- 
livered fourteen  days  before  the  sessions ;  at  least 
where  the  delivery  of  such  statement  is  accom- 
panied with  the  service  of  a  notice  of  appeal  de 
facto,  although  such  notice  be  erroneous,  as  pur- 
porting  to  be  given  for  the  borough  instead  of  the 
county  sessions.  Rex  o.  Suffolk  (Justices),  5> 
Nev.  '<&  M.  503.  1731 

An  appellant  is  not  bound  by  the  provisions  of 
the  4  &  D  Will.  4,  c.  76,  s.  79,  to  give  notice  of 


2576 


[POOR— POWER] 


appeal  within  twenty- one  days  afler  notice  of  tlie 
oroer  of  reinoTal  bein^  made.  Rex  v.  Leicester 
(Justices),  4  Dowl.  P.  C.  633.  173S2 

An  order  of  sessions  quashing  an  order  of  re- 
moval ^*  for  informality,'  was  confirmed  by  this 
court,  although  the  order  of  removal  appeared 
upon  the  face  of  it  to  be  free  from  defect.  Rex 
V.  Cottingham,  4  Nev.  &  M.  '^15.  1732 

The  court  will  in  such  case  intend,  that  the 
sessions  used  tlie  word  ^*  informality'*  as  expres- 
sive merely  that  their  decision  had  proceeded 
upon  grounds  distinct  from  the  merits  of  the  ap- 
peal.    Id. 

The  sessions  have  power  to  grant  costs  under 
8  &  9  Will.  3,  c  30,  s.  3i,  m  all  cases  in  which  an 
appeal  has  been  entered  and  determined,  whether 
the  determination  be  upon  the  merits  or  for  de- 
fect of  form.    Id. 


POWER. 

Power  to  grant  leases.     Doe  d.  Williams  v. 
Matthews,  5B.^lL  Adol.  298.  1743 

By  a  marriage  settlement  certain  estates  were 
settled  in  strict  Mttlement,  and  a  power  was  re- 
served to  the  persons  being  in  the  actual  posses- 
sion on  the  premises,  by  virtue  of  the  limitations 
in  the  settlement,  to  lease  any  part  of  the  lands 
thereby  settled  ^*  for  one,  two,  or  three  life  or 
lives,  or  any  term  or  number  of  years,  not  ex- 
ceeding twenty-one  years,  so  as  upon  all  and 
«very  such  lease  or  leases  there  should  be  reserv- 
ed and  continued  payable  during  the  respective 
continuance  of  such  lease  or  leases,  by  half-yearly 
payments,  the  best  and  most  improved  yearly 
rents  that  could  be  reasono^bly  haa  or  obtainedf, 
without  taking  any  sum  or  sums  of  money,  or 
other  thing,  by  way  of  fine  or  income  for  the 
same."  By  lease,  dated  the  lUh  January,  1783, 
a  tenant  for  life  of  the  estates  demised  a  part  of 
the  settled  estates  to  hold  from  the  4th  of  Janu- 
ary preceding,  for  the  lives  of  three  persons 
therein  named,  yielding  and  paying  yearly  and 
«very  year  during  the  said  term  the  yearly  rent 
4>r  sum  of  31/.  10«.,  at  or  upon  the  two  most  usual 
leasts  or  days  of  payment  in  the  year,  viz.  the 
feast  of  St.  Philip  and  Jamps  the  apostles,  (Ist 
May),  and  St.  Michael  thp  archangel,  (29th  Sep- 
tember;, by  rvi»n  and  equal  portions;  tlie  first 
payment  lo  be  made  on  tfie  feast  of  St.  Philip 
and  James  the  apostles  next  ensuing  the  date  of 
the  lease  : — Held,  that  the  lease  was  not  a  due 
execution  of  the  power,  and  that  it  was,  therefore, 
invalid : — Held,  also,  tiiat  leases  of  other  estates 
in  the  same  part  of  the  country  were  not  admis- 
sible in  evidence  to  show  that  the  days  on  which 
the  rent  was  reserved  in  the  lease  were  the  usual 
half-yearly  days  of  payment  of  rent  in  that  part 
of  the  country.  Doe  a.  Harris  v.  Morse,  2  C.  & 
M.  247;  4Tyr.  185.  1743 

Rent  in  leases.  Doe  d.  Rogers  v.  Rogers,  5  B. 
dk  Adol.  755.  1743 

A.  settled  lands,  of  which  he  was  seised  in  fee, 
to  such  uses  as  he  should  appoint  by  deed  or 
will,  and,  in  default  of  appointment,  to  the  use  of 
himself  for  life,  with  remainder  over.  Afler- 
wardsy  A.  devised  all  his  real  estates  whatsoever 


and  wheresoever,  and  all  his  estate,  right,  title, 
and  interest  therein,  and  all  leasehold  premises 
whatsoever  to  which  he  might  be  at  the  time  of 
his  decease  entitled,  and  all  his  household  funii> 
ture,  money,  &c.,  and  all  other  his  real  and  per- 
sonal estate,  whatsoever  and  wheresoever,  upon 
certain  trusts.  At  the  time  of  making  the  will, 
and  also  at  the  time  of  his  death,  A.  was  seised 
in  fee  of  lands,  besides  those  subject  to  the 
power: — Held,  that  the  devise  was  not  a  good 
execution  of  the  power.  Davis  v.  Williams,  1 
Adol.  Jt  Ellis,  588 ;  3  Nev.  &  M.  821.  1735 


A.,  tenant  for  life,  is  empowered  to  make  leau«, 
provided  "  the  ancient  and  accustomed  reserva- 
tions be  thereby  reserved,"  and  provided  **  they 
be  granted  in  the  same  manner  and  form,  and 
with  and  under  auch  and  the  like  reservations, 
covenants,  conditions,  and  agreements,  as  are 
usually  and  customarily  contained  in  leases  of 
the  same  kind  in  the  respective  parishes  and  pla- 
ces in  which  the  premises  are  situate."  Upon  a 
question  as  to  the  validity  of  a  lease  granted  by  A., 
other  leases  of  lands  in  the  same  parish  are  ad- 
missible in  evidence  for  the  purpose  of  showing 
whether  the  lease  in  question  satisfies  the  secona 
proviso.  Doe  d.  Douglas  v.  Lock,  4  Nev.  &  M. 
807 ;  2  Adol.  &  Ellis,  705.  1745 

Semble,  that  tho  true  criterion  of  a  reservation 
of  tlie  ancient  and  accustomed  rent  under  the 
first  proviso,  is  the  reservations  contained  in  the 
lease  made  of  the  premises  next  preceding  the 
creation  of  the  power.    Id. 

Dubitatur,  whether  a  quarterly  reservation  of 
rent,  which  had  been  previously  reserved  half- 
yearly,  will  vitiate  the  lease.     Id. 

It  is  no  objection  to  such  a  lease,  that  in  former 
leases  a  rignt  of  re-entry  was  reserved,  in  the 
event  of  there  beins  no  overt  distress  on  the  pre- 
mises, end  that  in  the  lease  under  the  power,  the 
word  **  overt"  is  omitted.    Id. 

The  omission  to  reserve  a  heriot,  where  a 
heriot  had  been  accustomably  reserved,  would 
vitiate  the  lease.     Id. 

Out  a  reservation  of  a  heriot  of  **  the  best  good 
of  the  person  or  persons  who  for  the  time  being 
shall  be  tenant  or  tenants  in  possession  of  the  de- 
mised premises,"  is  sufficient,  though  the  reser- 
vation in  former  leases  was  "  of  the  best  good  of 
A  B.  (the  cestui  que  vie  and  lessee),  or  such  per- 
son as  shall  be  in  possession  of  the  premises  as 
tenant,  by  virtue  of^  the  lease."     Id. 

A  clause,  purporting  to  reserve  and  except  to 
the  lessor  the  power  of  hunting,  dec.  over  the  de- 
mised premises,  ennres  as  a  ^rrant  from  the  lessee 
to  the  lessor  of  a  right  or  privilege,  and  not  as  a 
reservation  or  exception.    Id. 

A  clause  in  a  lease  purporting  to  reserve  un- 
derwoods and  under- ground  produce,  enures,  not 
as  a  reservation  but  as  an  exception.    Id. 

Where  former  leases  contained  an  exception  of 
**  all  and  all  manner  of  timber  trees,  and  trees 
likely  to  prove  timber,"  a  lease  under  such 
power,  containing  an  exception  of  "  all  timber 
trees,  bodies  of  pollard,  ana  other  trees  whatso- 
ever," granted  at  the  same  rent,  was  held  to  be 
void,  on  the  ground  that  the  subjectpmatier  of 


[POWER— PRACTICE] 


2^77 


the  demise  ii  increased  by  the  alteration  in  the 
exception,  and  that  no  further  rent  is  reserved  in 
respect  of  such  addition  to  the  subject-matter  of 
the  demise.  Id. 


PRACTICE. 

fVrit  of  Summons.] — An  alias  bill  of  Middle- 
may  be  signed  by  the  seal  usaally  affixed  to  a 
writ  6f  summons,  smoe  the  Uniformity  of  Pro- 
cess Act.  Finney  v.  Montague,  2  Nev.  &  M. 
804  ;  5  B.  &  Adol.  877.  1752 

The  filacer  need  not  siga  a  writ  of  summons 
if  the  seal  of  the  court  is  impressed  upon  it. 
Bart  p.  Jackson,  2  Dowl.  P.  C.  747.  1752 

The  name  of  one  county  being  substituted  for 
another  in  a  writ  of  snmmons  without  resealin^, 
the  proceedings  were  aside  without  costs,  sithough 
the  defendant  had  obtained  an  order  to  stay  pro- 
ceedings on  payment  of  debt  and  costs.  Siggers 
V.  Sansom,  3  Dowl.  P.  C.  745.  1752 

An  alias  or  pluries  need  not,  since  2  Will.  4, 
e.  39,  be  tested  of  the  return  day  of  the  first  writ, 
and  their  issuing  is  not  confined  by  sec.  10  to 
any  given  perioa  afler  the  expiration  of  the  first 
wnt,  except  it  issued  to  prevent  the  operation  of 
the  statnte  of  limitations.  Nicholson  v.  Lemon,  4 
Tyr.  308.  1752 

A  writ  of  summons  dated  on  a  Sunday  is  a 
anility,  and  the  objection  is  not  waived  by  lapse 
of  time.  Hanson  e.  Shackelton,  4  Dowl.  P.  C 
48 ;  1  Har.  &  Woli.  342.  1752 

Writ  of  Distringas  ] — A  distringas  will  be  grant- 
ed for  the  pnrpose  of  enabling  a  plaintiff  to  pro- 
ceed to  outlawry  in  some  cases,  when  the  affidavits 
are  not  sufficient  to  ground  a  distringas  to  compel 
the  defendant  to  enter  an  appearance.  Hewit  v. 
Melton,  3  Tyr.  822.  1753 

In  order  to  obtain  a  distringas,  the  person  en- 
deavoring to  serve  the  summons  must  appoint 
the  day  and  hour  at  which  he  will  make  his  sub- 
sequent calls.  Wills  V,  Bowman,  2  Dowl.  P.  C. 
413.  1753 

The  attempts  to  serve  a  summons,  in  order  to 
detain  a  distringas,  may  be  made  on  the  same 
day,  if  it  appear  that  the  defendant  is  purposely 
keeping  out  of  the  way.  White  v.  Western,  2  Dowl. 
P.  C.  450.  1753 

The  court  will  not  grant  a  distringas  where  the 
three  calls  ha?e  been  made  on  the  same  day. 
Cross  V.  WUkins,  4  Dowl.  P.  C.  279 ;  1  Har  & 
WoU.  516.  1753 

Where  it  is  clear  that  the  defendant  keeps 
ont  of  the  way  to  prevent  being  sued,  the  court 
will  grant  a  distringas,  although  three  calls  and 
two  appointments  have  not  wen  made.  Hick- 
man V.  Dallimore,  4  Dowl.  P.  C  278 ;  1  Har.  & 
WoU.  524.  1753 

In  order  to  obtain  a  distringas,  it  must  be 
shown  that  the  defendant  is  absent,  or  circum- 
stances most  be  stated  from  which  it  can  be  in- 
ferred by  thp  court  that  the  defendant  is  avoiding 
the  process  of  the  court.  Houghton  v.  Howarth, 
4  Dowl.  P.  C.  749.  1755 

A  distringas  will  not  be  granted  on  an  affidavit 


merely  stating  the  ^defendant  to  be  absent  in  he- 
land,  without  showing  that  he  has  gone  therci  to 
avoid  his  creditors,  although  he  may  have  a  resi- 
dence in  town,  at  which  unsuccessful  attempts  to 
serve  him  have  been  made.  Evans  v.  Fry,  3 
Dowl.  P  C.  581 ;  1  Har.  &  Woll.  185.  1755 

Quffire,  whether  the  court  will  set  aside  a  writ 
of  distringas,  issued  on  a  sufficient  affidavit,  on 
the  ground  that  the  (jefendant  was  abroad  at  the 
time  it  was  attempted  to  serve  the  summons.^ 
White  V.  Johnson,  1  Gale,  108.  1755 

The  copy  of  a  writ  of  summons  must  be  left 
on  tlie  last  of  the  three  times  of  calling,  which  are 
required  in  order  to  obtain  a  distringas.  Mason 
V.  Lee,  5  Nev.  ^  M.  240:  S.  C.  nom.  Anon.l 
Har.  &  Well.  3d0.  1755 

To  entitle  a  plaintiff  to  a  distringas  upon  a  writ 
of  summons  not  personally  served,  it  is  not  suffi- 
cient to  show  that  unsuccessful  attempts  were 
made  to  serve  the  defendant  at  his  residence  on 
three  occasions,  and  that  on  the  second  a  copy  of 
the  writ  was  left,  and  referred  to  on  the  thira.  Id. 

To  obtain  a  distringas,  the  copy  of  a  writ  of 
summons  must  be  leTl  at  \he  di'friidont's  sup- 
posed address,  although  the  partieis  residing  in 
the  house  state  that  they  have  no  knowledge  of 
him.    Hooken  v.  Tooke,  1  Hodges,  315.  '      1755 

A  distringas  was  granted  against  a  defendant, 
though  he  had  not  been  served  with  the  writ,  it 
appearing  that  he  had  gone  abroad  to  avoid  his 
creditors,  and  had  lefl  servants  at  his  house  in 
town.    Moon  v.  Thynne,  3  Dowl.  P.  C.  153.  1755 

A  distringas  was  refused  where  the  writ  of 
summons  had  been  issued  more  than  four  months, 
and  without  being  continued  by  an  alias  writ  (See 
2  WiU.  4,  c.  39,  s.  10.)  Sewell  v.  Brown,  1 
Hodges,  317 :  S.  P.  Lemon  v  Lemon,  2  Scott, 
506.  1755 

Before  a  distringas  will  be  granted  to  compel 
an  appearance,  it  must  be  positively  sworn  that 
the  defendant  has  not  appeared.  Hooker  r .  Town- 
send,  1  Hodges,  204.  1755 

In  executing  a  distringas,  it  is  sufficient  that 
the  sheriff  should  tajce  all  the  property  on  the 
premises,  although  it  amounts  to  less  than  40^. ; 
and  on  the  sheriff's  return,  the  plaintiff  will  be 
entitled  to  enter  an  appearance  for  the  defendant. 
Jones  V.  Dyer,  2  Dowl.  P.  C.  445.  1756 

Writ  of  Capias  ] — If  the  warning  in  a  capia» 
is  placed  at  the  foot  of  the  writ,  it  is  only  neces- 
sar^  in  the  body  to  introduce  the  words  **  here- 
under written,'  and  not  **  indorsed  hereon"  be- 
sides.   Bridgman  v,  Curgenven,  3  Dowl.  P.  C.  L 

1757 

A  writ  of  capias  may  be  issued  into  a  county 
different  from  that  in  which  the  writ  itself  de- 
scribes the  defendant  as  resident;  and  proceed- 
ings to  outlawry  founded  on  such  a  writ  are  irre- 
giuar.    Morris  v.  Davies,  4  DowL  P.   C.  317. 

1757 

The  omission  in  the  prsscipe  of  the  sum  for 
which  the  defendant  is  to  be  held  to  bail,  is  no 

f round  for  setting  aside  a  capias.     Usborne  v. 
ennell,  2  Dowl.  P.  C.  801 ;  4  M.  &.  Scott,  431. 

1757 


«578 


[PRACTICE] 


A  plaintiff  may  inue  a  aecond  capias  before  the 
return  of  one  previously  sued  out.  Dunn  v.  Hard- 
ing, 2  Do  wl.  F.  C.  »03.  1757 


Form  generally.] — A  writ  of  capias  directed  to 
the  "  sheriff  of  London,"  instead  of  "  sheriffs :" — 
Held  bad  on  that  account ;  and  also  because  the 
words  "  indorsed  hereon"  were  omitted  in  the 
writ,  which  purported  to  have  been  issued  in  an 
Action  on  the  case.  Barker  v.  Weedon,  2  Dowl. 
P.  C.  707;  1  C.  M.  &  R.  396;  4  Tyr.  86C.    1757 

If  a  writ  of  capias  be  directed  to  the  sheriffs  of 
London,  the  subsequent  insertion  of  the  word 
sheriff  in  the  singular  will  not  vitiate  it.  Irving 
t>.  Heaton,  4  Dowl.  P.  C  638.  1757 

A  writ  of  capias  directed  to  the  sheriffs  of  Mid- 
dlesex is  irregular.  Jackson  v.  Jackson,  3  Dowl. 
P.  C.  182 ;  1  C.  M.  &  R.  438 ;  5  Tyr.  136.    1757 

A  writ  of  detainer  directed  "  to  the  marshal  of 
our  prison  of  the  Marshalsea,"  instead  of  "  the 
marshal  of  the  Marshalsea  of  our  court  before 
us :" — Held  irregular,  and  the  defendant  was  dis- 
charged out  of  custody.  Storr  v.  Mount,  2  Dowl . 
P.  €.417.  1757 

A  writ  directed  to  the  coroner  need  not  show 
upon  the  face  of  it  the  reason  why  it  is  so  direct- 
ed. Bastard  v.  Gutch  or  Trutch,  5  Nev.  &.  M. 
109 ;  1  Har.  ^  Woll.  321.  1757 

When  in  the  copy  of  the  writ  served  on  the 
defendant  the  tetter  ^  s"  was  omitted  in  the  word 
**slie  :" — Held,  to  be  immaterial,  as  it  could  not 
mislead.  Sutton  v.  Burgess,  1  C.  M.  dt  R.  770 ; 
3  Dowl.  P.  C.  489;  5  Tyr.  320;  1  Gale,  17. 

1757 

The  omission  of  immaterial  particles  in  the 
writ  of  capias,  is  not  an  irregularity  of  which  the 
court  will  take  notice,  if  the  omissions  do  not 
alter  the  meaning  of  the  writ.  Forbes  v.  Mason, 
3  Dowl.  P.  C.  104 :  S.  C.  nom.  Pocock  v.  Mason, 

1  Bing.  N.  R.  245.  1757 

Omission  of  the  words  "  the"  and  ••by"  in  the 
eopv  of  the  writ  of  capias  prescribed  by  the  sched. 

2  Will.  4,  c.  39:— Held,  not  to  invalidate   an 
arrest  Id. 

Whore,  in  the  body  of  a  writ  of  capias,  the  word 
Middlesex  was  by  mistake  written  "  Middesex  :" 
— Held,  that  it  was  not  a  valid  objection,  and  was 
no  ground  for  ordering  the  defendant  to  be  dis- 
charged out  of  custody  on  entering  a  common 
appearance.  Colston  v.  Berends  or  Berens,  1  C. 
M.  &  R.833;  3  Dowl.  P.  C.  253;  5  Tyr.  511. 

1757 

Desonption  of  Aetian.]-^Tbe  defendant  having 
been  held  to  bail  on  a  capias,  which  described  the 
action  as  an  aotion  of  trespass  on  the  case,  and 
the  arrest,  as  appeared  by  the  indorsement  on  the 
writ,  being  for  a  debt  of  1200^,  the  court  can- 
celled the  bail-bond,  on  defendant's  entering  a 
eommon  appearance.  Richards  v.  Stuart,  10  Bmg. 
319 ;  3  M.  &  Scott,  778 ;  2  Dowl.  P.  C  758.  17& 

**  Slander"  is  a  sufficient  description  of  the 
Ibrm  of  action  in  a  writ  of  summons.  Davies  v. 
PariEer,  2  Dowl.  P.  C.  537.  1758 


•*  Libel"  is  a  sufficient  description  of  the  form 
of  action  in  a  writ  of  summons.    Pell  v.  Jackson, 

2  Dowl.  P.  C.  445.  J 758 

A  writ  of  summons,  describing  the  action  as 
"  action  promises"  instead  of  "  action  on  pro- 
mises :"— Held  sufficient.  Cooper  r.  Whealc,  4 
Dowl.  P.  C.  231 ;  1  Har.  &  Woll  5:^).  1758 

The  omission  of  the  words  "  on  promises"  in 
a  writ  of  summons,  is  only  a  ground  of  setting 
aside  the  copy  served,  and  not  the  writ  itself. 
Chalkley  v.  Carter,  4  Dowl.  P.  C.  481.  1758 

Bail  cannot  apply  to  set  aside  the  capias  against 
their  principal,  on  the  ground  of  the  action  Deing- 
misdescribed  therein  as  an  action  of  trespass 
on  the  case  upon  promises.  Gurney  v.  Hopkin- 
son,  1  C.  M.  &  R.  587;  3  Dowl.  P.  C.  189;  5 
Tyr.  211.  1758 

Such  a  mistake  is  irregular  only,  and  not  void. 
Id. 

The  mistake  must  be  taken  advantage  of  by 
application  to  set  aside  the  writ  for  irregularity. 

The  affidavit  of  debt  was  for  money  lent  gene- 
rally, and  the  indorsement  on  the  capias  stated 
the  debt  to  be  due  on  a  promissory  note  : — Held, 
not  to  be  a  variance.  Patterson  v.  Habbershan,  1 
Hodges,  316.  1758 

The  distringas  being  "  in  a  plea  of  trespass  on 
tlie  case  on  promises,"  will  not  be  set  aside,  though 
the  writ  of  summons  was  **  in  an  action  on  pro- 
mises." Pybusv.  Bryant,  4  Tyr.  994;  S.C.  nom. 
Tyser  v.  Bryan,  2  Dowl.  P.  C.  640.  1758 

Defendant's  Residence.] — Defendant's  residence. 
Price  V.  Huxley,  4  Tyr.  68 ;  Webb  t?.  Lawrence, 

3  Tyr.  906.  1759 

No  date  is  required  to  the  indorsement.    Id. 

In  b|Lilable  process,  it  is  not  necessary  to  five 
a  particular  description  of  the  defendant's  place 
of  residence.  A  place  at  which  he  may  he  ex- 
pected to  be  found  is  sufficient.  Welsh  v.  Lang- 
ford,  2  Dowl.  P.  C.  498.  1TO9 

In  a  writ  of  capias  it  is  not  necessary  that  the 
plaintiff  should  describe  the  exact  residence  of  the 
defendant,  but  he  may  give  the  best  description  he 
can  of  the  place  where  he  is  to  be  found.  Buffle 
V.  Jackson,  2  Dowl.  P.  C.  505.  1759 

The  writ  of  capias,  and  writs  which  purport  to 
be  a  continuance  of  it,  must  state  the  place  where 
the  defendant  resides ;  and  if  that  be  unknown, 
the  place  where  he  is  supposed  to  reside.  Ro- 
berUv.Wedderbume,4M.&Scott,488;  2Dowl. 
P.  C.  816;  1  Bing.  N.  R.  4.  1759 

The  actual  or  supposed  place  of  the  defendant's 
residence  must  be  stated  in  that  part  of  the  body 
of  the  writ  prescribed  by  schedule  No.  4,  2  Will. 
4,  c.  39.    Lindrege  v.  Roe,  1  Bing.  N.  R.  6.    1759 

It  is  not  sufficient  to  indorse  it  on  the  writ.  Id. 

The  rule  of  court,  H.  T.  2  &  3  Geo.  4,  reqnirins^ 
that  on  all  bailable  mesne  process,  the  defendants 
place  of  abode  and  addition  shall  be  indorsed,  is 
m  effect  repealed  by  sUt.  2  Will.  4,  c.  39;  and, 
therefore,  the  want  of  such  indorsement  is  no  ob- 
jection to  a  capias  issued  under  the  statute.    It  is 


(PRACTICE] 


2579 


Bofficient  that  in  the  body  of  luch  writ  the  defen   i 
dant  is  described  as  "6«  P.  of  the  city  of  Lon- 
don.'*    Bodfield  t.  Podmore,  5  B.  &  Adol.  1(H)5. 

1750 

"  T.  S.,  a  clerk  in  the  army  pay-office,  Somerset 
House,  in  the  city  of  Westminster,  and  county 
of  Middlesex  ."—Held,  not  to  be  a  sufficieut  de- 
scription of  the  defendant  in  a  capais.  The  blank 
following  the  word  "  of*'  in  the  form  firiven  by  the 
Uniformity  of  Process  Act,  must  be  filled  up  with 
the  place  of  the  defendant's  actual  or  supposed 
residence,  or,  if  the  plaintiff  have  no  knowledge 
of  these,  with  the  place  where  the  defendant  is 
supposed  to  be,  in  conforming  with  the  directions 
given  in  sect.  1,  as  to  the  writ  of  summons.  Rolfe 
V.  Swann,  I  Mees.  &,  Wels.  305.  1759 

In  a  capias  **  of  the  gaol  of  Linlon  Peveril,"  is 
a  sufficient  description  of  a  defendant  Loveitt  v. 
Hill,  4  Dowl.  P.  C.  579.  1759 

Tnflon-street,  in  the  county  of  Middlesex,  is 
sufficient  description  of  a  defendant  in  a  writ  of 
sammons.  Cooper  v.  Wheale,  4  Dowl.  P.  0.281; 
1  Har.  &  Woll.  525.  1759 

**  Late  of  Devonshire-terrace,"  held  to  be  a 
sufficient  description  in  a  writ  of  capias.  Hill  v. 
Harvey,  2  C.  M.  &  R.  307 ;  4  Dowl.  P.  C.  163 ;  1 
Gsle,  165.  1759 

Semble,  that  it  is  not  necessary  that  a  defen- 
dant should  be  described  in  a  capias,  by  his  place 
of  residence,  if  he  is  otherwise  sufficiently  ioenti- 
fied.    Id. 

Quere,  whether  it  is  necessary  to  state  in  a 
cspias  the  county  in  which  a  defendant  is  supposed 
to  reside  .'  Hosier  or  Border  v,  Levi,  3  Dol  w.  P.  C. 
150 ;  1  Scott,  270 ;  1  Bing.  N.  R.  363.  1759 

If  the  defendant's  residence  is  sufficientlv  de- 
scribed in  a  capis'B,  with  the  exception  of  the 
county,  that  defect  is  supplied  by  the  direction  to 
the  sheriff.    Perr'mg  v.  Turner,  3  Dowl.  P.  C.  15. 

1759 

*<  Yorkshire"  is  a  good  description  of  a  defen- 
dant's residence,  although  he  resides  at  the  town 
of  Kingston-upon-Hull,  if  he  may  be  supposed 
to  be  resident  in  the  former  county.  Jelks  v.  Fry, 
3  Dowl.  P.  C.  37.  1759 

Where  an  objection  is  made  to  a  writ  of  sum- 
mons, on  the  ground  that  the  defendant's  resi- 
dence is  improperly  described,  as  being  in  one 
county  instead  of  another  which  adjoins,  the  affi- 
davit must  be  positive  as  to  the  fact,  and  oueht  to 
aver  that  there  is  no  dispute  about  the  bounoaries. 
Lewis  V.  Newton,  4  Dowl.  P.  C.  355 ;  2  C.  M.  &  R. 
732;  1  TjT.  dt  G.  72;  1  Gale,  288.  1759 

The  addition  of  the  defendant  need  not  be  in- 
serted in  writ  of  summons.  It  is  suMcient  to 
state  his  residence.  Morris  v.  Smith,  2  C.  M.  dt  R. 
190;  3  Dowl.  P.  C.  696;  5'ryr.523;  t  Gale,  103. 

1759 

hd&rgemmt  ofAnunaUl — ^The  provision  of  the 
Uniformity  of  Process  Act,  as  to  the  indorse- 
ment on  a  writ  of  detainer  of  the  amount  for  which 
the  defendant  is  to  be  detained,  is  compulsory,  and 
not  merely  directory.  Jones  v.  Price,  2  Dowl.  P.  C- 
410.  1759 

Vol.  IV.  39 


It  is  no  ground  for  setting  aside  a  writ  of  capias, 
that  the  priecipe  omits  to  state  the  amount  of  the 
debt  sworn  to.  Usborne  v.  Pennell,  4  M.  &  Scott, 
431 ;  2  Dowl.  P.  C.  801.  1759 

A  stack  of  hay  was  sold  by  the  defendant  to 
the  plaintiff,  with  liberty  to  keep  it  on  the  defen- 
dant's premises  for  a  certain  time  ;  the  hay  was 
seized  as  a  distress  before  the  expiration  of  that 
time  : — Held,  that  it  was  not  necessary  to  indorse 
on  the  writ  of  summons  sued  out  for  the  above 
cause  of  action,  the  amount  of  debt  and  costs. 
Perry  v.  Patcbett,  1 C.  M.  &,R,Q7;  2  Dowl.  P.  C. 
667 ;  4  Tyr.  925.  1759 

The  proper  indorsement  on  a  writ  of  capias  as 
to  the  payment  qf  the  debt,  &c.  is  '^  withm  four 
days  from  the  service,"  but  a  mistake  in  this  re- 
spect may  be  amended  on  payment  of  costs.  Paget 
(Lord)  V.  Stockley,  1  Hodges,  317.  1759 

In  an  action  on  a  bail-bond,  or  a  replevin-bond, 
it  is  not  necessary  to  indorse  th^  amount  of  debt 
and  costs,  pursuant  to  2  Reg.  Gen.  Hilary  Term, 
2  WiU.  4,  dbi  5  Reg.  Gen.  Itf  ichaelmas  Term,  3 
Will.  4.  Rowland  v.  Dakeyne,  2  Dowl.  P.  C.  832. 
S,  P.  Smart  v,  Lovick,  3  Dowl.  P.  C.  34.      1759 

A  writ  indorsed  in  this  form — ^**the  plaintiff 
claims  50^  for  debt,  with  interest  from  the  25th 
of  May  last,  and  2^.  for  costs:" — Held,  regular. 
Sealey  v.  Hearne,  3  Dowl.  P.  C.  196.  1759 

The  indorsement  on  a  writ  that  the  plaintiff 
claims  a  sum  for  debt,  with  interest  thereon,  from 
a  certain  day,  is  sufficiently  certain.  CopeUo  v. 
Brown,  3  Dowl.  P.  C.  166 ;  1  C.  M.  dt  R.  575;  5 
Tyr.  217.  1759 

An  irregularity  in  the  indorsement  on  writs 
required  b^  the  rules  of  court,  is  no  ground  for 
setting  aside  the  writ  itself,  or  for  cancelling  the 
bail-bond,  if  the  plaintiff,  upon  notice  of  the  ob< 
iection,  amends  the  defect,  on  payment  of  costs ; 
but  the  defendant  is  to  be  allowed  four  days  fur- 
ther time  after  the  amendihent  to  pay  the  debt. 
Cooper  V.  Waller,  3  Dowl.  P,  C  167  :  S.  C.  nom. 
Hooper  V.  Waller  or  Walker,  1 C.  M.  &  R.  437 ;  5 
Tyr.  130.  1759 

The  copy  of  a  capias  delivered  to  a  defendant 
after  his  arrest,  under  2  Will.  4,  c.  39,  s.  34,  was 
thus  indorsed  : — "  The  plaintiff  claims  75/.  lOs. 
for  debt,  it  As.  for  costs,  and  if  the  amount  thereof 
be  paid  to  the  plaintiff  or  his  attorney  within  four 
days  from  the  arrest  hereon,  proceedings  will  be 
stajred  :" — Held,  that  the  copy  was  irregular  in 
form,  because  varying  from  that  provided  by  Reg 
Gen.  Hil.  2  Will.  4,  by  substituting  "arrest 
hereon"  for  '*  service  hereof;"  but  the  court  per- 
mitted the  plaintiff  to  amend  the  indorsement  on 
terms.  Id. 

Where,  on  the  copy  of  the  writ  delivered,  the 
indorsement  was,  "  iflthe  amount  thereof  be  paid 
within  four  days  from  the  arrest  or  servioe  there- 
of:'*— ^Held  sufficient ;  and  that  the  words  "arrest 
or'*  might  be  reieoted  as  surplusage.  Sutton  «. 
Burgess,  1  C.  M.  d:  R.  770 ;  3  Dowl.  P.  C.  489; 
5  Tyr.  320 ;  1  Gale,  17.  1759 

Where  the  word  "  execution"  was  used  instead 
of  "  service"  in  the  indorsement  on  a  writ  of  ca- 
pias, the  court  refused  to  order  the  bail-bond  to  be 
cancelled,  but  allowed  the  writ  to  be  amended  ov 


2580 


[PRACTICE] 


payment  of  costs.    Shirley  v.  Jacobs,  1  Scott,  67 ; 
SDowI.  P.  C.  101..  1759 

In  the  indorsement,  pursuant  to  2  Reff.  Gen. 
H.  T.  2  Will.  4,  the  word  "  senrice"  and  not 
"execution"  must  be  used,  although  the  defen- 
dant has  been  arrested.  ColU  v.  Morpeth,  3  Dowl. 
P.  C.  23.  '^    •       1759 

In  the  indorsement,  pursuant  to  Reg.  Gen.  H. 
2  WUl.  4,  if  "  execution"  is  substituted  for  "  ser- 
vice," it  is  an  irregularity,  but  which  may  be 
amended  on  terms.  Urquhart  v.  Dick,  3  Dowl. 
P.  C.  17.  1759 

If  a  defendant  is  misled  by  the  plaintiff's  in- 
dorsing on  the  Writ  a  larger  sum  than  is  due,  and 
appears  in  consequence  instead  of  paying  the  sum 
really  owine  with  the  costs  of  the  writ  as  he  would 
otherwise  have  done,  the  court  or  a  judge  will 
stay  the  proceedings  on  a  like  payment,  if  he  ap- 
plies promptly  after  service  of  a  declaration,  ac- 
companied with  particulars  claiming  the  sum 
realy  due.  Ellison  or  EUiston  v.  Roberts  or  Ro- 
binson, 2  C.  &  M.  343;  4  Tyr.  214.  1759 

It  is  too  late  to  object  to  the  indorsement  on  a 
capias,  for  variance  from  the  form  given  by  the 
Uniformity  of  Process  Act,  2  Will.  4,  c.  39,  sched. 
No.  4,  where  the  writ  might  have  been  seen  at 
the  filacer's  office  on  4th  June,  but  no  applica- 
tion was  made  till  late  in  Michaelmas  Term  to 
set  aside  an  outlawry,  to  which  the  plaintiff  had 
proceeded  in  the  meantime,  notwithstanding  the 
defendant  swore  that  the  outlawry  was  not  known 
till  six  weeks'  before;  for  the  irre^larity  in  the 
writ,  if  any,  should  have  been  previously  objected 
to  on  summons  at  chambers.  Lewis  v.  Davison 
5  Tyr.  198.  1759 

^Uomey's  Description:] — It  is  sufficient  to  de- 
scribe an  attorney  plaintiff  in  the  indorsement  on 
a  writ  of  summons, as  "of"  a  particular  place, 
without  stating  him  to  reside  there.  Yardiey  v. 
Jones,  4  Dowl.  P.  C.  45 ;  1  Har.  &  Woll.  332. 

1759 

An  attorney  plaintiff's  place  of  business  is  the 

S roper  "residence"  of  which  to  describe  him. 
emble,  that  if  he  were  described  of  his  private 
house,  where  he  did  not  carry  on  his  business,  it 
would  be  sufficient  also.  An  alteration  in  the 
order  of  the  words  of  the  indorsement,  or  the  ad- 
dition of  others,  is  immaterial,  if  the  sense  re- 
mains the  same.  Id. 

A  man  having  a  house  and  office  may  describe 
himself  of  the  office— Per  Lord  Lyndhurst,  C.  B. 
Lewis  V.  Davison,  5  Tyr.  1 38.  1759 

•  A  writ  indorsed  with  the  name  of  the  firm  of 
the  attorney  used  in  carrying  on  the  business, 
satisfies  the  12th  section  of  the  2  Will.  4,  c.  39, 
though  Quly  one  of  them  is  alive  and  an  attorney. 
Hartley  v.  Rodenhurst,  4  Dowl.  P.  C.  748.     1759 

The  county  in  which  the  aitorney  by  whom  the 
process  is  issued  resides,  need  not  be  stated  in  the 
indorsement,  nor  is  it  necessary  that  the  indorse- 
ment should  be  dated.  Bosler  or  Border  v.  Levi, 
1  Scott,  270;  3  Dowl.  P.  C.  150  ;  1  Bing.  N.  R. 
363.  *     J 759 

"  No.  2,  Clifford's-in-passage,  Fleet-street,  in 
the  city  of  London,"  without  mentioning  the 
parish)  is  a  sufficient  indorsement  of  the  attor- 


ney's residence  on  a  writ  of  summons:  the  par- 
ish need  not  be  named,  2  Will.  4,  c.  39,  s.  12. 
Arden  v.  Garry  or  Jones,  2  Scott,  186;  4  Dowl. 
P.  C.  120 ;  1  Hodges,  197.  1759 

"  Gray's-inn,  London,"  is  a  good  description. 
Jelks  V.  Fry,  3  Dowl.  P.  C.  37.  1759 

"Southampton-buildings"  is  an  insufficient 
description ;  but  a  lapse  of  more  than  two  months 
from  the  time  of  the  arrest  is  too  great  to  enable 
a  defendant  to  avail  himself  of  the  objection. 
Rust  V.  Chine,  3  Dowl.  P.  C.  565.  175d 

If  a  plaintiff,  living  in  a  place  **  not  within  any 
city,  town,  parish,  or  hamlet,"  (e.  g.  Gray's-inn)^ 
and  suing  m  person,  describe  himself  as  of  the 
extra-parochial  place,  it  is  sufficient  King  v. 
Monkhouse,  4  Tyr.  236.  1759 

Where  the  indorsement  on  a  writ  of  summons 
was,  "  This  writ  was  issued  by,  &c.,  attorney  for 
the  said  plaintiffii,"  instead  of  "attorney  for  Uie 
said  A.  B. :" — Held  good.  Hennah  v.  Whyman, 
2  C.  M.  &  R.  239;  3  Dowl.  P.  C  673;  1  Gale, 
105.  1759 

A  writ  indorsed  M.  &  Co.  agents  for  S.,  with- 
out specifying  the  christian  names : — Held  suffi- 
cient   Pickman  v.  Collis,  3  Dowl.  P.  C.  429. 

1759 

Defendant's  InUialsJ] — Where  reasonable  dili- 
gence has  been  used  to  obtain  the  true  christian 
name  of  a  defendant,  the  plaintiff,  upon  a  motion 
to  set  aside  proceeding  for  irregularity,  on  the 
ground  of  misnomer,  is  protected  by  Reg.  Gen. 
H.  2  Will.  4,  c.  1,  s.  32.  Rosset  v.  Hartley,  5 
Nev.  Sl  M.  415.  176D 

But  where  the  defendant  was  not  conusant  of 
the  inquiries  made  respecting  his  name,  a  rule  for 
setting  aside  the  proceedings  for  irregularity,  on 
the  ground  of  misnomer  was  discharged  without 
costs.    Id. 

Coptf  of  Writ.] — The  writ  being  directed  to  the 
"  sheriffs '  of  London,  and  the  copy  served  upon 
the  defendant  to  the  "sheriff,'*  the  court  dis- 
charged defendant  out  of  custody  upon  entering 
a  common  appearance.  Nichol  v.  Boyn,  10  Bine. 
339 ;  2  Dowl.  P.  C.  761.  ITft 

A  defendant,  taken  upon  a  capias  ad  respon- 
dendum, is  entitled  to  be  discharged,  if  between 
the  writ  and  the  copv  served  upon  him  there  is 
a  variance  either  in  the  sound  or  in  the  sense  of 
any  of  the  words.  As  where,  in  a  capias,  the 
address  was  to  the  sheriff  of  Middlesex,  and  in 
the  copy  to  the  sheriff  of  Middesex.  Hodgkinson 
V  Hodgkinson,  2  Dowl.  P.  C.  535;  1  Adol.  & 
Ellis,  ^ ;  3  Nev.  &  M.  564.  1764 

The  omission  of  the  word  **  London,"  in  the 
indorsement  on  the  copy  of  the  capias,  held  suf- 
ficient cause  for  setting  aside  the  copy.  Smith 
V.  Pennell,  2  Dowl.  P.  C.  654.  1764 

The  court  refused  to  set  aside  a  distringas  for 
irregularity,  because,  in  the  copy  of  the  writ  of 
Bummons  which  was  left,  the  name  of  Andrew 
Bryan  was. put  as  the  defendant's  name  instead 
of  Andrews  Bryan.  Tyser  v.  Bryan,  2  Dowl.  F. 
C.  640 :  S.  C.  nom.  Pybus  v.  Bryant,  4  Tyr.  994. 

1764 


[PRACTICE] 


3581 


The  coart  refoaed  to  set  aside  the  copy  of  a 
writ,  because  the  word  **  plaintiff*'  was  used  in 
the  indorspment  on  the  back  of  the  writ  instead 
of  the  plaintiff's  name.  Hannab  v-  Wyinan,  3 
Dowl.  P.O. 673;  2  CM.  ^tR.  239;  1  Gale,  105. 

1764 

The  omission  of  the  day  of  the  month  in  the 
teste  of  the  copy  of  the  writ,  though  the  month 
itself  u  name<i,  is  fatal.  Perring  «.  Turner,  3 
Dowl.  P.O.  15.  1764 

If  the  copy  of  the  writ  served  on  the  defendant 
is  materially  defective,  it  is  a  ground  for  dis- 
charging the  defendant  on  common  bail,  though 
the  writ  itself  is  right.  Street  v.  Clarke,  2  Dnwl. 
P,  C.671.  1764 

If  the  copy  of  a  capias  delivered  to  the  defen- 
dant difiers  in  its  date  from  the  original,  the  court 
will  not  allow  it  to  be  amended.  By  field  v.  Street. 
2  Dowl.  P.  C.  rj9.  1764 

Where  the  copy  served  is  defective,  the  defen- 
dant may  move  to  set  aside  the  copy,  whether  the 
capias  itself  be  right  or  wrong.  Bosler  or  Border 
V.  Levi,  1  Scott,  270;  3  Dowl.  P.  C.  150;  1  Bing. 
N.  R.  363.  17W 

The  entry  of  an  appearance  hy  a  plaintiff  for  a 
defendant  does  not  operate  as  a  waiver  of  an  ob- 
jectioR  to  the  copy  of  the  writ.  Chalkley  v.  Car- 
ter, 4  Dowl.  P.  C.  481.  1764 

Execution  of  fVritM.] — If  a  defendant  seeks  to 
set  aside  proceedings  on  the  ground  of  not 
having  been  served  with  process,  it  must  appear 
by  his  affidavit  that  he  is  the  defendant  in  the 
cause.    Johnson  v,  Smallwood,  2  Dowl.  P.  C  588. 

1765 

Where  a  defendant,  on  being  served  with  a  writ 
of  summons,  took  forcible  possession  Qf  it  afler 
it  had  been  refused  to  be  shown  to  him,  and  then 
returned  it  to  the  person  who  served  him : — Held, 
it  was  no  ground  for  an  attachment.  Weeks  v. 
Whiteley .  3  Dowl.  P.  C.  536 ;  I  Har.  &  WoU. 
218.  1765 

Though  the  service  of  process  should  be  per- 
sonal to  entitle  a  plaintiff  to  enter  a  common  ap- 
pearance, the  court  will  not  set  aside  proceedings 
on  an  affidavit  of  defendant,  that  he  had  not  been 
peisonally  served,  accompanied  by  an. affidavit  of 
ms  daughter,  that  she  received  and  opened  a  let- 
ter, containing  a  copy  of  the  writ.  Herbert  v. 
Darley,  4  Dowl.  P.  C.  726.  17^ 

Under  particular  circumstances,  one  man  may 
be  justified  in  laying  hands  upon  another,  for  the 
purpose  of  servmg  him  with  process.  Harrison 
V.  Hodgson,  5  M.  &  R.  392.  1765 

It  is  not  sufficient  ground  for  setting  asi<|e 
proceedings,  that  the  service  of  the  writ  was  not 
made  directly  and  personally  upon  the  defen- 
dant, and  especially  after  a  positive  affidavit  of 
personal  service  on  the  plaintiff's  part ;  the  de- 
fendant must  jgo  on  further  to  show  that  neither 
the  writ  nor  iSe  copy  came  to  his  knowledge  or 
possession.  Phillips  v.  Ensell,  2  Dowl.  r.  C. 
684 ;  4  Tyr.  814;  1  C.  M.  &  R.  374.  1765 

if  a  sheriff  does  not  indorse  on  the  capias  the 
day  of  its  execution,  pursuant  to  4  Reg.  Gen.  M. 
T.  3  Will.  4,  the  remedy  is  to  require  him  to 


I  amend  his  return,  and  make  compensation  to 
I  the  plaintiff  for  damages  accruing  through  his  ne- 
glect.   Moore  v.  Thomas,  2  Dowl.  P.  C.  760.  1766 

The  sixth  rule  of  Michslmas  term,  3  Will. 
4,  does  not  prevent  a  plaintiff  from  issuing  con- 
current writs  of  capias  into  two  or  more  counties. 
Durne  v.  Harding,  4  M.  &  Scott,  450.  1767 

A  lapse  of  six  days  held  not  too  great  to  pre- 
clude a  motion  for  setting  aside  the  copV  of  a 
writ  for  irregularity.  Smiu  ??.  Pennell,  2  Dowl. 
P.C.  654.  1767 

Appearance.] — If  the  defendant  improperly 
gets  possession  of  the  writ  of  summons,  the 
court  will  allow  an  appearfoice  to  be  entered 
without  any  indorsement,  and  order  the  defen- 
dant to  pay  the  costs.  Brooke  v.  Eldridge,  2 
Dowl.  P.  C.  647.  1769 

Irregularity  in  appearing  by  a  person  who  is 
not  an  attorney  of  the  couit,  does  not  entitle  the 
opposite  party  to  sign  judgment,  but  only  to 
move  to  set  aside  the  proceedings.  Bazley  v, 
Thompson,  4  Tyr.  955.  1769 

A  defendant  appearing  in  person  is  bound  by 
the  same  rules  as  he  would  have  been  if  he  had 
appeared  by  attorney.  Kerry  v.  Rejmolds,  4 
Dowl.  P.  a  234;  S.  C.  not  S.  P.  2  C.  M.  ^k  R. 
310;  1  Gale,  268.  1769 

Where  a  defendant  does  not  enter  an  appear- 
ance, and  the  plaintiff  omits  to  do  it  for  him,  the 
proceeding  to  judgment  is  a  nullity,  which  is  not 
waived  eiuer  by  delay  in  making  ^n  application 
to  set  aside  the  proceedings,  or  by  the  defendant 
taking  a  step  in  the  cause.  Rubarts  v.  Spurr,  3 
Dowf  P.  C.  551 ;  1  Har.  &  WoU.  201.  1769 

Where  a  bail-bend  is  cancelled,  the  plaintiff 
is  not  bound  to  accept  an  appearance  by  the  de- 
fendant, though  the  entry  of^  it  was  mentioned 
as  a  condition  in  the  rule  nisi.  Perring  v.  Tur- 
ner, 3  Dowl.  P.  C.  15.  1769 

If  a  defendant  enters  an  appearance  in  due 
time,  which  is  irregular  on  account  of  a  mistake 
in  the  name,  the  proper  course  for  him  to  pursue 
is  to  apply  to  amena  that  appearance,  and  not  to 
enter  a  new  one.  Bate  v-  Bolton,  4  Dowl.  P.  C. 
161,  677;  2  C.  M.  &  R.  365;  1  Tyr.  A  G.  148, 

*  1769 

Where  a  distringas  is  returned  non  est  inven- 
tus and  nulla  bona,  and  defendant's  residence  is 
a  furnished  lodging,  attempts  to  execute  the 
warrant  should  be  made,  the  copy  of  the  distrin- 
gas and  warrant  issued  thereon  shoutd  be  left  at 
the  lodgings,  and  an  affidavit  made  stating  the 
facts,  and  also  that  inquiries  have  been  made 
whether  the  defendant  had  goods  elsewhere,  if 
none  can  be  discovered,  the  plaintiff  will  be  suf- 
fered to  enter  an  appearance  for  defendant,  and 
proceed  to  judgment  and  execution  under  2  Will. 
4,  c.  39, 8.  3.    Cornish  v.  King,  3  Tyr.  975.  1770 

It  cannot  be  made  part  of  the  above  rule,  that 
service  of  notice  of  declaration  at  the  defendant's 
last  known  place  of  abode,  and  sticking  up  a 
declaration  in  the  office,  be  deemed  good  service. 
Id. 

The  court  refused  to  allow  an  appearance  to 
be  entered  under  the  2  Will.  4,  c.  39,  s.  3^  after 


3583 


[PRACTICE] 


a  dittring;at  on  an  affidavit,  which  merely  atated 
generally,  that  diligent  inquiry  Jiad  been  made 
to  find  the  defendant  without  lUcceBS.  The  affi- 
davit ihould  gpeoify  the  places  where,  and  the 
Ssraons  from  whom  the  inquiries  were  made, 
opeland  v.  NeTiU,5  Nev.  &  M.  179^  4  Dowl. 
P.  C.  51 ;  1  Har.  ik,  Woll.  374.  1770 

On  a  sheriff's  return  of  non  est  inventus  and 
nulla  hona  to  a  writ  of  distringas,  if  it  appears 
that  the  defendant  keeps  out  of  the  way  to  avoid 
his  credilom,  the  court  will  allow  an  appearance 
to  be  entered  for  him ;  but  will  not,  on  the  same 
motion,  ^ive  leave  to  stick  up  notice  of  the  de- 
claration m  the  office.  Id. 

Where  leave  to  issue  a  distringas  has  been  ob- 
tained against  the  defendant  for  not  entering  an 
appearance,  upon  which  the  sheriff  has  returned 
that  he  has  levied  40j.,  no  rule  is  necessary 
previously  to .  entering  a  common  appearance. 
Tucker  «.  Brand,  4  Dowl.  P.  C.  411.  1770 

In  order  to  satisfy  the  court  under  2  &  3  Will. 
4,  c.  39,  s.  3,  that  proper  means  have  been  taken 
to  serve  a  distringas  on  a  defendant  who  was  a 
clerk  in  the  victualling  office,  in  order  to  enter 
an  appearance  against  him,  it  should  be  shown 
not  only  that  his  residence  or  property  could  not 
be  discovered,  but  that  attempts  haa  been  made 
to  serve  htm  at  the  victuidling  office.  Rpuncill 
V.  Bower,  4  Tyr.  374  :  S.  C.  Sanderson  v.  Bourne, 
2  C.  <&  M.  515.  1770 

The  sheriff 's  return  to  a  distringas  of  non  est 
inventus  and  nulla  bona,  is  not  alone  sufficient 
to  entitle  the  plaintiff  to  enter  an  appearance  for 
the  defendant,  and  the  court,  cannot  listen  to 
hearsay  evidence  of  the  efforts  made  to  execute 
the  writ.    Daniels  v,  Varity,  3  Dowl.  P.  C  26. 

1770 

Where  the  sheriff  has  levied  40^.  under  a  dis- 
tringas, and  mode  a  return  that  he  has  so  levied, 
the  plaintiff  is  entitled  to  enter  an  appearance, 
without  an  affidavit  from  the  sheriff's  oailiff,  of 
the  due  execution,  of  the  writ.  Page  v.  Kemp,  2 
C.  M.  &  R.  494  ;  4  Dowl.  P.  C.  203 ;  1  Gale,  186. 

1770 


Jfonpros.] — In  an  action  against  several  de- 
fendants, a  judgment  of  nonpros  cannot  be  signed 
until  all  have  appeared..  Palmer  v.  Feistel,  2 
Dowl.  P.  C.  507.  1770 

The  defendant  entered  an  irregular  appe^irance 
within  the  eight  days ;  the  plaintiff  gave  him 
notice  of  the  irregularity,  and  he  promised  to  ex- 
umine  and  correct,  but  instead  of  doing  so,  en- 
teied  a  new  appearance  in  the  next  term  in  a 
fresb  book,  and  demanded  a  declaration ;  and  the 
plaintiff  not  declaring  in  due  time,  the  defendant 
ttgned  judgment  of  nonpros.  The  court  held, 
that  the  irregular  appearance  might  have  been 
corrected  in  uie  book,  and  set  aside  the  judgment 
of  nonpros,  the  costs  to  be  costs  in  the  cause. 
Sate  V.  Bolton,  2  C.  M.  dk  R.  365  ;  4  Dowl.  P. 
C.  161, 677 ;  1 1^^.  &  G.  148.  1770 

Partiadars.] — Though  a  declaration  be  deli- 
i«red  without  any  particulars,  the  plaintiff  may 
«ign  judgment  if  the  defendant  does  not  plead  in 


due  time ;  and  it  makea  no  difference  in  the  time 
for  pleading,  that  particulars  are  afterwards  deli- 
vered in  lieu  of  those  originally  delivered,  which 
were  a  nullity.  Jones  v.  Fowler,  4  Dowl.  P.  C. 
232 ;  1  Gale,  256.  1771 

A  declaration  in  assumpsit,  indorsed  to  plead 
in  four  days,  being  delivered  with  particulars  of 
demand  annexed,  the  plaintiff  two  days  after- 
wards finding  that  the  particulars  were  wrong- 
fully entitled,  delivered  a  fresh  particular  enti- 
tled ;  and,  for  want  of  a  plea  within  the  four  days, 
signed  judgment : — Held,  that  the  judgment  wa« 
regular,  the  accepting  the  amended  particulars 
being  a  waiver  of  the  objection  to  the  nrst.  Id. 

Where  a  plaintiff  had  not  complied  with  the 
rule  of  court,  in  giving  credit  in  his  particulars 
of  demand  for  sums  admitted  to  have  been  paid 
on  account ;  the  court  refused  an  application  to 
deprive  him  of  costs,  afler  the  case  nad  been  re- 
ferred to  arbitration,  on  the  terms  of  the  costs 
abiding  the  event,  and  an  award  bad  been  made 
on  the  whole  matter.  Smith  v.  Eldridge,  5  Nev. 
6l  M.  408 ;  1  Har.  &  Woll.  527.  J  771 

The  rule  which  requires  the  sum  or  balance 
claimed  to  be  stated  in  a  particular  of  demand, 
does  not  require  the  plaintiff  to  state  the  items 
in  reduction  of  his  demand ;  it  is  sufficient  if  he 
state  the  credit  which  he  gives  generally,  so  as 
to  show  the  balance  he  claims.  Id. 

A  variance  between  the  description  in  the  par- 
ticulars of  demand  and  the  proof  is  immaterial, 
if  it  be  not  such  aa  is  likely  to  mislead  the  defen- 
dant.   Spencer  v.  Bates,  1  Gale,  108.  1771 

The  court  will  not  compel  ajplaintiff  suing  for 
the  balance  of  an  account,  to  furnish  a  statement 
of  monies  received  by  him  from  the  defendant 
Penprase  v.  Crease,  1  Mees.  Sl  Wels.  36;  4  Dowl. 
P.  (5.711.  1771 

A  defendant  being  served  with  a  writ  of  sum- 
mona  obtained  an  order  for  particulars  before 
declaration ;  afler  waiting  three  months,  the 
plaintiff  refused  to  go  on  with  the  action,  or  to 
enter  a  stet  processus ;  the  court  refused  an  ap- 
plication to  compel  him  to  do  so.  Kirby  v.  Snow- 
den,  4  Dowl.  P.  C.  141.  1771 

In  assumpsit,  the  first  count  of  the  declaration 
was  on  an  undertaking  by  the  defendant  to  pay 
such  costs,  charffes,  and  expenses,  as  the  plaintiff 
(an  attornev)  snould  incur  in  an  action  to  be 
brought  by  him  against  G.  un  a  bill  of  exchange, 
drawn  by  the  defendant  onlv,  which  was  lymg 
due,  and  which  the  plaintiff  had  agreed  to  take 
up  for  the  honor  of  the  defendant.  In  the  se- 
cond count  the  plaintiff  declared  as  indorsee  of 
the  bill ;  the  third  was  for  money  paid  ;  the  fourth 
on  an  account  stated.  On  the  first  count  the 
defendant  paid  into  court  a  sum  covering  the 
plaintiff's  costs  out  of  pocket.  On  the  second 
count,  the  ultimate  issue  was,  whether  a  bill 
subsequently  ^ven  by  the  defendant  to  the 
plaintiff,  was  given  in  satisfiiction  of  the  fint,  or 
as  a  collateral  security.  The  plaintiff  first  gave 
a  particular  of  demand  applicable  only  to  the 
count  on  the  bill  of  exchange.  The  defendant 
obtained  an  order  of  demand  for  particulars  **  of 
the  hill  of  costs,  charges,  and  expenaea  mentioned 


[PRACTICE] 


2583 


tkmed  in  the  first  count  of  the  declaration,'*  and 
the  plnintiff  tfaerenpon  delivered  a  particolari 
containing  a  copy  of  his  whole  bill  of  costs  in 
the  action  aji^inst  G.,  and  also  the  amount  of  the 
bill  and  interest.  At  the  trial,  the  jod£;e  ruled 
that  the  costs  out  of  pocket  only  could  he  reco  • 
▼ered  on  the  first  count: — Held,  that  the  parti- 
culars were  sufficient  to  enable  the  plaintiff  to 
recover  the  rest  of  the  bill  of  costs  under  the  ac- 
count stated.  Fisher  v.  Wainwright,  1  Mees.  & 
Wels.  480.  1771 

The  defendant  gave  in  evidence,  for  the  pur- 
pose of  proving  that  the  second  bill  was  given 
by  way  of  satisfaction,  an  unsigned  account  of 
the  plaintiff's  claims,  which  had  been  delivered 
by  him  to  the  defendant,  for  the  purpose  of  their 
being  proved  under  G.'s  bankruptcy,  and  one 
item  of  which  was  the  amount  of  the  bill  of 
coats  : — Held,  that  this  was  not  such  evidence  of 
&n  account  stated  as  would  have  enabled  the 
plaintiff  to  recover  the  costs  on  the  account 
stated,  if  his  particulars  had  been  insufficient 
for  that  purpose.  Id. 

A  plaintiff  being  called  upon  for  his  place  of 
residence,  gave  "  Peel's  Coffee-house,  Fleet- 
street:" — Held,  not  sufficient,  and  procef'dings 
were  stayed  till  he  gave  a  better  place  of  resi- 
dence.    Hodson  V.  Gamble,  3  Dowl.  P.  C.  174. 

1774 

An  attorney  who  gives  a  false  residence  of  his 
client,  without  using  proper  means  to  ascertain 
whether  it  is  correct  or  not,  subjects  himself  to 
the  costs  which  may  be  occasioned  bv  moving 
for  an  attachment  against  him ;  but  he  is  not 
liable  to  pay  the  costs  of  the  action,  if  he  is  bona 
fide  unable,  afler  proper  inquiry,  to  give  his 
client's  residence.  Neale  v.  Holden,  3  Dowl.  P. 
C.  493.  1774 


J^aticB  of  TVtoi  ] — 3hort  notice.  Lawson  v. 
Robinson,  3  Tyr.  490.  1776 

Continuation  of  notice  of  trial.  Wardle  v.  Ack- 
land,  3  Tyr.  819.  1776 

A  continuance  of  notice  of  trial  on  Friday  for 
Monday  is  sufficient.  Stewart  v.  Abraham,  2 
Dowl.  P.  C.  709.  1776 

By  the  practice  of  the  court  of  K.  B.  the  plain- 
tiff, in  a  country  cause,  has  the  whole  of  the  term 
ensuing  that  in  which  issue  is  joined,  to  give 
notice  (^  trial.  Douglas  v.  Winn,  4  Dowl.  P.  G. 
659.  1776 

A  notice  for  trial  on  a  day  that  was  Easter 
Tuesday, heldgood.  Chamnck  v. Smith, 3 Dowl. 
F.  U.  e67;  1  Bar.  &  Woll.  817.  1776 

The  notice  of  trial  bv  continuance  must  be  giv- 
«n  the  same  length  of  time  before  the  notice  of 
trial  expires,  as  in  the  case  of  a  notice  of  counter- 
fnand.    Forbes  r.  Crow,  1  Mees.  &.  Wels.  465. 

1776 

If  the  issue  be  delivered  with  a  notice  of  trial 
indorsed  for  one  day,  and  with  it  a  separate  notice 
of  trial  for  a  different  day,  it  is  an  irregularity. 
Kerry  v.  Reynolds,  2  C.  M.  &  R.  310;  4  Dowl. 
P.  C.  234  ;  1  Gale,  268.  1776 

A  defendant  afler  being  arrested  in  London  on 


a  bin  of  exchange,  and  liaying  accepted  a  deda- 
tion  with  notice  to  plead  in  four  days  without 
objection,  went  over  to  Ireland,  and  was  there 
when  notice  of  trial  was  given  to  his  attorney  in 
London.  Upon  an  application  for  a  new  trial, 
upon  the  ground  that,  being  resident  in  Ireland, 
he  was  entitled  to  fourteen  day's  notice,  and  not 
merely  to  eieht  days,  which  had  been  given,  the 
court  refused  to  interfere,  the  affidavit  in  support 
of  the  rule  merely  stating  that  the  defendant's 
residence  was  then,  and  had  been  for  some  time 
past,  in  Cork;  but  it  did  not  explain 'how  he 
came  to  be  in  London  at  the  time  of  the  arrest, 
nor  where  his  general  place  of  residence  was. 
Leneham  v.  Goold,  4  Dowl.  P.  C.  371.  in6 

A  defendant  being  under  terms  to  plead  issua- 
bly,  rejoin  gratis,  and  take  short  notice  of  trial, 
in  a  country  cause  for  slander,  pleaded  on  the 
19th  February  a  special  justification ;  the  repli- 
cation was  de  injuria,  and  the  issue  was  delivered 
at  half  past  seven  o'clock  in  the  evening  of  the 
27th,  with  notice  of  trial  for  the  3rd  March. 
The  cause  was  tried  as  an  undefended  cause,  and 
a  verdict  was  found  for  the  plaintiff.  The  court 
made  absolute  a  rule  for  a  new  trial,  on  the 
ground  of  irregularity,  directing  the  costs  to 
abide  the  event  Pound  v.  Penfolo,  5  Nev.  &  M. 
166;  1  Har.  &  Woll.  323.  1776 

Countermand  of  notice  of  trial,  in  a  country 
cause,  mav  be  given  by  the  country  attorney, 
although  the  agent  in  town  is  the  attorney  on  the 
record.  Cheslyn  v.  Pearce,  1  Mees.  Oic-  Wels.  50 ; 
4.  Dowl.  P.  C.  693.  1776 


Putting  off  TrtoZj—The  court  will  not  dfelay 
the  trial  of  an  action  until  afler  the  trial  of  an  in- 
dictment for  perjury,  in  a  matter  relating  to  the 
cause.  Johnson  17.  Wardle,  3  Dowl.  P.  C.  550 ; 
1  Har.  &  WoU.  219.  1778 

A  motion  to  postpone  a  trial,  on  account  of  the 
absence  of  a  material  witness,  need  not  be  sup- 
ported by  an  affidavit  of  merits.  Hill  v.  Prosser, 
3  Dowl.  P.  C.  704.  1779 

Semble,  that  on  a  writ  of  trial  the  trial  cannot 
be  postponed  by  the  sheriff  for  absence  of  a  ma- 
terial witness  but  that  application  should  be 
made  to  a  judge.  Packam  v.  Newman,  1  C.  M. 
&  R.  584  ;  3  Dowl.  P.  C.  165 ;  5  Tyr.  215.  1779 

Where  application  to  put  off  a  trial  before  the 
sheriff  was  made  after  the  jury  were  sworn,  on 
the  ground  of  the  absence  of  a  material  witness, 
and  refused,  the  court  would  otily  grant  a  new 
trial  on  payment  of  costs.  Id. 

A  trial  will  be  pot  off,  at  the  instance  of  defen- 
dant, from  Easter  till  after  Michaelmas  Term,  to 
enable  him  to  obtain  the  evidence  of  a  material 
witness.  Grierson  v.  Aird,  1  Hodges,  76.        1779 

Where  a  material  witness  for  the  plaintiff  is 
prevented  from  attending  by  the  fraud  and  prac- 
tice of  the  defendant's  attorney,  the  plamtiff 
ought  to  apply  to  the  judge  to  put  off  tne  trial, 
or  ought  to  withdraw  the  record.  Turquand  v. 
Dawson,  1  C.  M.  «&  R.  709  ;  5  Tyr.  488.       1779 

If  he  oroceeds  to  trial,  and  is  nonsuited,  the 
court  will  not  grant  a  new  trial.  Id. 


2584 


[PRACTICE] 


JudgfMiU  as  in  ease  ef  a  JConstail — If  a  plain- 
tiff does  not  proceed  to  trial  pursuant  to  notice, 
at  the  defendant's  request,  he  is  not  entitled  to 
judgment  as  in  case  of  a  nonsuit  Doe  d.  Step- 
pins  V.  Lord,  2  Dowl.  P.  C.  419.  1781 

If  it  appears  that  issue  is  not  joined  by  adding 
the  similiter,  the  rule  for  judgment  as  in  case  of 
a  nonsuit  will  be  dischargeid.  Gilmore  v.  Melton, 
2  Dowl.  P.  C.  632 :  S.  P.  Browne  v.  Kennedy,  2 
Dowl.  P.  C.  639.  1781 

Where  a  defendant  has  given  a  cognovit  for  the 
debt  sought  to  be  recovered  in  an  action  by  the 

Slaintiff,  and  the  plaintiff  does  not  proceed  to 
rial,  and  the  defendant  obtains  a  rule  for  judg- 
ment as  in  case  of  a  nonsuit,  that  rule  will  be 
discharged  with  costs.  Smith  v.  Joy,  2  Dowl.  P. 
C.  410.  1781 

If  a  defendant  unnecessarily  rules  a  plaintiff  to 
enter  the  issue,  he  is  not  thereby  deprived  of  his 
right  to  obtain  judgment  as  in  case  of  a  nonsuit. 
Sarjeant  v.  Jones,  2  Dowl.  P.  C.  420.  1 781 

After  notice  of  trial.  Preedy  v.  Macfiirlane,  4 
Tyr.93.  1784 

Countermand  of  notice  of  trial  does  not  prevent 
the  defendant  fh>m  having  judgment  as  in  case  of 
a  nonsuit.  Dennehey  v.  Richardson,  4  Dowl-  P. 
C.  13;  1  Har.  &  WoU.  367.  1781 

Afler  having  obtained  a  rule  for  the  costs  of 
the  day  for  not  proceeding  to  trial,  the  defendi^it 
cannot,  by  Reg.  Gen.  69,  H.  T.  2  Will.  4,  have 
judgment  as  in  case  of  a  nonsuit,  though  no  fur- 
ther proceeding  has  been  taken  in  the  casp  for 
four  terms.  I^grave  v.  Justin,  1  Har.  &  WoU. 
368.  1781 

It  is  no  objection  to  an  application  for  jndg^ 
ment  as  in  case  of  a  nonsuit,  that  issue  was 
joined  seven  years  previous.  Cromei:  v.  Brown, 
4  Dowl.  P.  C.  288.  1781 

Though  a  rule  absolute  for  judgment  as  in  case 
of  a  nonsuit  has  been  obtained  for  not  proceeding 
to  trial  pursuant  to  a  peremptory  undertaking, 
yet,  if  it  appears  to  have  been  tnrough  mistake 
that  notice  of  trial  was  not  given  in  time,  and  no 
inconvenience  has  been  sustained  by  the  defend- 
ant in  consequence,  the  court  will  discharge  the 
rale  on  payment  of  costs.  Charrington  v.  Meath- 
eringham,  4  Dowl.  P.  a  479.  1781 

Where  there  were  several  pleas,  on  some  of 
which  issue  was  joined,  and  as  to  one  a  demurrer, 
upon  which  judgment  was  given  for  the  defend- 
ant four  days  before  the  end  of  Easter  Term,  the 
court  refused  to  allow  the  defendant  to  sin n  judg- 
ment as  in  case  of  a  nonsuit  in  Trinity  Term, 
on  the  ground  of  the  want  of  a  notice  of*^  trial  for 
the  adjournment  day  of  the  sittings  after  Easter 
Term.    Leslie  v.  Young,  2  Scott,  Si.  1781 

Where  a  plaintiff  has  served  a  rule  to  discon- 
tinue, and  the  costs  are  taxed,  but  not  paid,  the 
defendant  is  not  entitled  to  judgment  as  in  case 
of  a  nonsuit.    Cooper  v.  Holloway,  1  Hodges,  76. 

1781 

If  a  defendant  by  negotiation  prevents  a  plain- 
tiff from  proceeding  to  trial  in  due  time  after  is- 
sue joinea,  he  cannot  obtain  judgment  as  in  case 


of  a  nonsuit,  on  account  of  such  delay.    Watktns 
V.  Giles,  4  Dowl.  P.  C.  14.  1781 

In  answer  to  a  rule  for  judgment  as  in  case  of 
a  nonsuit,  the  plaintiff's  attorney  swore  that  he 
had  not  added  the  similiter,  nor  had  it  been  added 
to  his  knowledge  or  belief: — Held,  a  sufficient 
answer-  Martin  v.  Martin,  2  Scott,  389 ;  2  Bing. 
N.  R.  240.  1781 

The  court  will  discharge  the  rule*  for  judgment 
as  in  case  of  a  nonsuit,  though  the  defendant 
swears  the  cause  is  at  issue,  if  the  plaintiff  swears 
that  the  similiter  has  not  been  added.  Seabrook 
V,  Cave,  2  Dowl.  P.  C.  691 .  1781 

Where  a  plaintiff  Was  nonsuited,  and  the  non- 
suit was  afterwards  set  aside  on  payment  of  costs : 
— Held,  that  defendant  could  not  afterwards 
move  for  judgment  as  in  case  of  a  nonsuit,  but 
must  take  the  cause  down  by  proviso.  Ashley  v. 
Flaxman,  2  Dowl.  P.  C.  697.  1781 


Trial  before  Sheriff] — A  defendant  may  obtain 
ju<^gment  as  in  case  of  a  nonsuit,  where  notice  of 
trial  has  been  given  before  the  sheriff,  pursuant  to 
3  &  4  Will.  4,  c.  42,  s.  17.  Walls  v.  Redmayne, 
2  Dowl.  P.  C.  508.  1781 

If  a  plaintiff  does  not  proceed  within  two  terms 
after  issue  is  joined,  which  issue  is  directed  to  be 
tried  before  the  sheriff,  under  the  3  &  4  Will.  4, 
c.  42,  s.  17,  the  defendant  is  entitled  to  judgment 
as  in  case  of  a  nonsuit,  as  in  ordinary  cases. 
Horwood  r.  Roberts,  2  Dowl.  P.  C.  534.        1781 


Where  a  plaintiff  obtains  an  order  under  the  3 
&  4  Will.  4,  c.  42,  s.  17,  for  the  trial  of  an  issue 
before  the  sheriff,  the  court  will  compel  him  to 
proceed  within  a  reasonable  time.  MuUins  v. 
Bishop,  2  Dowl.  P.  C.  557.  1781 

Where  a  trial  is  ordered  to  take  place  in  the 
Sheriffs'  Court,  under  the  Writ  of  Trial  Act,  and 
the  plaintiff  does  not  proceed  to  trv  according  to 
the  course  and  practice  of  the  Sheriffs'  Court, 
the  defendant  may  apply  for  judgment  as  in  case 
of  a  nonsuit.  Maddeley  v.  Batty,  3  Dowl.  P.  C. 
205.  1781 

Where  a  plaintiff  does  not  proceed  to  trial  of 
an  issue  beiore  the  under-sheriff,  pursuant  to 
notice,  the  time  At  which  he  would  be  compelled 
to  proceed  by  the  court  will  be  regulated  b^  the 
times  at  which  the  sheriff  sits.  Banks  o.  Wright, 
3  Dowl.  P.  C.  14.  1781 

Issue  having  been  joined  on  22nd  July,  the 
defendant  took  out  a  summons,  calling  on  plain- 
tiff to  try  before  a  sheriff  in  a  fortnight,  and  a 
judge  granted  an  order  accordingly.  The  plain- 
tiff took  out  a  summons  to  rescind  that  order,  and 
another  order  was  obtained  to  try  at  the  next 
court  day: — Held,  6rst,  that  the  judge  had  no 
power  to  make  such  an  order ;  secondly,  that  a 
motion  for  judgment  as  in  case  of  a  nonsuit  in 
Michaelmas  T.  was  premature;  and  lastly, that 
that  motion  having  been  made  on  the  faith  of  a 
judge's  order,  which  was  overturned  by  the  deci- 
sion of  the  court,  the  rule  for  judgment  as  in  case 
of  a  nonsuit  should  be  discharged  without  costs. 
Wright  V.  Skinner,  1  C.  M.  &Il.  746;  1  Tyr.  A 
G.e9.  1781 


[PRACTICE] 


Semble,  that  ladgment  as  io  caae  of  a  DODMiitt 
cannot  be  moved  asaiost  a  plaintiff  who  has  once 
taken  his  cause  oown  to  trial,  tboa|rh  it  took 
place  before  the  sheriff,  under  the  Writ  of  Trial 
Act,  and  that  the  proper  course  is  to  get  a  judge's 
order  for  trying  the  cause  by  proviso.  Daj  v 
Day,  4  DowL  P.  C.  740 ;  1  Mees.  A  Web.  39. 

17ol 

Tb  e  circumstance  that  an  order  Io  try  before 
the  sheriff  has  been  obtained,  makes  no  diffier- 
enoe  in  the  time  within  which  Judgment  as  in 
caae  of  a  nonsuit  may  be  moved  for,  no  notice  of 
trial  having  been  given.  Harle  v.  Wilson,  3 
Dowl.  P.  C.  658 ;  1  Gale,  139.  171t5 

The  issue  in  a  country  canse,  oidered  to  be 
tried  before  the  sheriff,  was  joined  oo  the  9th  o! 
August,  but  the  plaintiff  did  not  give  notaee  of 
trial ;  a  motion  for  judgment  as  in  case  of  a  non- 
soil,  in  the  Hilar v  Term  following,  was  held  Io 
be  premature.    Id. 

In  a  country  cause,  ordered  to  be  tried  before 
the  sheriff,  the  plaintiff  has  the  same  period  of 
time  for  proceeding  as  if  no  order  had  beien  made. 
Bntierwurth  v.  Crabtree,  1  C.  M.  A.  R.519;  3 
Dowl.  P.  C.  189  J  5  Tyr.  149.  1781 

Where  issue  was  joined  in  a  country  cause 
before  the  sheriff  in  June,  and  no  notice  of  trial 
was  given  : — Held,  that  a  motion  Cbf  Judgment 
as  in  case  of  a  nonsuit  in  Michaelmas  Term  was 
too  early,  though  two  court  days  had  passed.    Id. 


have  given  up  possession  of  the  premises  to  aa 
agent  of  the  lessor  of  the  plaintiff.  Doe  d.  Dray- 
cott  or  Draper  r  Dyos,  2  C.  M.  db  R  60 ;  3  DowL 
P.  0.696;  1  Gale,  160.  J7d2 


It  is  a  sufficient  excuse  in  showing 
against  a  role  for  judgment  as  in  case  <u  a  non- 
suit, for  not  proceeding  to  trial  pursuant  to  notice, 
that  the  cause  was  withdrawn,  in  order  to  obtain 
a  special  jury.  Webber  v.  Roe,  3  Dowl.  P.  C. 
589.  1782 


ExaueJ]  —  Where  a  peiemptory  undertaking 
had  been  given  to  try,  but  the  plaintiff  neglected 
to  go  to  trial  in  time,  because  it  was  found  that  < 
the  declaration  required  amendment,  and  a  pro- 1 
posal  to  refer  was  going  on : — Held,  thai  that  was  i 
no  excuse,  and  tl^t  the  deiendant  was  en'Jtied 
to  judgment  as  in  case  of  a  nonsuit.    Haines  v. 
Taylor,  2  DowL  P.  C.  644.  |7d2 

Excuse.    Monck  v.  Bonham,  2  C.  &  M.  430 ; 
4  Tyr.  312.  1782  • 

It  is  a  good  excuse  for  not  proceeding  to  trial  ; 
according  to  a  peremptory  undertaking,   that,  j 
owing  to  the  press  of  husineas  in  the  court,  an-  | 
other  cause  which  was  in  the  new  trial  paper, ' 
and  would  have  decided  the  dispute,  had  not  yet 
been  argued,  and  which  it  was  expected  it  would 
have  been  when  the  nndertakinf  was  given.    De 
Rutzen  v.  Richards,  1  Har.  Sl  WoU.  210.      1782 


Where,  on  a  motion  for  judgment  as  in 
a  nonsuit,  it  appeared  that  the  action  wm  com- 
menced and  carried  on  in  the  f^ntiff 's  name 
without  authority  or  knowledge,  and  Chat  the  j 
attorney  could  not  be  found  aAer  diligent  in-  ' 
quir^ : — Held,  that  there  was  no  answer  to  the 
motion,  and  that  the  plaintiff's  only  remedy  was 
against  the  attorney;  but  the  court,  under  th^ 
circumstances,  enlarged   the  role  to  gire    th^ 
plaintiff  time  to  find  the  attornpj,  and  grant^-d  a 
rule  to  show  cause  why  the  attmey  sii'^uld  not 
pay  the  defendants  costs.     Modrr  or  Mudav  r 
Newman,  1  C.  M.  A.  R,  4<r2 ;  2  Dowl  P.  C  6c, . 
4  Tyr.  1023.  l7'-2 


On  discharging  a  rule  for  judgment  as  in 
of  a  nonsuit,  wl^re  the  plaintiff  had  become  in- 
solvent, and  made  an  assignment  of  his  property 
to  trustees ;  the  court  required  not  only  a  good 
peremptory  undertaking,  but  also  that  security 
should  be  found  for  the  costs.  Nicholson  t:. 
MUne,  1  Har.  &  Woll  211.  1782 

In  an  action  for  a  malicious  arrest,  the  court 
discharged  a  rule  for  judgment  as  in  case  of  a 
nonsuit,  with  costs,  where  the  plaintiff  ahuwed 
that  he  only  forbore  proceeding  to  trial  because 
the  defendant  had  instituted  criminal  proceedings 
against  him  on  the  charge  for  which  the  arrest 
was  made.  Grey  v.  Hutehins,  3  DowL  P.  C. 
414  :  8.  C.  nom.  Long  v.  Hntohins,  1  Scott,  400. 

1782 

Qucre,  whether  an  affidavit  that  the  suit  has 
been  determined  by  agreement  is  an  answer  to  a 
motion  for  judgment  ss  in  case  of  a  nonsuit  f 
Greenslade  r.  ^  unn,  1  Gale,  46.  17ti2 

It  is  no  answer  to  a  rule  for  judgment  as  in 
case  of  a  nonsuit,  that  tiie  plaintiff  is  poor,  and 
has  neglected  to  famish  his  attonMry  with  money 
to  conduct  the  suit  Cleasby  r.  Poole,  1  C.  M. 
Sl  K,  lUli3  DowL  P.  C.  le^;  5  Tyr.  146. 

1782 

The  poferty  of  a  defendant  is  not  a  sufficient 
excuse  for  not  proceeding  to  trial,  unless  it  ap- 
pears that  the  knowledge  of  that  poverty  reached 
the  plaintiff  after  the  commencement  of  the  sniL 
Fielder  p.  Crow,  4  DowL  P.  C.  50.  1782 

The  insolvenej  of  the  plainlilE;  after  the  com- 
meneement  of  the  action,  is  not  an  answer  to  a. 
motion  for  judgment  as  in  case  of  a  nonsuit. 
Kfodsham  v.  Rust,  4  DowL  P.  C.  90.  1782 


Moti^m  f^r  Jmdgmemt.} — On  a  motion  for  judg- 
ment as  in  case  of  a  nonsuit,  the  court  onij 
Ukes  notice  of  the  last  defeult  Jee  v.  Potter,  4 
DowL  P.  C.  724.  176a 


It  is  not  an  answer  to  a 
as  in  case  of  a  nonsuit,  in  an  p 
landlord  defends,  that  the 


for  judgment 
where  the 


Where  issue  was  joined  in  a  town  cause,  early 
in  the  vacation  after  T.  T.,  and  no  notice  of  tr^ 
was  giT«*p : — Held,  that  the  practice  was  not 
affect/^d  by  the  Uniformity  of  Proceas  Act,  2  Will. 
4,  c.  'JL\  mt»d  that  it  was  prematore  to  more  for 
judguM-nt  as  in  case  of  a  nonsuit,  in  H.  T.,  or 
(j«'lore  the  third  term.  Wingrove  v.  Hodgson,  4 
Tyr.  320.  ITO 


Issue  was  joined  in 
lowing  term  notii 
sheriiT  within  the 
defeult  hy  plaintiff;  the 
the  aanetarai  Move  for 


ition,  and  in  the  ffil- 
to  trv  before  the 
-HA  tfaatafler 
defendant  eould  not  m 
ism  cane#r 


9566 


[PRACTICE] 


a  nooeait    Linlejt?.  Poolton,  1  Gale,  156:  S.  C. 
norn.  Lenney  v.  Poulter,  3  Dowl.  F.  C.  G'K). 

1783 

Where  issue  was  joined  on  the  24th  November 
m  a  country  cause,  and  the  plaintiff  did  not  g'lvp 
notice  of  trial : — Held,  that  judgment  as  in  case 
of  a  nonsuit  mi^ht  be  moved  for  afler  one  assize 
liad  passed.    Smith  v.  Rigby,  3  DowL  P.  C.  705 

.1783 

Unless  the  similiter  is  added,  issue  cannot  be 
«aid  to  be  joined  for  the  purpose  of  such  a  mo- 
tion.   Id. 

Where  issue  was  joined  on  the  20th  June,  and 
notice  given  for  trial  at  the  Sheriff's  Court  on  the 
18th  July,  which  the  plaintiff  countermanded  : — 
Held,  that  a  motion  in  the  term  next  following 
for  judgment  as  in  the  case  of  a  nonsuit  was  not 
too  early.  Maddeley  v.  Batty,  3  Dowl.  P.  C. 
205.  1783 

• 

In  a  country  cause,  where  issue  is  joined  in 
Easter  vacation,  the  defendant  may  move  in 
Michaelmas  Term  for  judgment  as  in  case  of  a 
nonsuit.  Williams  v.  Edwards,  1  C  M.  ^  R. 
683;  3  Dowl.  P.  C.  Ib3j  5  Tyr  177.  1783 

Where  a  cause  was  called  on  whilst  the  plain- 
tiff's attorney's  clerk  was  absent  from  the  court, 
in  consequence  of  an  application  made  to  amend, 
and  the  record  was  therefore  withdrawn ;  but  the 
cause  was  set  down  again  immediately  for  trial, 
and  afterwards  the  defendant  obtained  a  rule  nisi 
for  judgment  as  in  case  of  a  nonsuit,  whilst  the 
cause  was  still  in  the  paper ;  the  court  discharged 
the  rule  with  costs.  Wolsey  v.  Edwards,  4  Dowl 
P.  C.  236.  1783 

The  issue  cannot  be  looked  at  on  a  motion  for 
judgment  as  in  case  of  a  nonsuit,  unless  it  is  re- 
ferred to  in  the  affidavit  Meredith  o.  Stocker,  4 
Dowl.  P.  O.  499 ;  1  Tyr.  &:  G.  76 ;  1  Gale,  320. 

1783 

The  lapse  of  eight  years  between  the  joining 
of  issue  and  the  application  for  judgment  as  in 
case  of  a  nonsuit,  is  no  ground  for  discharging 
the  rule.     Curtis  v.  Tabram,  4  Dowl  P.  C.  600. 

1783 

Where  the  plaintiff  has  made  several  defaults 
in  proceeding  to  trial  pursuant  to  his  peremptory 
undertaking,  the  court  may  make  the  payment  of 
the  costs  of  the  last  default  a  condition  precedent 
to  enlarging  his  last  undertaking.  Dennebaye 
«.  Richardson,  4  Dowl.  P.  C.  564.  1787 

Where  the  trial  of  a  cause  en  me  on  unexpect- 
edly, and  one  of  the  plaintiff's  witnesses  and 
botn  the  defendant's  counsel  were  absent,  in  con* 
sequence  of  which  the  cause  was  struck  out,  the 
eourt  enlarged  a  peremptory  undertaking  which 
the  plaintin  had  giv^n  to  try  the  cause,  but  on 
the  terms  of  the  payment  of  the  coats  of  the  day 
and  of  the  application.  Saxon  v.  Swabey, 
Dowl.  P.  C.  105;  1  Har."&  WoU.  345.  1787 

Peremptory  Undertaking.]  ^^  In  support  of  a 
rule  to  enlarge  a  peremptory  undertaking,  where 
the  plaintiff  has  made  only  one  default,  m  conse- 
qtienae  of  the  absence  of  a  material  witness,  the 


affidavit  need  not  state  the  name  of  that  witness. 
Montfort  v.  fiond,  2  Dowl.  P.  C.  403.  1786 

Where  a  plaintiff  has  given  a  peremptory  un- 
dertaking (but  not  by  rule),  the  rule  for  judg- 
ment as  in  case  of  a  nonsuit,  for.  not  fulnlling 
that  undertaking,  is  nisi  in  the  first  instance. 
Vokius  V.  Sneir,  2  Dowl.  P.  C.  411 :  S.  P.  Whal- 
ley  V.  Followes,  1  Hodges,  77.  1786 

Payment  of  the  debt  and  costs,  after  a  peremp- 
tory undertaking  given,  is  a  ground  for  having  it 
discharged,  but  the  plaintiff  cannot  be  compelled 
to  enter  a  stet  processus.  Shrimptun  v.  Carter, 
3  Dowl.  P.  C.  648.  1786 

Where  a  rule  nisi  for  a  judgment  as  in  case  of 
a  nonsuit  was  discharged  on  a  peremptory  under- 
taking to  try  at  the  next  assizes,  and  afterwards 
an  order  for  trial  at  the  sheriff's  court  was  ob- 
tained, and  the  plaintiff  neglected  to  try  at  the 
next  sheriff's  court: — Held,  that  the  defendant 
was  entitled  to  a  rule  absolute  for  judgment  as  in 
case  of  a  nonsuit.  Williams  v.  Edwards,  3  Dowl. 
P.  C.  660.  1786 

Trial  at  Bar] — A  trial  at  bar  will  be  granted 
on  the  ex  officio  application  of  the  attorney-gene> 
ral,  where  the  interests  of  the  King  as  Uuxe  of 
Lancaster  may  come  into  oaestion.  Brown  r. 
GrenviUe  (Lord),  1  Har.  &  Woll.  270.  1787 

fl^rit  of  Trial.] — An  action  for  unliquidated 
damages,  e.g.  in  running  down  plaintiff's  boat, 
cannot  be  tried  before  the  sheriff  under  a  writ  of 
trial.     Wateon  v,  Abbott,  4  Tyr.  64.  1787 

The  writ  of  trial,  under  3  &  4  Will.  4,  c.  42,  s. 
17,  is  to  be  directed  to  the  judge  of  the  court  of 
record  in  those  places  in  which  there  is  a  court 
of  record,  and  to  the  sheriff  where  there  is  do 
such  court.  Clarke  v.  Mamer,  4  M.  dk  Scott, 
171 ;  2  Dowl.  P.  C.  774.  1787 

A  writ  of  trial  was  directed  to  the  mayor  of 
Colchester,  and  the  cause  was  tried  by  his  depu- 
ty ;  the  court  refused  to  set  aside  the  proceedings 
on  a  suggestion  that  the  cause  ought  to  have  been 
tried  by  Uie  mayor  himself,  it  not  appearing  that 
that  officer  was  without  authority  to  appoint  a 
deputy.    Id. 

The  writ  of  trial,  under  the  rule  of  H.  T.  4  Will. 
4,  is  conclusive  as  to  the  date  of  the  writ  of  sum- 
mons stated  in  it,  and  evidence  is  not  admissible 
to  contradict  it.  But  where  a  wrong  date  is  in- 
serted in  it,  the  court  will  set  aside  Uie  trial,  and 
order  the  writ  of  trial  to  be  amended.  Whipple 
V.  Manley,  1  Mees.  &  Wels.  432.  1787 

Where  an  order  was  obtained  under  the  Writ 
of  Trial  Act,  for  a  trial  before  the  sheriff,  and  the 
sum  indorsed  upon  the  writ  was  581. : — Held,  that 
the  verdict  must  be  set  aside,  though  boUi  parties 
had  gone  to  trial  before  the  sheriff  without  mak- 
ing any  objection.  Edge  v.  Shaw,  2  C.  M.  dk 
R.  415 ;  4  Dowl.  P.  C.  189.  1787 

Where  a  cause  is  proper  to  be  tried  by  the 
sheriff  under  the  Writ  of  Trial  Act,  but  by  mis. 
take  a  larger  sum  is  indorsed  on  the  writ  than 
the  plaintiff  claims,  and  than  is  allowed  by  the 


[PRACTICE] 


8687 


set,  the  court  will  ftllow  the  writ  to  be  amended, 
id. 

Hie  Writ  of  Trial  Act  was  only  intended  to 
apply  to  very  plain  questions,  and  after  a  judge 
at  chambers  has  refused  to  make  an  order ;  sem- 
ble,  that  the  court  will  not  entertain  a  motion  for 
reyiewing  his  decision ;  not,  at  least,  unless  all 
the  &cts  of  the  case,  with  what  took  place  before 
the  judge  are  broufrht  specially  before  the  court. 
Davis  ».  Lloyd,  4  Dowl.  P.  C.  478 ;  1  Tyr.  &  G. 
28.  1787 

If  the  sum  indorsed  on  a  writ  of  summons  ex- 
ceeds 20/.,  the  cause  cannot  be  tried  before  the 
sheriff;  but  the  court,  on  motion  at  the  instance 
of  the  plaintiff,  will  amend  the  indorsement  by 
substituting  a  less  sum,  being  the  amount  due 
upon  the  balance,  so  as  to  obtain  a  writ  of  trial. 
Frodsham  v.  Round,  4  Dowl.  P.  C.  569.        1787 

It  is  no  ground  of  objection  to  an  issue  being 
tried  before  the  sheriff,  that  the  defendant  wifl 
endeavor  to  avail  himself  of  the  Gloucester  court 
of  RequeeiB  Act.  Croad  v.  Harris,  4  Dowl.  P.  C. 
616.  1787 

The  court  or  a  judge  has  no  power  to  reduce 
the  amount  indorsed  upon  a  writ  of  summons,  so 
as  to  make  the  cause  triable  by  the  sheriff  Trot- 
ter 9.  Bass,  I  Scott,  403 ;  3  Dowl.  P.  C.  407 ;  1 
Bing.  N.  R.  516 ;  1  Hodges,  23.  1787 

That  a  notice  of  trial  before  the  sheriff  is  given 
lor  a  day  not  fixed  for  trying  issuesi  is  no  ground 
ibr  moving  to  set  it  aside.  Arden  v.  Giirry,  2 
Scott,  188.  1787 

In  causes  to  be  tried  before  the  sheriff,  the 
iarae  must  be  delivered  as  in  other  cases.  Id. 

Semble,  that  if,  on  a  writ  of  trial,  pursuant  to 
3  A&  4  Will.  4,  c.  42,  s.  17,  a  verdict  was  given  for 
20^,  and  for  a  sum  of  IO5.  for  interest,  a  judgment 
entered  up  for  both  sums  would  be  irregular. 
Bnrieigh  v.  Kingdon,  2  C.  &  M.  476 ;  4  Tyr.  369. 

1787 

Where  the  defendant  obtains  an  order  to  try 
before  the  sheriff,  the  judge  has  no  authority  to 
impose  terms  on  the  plaintiff  as  X6  the  time  of 
trying,  without  his  consent.  Wright  v.  Skinner, 
2  cTM.  &  R.  746;  4  Dowl.  P.  C.  727;  ITyr.  & 
G.  69.  .     1787 

Trial,'] — In  ejectment,  the  defendant's  counsel 
has  no  right  to  the  general  reply,  unless  he  ad- 
mits the  whole  prima  facia  case  of  the  lessor  of 
the  plaintiff;  therefore,  where  the  counsel  for  the 
defendant  only  admitted  the  pedigree  of  the  lessor 
of  the  plaintiff',  and  his  counsel  proved  the  seisin 
of  the  ancestor  by  receipt  of  rent,  which  case  was 
answered  by  setting  up  a  will,  the  validity  of 
which  was  disputed  by  evidence  on  the  part  of  the 
lessor  of  the  plaintiff,  it  was  held  that  the  defen- 
dant's counsel  was  not  entitled  to  the  general 
reply.  Doe  d.  Pile  v.  Wilson,  6  C.  &  P.  301 ;  1  M. 
&  Rob.  323— Denman.  1788 

The  plaintiff  is  entitled  to  begin,  where  da- 
mages of  an  unascertained  amount  are  the  object 
of  tne  action,  though  the  affirmative  of  the  issues 
on  the  record  be  with  the  defendant.  Carter  v. 
Jones,  1  M.  A  Rob.  281— Tmdal.  1788 

Vol.  IV.  40 


Where  a  defendant  in  replevin  pleads  property 
in  a  third  person,  and  issue  is  taken  thereon,  he 
is  entilJed  to  begin.  Coleston  v.  Hescolbs,  1 M.  & 
Rob.  301— Alderson.  1788 

Where  real  damages  are  not  the  object  of  the 
action,  the  party  on  whom  the  affirmative  issues 
lie  is  entitled  to  begin.  Qufsre,  whether  a  new 
trial  can  be  obtained  on  the  ground  that  a  party 
has  been  improperly  deprived  of  his  right  to  be- 
gin ?  Burrell  v.  Nicholson,  1  M.  &.  Rob.  304— 
Denman.  1788 

In  ejectment  by  lessors,  claiming  under  seve- 
ral descents  from  a  particular  ancestor,  when  the 
defendant  admits  all  the  descents  except  the  first, 
and  claims  under  a  will  of  this  ancestor,  the  de- 
fendant is  entitled  to  begin.  Doe  d.  Wollaston 
V.  Barnes,  1  M.  &  Rob.  186— Denman.        1788 

To  a  mandamus  to  a  rector  to  restore  a  parish 
clerk,  the  rector  returned,  that  the  clerk  was 
guilty  of  acts  of  intoxication,  and  therefore  he 
dismissed  him.  The  clerk  brought  an  action  for 
a  false  return,  and  in  his  declaration  recited  the 
return,  and  negatived  the  allegations  contained 
in  it.  The  rector  by  his  plea  repeated  the  charges 
contained  in  the  return : — Held  that,  on  these 
pleadings,  the  defendant  had  the  right  to  begin. 
Bowles  V,  Neale,  7  C  &  P.  26^-Denman.    1788 

In  an  action  on  a  bill  of  exchange  by  the  in- 
dorsee against  the  acceptor,  the  defendant  pleaded 
that  it  was  an  accommodation  bill,  and  that  a 
blank  acceptance  had  been  filled  up,  and  applied 
in  discharge  of  this  and  other  bills;  the  plamtiff 
replied,  that  the  defendant  broke  his  promise 
without  such  cause  as  in  that  plea  alleged : — 
Held,  that  on  these  pleadings  the  defendant  was 
entitled  to  begin.  Faith  v.  M'lnt^re,  7  C.  &  P. 
44— Parke.  1788 

A  defendant  in  assumpsit  pleaded  as  to  202. 
payment,  and  as  to  the  residue,  a  set-off: — Held, 
that  on  these  pleadings  the  defendant  must  be- 
gin.   Coxhead  v.  Huish,  7  C.  &  P.  63— Parke. 

1788 

A  party  gave  a  check  for  the  amount  of  a  de- 
posit on  a  sale  by  auctioii,  which  sale  was  void. 
In  an  action  on  the  check,  he  pleaded  that  there 
was  no  consideration  for  the  check ;  and  the  plain- 
tiff replied,  that  there  was  consideration: — 
Held,  that  on  this  issue  the  defendant  must  be- 
gin.   Mills  V,  Oddy,  6  C.  dk  P.  72&-Parke. 

1788 

In  assumpsit,  the  declaration  stated  that  the 
defendant  agreed  to  build  houses  according  to  a 
specification.  Breach,  that  he  did  not  buud  ac- 
cording to  the  specification.  Plea,  that  the  de- 
fendant did  buila  according  to  the  specification : 
— Held,  that  on  this  issue  the  plaintiff  must 
begin,  and  prove  that  the  defendant  had  not  built 
according  to  the  specification.  Smith  v.  Daviea, 
7  C.  jSl  p.  307— Alderson.  1788 

Trover  by  the  assignees  of  a  bankrupt  against 
the  sheriff  for  goods.  Plea,  that  R  f.  sued  oat 
a  writ  of  fi.  fa.  against  the  bankrupt,  and  that  was 
delivered  to  the  uieriff  before  the  rankraptoy,  and 
that  the  sheriff  seized  and  sold  the  gooda  >  and 


3688 


[PRACTICE] 


that  no  docket  had  been  gtrack  againit  the  bank- 
rupt, neither  had  the  aheriff  notice  of  any  act 
of  bankruptcy.  Replication,  that  Uie  judgment 
was  obtained  against  the  bankrupt  by  cognovit  in 
an  action  commenced  by  coUusion,  and  that  the 
fiat  issued  within  two  months  after  the  seizure. 
Rejoinder,  that  the  action  was  commenced  ad- 
yersely : — Held,  that  on  these  pleadings  the  plain- 
tiff must  begin.  Scott  v  Lewis,  7  C.  &  F.  347-> 
Coleridge.  1788 

Assumpsit  on  a  bill  of  exchange  by  indorsee 
against  acceptor.  The  only  plea  was,  that  the 
bill  had  been  altered  after  acceptance  : — Held, 
.that  the  defendant's  counsel  had  tne  right  to  be- 
gin,  and  that,  upon  his  calling  for  tlie  bill,  the 
plaintiff's  counael  ought  to  produce  it  without 
notice.  Barker  v.  Malcolm,  7  C.  &  P.  101— Tin- 
dal.  1788 

If,  in  an  action  of  covenant  for  non-repair,  &c., 
the  defendant  plead  affirmative  pleas,  which  are 
denied  by  the  replication,  the  defendant  is  enti- 
tled to  begin.  Lewis  v.  WeUs,  7  C.  &  P.  221— 
Coleridge.  1788 

The  new  rule  of  practice  made  by  the  judges 
as  to  the  right  to  beffin,  does  not  extend  to  ac- 
tions of  contract.    IdT 

.  In  assumpsit  for  work  and  labor,  the  defen- 
dant pleaded  that  the  **  promise  was  made  to  the 
plaintiff  and  J.  S.,  and  not  to  the  plaintiff 
alone."  Replication,  that  the  promise  was  made 
to  the  plaintiff  alone,  and  not  to  tlie  plaintiff  and 
J.  S. : — Held,  that  on  this  issue  the  plaintiff  ought 
to  begin.  Davies  o.  Evans,  6  C.  &  P.  619-^ 
Parke.  1788 

In  an  action  by  the  indorsee  of  a  bill  of  ex- 
change against  the  acceptor,  the  defendant  plead- 
ed, first,  that  the  bill  was  accepted  for  a  debt 
from  which  he  was  discharged  under  the  Insolvent 
Debtors'  Act,  of  which  the  plaintiff  at  the  time 
of  the  indorsement  had  notice ;  and,  second,  that 
the  bill  was  accepted  to  induce  the  drawer  not  to 
oppose  the  discharge  of  the  defendant  under  that 
act,  of  which,  at  the  time  of  the  indorsement,  the 
plaiiltiff  also  had  notice :  the  plaintiff,  in  his  re- 
plication, denied  the  notice  stated  in  each  of  the 
pleas  : — Held,  that  on  these  issues  the  defendant 
must  begin,  and  that  the  onus  of  proving  that 
the  plaintiff  had  notice  was  on  the  defendant. 
Warner  v.  Haines,  6  C.  &  P.  G66— Denman. 

1788 

la  an  action  for  false  imprisonment,  if  the  de- 
fendiint  plead,  as  a  justification,  that  the  plaintiff 
stole  feathers,  and  that  he  was  therefore  impri- 
soned, and  the  plaintiff  reply  de  injuria,  the  plain- 
tiff is  entitled  to  begin,  although  this  is  no  plea 
of  ^e  general  issue,  and  the  affirmative  is  on 
the  defendant  Atkinson  v.  Warne,  6  C.  &  P. 
687— Gorney.  1788 

If  in  assumpsit  on  bills  of  exchange,  with  a 
count  upon  an  account  stated,  the  defendant  plead 
payment  to  the  counts  on  the  bills,  and  non  as- 
sumpsit to  the  account  stated : — Held,  that  the 
defendant  is  entitled  to  begin,  unless  the  plain- 
tiff's counsri  have  some  evidence  to  give  on  the 
oount  upon  an  account  staded.  Smart  v.  Rayner, 
6  C.  &  P.  721— Parke.  1788 


In  covenant  to  recover  damages  for  the  non- 
performance of  an  agreement  under  seal,  if  the 
defendant  plead  only  that  the  deed  was  obtained 
by  fraud  and  covin,  the  affirmative  of  the  issue 
being  upon  him,  his  counsel  has  a  right  to  begin, 
although  the  damages  are  uncertain,  and  evidence 
is  requisite  to  guide  the  jury  in  forming  their 
estimate  of  them.  Reeve  v.  Underhill^  6  C.  &  P. 
77a-Tindal.  1788 

Where  the  defendant,  who  had  begun  and  had 
closed  his  case,  and  the  plaintiff's  counael  had 
afler  that,  in  his  address  to  the  iiiry,  read  a  letter, 
which  he  caused  one  of  dftfendant's  witnesses  to 
prove,  but  neither  gave  it  in  evidence  nor  ad- 
duced any  evidence  at  all,  the  judge  would  not 
allow  the  defendant's  counsel  to  reply,  bat  sug- 
gested that  the  plaintiff's  counsel  should  have  the 
fetter  read,  and  uiat  the  defendant's  counsel  should 
reply.    Faith  v.  M'lntyre,  7  C.  &  P.  44— Parke. 

1789 

Where  a  declaration  contains  several  counts, 
founded  on  the  same  transaction,  the  plaintiff 
cannot,  at  the  close  of  his  ease,  be  called  upon  to 
state  on  which  count  he  relies.  Swinburne  v, 
Jones,  1  M.  &  Rob.  322— Denihan.  1790 

Where  the  plaintiff  offers  no  evidence  against 
one  of  several  defendants,  such  defendant  is  enti- 
tled to  be  acquitted  at  the  dose'of  the  plaintiff's 
case.  Child  o.  Chamberlain,  1  M.  d^  Rob.  318— 
Parke.  1790 

Semble,  that  the  sittings  in  term  are  not  re- 
garded as  one  sitting  in  law,  so  that  a  trial  at  any 
sitting  day  would  have  relation  to  the  first  day  of 
the  sittings*  Johnson  v.  Budge,  3  Dowl.  P.  C. 
207;  5  "ly.  197.  1790 

Where  several  defendants  appear  by  diftvent 
attornies  and  counsel,  the  latter  are  entitled  to 
cross-examine  the  witnesses,  and  address  tiie  nuy 
separately.  Ridgway  v.  Philip,  1  C.  M.  &.  R.  415 ; 
3  Dowl.  P.  C.  l5l ;  o  Tyr.  131.  1790 

Where  at  the  trial  of  an  action  the  iudge  sug- 
gests the  withdrawal  of  a  juror,  and  tne  plaintiff 
acta  on  the  suggestion,  the  court  will  stay  the 
proceedings  in  a  second  action  eommenoed  by  the 
same  plaintiff  for  the  same  cause,  even  when  oq 
the  firat  occasion  he  conducted  the  case  in  person. 
Moscati  V,  Lawson,  1  Har.  &  WoU.  572.       1790 

A  defendant's  counsel,  in  addressing  tiie  iory, 
has  no  right  to  say  to  the  jury  that  m  shall  call 
witnesses,  unless  they  inform  him  that  they  are 
satisfied  that  the  defendant  is  entitled  to  a  verdiel 
as  the  case  stands;  he  must  either  call  kis  wit- 
nesses, or  close  his  case  without  saving  anything 
about  them.  Moriarty  v.  firooks,6  C.  &  r.  €84 
— Lyndhurst.  1791 

The  counsel  for  a  defendant  has  no  right  to 
open  facts  which  he  is  not  in  a  condition  to  prove  ; 
therefore,  where  a  witness  has  given  evidenoe  of 
a  conversation  between  the  defendant  and  himself^ 
at  which  no  one  else  was  present,  the  defendant's 
counsel  has  no  right  to  miake  a  statement  of  that 
which  his  olient  has  given  him  as  an  account  of 
the  traneaotion.  Stevens  v.  Webb,  7  C.  &  P.  GO 
—Parke.  1791 


[PRACTICE] 


2589 


'If  in  tfpsptM  for  leixing  and  detaining  a  dog, 
tiie  defendant  refnaer  to  produce  the  doff  j[nnder 
notice)  during  tbe  examination  of  the  plaintiif 'a 
witneaaea,  he  will  not  be  allowed  to  produce  it 
afterwards  for  the  purpose  of  invalidating  the  tea- 
timonv  of  thoae  witnesaea.  Lewia  v.  Hartley,  7 
C.  &  P.  405— Abinger.  1791 

If  tbe  coonael  for  a  defendant,  in  hia  addreaa 
to  the  jury,  cite  a  case,  but  call  no  witness,  the 
plaintitf^B  counsel  has  a  right  to  observe  on  the 
case  cited.  Power  v.  Barham,  7  C.  dc  P.  356 — 
Coleridge.  1791 

Verdict  and  Datnoffes.] — When  the  jury  have 
returned  a  verdict,  Uie  judge  will  not  hear  the 
reasons  on  which  they  founded  their  verdict, 
though  the  jury  may  desire  to  state  their  reasons. 
Homer  v.  Watson,  6  C.  &  P.  680— Gumey.  1791 

Where  a  verdict  was  found  in  trespass  againat 
one  only  of  aeveral  defendanta,  the  evidence  ap- 
plying to  all,  but  no  leave  was  ^iven  at  the  trial 
for  leave  to  enter  a  verdict  agamst  the  other  de- 
fendants  : — Held,  that  a  verdict  could  not  be  en- 
tered against  them.  Starling  v.  Cozens,  3  Dowl. 
F.  C.  m  1791 

Where  a  verdict  was  taken  on  all  the  counts 
by  cooiaent,  with  liberty  to  move  to  enter  a  non- 
SQit,  the  court  refused,  after  that  motion  had  been 
discharged,  to  allow  the  defendant  to  confine  the 
verdict  to  any  particular  counts.  Martin  v.  Cole- 
man, 1  Har.  A  WoU.  86.  1791 

A  defendant  pleaded  a  ryht  of  way  lor  the  in- 
babitant  householders  of  M.,  to  carry  goods  and 
fetch  water.  The  iury  found,  that  they  had  a 
right  of  way  to  fetch  water  and  to  water  horsea, 
but  negatived  the  rifrht  of  way  to  carry  goods : — 
Held,  that,  as  to  the  right  of  way  for  fetchinjor 
water,  a  verdict  should,  under  the  rule  of  H.  T. 
4  Will.  4,  No.  5,  be  entered  for  the  defendant ; 
and  a<  to  the  carrying  of  goods,  for  the  plaintiff; 
and  that,  as  to  the  watering  of  horses,  the  verdict 
was  inoperative.  Knight  v.  Moore,  7  C.  &  P.  258 
— WiUiams.  1791 


/fansuit.} — A  sheriff  or  other  judge  presiding 
at  the  trial  of  an  issue  under  a  writ  of  trial,  pur- 
anant  to  3  &/  4  Will.  4,  c.  42,  s.  17 ,  has  the  same 
power  to  nonauitjis  a  judge  at  Niai  Priua.    Wat- 


son 9.  Abbott,  4  Tyr. 


1792 


Submitting  Uy  a  nonsuit  in  deference  to  the 
fipinion  of  toe  judge  at  the  trial,  which  opinion 
is  ineorrect,  does  not  estop  the  plaintiff  from 
moving  to  aet  aside  such  nonsuit  Alexander  t. 
Barker,  2  C.  &  J.  133;  1  Price's  P.  C.  157;  2 
Tyr.  140.  1793 

A  plaintiff  cannot  be  nonsuit  but  by  his  own 
consent  Dewar  v.  Purday,  4  Nev.  &  M.  633 ; 
3  Adol.  A    EUts,  166;   1  Har.  6c  WoU.  227. 

1793 

Where  at  a  trial  leave  was  ffiven  to  move  to 
•Bier  a  nonsuit,  and  the  trial  proeeeded,  and 
the  jury  after  long  consideration  diBagreed  upon 
their  verdict : — Held,  that  the  judj^  could  not  in 
the  absence  of  the  plaintiff  and  km  coonael  direct 
•  nonsuit    Id. 


Where  a  jury  cannot  agree  in  their  verdict, 
they  may  be  discharged,  if  circumstances  render 
it  improper  that  they  should  continue  to  delibe- 
rate ;  but  the  judge  cannot  nonsuit  the  plaintiff 
without  his  assent.     Id. 

Where  liberty  is  reserved  to  enter  a  nonsuit, 
such  reservation  proceeds  upon  the  assent,  ex- 
press or  implied,  of  both  parties,  to  such  reservsr 
tion.    Id. 

Where  a  plaintiff  was  nonsuited  through  the 
neglect  of  the  attorney's  clerk  to  attend  in  court, 
the  court  refused  to  aet  aside  the  nonsuit,  ex- 
cept upon  the  terms  of  the  plaintiff's  attorney 
paying  the  costs  occasioned  by  the  defendant's 
attending  to  try.  White  v.  Sandell,  3  Dowl.  P. 
C.  798.  1793 

A  motion  for  entering  a  nonsuit  cannot  be 
made,  unless  leave  has  been  reaerved  for  that 
purpose  by  the  judge  trying  the  cauae.  Rickets 
V.  Burman,  4  Dowl.  P.  C.  578 :  S.  P.  TippetU  v, 
Heane,  4  Tyr.  772,  1793 

Where  the  plaintiff'a  counsel,  after  a  judge 
haa  begun  to  sum  up,  proposes  to  be  nonsuited, 
he  cannot  move  to  set  aside  the  nonsuit,  not- 
withstanding the  judge  may  have  expressed  a 
strong  opinion  as  to  Uie  e^t  of  the  plaintiff's 
evidence.  Simpson  v.  Clayton,  2  fiing.  N.  R. 
467.  1793 

If  the  counsel  for  a  defendant  has  addressed 
the  jury  and  examined  witnesses,  he  haa  no  right 
then  to  address  the  judge  for  a  nonauit.  Ro- 
berts V.  Croft,  7  C.  &  P.  376— Denman.        1793 

Postea.l — If  a  plaintiff  recovers  on  any  part  of 
the  record,  he  is  entitled  to  the  postea.  Smith  v. 
Edwards,  4  Dowl.  P.  C.  621 ;  1  Har.  ds  WoU. 
497.  1793 

Judgment.^-'S'xnce  the  stot.  1^2  Will.  4, 
c.  58,  s.  7,  the  court  has  no  power  to  give  effect 
to  a  judgment,  previously  to  the  true  time  at 
which  it  is  entered.  Liambirtb  v.  Harrington,  2 
fiing.  N.  R.  149.  1794 

Where  a  final  judgment  is  signed  in  vacation ; 
semble,  a  suggestion  may  be  entered  after  it  is 
so  signed.     Godson  v.  Lloyd,  1  Gale,  244.     1794 

Final  judgment  is  not  complete  until '  costs 
have  been  taxed,  and  their  amount  inserted  in  the 
allocatur.    Id. 

On  23rd  May,  the  plaintiff  had  a  verdict  in 
a  cause  tried  before  a  sheriff,  on  a  writ  of  trial 
issued  under  3  &i  Will.  4,  c.  42,  s.  17.  He 
did  not  siprn  judgment  till  the  27th,  after  taxing 
costs  on  that  day  : — Held,  that  the  judgment  was 
signed  regular,  and  in  time  within  the  term 
«« forthwith"  in  aect  18.  Nicolls  17.  Chambers, 
1  C.  M.  &  R.  385;  4  Tyr.  836.  1794 

A  rule  for  entering  up  judgment  in  a  writ  of 
false  judgment  having  oeen  made  absolute,  coats 
were  taxed,  and  the  prothonotary'a  allocatur  in- 
dorsed on  the  back  of  the  rule.  The  plaintiff 
then  issued  execution  without  further  entering 
or  signing  judgment : — ^Held  irregular.    Finch  v 

odLC,  S  Bing.  N.  R.  710.  1794 


Brool 


8590 


[PRACTICE] 


Where  costs  are  taxed  upon  a  jndgment,  soeh 
taxation  is  to  be  considered  as  the  period  at 
which  final  judgment  is  pronounced,  semble. 
Salter  v.  Slade,  3  Nev.  &  M.  717.  1794 

Issue  was  entered  in  a  cause,  and  docketed 
aooordin^to  the  practice  of  the  office  of  judg- 
ments. The  plaintiff  in  1828  recovered  damages 
and  costs,  and  entered  final  judgment  on  the  roll, 
but  the  judgment,  according  to  a  practice  said  to 
have  prevailed  for  100  vearB.  was  not  docketed 
as' required  b74  &  5  W.  &  M.  c.  20,  s.  2.  On 
application  to  the  court  in  1836,  to  order  the 
juogment  to  be  docketed  nunc  pro  tunc:-*- 
iield,  that  the  court  had  no  power  to  make  such 
order.    Hopwood  v.  Watts,  5  B.  &,  Adol.  1056. 

1794 

Where  a  judgment  has  been  satisfied,  and  the 
plaintiff  is  out  of  the  country,  so  that  the  usual 
warrant  to  enter  up  satisfaction  on  the  roll  can- 
not be  obtained,  the  defendant  must  clearly  prove 
that  the  judgment  is  satisfied  before  satisfaction 
can  be  entered.  De  Bastosv.  Willmott,  i  Hodges, 
15.  1794 

Jlrrest  of  Judgment.] — ^The  provisions  of  the  1 
Will.  4,  p.  7,  ss.  2,  4,  being  extended  to  proceed- 
ings before  the  sheriff,  under  the  3  dk  4  Will.  4, 
e.  4^,  s.  17,  the  court  will,  in  the  next  term,  en- 
tertain a  motion  to  vacate  and  arrest  a  judgment 
signed  in  vacation.  Pyke  v.  Glendinning, 2Dowl. 
P7d.  611.  1794 

A  motion  in  arrest  of  judgment  on  a  cause 
tried  out  of  term,  must  be  made  within  the  first 
four  days  of  the  term  ensuing  the  trial.  Weston 
V.  Foster,  2  Bing.  N.  R.  701.  1794 

A  defendant  cannot  move  to  enter  a  verdict 
non  obstante  where  an  issue  is  found  against 
him,  which  he  has  himself  taken.  Rand  v. 
Vaughan,  1  Hodges,  173.  1794 

Spedal  Cases.]-»Only  one  counsel  on  each  side 
will  be  heard  on  a  case  reserved  for  the  opinion 
of  the  court  of  Exchequer,  by  the  judge  sitting 
alone  on  the  equity  side.  Smith  v.  Smith,  4 
Tyr.  2.  1796 

Where  a  rule  to  set  aside  an  award  is  made 
into  a  special  ease,  the  counsel  who  objects  to  the 
award  ought  to  begin  and  have  the  reply.  Dip- 
pins  V.  Anglesea  (Marquis),  2  Dowl.  P.  C.  647. 

Entering  judgment  on  special  case  heard  pur- 
suant to  3  &  4lVill.  4,  c.  42t  s.  25.  Shepherd 
V.  Kealley,4Tyr.571.  1796 

The  court  will  not,  under  any  circumstances, 
dispense  with  the  signature  of  counsel  to  a  spe- 
cial case.  Mostyn  v,  Champneys,  1  Scott,  o7 : 
8.  C.  nom.  Roy  v.  Champneys,  3  Dowl.  P.  C. 
105.  1796 

Neither  will  the  court  grant  a  rule  calling 
upon  an  attorney  to  show  cause  why  he  refuses 
to  obtain  such  signature  to  a  case  settled  by  a 
master  in  Chancery,  in  pursuance  of  an  order  of 
the  Vice  Chancelfor.  Id. 

Where  the  Vice  Chancellor  directed  the  opinion 
Af  the  court  to  be  taken  on  a  special  case,  the 


court  would  not  permit  it  to  be  entered  for  aiga- 
ment  with  the  signature  of  a  master  in  Chan- 
cery, who  had  setfled  it,  instead  of  the  signatnte 
of  counsel.    Id. 

Irregvlarity.'] — A  motion  to  set  aside  proceed- 
ings for  irregularity  was  held  too  late  after  a  lapee 
of  seven  days.  Fynn  or  Fyson  o.  Kemp,  2  Dowl. 
P.  C.  620 ;  4  Tyr.  990.  1796 

In  the  King's  Bench,  a  rule  nisi  for  setting 
aside  proceedings  for  irregularity  may  be  drawn 
up  with  a  stay  of  proceedings,  although  notice  of 
motion  has  not  been  given.    Stratton  v.  Regan, 

2  Dowl.  P.  C.  585.  1797 

Where  an  arrest  was  on  the  29th  of  Jannazy, 
and  on  the  10th  of  March  the  defendant  maae 
application  to  be  discharged  out  of  custody,  on 
account  of  irregularity, in  the  capias  : — Held,  it 
wari  not  within  a  reasonable  time,  as  required  by 
the  rule  of  court,  33  H.  T.  2  Will.  4.  Foote  v. 
Dick,  1  Har.  &  Woll.  207.  1797 

A  prisoner  must  move  to  set  aside  proceedings 
for  irreifularity  in  a  reasonable  time,  though  me 
plaintifT  has  taken  no  step  since  the  arrest. 
Primrose  v.  Baddeley,  2  C.  &  M.  468 ;  4  Tyr.  370. 

17^7 

A  prisoner  voBy  however  apply  after  the  term, 
when  other  motions  for  irregularis  must  be 
made.  Rock  v,  Johnson,  4  Dowl.  P.  C.  405 ;  1 
Tyr.  A  G.  43.  1797 

The  court  refused  to  set  ande  an  interlo- 
cutory judgment  (which  had  been  irregularly 
signed  tnree  years  ago)  upon  payment  of  costs, 
though  proceedings  Dy  sci.  fa.  had  been  lately 
commenced.  Lewis  v.  Browne,  3  Dowl.  P.  C. 
700.  1797 

An  application  to  set  aside  an  interlocutory 
judgment  for  irregularity,  after  notice  to  exeoute 
a  writ  of  inquiry  on  tlie  4th  of  November,  was 
held  to  be  too  late  on  the  12th.    Scott  v.  Cogger, 

3  Dowl.  P.  C.  212.  1797 

The  court  will  not  permit  an  irregularis  to 
pass  uncorrected  if  brought  under  its  notice, 
although  the  opposite  party  appears  by  his  si- 
lence to  have  waived  it.  Sywood  and  Dogher- 
ty's  BaU,  3  Dowl.  P.  C.  116.  1797 

Judgment  signed  in  November,  1833 :  plaintiff 
took  no  further  step  till  January,  1835,  when  he 
gave  a  term's  notice  of  executing  a  writ  of 
mquiry.  In  April,  notice  of  executing  it  for 
the  28th  of  May  was  served  on  the  defendant  in 
person.  On  tne  27th  of  May,  the  defendant 
took  out  a  summons  to  set  aside  the  judgment, 
fi>r  having  been  irregularly  signed  after  plea  de- 
livered, returnable  ihe  next  day  at  three  o'clock, 
but  it  was  not  attended  by  the  plaintiff's  attorney. 
At  four  o'clock  the  writ  of  inquiry  was  executed. 
On  the  same  day  a  second  summons  was  taken 
out,  returnable  the  next  day,  which  was  at- 
tended and  dismissed;  and  an  application  was 
then  made  to  the  court  to  set  aside  the  jud^rment 
and  subsequent  proceedings  for  irregularity: — 
Held,  that  the  defendant  was  too  late,  and  thai 
the  summons  to  set  aside  the  judgment  was 
not,  under  the  circumstances,  sifScient  to  stey 


[PRACTICE] 


^91 


the  trial  of  the  writ  of  inqairy.    Roberta  v.  Cat^ 
till,  4  Dowl.  P.  C.  204.  1797 

If  a  copy  of  a  writ  is  aerved  in  vacation,  ob- 
jection to  it  for  ifre^ularity  must  be  taken  in  va- 
cation, if  there  is  time  for  that  purpose.  Uinton 
r.  Stevens,  4  Dowl.  P.  C.  283.  1797 

The  illness  of  a  witness  to  whom  a  comrois- 
•ioner  of  the  court  miffht  be  sent  to  take  his 
affidavit,  is  no  excuse  for  delay  in  making  an 
application  to  rescind  an  order  for  settin|^  aside 
a  writ  of  summons,  on  the  ground  of  irre^- 
larity.      Orton  v.  France,  4  Dowl.  P.  C.  598. 

1797 

If  a  defendant  seeks  to  set  aside  the  service  of 
a  writ  of  distringas,  on  the  ground  of  defective 
indorsements  and  variance  irom  the  summons, 
his  application  is  too  late  after  a  lapse  of  eigh- 
teen days.  Wright  v.  Warren,  2  Dowl.  P.  C. 
734.  1797 

The  court  will  not  entertain  objections  to  the 
Tegularity  of  proceedings,  where  the  partj  has 
neglected  to  avail  himself  of  opportunities  to 
urge  them  at  an  earlier  period,  even  though 
they  amount  to  error  on  the  face  of  the  record. 
Graves  v.  Walter,  1  Scott,  310.  1797 

An  application  to  set  aside  a  judgment  and 
execution  for  irregularity,  will  not  &  granted, 
with  a  stay  of  proceedings,  unless  notice  of  the 
application  has  been  given  to  the  plaintiff.  Rolfe 
V.  Brown,  I  Hodges,  i27.  1797 

Where  there  appears  to  have  been  a  delay  of 
more  than  eight  aays  before  moving  to  set  aside 
ptoceedings  for  irregularity,  the  derendant  must 
clearly  explain  the  delay,  otherwise  the  presuinp- 
tioo  will  be  against  him.  Herbert  v.  Darlev,  4 
l>owl.  P.  C.  736.  1797 

After  notice  of  an  irregularity  in  declaring, 
which  was  denied  by  the  other  side,  a  summons 
to  aet  aside  proceedings  was  taken  out,  but  a 
judge  at  chambers  refused  to  make  an  order,  or 
to  allow  time  till  the  term  to  move ;  and  the  de- 
fendant's attorney,  to  prevent  judgment,  applied 
freqaentlv  for  time  to  plead,  which  was  consent- 
ed to : — Held,  that  it  was  not  too  late  in  the  next 
term  to  move  to  set  aside  the  proceeding  with 
costs  for  the  same  irregularity  for  which  the 
summons  was  taken  out  Woodcock  v.  Kilby,  4 
Dowl.  P.  C.  730.  1797 

Where  a  motion  is  made  tp  discharge  a  pri- 
•oner  out  of  custody,  on  the  ground  of  irregularity 
in  the  process,  it  must  be  positively  alleged  in  the 
affidavit  that  the  party  was  taken  into  custody 
upon  the  process.  Green  v.  Rohan,  4  Dowl.  r. 
0659.  1797 

A  motion  to  set  aside  proceedings  for  irregu- 
larity, must  be  made  within  a  reasonable  time 
after  the  party  has  the  means  of  knowledge  of 
the  irregularity.  Thus,  when  he  is  arrested  on  a 
ea.  sa.  without  an  indorsement  of  his  abode  and 
addition,  he  must  move  within  a  reasonable  time 
after  the  arrest.  Tarber  v.  French,  5  Nev.  A  M . 
6B8.  1797 


and  getting  aside   Proceedings.] — A 
jodge'  at  chambers  cannot,  in  making  an  order 


for  staying  proceedings  on  pavment  of  debt  and 
costs,  direct  that  the  defenJant  shall  have  a 
longer  time  to  pay  than  he  would  otherwise  have 
if  the  cause  proceeded.  Kirby  v.  EUier,  2  C.  dk 
M.  315;  4Tyr.  239.  1798 

A  defendant  who  moves  to  stay  proceedings  on 
pavment  ol  debt  and  costs,  is  not  entitled  to  a 
role  for  that  purpose  as  a  matter  of  right,  but 
must  submit  to  such  reasonable  terms  as  the 
court  in  its  discretion  may  think  "proper  to  grant. 
Jones  V.  Shepherd,  3  Dowl.  P.  C.  421.  1778 

Where  a  defendant  was  sued  for  the  price  of 
goods  after  be  had  received  a  letter  from  the 
plaintiff,  who  was  abroad,  not  to  pay  except  to 
his  written  order,  the  court,  on  the  application  of 
the  defendant,  ordered  proceedings  to  be  stayed 
on  the  money  being  brought  into  court,  although 
the  defendant  had  pleaded  the  facts  by  way  of  de- 
fence.   Newton  r.  Matthews,  4  Dowl.  P.  C  237. 

1798 

An  application  to  stay  proceedings  on  payment 
of  debt  and  costs,  must  be  made  within  four  days 
after  service  of  process,  fiowbridge  or  Bowditch 
V.  Slaney,  2  Scott,  197;  2  Bing.  N.  R.  142;  4 
Dowl.  P.  C.  140 ;  1  Hodges,  224.  1798 

If  a  defendant  neglect  to  jMiy  the  debt  and 
costs  indorsed  on  a  writ  within  four  days  from 
the  service  (R.  Hil.  T.  2  Will  4,  II.),  the  plain- 
tiff  may  state  a  further  claim  in  his  declaration. 

Id. 

• 
Plaintiff,  who  had  delivered  to  A.,  as  B.'s  at- 
torney, a  bill  in  which  he  made  B.  his  debtor, 
afterwards  obtained  the  bill  surreptitiously  from 
A.,  and  delivering  a  new  bill  for  the  same  coarges, 
in  which  he  ma&  A.  his  debtor,  sued  A.  for  the 
amount.  The  court  stayed  proceedings  till  plain* 
tiff  should  deliver  to  A.  a  copy  of  the  paper  sur- 
reptitiously obtained  from  him :  the  copy  to  be 
evidence  m  the  cause.  Edginton  v,  Nixon,  2 
Scott,  507 ;  2  Bing.  N.  R.  316.  1796 

Where  the  plaintiff  is  suing  as  a  trustee,  and 
there  are  circumstances  of  suspicion  in  the  case, 
the  court  will  stay  proceedings  on  payment  of 
the  debt  into  court,  and  of  payment  of  costs ; 
leaving  the  plaintiff  to  applv  to  the  court  to  have 
his  extra  costs  out  of  the  nind  in  court  Jones 
V.  Bramwell,  3  Dowl.  P.  C.  488.  1798 

Though  after  the  recovery  of  a  verdict,  the 
effect  will  be  only  to  make  the  plaintiff  a  trustee 
for  another  person  for  half  the  amount  recovered, 
the  court  will  not  stay  the  proceedings  in  an  ac- 
tion against  him  on  the  payment  of  the  half  of 
the  sum  sought  to  be  recovered,  but  will  leave 
the  defendant  to  his  remedy  in  equity.  Barlow 
V.  Leeds,  5  Nev.  &  M.  426;  1  Har.  &  Woll  479. 

1798 

A  promissory  note  was  given  by  a  brother  to 
his  two  sisters  jointly  for  100/.,  each  of  them 
having  separately  lent  him  50/.  One  of  the 
sisters  married,  and  the  other  died;  and  the 
brother  took  out  administration  to  the  effects  of 
the  deceased  sister.  An  action  was  brought 
against  him  for  the  whole  amount  by  the  sur- 
I  viving  sistn*  and  her  husband  : — Held,  that  the 
I  court  c«>uld  not,  in  the  exercise  of  an  equitable 


tS92 


[PRACTICE] 


^fldiction,  ftav  the  proeeedingB  upon  parent 
into  court  of  bOl.    Id. 

Where  a  judgment  irregularly  signed  by  the 
plaintiff  is  set  aside  with  costs,  it  is  competent  to 
a  judge  to  stay  the  proceedings  until  such  costs 
are  paid.  Weuham  v.  Downes,  5  Nev.  &  M. 
1U4',  3  Adol.  4&  Ellis,  450;  1  Har.  &  Well.  324. 

1798 

And  it  is  no  ground  for  rescinding  such  order, 
that  the  defendant  has  since  issued  an  attach- 
ment for  such  costs.    Id. 

But,  semble,  that  if  the  plaintiff  were  actually 
taken  upon  such  attachment,  the  court  would 
relieTe  him  from  the  stay  of  proceedmgs.    id. 

Affidavits  in  support  of  a  rule  to  set  aside  pro- 
ceedings must  show  a  clear  case  for  relief;  and, 
therefore,  where  it  was  moved  to  set  aside  a 
judgriient,  on  the  ground  that  the  accounts  be- 
tween the  parties  had  been  investigated,  and 
found  to  .be  mcorrect,  and  that  the  plaintiff  had 
agreed  that  any  error  should  be  rectified : — Held, 
that  the  affidavits  were  insufficient  in  not  stating 
that  the  error  was  in  the  amount.  Preedy  v 
Lovell,  4  Dowl.  P.  C.  671.  1799 

Where  a  defendant  obtains  a  rule  which  stavs 
the  plaintiff's  proceedings,  he  is  entitled  to  tne 
whole  of  the  day  on  which  such  rule  is  disposed 
«f  for  taking  the  neit  step.    Vernon  v.  Hoagins, 


lMees.dtWels.15h 


f 


799 


Notice  to  stay  proceedings  in  the  Exchequer  is 
«  two  days'  notice.  Hannah  v.  Wyman,  3  Dowl. 
P,  C.  673.  1799 

The  court  will  not  grant  a  rule  for  staying 
proceedings  on  the  last  day  of  term.  Doe  d. 
Smith  V.  Hardy,  4  Dowl.  P.  C.  356.  1799 


Incidental  Proeudinfrs.] — Where  six  actions  of 
trover  had  been  brought  against  the  same  defen- 
dant by  different  plamtiffi  employing  the  same 
attorney,  the  court  refused  to  order  the  proceed- 
ings in  five  of  them  to  be  stayed  to  abide  the 
lesult  of  one,  it  being  sworn  that  the  causes  of 
action  were  different  m  all  of  them.  Nicholls  v. 
i«levre,  3  Dowl.  P.  C.  135.  1799 

Where  a  plaintiff  brings  several  actions  upon 
the  same  pobcy  of  assurance  against  several  un- 
derwriters, the  court  will  not,  without  the  consent 
of  the  plaintiff,  make  a  consolidation  rule  upon 
the  terms  of  both  plaintiff  and  defendant  bemg 
bound  in  all  the  actions  by  the  event  of  one. 
Doyle  V.  Anderson,  1  Adol.  &  EUis,  635;  4  Nev. 
dt  k.  873.  1799 

On  a  motion  to  compound  a  penal  action,  it 
must  appear  that  the  defendant  has  pleaded.  Rex 
i;,  CoUier,  2  Dowl.  P.  C.  581.  1800 

Leave  of  the  court  for  compounding  a  penal 
action,  where  the  crown  is  entitled  to  a  portion 
of  the  penalty,  cannot  be  obtained  without  the 
consent  of  the  attorney-general.  Rex  v.  Gibbs, 
3  Dowl.  P.  C.  335.  1800 

Rule  to  discontinue  on  payment  of  costs  is  a 
mere  nullity,  till  the  attorney  of  the  party  ob- 
tuBuif  the  role  has  the  eoets  taxed  and  paid  ^ 


Until  that  is  done  the  action  eontinnes.  Lyon  v. 
Moylan,  1  Alcock  &  Napier,  113.   {IriMk).    1801 

Where  the  defence  is  carried  on  in  the  name  of  a 
person,  not  an  attorney  of  the  court  in  which  the 
action  is  brought,  the  plaintiff  may  discontinue, 
on  payment  of  the  sums  advanced  by  the  defen- 
dant to  his  attorney,  and  without  costs,  if  none 
have  been  advanced.  Paterson  v.  Powell,  2 
Dowl.  P.  C.  738.  1801 

A  discontinuance  of  the  suit  where  that  is  the 
only  step  taken  is  a  discontinuance  of  the  cause. 
Richards  v.  Stuart,  2  Dowl.  P.  C.  754.  1801 

After  a  general  verdict  for  the  defendant,  the 

{>1aintiff  cannot  discotatinue.  Ooodenough  v.  But- 
er,2C  M.  &  R.  240;  3  Dowl.  P.O.  751;  1 
Gale,  163.  1801 

Semble,  that  he  may,  by  leave  of  the  court,  if 
a  point  has  been  reserved.    Id. 

A  cause  was  referred,  and  the  arbitrator  stated 
the  facts  specially  on  his  award  for  the  opinion  of 
the  court.  On  tne  matter  coming  on  tor  argu- 
ment, the  plaintiffs  being  advised  tnat  one  of  the 
defendants  was  improperly  joined  in  the  action, 
the  court  permitted  them  to  discontinue,  on  pay- 
ment of  the  costs  of  the  cause  (no  provision  being 
made  for  the  costs  of  the  reference  and  award), 
and  of  the  motion,  and  undertaking  not  to  bring 
any  joint  action  against  the  two  defendants,  nor 
any  separate  action  Against  the  defendant  sa 
improperly  joined.    Turner  t.  Izon,  2  Scott,  596. 

1801 

A  declaration  for  a  penalty  (consisting  of  one 
count  only)  concluded  to  the  damage  of  the 
plaintiff  of  100^.  The  defendant  demurred  tne- 
cisUy,  assigning  for  catise  this  and  anotner 
ground.  The  ^aintiff  entered  a  nolle  prosequi 
as  to  the  damages  A  judge  at  chambers  or- 
dered the  nolle  prosequi  to  be  set  aside ;  the 
court  supported  the  order.  Butler  v.  Mapp,  4  M. 
<&  Scott,  258.  1801 

The  rule  requiring  a  term's  notice  prior  to 
proceedings  being  taken,  vp^here  the  cause  has 
been  at  issue  more  than  four  terms,  does  not  ap- 
ply to  proceedings  taken  on  the  part  of  the  defen- 
dant. Shinfieldv.  Laxton,  4  M.  &  Scott,  187 ;  2 
Dowl.  P.  C  778.  1802 

A  defendant  may  move  for  judgment  as  in 
case  of  a  nonsuit,  without  giving  a  term's  notice 
of  proceeding,  although  the  cause  has  been  at 
issue  rooire  than  four  terms.    Id. 

A  term's  notice  of  proceeding  is  not  necessary 
after  the  lapse  of  four  terms,  if  the  delay  has 
taken  place  at  the  defendant's  request.  Evans  v. 
Davies,  3  Dowl.  P.  C.  786.  1802 

Appearing  to  oppose  a  rule  does  not  waive  an 
objection  to  the  affidavit  on  which  the  rule  was 
obtained.  Barham  v.  Lee,  4  M.  dt  Scott,  327 ;  2 
Dowl.  P.  C.  779 :  S.  P.  Clothier  r.  Els,  3  M.  dt 
Scott,  216 ;  2  Dowl.  P.  C.  731.  1803 

Where  the  party  against  whom  a  rule  nisi  for 
an  attachment  was  obtained,  appeared,  and  ob- 
jected that  the  rule  nisi  had  not  been  personally 
served,  the  eoort,  notwithstanding,  made  the  rule 
absolute.     Levy  v.  Doncombe,  3  Dowl.  P.  C. 


[PRACTICE] 


3593 


447;  IG.  M.&R.737;  5Tyr.  490;  1  Gale, 60. 

1803 

A  rale  drawn  up  in  one  term  to  show  in  an- 
other, is  put  into  the  peremptory  paper,  and  par* 
ties  ought  to  be  prepared  to  show  cause  on ,  the 
day  for  which  the  rule  is  drawn  up,  and  not  on 
the  following  day,  as  is  usual  in  other  cases. 
Warner  ».  Wood,  3  Dowl.  P.  0.  2ti8.  ia03 

If  a  rule  is  drawn  up  to  show  cause  in  one 
term,  it  cannot  be  absolute  in  the  next  term, 
without  enlarging ;  but  it  may  be  revived.  Smith 
V.  Collier,  3  Dowl.  P.  C.  100.  1803 

Cause  may  be  shown  in  the  first  instance  in 
the  Exchequer.  Quin  v.  King,  4  Dowl.  P.  C, 
736  1803 

On  a  motion  against  which  cause  is  shown  in 
the  first  instance,  the  counsel  making  the  motion 
has  the  right  to  reply  as  in  ordinary  case.  Gib- 
son V.  Wmter,  1  Uar.  &  Woll.  436.  1803 

The  practice  of  requiring  that  a  party  obtaining 
&  rule  nisi,  is  bound  to  take  office  copies  of  the 
affidavits  of  the  other  party  on  showing  cause, 
is  not  adhered  to.  Pitt  «.  Coombs,  4  Nev.  &  M. 
535;  I  Har.  &  Woll.  13.  1803 

A  party  may  make  a  second  application  to  the 
court  on  the  same  subject,  though  he  has  not 
paid  ih&  costs  of  a  former  rule  nisi  which  had 
been  discharged.  Wilton  v.  Chambers,  1  Har.  &. 
WoU.  116.  1803 

Affidavits  in  answer  to  a  rule  enlarged  from 
one  term  to  another,  which  requires  the  affidavits 
to  be  filed  a  certain  time  before  the  term,  must 
in  all  cases,  notwithstanding  a  contrary  practice 
has  prevailed,  be  filed  within  the  time  prescribed, 
unless  the  partv  is  prevented  from  filings  them  by 
inevitable  accident.  Turner  v.  Unwin,  4  Dowl. 
P.  C.  16.  1803 

Where  long  affidavits  are  filed  in  support  of  a 
motion,  a  great  part  of  which  is  unnecessary,  the 
court  will  refer  uem  to  the  master,  and  .make  the 
party  applying  pay  the  costs  of  the  unnecessary 
affidavits.    Lewis  v.  Woohrych,  3  Dowl.  P.  C. 


€92. 


1803 


If  a  rule  is  moved  without  affidavits,  none  can 
be  used  in  answer  to  U.  Atkins  v.  Meredith,  4 
Dowl.  P.  C.  668.  1803 

Where  a  rale  has  been  dischai^fed  in  the  bail 
court,  that  Act  is  an  answer  to  a  similar  applicar 
Uon  in  the  full  court,  though  there  may  be  new 
facts  stated  in  the  affidavits,  if  they  might  have 
been  brought  before  the  court  on  the  first  occa- 
sion. Rosset  V.  Hartley,  5  Nev.  6l  M.  415;  1 
Har.  &  WoU.  581.  1803 

Upon  a  statement  of  counsel  that  he  had 
moved  for  a  rule  to  set  aside  im  award,  under  a 
mistaken  supposition  that  an  affidavit  deposing 
to  certain  facts  had  been  sworn,  the  court,  on  the 
day  after  granting  a  rule  nisi,  gave  leave  for  the 
mle  to  be  drawn  up  as  upon  reading  such  affida- 
vit, on  condition  tnat  it  should  be  sworn  on  that 
same  evening.  Petring  v.  Kymer,  4  Nev.  &,  M. 
477 ;  1  Har.  &  Woll.  aO.  1803 

A  party  who  has  obtained  a  rule  nisi  on  an 
affidavit  which  is  defective,  on  account  of  the 
jurat  not  stating  the  names  of  the   deponents, 


cannot,  on  cause  being  shown,  support  his  rule 
by  a  fresh  affidavit ;  but  the  court  will  enlarge 
the  rule  in  order  to  allow  time  for  a  fresh  afficur 
vit  to  be  filed.  Goodricke  v.  Turley,  2  C.  M.  & 
R.  ^M ;  4  Dowl.  P.  C.  392 ;  1  Tyr.  6l  G.  146. 

1803 
Mistakes  in  the  terms  of  rules  may  be  attended 
to  on  a  motion  to  open  them  within  the  same 
term,  or  perhaps  that  following ;  but  where  more 
time  has  elapsed,  the  affidavits  which  were  used 
on  the  occasion  of  making  the  first  rule  absolute, 
cannot  be  referred  to  in  order  to  open  it,  unless 
the  new  motion  is  made,  and  the  new  rule  drawn 
up  on  reading  them.    LK)rd  «.  Hope,  5  Tyr.  487. 

1803 

The  crown  has  a  ri^ht  to  reply  on  a  motion  for 
a  new  trial,  afler  verdict  for  the  crown.  Attorney- 
General  v.  Tomsett,  2  C.  M.  &.  R.  170;  6  Tyr. 
514  ;  1  Gale,  147.  1803 

On  showing  cause  against  a  mle,  when  an  oh* 
jection  is  taken  to  the  insufficiency  of  the  affida- 
vits in  support  of  the  rule,  the  counsel  showing 
cause  must  at  once  elect  whether  he  will  use  his 
affidavits  in  answer  to  the  rule  or  not.  Pi^ly  v. 
Lovell,  4  Dowl.  P.  C.  671.  18(» 

Place  of  service  of  rules  and  pleadings.  Black- 
burn r.  Peat,  4  Tyr.  38.  1803^ 

Where  regular  service  of  a  rule  is  endeavored 
to  be  dispensed  with,  on  the  ground  of  absence 
or  otherwise,  the  affidavit  must  show  what  effi^rts 
have  been  made  to  serve  the  P&rty  before  secon- 
dary service  will  be  allowed.  Mudie  v.  Newman^ 
2  Dowl.  P.  C.  639.  1803 

Where,  on  account  of  the  defbndant's  resi- 
dence being  unknown,  the  court, gives  leave  \x> 
serve  him  in  a  particular  manner,  they  will  not 
make  a  prospective  rule,  that  service  of  future 
rules,  dtc.  may  be  affiscted  in  the  same  manner. 
MarUn  «.  Colvill,  2  Dowl.  P.  C.  694.  180a 

Service  of  a  rule  by  sticking  it  up  in  the  office^ 
will  not  be  allowed  upon  an  affidavit  that  the  at- 
torney's residence  is  unknown,  unless  it  is  also 
sworn  that  the  party's  residence  is  unknown. 
Wright  e.  Gardiner,  3  Dowl.  P.  C.  657.         1802 

Where  a  rule  is  served  by  leaving. a  copy  with 
a  servant,  an  inquiry  should  be  subsMuently 
made  of  the  servant  whether  the  master  has  re- 
ceived th^  copy.  Panter  v.  Seaman,  5  Nev.  &* 
M.  679.  1803 

An  affidavit  of  service,  by  leaving  a  rule  at  the 
defendant's  chambers  wiUi  a  female  servant  there : 
— Held  insufficient  Alanson  v.  Walker,  3  DowL 
P. C.  258.  180? 

An  affidavit  of  the  service  of  a  rule  nisi  at  the 
chambers  of  ,an  attorney,  by  leaving  it  with  a 
laundress  there  : — Held  msufficient, because  it  did 
not  state  that  the  deponent  believed  her  to  be  the 
defendant's  servant.  Kent  e.  Jones^  3  Dowl.  P. 
C.  210.  1803 

A  summons  is  no  stay  of  proceedings,  unless 
followed  up.    Knowles  e.  Vallance,  1  Gale,  16. 

180& 

A  judge's  order  granted  in  vacation  must  not 
be  drawn  up  as  of^the  preceding  term.    Rex  v 
Price,  4  Tyr.  60.  i^Oft 


2504 


[PRACTICE— PRINTER  AND  ENGRAVER] 


Where  upon  a  Bommons  attended  at  chambers, 
the  judge  indorses  a  minute  of  an  order,  it  is  at 
the  option  of  the  party  by  whom  the  summons 
was  taken  out,  to  have  an  order  drawn  up  in  pur^ 
suance  of  such  minute  or  not.  Maedouirall  v. 
Nicholb,  5  Nev.  dk  M.  366 ;  1  Har.  ^  WoU.  462. 

1805 

If  the  party  summoned  considers  that  the  order 
prenoanced  is  in  his  favor,  he  should  take  oat 
a  cross  summons  for  the  purpose  of  obtaining  a 
similar  order.  Id. 

If  parties,  being  before  a  judge  at  chambers,  go 
by  consent  into  matter  not  within  the  summons, 
and  the  judge  makes  a  minute  of  an  order,  the 
party  in  whose  favor  such  minute  is  made,  is  en- 
titled to  draw  up  an  order  accordingly,  semble. 
Id. 

If  an  affidavit,  made  in  support  of  an  applica- 
tion to  set  aside  a  judge's  order,  state  the  sub- 
stance of  that  order,  it  is  sufficient  Shirley  v. 
Jacobs,  3  Dowl.  P.  C.  101.  1805 

The  word  "  peremptory"  was  put  upon  a  sum* 
mons  to  attend  at  chambers,  without  the  author- 
ity of  the  judge,  and  the  court  inflicted  the  pay- 
ment of  costs  upon  the  attorney.  .  Finnerty  v. 
Smith,  1  Scott,  743;  1  Hodges,  158.  1805 

The  plaintiff  signed  an  irregular  judgment, 
and  on  the  defendant  taking  out  a  summons  to 
set  it  aside,  he  was  informed  that  the  judgment 
was  withdrawn: — Held,  that  the  defendant  had 
no  right  to  get  an  order  drawn  up  for  settinj;  aside 
the  judgment,  and  that  therefore  he  was  liable  to 

Jay  the  expense  of  it.     Hargrave  v.  Holden,  3 
>owl.  P.  q.  176.  1805 

Afler  an  order  of  a  judge  at  chambers  has  been 
made  a  rule  of  court,  it  is  too  late  to  object,  in 
answer  to  a  rule  calling  upon  the  partv  to  pay 
money  in  pursuance  of  such  order,  that  the  judge 
had  no  power  to  make  it.  Wilson  v.  Northrop,  4 
Dowl.  P.  C.  441 ;  2  C.  M.  &  R.  326.  1805 

A  rule  absolute  may  be  drawn  up  during  term, 
on  an  order  of  a  judge  dated  in  vacation.  Swaine 
V.  Stone,  4  M.  &  Scott,  584.  1805 

In  order  to  rescind  a  judge's  order,  the  proper 
course  is  to  apply  to  the  court :  therefore,  where 
a  writ  of  detainer  issued  under  a  JQ^**  order, 
and  was  lodged  at  the  prison  on  the  22nd  of  Oc- 
tober, and  on  the  30th  a  summons  was  taken  out 
at  chambers,  returnable  on  the  following  day,  to 
discharge  the  defendant  out  of  custody,  on  ac- 
count of  the  insufficiency  of  the  affidavit  to  hold 
to  bail,  which  summons  was  dismissed;  it  was 
held  not  too  late  tu  apply  to  the  court,  on  the  first 
day  of  term,  to  rescind  the  judge's  order  and  dis- 
charge the  defendant  out  of  custody,  on  account 
of  the  insufficiency  of  the  affidavit,  and  irregu- 
larity in  the  writ.  Johnson  v.  Kennedy,  4  Dowl. 
P.  C.  345.  1805 

After  a  judge  has  made  an  order  at  chambers, 
an  application  to  the  court  to  set  aside  that  order 
may  be  made  upon  the  same  affidavits  as  were 
used  before  the  judge  at  chambers.  Pickford  v. 
£wington,4  Dowl.  P.  C.  453;  1  Tyr.  &  G  29. 

1805 

If  an  application  made  at  chambers  be  referred 


to  the  court,  an  affidavit  sworn  in  answer  to  the 
application  at  chambers  may  be  used  on  showing 

cause  before  the  court.     Worthinglon  v. ,  2 

C.  M.  Sl  R.  315.  1806 

A  party  who  applies  to  a  judge  for  indulgence, 
and  obtains  it  on  certain  terms,  may  draw  it  up 
or  not  as  he  thinks  proper;  and  the  opposite  psr- 
ty  by  drawing  it  up  himself,  without  the  consent 
of  the  party  applying,  does  not  thereby  make  it 
operative  against  him.  Wriffht  v.  Skinner,  4 
Dowl.  P.  C.  727 :  S.  C.  not  S.  P.  2  C.  M.  &  R. 
746;  ITyr.  &G.  69.  1806 

In  an  information  under  the  excise  laws,  the 
court  will  admit  a  defendant  to  defend  in  forma 
pauperis,  on  the  common  affidavit  that  he  is  not 
worth  51,  over  and  above  his  wearing  appall. 
Att  Gen.  V.  Dummie  or  Duffy,  2  C.  dk  M.  393 ;  4 
Tyr.  284.  1806 

A  pauper  defendant  having  applied  to  the  court 
that  ne  might  be  allowed  a  copy  of  the  informa- 
tion gratis,  the  court  hel^  that  they  could  not 
grant  a  copy  of  the  information,  and  that  the  de- 
fendant was  only  entitled  to  have  the  informa- 
tion read  over  to  him  by  the  officer,  and  that  he 
might  either  plead  iiistanter  or  at  a  future  day. 
Id. 

Where  a  plaintiff  sues  in  forma  pauperis,  and 
recovers  onij  a  farthing  damages,  ne  is  entitled 
to  have  his  costs  taxed  in  the  usual  way,  and  is 
not  merely  entitled  to  costs  out  of  pocket.  Goojr- 
enheim  v.  Lane,  1  Mees.  &  Web.  136.  180(S 

On  the  trial  of  an  action  brought  in  forma  pau- 
peris, a  king's  counsel  or  sergeant  may  appear  for 
the  plaintin  alone  without  a  junior,  where  a 
plaintiff  suin^  in  forma  pauperis  has  a  verdict  in 
iiis  favor  for  id.  or  more  ;  semble,  that  the  officers 
of  the  court  are  entitled  to  their  fees.  James  «. 
Harris,  7  C.  &  P.  257— Williams.  1806 


PRINTER  AND  ENGRAVER. 

A.,  the  proprietor  of  a  newspaper,  prevailed  on 
B.  to  make  and  deliver  at  the  stamp  office  an  af- 
fidavit that  he,  I).,  was  the  proprietor  of  the  paper ; 
B.  afterwards  agreed  to  sell  tne  paper  to  D.  A. 
having  become  insolvent,  his  assisnaees  filed  a  bill 
to  set  aside  the  sale  for  fraud  :-*-Held,  that  as  B. 
had,  at  A.'s  instance,  violated  the  38  Geo.  3, 
which  requires  the  true  names  of  the  proprietors 
of  newspapers  to  be  inserted  in  the  affidavit,  his 
assignees  were  not  entitled  to  the  relief  asked. 
Harmer  v,  Westmacott,  6  Simon,  284.  1807 

Where  a  printer  has  been  employed  to  print  a 
work,  of  which  the  impression  is  to  be  a  cerjtain 
number  of  copies,  if  a  fire  break  out  and  consume 
the  premises  before  the  whole  number  have  been 
worked  off,  the  printer  cannot  recover  any  thine, 
although  ^  part  have  actually  been  delivered.  Ad- 
lard  t7.  Booth,  7  C.  &  P.  10&-Tindal.  1807 

The  proprietor  of  a  newspaper  cannot  recover 
for  the  non-performance  of  a  contract  for  printing 
such  newspaper,  before  filing  the  affidavit  required 
by  the  stat  38  Geo.  3,  c.  78,  s.  1 .  Honstonn  v. 
Mills,  1  M.  &  Rob.  325— Denman.  1807 


[PRISONER  AND  INSOLVENT] 


3595 


PRISONER  AND  INSOLVENT. 

Pmon.]— Under  the  rale  of  Hil.  T.  3  Geo. 
2,  the  warden  of  the  Fleet  is  authorized  to  con- 
fine in  the  strong  room  of  the  prison,  a  prisoner 
for  a  debt  who  has  been  charged  with  a  felouy. 
£x  parte  Angle,  2  Ring.  N.  R.  318;  1  Hodffes, 
W6:  S.C.nom.  Osborne  v.  Angle,  2  Scott,  ^ ; 
4  Dowi.  P.  C.  342.  1809 

In  an  action  agaiost  the  sheriff'  of  Surrey  and 
tJie  keeper  of  the  connty  prison  for  causing  a 
debtor  to  be  confined  in  a  cell  on  the  felons'  side 
of  the  gaol,  it  appeared  that  the  defendants  had 
so  done  in  consequence  of  an  anonymous  com- 
munication said  to  have  been  made  to  one  of  the 
turnkeys,  that  the  plaintiiF  meditated  an  escape, 
and  that  the  matter  had  been  known  to  the  visit- 
ing magistrates,  who  declined  to  interfere :  but  it 
did  not  appear  that  any  investigation  had  been 
made  as  to  the  source  whence  the  information 
was  obtained : — Held,  that  there  was  no  safficient 
proof  of  reasonable  or  probable  cause  on  the  part 
of  the  defendants  to  justify  the  course  tney 
adopted.  Fumival  v.  Stringer,  4  M.  &  Scott, 
583.  1809 

By  8.  75  of  thestotute  4  Geo.  4,o.  GO,  lor  the 
regalalion  of  prisons,  Ac,  all  actions  brought  in 
respect  of  any  thing  done  in  pursuance  of  the 
ttct,  are  directed  to  be  laid  and  tried  in  the  county 
where  the  facts  were  committed-  In  an  action 
on  the  case  against  the  sheriff  of  Surrey  and  the 
keeper  of  the  county  prison,  Ibr  having,  without 
reasonable  or  probable  cause,  confined  the ,  plain- 
ti^  a  debtor, in  a  felon's  cell;  the  defendants 
not  having  acted  in  obedience  to  the  6th  regula- 
'  tkm  in  the  JOth  section  of  the  act,  which  requires 
the  keeper  to  obtain  the  sanction  of  the  visiting 
nagistzales  for  any  deviation  from  the  classifica- 
tion of  prisoners  thereby  prescribed.  Qunre, 
whether  they  were  entitled  to  the  benefit  of  the 
75th  section  f  But,  it  ^pearing  that  the  venue 
had  originally  been  laid  m  London ;  that  a  rule 
nisi  (never  made  absolute)  had  been  obtained 
bv  the  defendants  for  changing  it  to  Surrey,  and 
that  the  plaintiff  had  made  a  rale  absolute  (un- 
opposed) for  bringing  it  back  on  special  circum- 
stances : — Held,  tnat  the  objection  that  the  cause 
was  not  tried  in  the  prc^r  county  could  not  after- 
wards be  urged.  Id. 

Pleas  in  fiUse  imprisonment,  justifying  a  de- 
tention in  the  King's  Bench  prison  for  chamber 
rent  and  for  fees  separately,  are  not  either  of 
them  snpported  by  evidenoe  allowing  the  deten- 
tion  to  have  been  for  chamber  rent  and  fees  to- 
gether ;  and  such  defence  requires  a  joint  plea. 
The  master  of  the  King's  Bench  prison  has  a  right 
to  detain  a  crown  prisoner  fiir  chamlier  rent, 
whether  a  prisoner  under  sentence  should  be 
dischaiged  at  midnight  or  kept  till  the  morning. 
Siockdale  v.  Chapman,  7  C.  db  P.  363— Denman. 

1809 


_      _  FHsrasrs.] — ^If  a  plaintiff 

gives  notice^cf  teial,  and  sets  down  his  canse  in 
toe  thhnl  term  inclusive  after  declaration,  he  has 
CMupliad  sidEeaently  with  1  Beg.  Gen.  H.  T.  2 

Vot.  IV.  41 


Will.  4,  8.  85,  and  the  defendant  is  not  >nMr- 
sedeable.    Myers  v.  Cooper,  3  Dowl.  P.  C.  4d3. 

1813 

If  a  trial  takes  place  in  vacation,  and  the  de- 
fendant surrenders  af\er  it,  and  before  the  follow- 
ing term,  be  ought  to  be  charged  in  execution  in 
that  term,  or  he  will  be  supersedeable  under  1 
Reg.  Gen.  H.  T.  2  WiU.  4,  s.  65.    Borer  v.  Baker, 

2  Dowl.  P.  C.  608.  1813 

The  rnle  of  court,  E.  T.  41  Greo.  3,  as  to  filing 
and  entering  of  record,  the  committitur  on  a  judg- 
ment, only  applies  to  perspns  already  in  custody 
at  the  suit  of  other  persons.    Deemer  v.  Brooker, 

3  Dowl.  P.  C.  576 ;   4  Dowl.  P.  C.  9 >  1  Har.  & 
Woll.206.  1813 

Where  a  defendant  has  been  taken  in  execu- 
tion on  a  ca.  sa.,  and  he  afterwards  removes  him- 
self into  the  custody  of  the  manhal,  the  plaintiff 
is  neither  obliged  to  carry  in  the  roll,  nor  to 
charge  him  in  execution.  Id. 

If  a  writ.of  execution,  on  which  a  defendant  is 
charged  in  custody,  is  a  nullity,  the  lapse  of  time 
does  not  waive  his  right  to  apply  for  his  diMchaxge. 
Mortimer  v.  Piggott,  2  Dowl.  P.  C.  615.        1814 

Where,  in  consequence  of  the  death  of  th« 
marshal  of  the  King's  Bench  prison,  there  was 
no  one  at  the  gaol  who  would  receive  a  prisoner 
charged  in  execution,  the  court  enlarged  toe  time. 
Harris  v,  Davies,  2  Dowl.  P.  C.  624.  1614 

After  a  lapse  of  ten  years,  it  is  too  late  to  ob- 
ject that  a  hah.  corp.  ad  satisfiu,  on  which  the 
defendant  is  charged  in  execution,  was  not  in- 
dorsed with  the  number  roll.  Wilsooi  v.  Bacon,  2 
Dowl.  P.  C.  450.  1615 

Sections  87  and  88  of  the  first  general  rule  of 
Hilary  Term,  2  WiU.  4,  relating  to  the  discharge 
of  prisoners  in  the  custody  of  tne  manhal  of  the 
King's  Bench  and  warden  of  the  Fleet,  who  are 
supersedeable,  apply  only  to  persons  within  the 
walls  of  the  respective  prisons.  Siggenv.  Brett, 
SB,Sl  Adol.  4&.  1816 


Charging  in  Ezaentian.]— A  prisoner  in  custody 
of  the  marshal,  if  detained  on  process  ftom  the 
Common  Pleas,  need  not  now  be  removed  into 
the  custody  of  the  warden,  in  order  to  be  charged 
with  a  deelantion.  Millard  «.  MUhnan,  2  DowL 
P.  C.  723.  1813 

A  defendant  in  custody  of  the  marshal  cannot 
be  charged  in  execution  by  a  plaintiff  in  another 
suit,  bv  a  side  bar  rale  to  the  marshal  to  acknow- 
ledge dim  in  custody.  Smith  e.  Sandys,  S  Nev. 
&M.  59 ;  1  Har.  db  Woll.  377.  1813 

A  proceeding  to  charge  a  defendant  in  custod|r, 
by  a  side  bar  rale,  where  he  is  not  in  custody  in 
the  particular  suit,  is  not  merely  irregular,  biSt  is 
wholly  void  and  inoperative,  and  is  not  waived 
by  lapse  of  time.  Id. 

A  defendant  so  charged  in  exeeotion  is  estop- 
ped from  saying  that  he  was  not  piopeily  ehaiyad 
in  exeeotion  by  writ  of  fasbess  eoqios,  although 
tbeieeoffd  of  commitment  alleged  that  he  was 
brought  up  and  ehariged  in  exeeotioa  in  the  par- 
tknlarsoit;  andthefermoftheiocofdit  thotUDO 


2596 


[PRISONER  AND  INSOLVENT] 


whether  the  defendant  is  charged  in  execution  by 
habeas  corpaa,  or  by  aide  bar  rule.  Id. 

The  defendant  is  sufficiently  charged  in  exe- 
cution, if  in  custody  at  the  time  at  the  suit  of 
another  person^  by  the  writ  indorsed  by  the  coro- 
ner being  lodged  with  the  county  gaoler  at  the 
SLol.  Bastara  or  Barston  v.  Trutch  or  Gutch,  4 
owl.  P.  C.  6;  5  Nev.  &  M.  109;  1  Har.  ^ 
Woll.  321 ;  3  Adol.  &  Ellis,  451.  1813 

.  A  writ,  of  ca.  sa.  against  a  defendant,  by  a 
plaintiff  who  is,  in  fact,  sheriff  of  the  county  into 
which  the  process  issues,  should  be  directed  to 
the  coroners,  but  tbe  fact  of  the  plaintiff  being 
sheriff  need  not  appear  on  the  face  of  the  writ. 
Semble,  that  upon  the  record  of  the  proceedings, 
the  ground  of  so  directing  the  writ  should  be  sur- 
mised. But  where  a  prisoner  is  charged  in  exe- 
cution under  such  writ,  it  is  no  objection  that  tbe 
proceedings 'have  not  been  entered  of  record. 
A  party  heing  detained  for  debt  in  tbe  gaol  ot 
the  county  of  £>.,  a  writ  of  ca.  sa.,  at  the  suit  of 
the  sheriff  of  D.,  issues  directed  to  the  coroners 
of  D.,  and  is  lodged  with  the  graoler  of  the  county 
goal  of  D.  These  matters  being  returned  to  a 
writ  of  habeas  corpus  cum  causa,  together  with  a 
certificate  signed  *^  A.  B.^  one  of  the  coroners  of 
D.,"  that  the  copy  of  the  writ  of  ca,  sa.  set  out  in 
the  return  was  a  true  copy : — Held,  that  it  must 
be  taken  that  the  writ  came  to  the  gaoler  through 
the  coroner  in  proper  course.  Id. 

Judgment  was  issued  in  Michaelmas  vacation ; 
on  the  last  day  of  Hil.  term  a  warrant  to  take  the 
defendant  on  a  ca.  sa.  was  delivered  to  the  deputy, 
in  London,  of  the  sheriff  of  Denbighshire: — Held, 
that  the  defendant  was  charged  in  execution  in 
due  time.  Williams  v.  Waring,  2  C.  M.  dL  R. 
354  ;  4  Dowl  P.  C.  200  j  1  Gale,  268.  1813 


Disduvrge  under  Lords'  Mt."] — Application  to 
Insolvent  Court.  Perrott  v.  Dean,  2  C  &  M. 
318 ;  4  Tyr.  319.  1819 

Qufsre,  whether  the  Lords'  Act,  extends  to  the 
case  of  a  prisoner  who  ib  in  execution  for  debts 
under  300/.,  and  also  for  debts  above  300/.  ^ 
Grove  v.  Parker,  2  Dowl.  P.  C.  626.  1820 

The  motion  for  bringing  up  a  prisoner  under 
the  compulsory  clauses  orthe  Lords'  Act,  must 
be  supported  by  an  express  affidavit  that  all  the 
creditors  have  been  served  with  notice.    Id. 

Practice.  The  service  of  the  notices  required 
to  be  given  by  a  creditor  who  seeks  to  bring  up  a 
debtor  under  the  compulsory  clause  in  the  Lords' 
Act,  32  Geo.  2,  c.  28,  s.  16,  may  be  proved  by  a 
witness,  viva  voce,  and  need  not  be  proved  by 
affidavit  £x  parte  Rolph,  6  C.  <&  P.  406— Den- 
map.  '  1820 

Secus,  with  respect  to  the  notices  to  be  giv^en 
by  the  prisoner.  Id. 

1'he  compulsory  clause  (s.  3)  of  the  Lords' 
Act,  33  Geo.  3,  c.  5,  can  be  enforced  only  where 
the  sum  for  which  the  party  is  in  execution 
amounts  to  no  more  than  3001.,  costs  included. 
Robins  o.  Cresiiwell,  2  Adol.  «&  £Uis,  23;  4  Nev. 
<fe  M.  307.  1818 


A  judgment  creditor,  under  a  warrant  of  at- 
torney, took  out  execution  for  253/.,  consisting  of 
250/.  debt,  and  3/.  costs,  and  also  for  interest  on 
250/.  from  a  day  named  till'the  day  of  payment. 
The  defendant  was  taken  in  execution,  and  de- 
tained till  the  debt  and  interest,  with  the  addi- 
tion of  costs  (but  not  without)  exceeded  300/. : 
Held,  that  the  compulsory  clause  could  not  be 
enforced.  Id. 

Service  of  notice  under  the  Lords*  Act,  on  tbe 
landlady  of  a  house  where  a  creditor  lodged,  \b 
not  sufficient.  Wood  v.  Grompertz,  4  Dowf  P.  C. 
276;  I  Har.  &  Woll.  524.  1818 

Under  the  compulsory  clauses  of  the  Lords' 
Act,  the  twenty  days'  notice  must  expire  before 
the  first  day  of  the  term  in  which  the  defendant 
is  to  appear,  or  at  any  rate  before  taking  oat  the 
rule  for  his  appearance.  Hayward  o.  Priest,  2 
DowL  P.  C.  737.  1818 

The  twenty  days'  notice  given  to  a  prisoner  to 
deliver  an  account  of  his  estate  under  the  com- 
pulsory clauses  of  the  Lords'  Act,  must  expire 
before  the  first  day  uf  the  term  in  which  he  is 
brought  up.  Buxton  v.  Spires  or  Squires,  2  C. 
M.  <&  R.  601 ;  4  Dowl.  P.  C.  365;  1  Gale,  322. 

1818 

In  computing  the  twenty  days,  the  day  on 
which  the  notice  was  given  must  be  excluded. 
Id. 

If  the  twenty  days'  notice,  required  by  s.  16  of 
the  Lords'  Act,  expires  after  the  seven  first  days 
of  term,  the  insolvent  cannot  be  brought  up  till 
the  next  term.  Rogers  v.  Peckham,  3  Dowl.  P.  C. 
142 ;  1  Scott,  121.  1818 

'Where  a  defendunt  has  been  discharged  under 
the  Lords'  Act,  for  five  years,  it  is  too  late  at  the 
end  of  that  period  to  apply  to  set  aside  tbe  order 
for  his  discharge.  Hawkins  v.  Pring,  2  Dowl. 
P.  C.  401,  1821 

In  ejectment  by  an  assignee,  under  the  com- 
pulsory clause  ol  the  Lor<M'  Act,  it  is  sufficient 
for  tlie  plaintiff  to  produce  the  assignment  bj 
the  prisoner,  without  proving  the  previous  no- 
tices ;  at  all  events,  it  it  sufficient  if  the  rule  for 
the  prisoner's  discharge  be  also  produced.  Doe 
d.  Milburn  r.  Edgar,  2  Scott,  581 ;  2  Bing.  N.  R. 
391.  1822 

The  assignment  is  not  rendered  invalid  by  an 
inaccuracy  in  the  declaration  of  trust  Id. 

And  the  general  words  will  pass  land  of  the 
prisoner  not  particularly  described  in  his  sche- 
dule. Id. 

The  title  of  ah  assignee,  under  the  compul- 
sory clause  of  the  Lords'  Act,  32  Geo.  3,  c-  28, 
s.  16,  only  commences  from  the  time  when  the 
insolvent  was  brought  up  and  discharged.  Moore 
V.  £ddowes,  7  C.  &  P.  203— Coleridge.         1822 

A  person  had  by  his  marriage  settlement  cove- 
nanted to  pay  1000/.  to  his  children  at  any  time 
during  the  coverture,  or  within  a  month  after  hta 
wife's  death.  After  her  death  he  went  to  prison 
for  debt;  and  while  in  prison  he  gave  an  autho- 
rity to  his  son,  and  to  his  daughter  s  husband,  to 
sell  all  his  property  towards  paying  that  sum. 
He  did  90^  and  received  346/.    Alter  that,  the 


[PRISONER  AND  INSOLVENT] 


259: 


person  was  brought  np,  under  the  compulsory 
clsuse  of  the  Lords'  Act,  and  executed  an  as- 
signment:— Held,  that  on  these  facts  the  assig- 
nees under  the  Lords'  Act  could  not  recover  this 
sum  of  3462. ;  and  that,  in  an  action  for  money 
had  and  received,  brought  against  the  defendant  s 
husband,  the  defendant  might  go  into  this  defence 
under  the  general  issue,  and  need  not  plead  spe- 
cially. Id« 

Discharge  under  49  Geo.  3.]— The  stat.  48  Geo. 
3,  c.  123,  for  the  discharge  of  persons  in  execu- 
tion upon  any  judgment  for  any  debt  or  damages 
not  exceeding  202.,  applies  to  persons  in  execu- 
tion for  damages  in  actions  of  assault.  Winter  v. 
EUiott,  1  Adol.  &  Ellis,  24 ;  3  Nev.  &  M.  315. 

1822 

Proceedings.    Jones  v.  Fitzaddams,  3  Tyr.  904. 

1823 

Though  the  judgment  is  in  debt  for  1002.,  yet, 
if  the  execution  against  the  defendant  is  for  less 
than  202.,  the  defendant  ma^  be  discharged  out 
of  custody  after  in  being  prison  twelve  months, 
without  reducing  the  judgment.  Harris  v. 
Farker,  3  Dowl.  P.  C.  451 .  1822 

Under  the  48  (tco.  3,  c.  123,  a  prisoner  is  not 
entitled  to  his  discharge,  afler  remaining  in  exe- 
cution twelve  months,  if  the  debt  exceeds  202 , 
although  the  excess  consists  of  interest  only, 
which  n as  accrued  aAer  action  brought.  Cooper 
«.  Bliss,  2  Dowl.  P.  C.  749.  1822 

It  is  no  objection  to  the  discharge  of  a  debtor 
under  the  48  Geo.  3,  c.  123,  that  the  amount  of 
the  debt  for  which  he  is  in  execution  is  exactly 
202.  Thomson  v.  King,  4  Dowl.  P.  C.  582.     1822 

Where  a  defendant  has  remained  in  execution 
lor  twelve  successive  calendar  months  for  a  debt 
of  202.,  and  ]«.  damages,  in  an  action  of  debt,  he 
is  entitled  to  his  discharge  under  the  48  Geo.  3, 
c.  123,8.  1.  Fogartyr.  Smith,  4  Dowl.  P.  C. 
596.  1822 

In  an  application  under  the  48  (tco.  3,  c.  123, 
s.  1,  for  the  dlschar^  of  a  prisoner  out  of  cus- 
tody who  has  lain  in  prison  twelve  months  in 
execution  for  a  debt  not  exceeding  202.,  the  court 
will  not  inquire  into  other  circumstances,  but  re^ 
quires  only  to  be  satisfied  of  these  facts.  Baxter 
V.  Clarke,  2  C.  M.  &;  R.  734 ;  1  Tyr.  &  G.  133. 

1822 

An  application  under  the  48  (tco.  3,  c.  123, 
must  be  made  to  the  court  out  of  which  the  pro- 
cess issues.  Thai  act  does  not  apply  to  attach- 
menU.     Pitt  r.  Evans,  3  Dowl.  P.  C.  649.  1822 

In  order  to  obtain  a  defendant's  discharge  un- 
der the  48  Geo.  3,  c.  123,  the  service  of  me  no- 
tice of  application  must  he  on  the  plaintiff  him- 
self, and  not  on  his  attorney.'  Gordon  v.  Twine, 
4  Dowl.  P.  C.  560.  1822 

Where  a  defendant  seeks  to  obtain  his  dis- 
charge under  the  48  Geo.  3,  c.  123,  the  plaintiff 
bein£  dead,  he  must  serve  the  notice  on  the  per- 
sonal representative  of  the  deceased,  or   show 
that  there  was  no  personal  representative,  before 
a  notice  to  the  attorney  of  the  plaintiff  will  be 


considered  sufficient.     Ex  parte  Richer,  4  Dowl. 
P.  C.  275 ;  1  Har.  &  Woll.  518.  1822 

In  order  to  obtain  a  discharge  under  48  Geo.  3, 
c.  123,  it  is  not  sufficient  that  the  notice  should  be 
left  **  with  a  female  at  the .  plaintiff's  residence." 
George  v.  Fry,  4  Dowl  P.  C.  273.  1822 

If  a  prisoner,  seeking  his  dischar^  under  48 
Geo.  3,  c.  123,  for  a  debt  not  exceeding  20/.,  has 
not  given  ten  days*  notice  of  his  application,  the 
rule  for  his  discharge  will  only  be  nisi  in  the  first 
instance.     Moore  v.  Clay,  4  Dowl.  P.  C.  5.      1822 

Where  a  defendant  is  in  custody  in  any  other 
prison  than  the  Fleet,  he  cannot  be  discharged  in 
the  Exchequer,  under  the  Small  Debtors  Act, 
unless  a  copy  of  the  causes  in  which  the  defen- 
dant is  in  custody  has  been  procured  and  verified 
by  the  proper  officer.  Such  a  motion  cannot  be 
made  at  chambers.  Short  v.  William's,  4  Dowl. 
P.  C.  357.  1822 


Discharge  vnder  Insolvent  Aets.']^The  assign- 
ment un£r  the  11th  section  of  the  Insolvent 
Debtors'  Act,  7  Geo.  4,  c.  57,  vests  the  property 
of  the  insolvent  in  his  assignees  only  from  tfaie 
time  of  its  execution.  Therefore,  where  an  in- 
solvent went  to  prison  on  the  13th  of  April,  on 
the  14th  sold  to  tne  defendant  (his  landlord)  cer- 
tain fixtures  on  the  premises  he  had  occupied, 
and  on  the  18th  petitioned  for  his  discharge  un- 
der the  act,  at  the  same  time  executing  the 
usual  assignment  of  his  effects  to  the  provisional 
assignee: — Held,  in  assumpsit,  brought  by  the 
assignees  to  recover  the  price  of  the  fixtures, 
that  the  defendant  was  entitled  to  set  off  a  sum 
due  to  him  from  the  insolvent  for  rent.  Simms 
r.  Simpson,  1  Scott,  177;  1  Bing.  N.  R.  306.  ' 

1828 

A  sale  of  the  goods  of  an  insolvent  under  a  fi. 
fa.  issued  upon  a  warrant  of  attorney  given  by 
the  insolvent,  is  invalid  if  it  take  place  afler  the 
commjencement  of  the  insolvent's  imprisonment, 
notwithstanding  the  goods  may  have  been  seixed 
under  the  writ  before  the  imprispnmejit.  Kelcey 
V.  Mintejs  1  Scott,  616;  1  fiing.  N.  R.  721 ;  1 
Hodges,  177.  1828 

In  such  case  trover  lies  at  the  suit  of  the  as- 
signees. Id. 

Where  the  good«!  of  an  insolvent  are  under  an 
execution,  and  the  produce  of  the  sale  paid  to 
the  execution  creditor  ailer  the  imprisonment  of 
the  insolvent,  his  assignees  subsequently  appoint- 
ed may  recover  such  produce  as  money  had  and 
received  to  their  use.  Guy  v.  Hitchcock, 5  Nev. 
A;M.660.  1828 

The  assignment  of  the  estate  and  effects  of  an 
insolvent  debtor,  under  sects.  11  db  19  of  the  7 
€reo.  4,  c.  57,  vests  in  the  assignees  any  copy- 
hold property  the  insolvent  may  possess,  so  as  to 
enable  them  to  maintain  ejectment  for  the  reco- 
very of  it.  The  entry  on  the  court  of  rolls  of 
the  manor,  required  by  s.  20,  is  only  necessary 
to  enable  the  assignees  to  convey  the  property  to 
a  purchaser.  Doe  d.  firenan  or  Smith  v.  Glen- 
field^l  Scott,  699;  1  Bing.N  R.  729;  1  Hodra, 


2596 


[PRISONER  AND  INSOLVENT] 


Section  57  of  the  7  Geo.  4,  c.  57,  (the  Insol- 
vent Act),  which  authorizes  execution  in  certain 
cases  against  an  insolvent  who  has  obtained  his 
discharge,  does  not  apply  to  aca.sa.  Rivettv. 
Lark,  a  Dowl.  P.  C.  63.  1828 

A  plea  to  an  action  of  debt  on  a  demise  for 
rent,  that  long^  before  the  time  of  the  demise 
made  the  plaintiff  had  been  discharged  under  an 
Insolvent  Debtors'  Act,  and  had  been  permitted 
by  his  assignee  to  remain  in  the  possession  and 
management  of  premises,  and  to  make  the  de- 
mise m  Question ;  but  that,  before  any  of  the  rent 
became  due,  the  assignee  ^ve  a  notice,  claiming 
to  have  the  rent  paid  to  him,  whereby  the  defen- 
dant became  liable  to  pav  to  the  assignee,  the  re- 
version not  being  vested  in  the  plaintiff,  and  his 
right  having,  by  reason  of  the  notice,  become 
determined — was  held  bad,  on  special  demurrer. 
Partington  v.  Woodcock,  5  Nev.  6l  M.  672 ;  1 
Har.  &  WoU.  262.  1828 

Under  the  30th  section  of  the  insolvent  Debt- 
ors' Act,  (7  Geo.  4,  c.  57),  a  debt  due  to  the  in- 
solvent will  pass  to  the  provisional  assignee,  al- 
though it  has  been  assigned  to  a  third  party  before 
the  insolvent's  imprisonment,  if  notice  of  such 
assignment  was  not  given  to  the  debtor  before 
such  imprisonment.  Buck  v.  Lee,  1  Adol.  & 
£llito,  804.  1828 

A  plea  in  assumpsit  alleged,  that  the  debt  sued 
upon  had  vested  in  the  provisional  assignee,  the 
plaintiff  having  become  insolvent,  and  having 
executed  an  assignment  under  the  act.    The  re- 

Elioation  alleged  an  assignment  to  a  third  party 
efore  the  imprisonment,  for  good  consideration : 
— Held,  on  general  demurrer,  that  the  replication 
was  bad,  for  not  alleging  that  the  debtor  had  no- 
tice of  such  assignment.    Id. 

A  party,  on  taking  the  benefit  of  the  Insolvent 
Acfi,  swore  that  certain  goods,  described  in  her 
schedule,  belonged  to^the  creditors  of  her  deceas- 
ed husband,  but  afterwards  brought  An  action  to 
recover  them,  claiming  them  as  her  own : — Held, 
that  the  fact  of  her  so  swearing,  and  afterwards 
setting  up  a  right  to  the  goods  in  herself,  was  an 
inconsistency  tor  the  consideration  of  tiie  jury, 
but  that  such  oath  did  not  estop  her  from  assert- 
ing her  claim.  Thornes  v.  White,  1  Tyr.  A  G. 
110.  1828 

The  court  for  the  relief  of  insolvent  debtors 
has  fall  power  to  imprison  a  man  for  a  contempt 
of  its  authority,  in  not  performing  a  condition  to 
which  he  had  consentediby  his  counsel,  on  mak- 
ing a  rule  absolute;  and  its  jurisdiction  being 
clear,  this  court  will  not  inquire  upon  affidavit 
into  the  circumstances  under  which  it  has  been 
exercised.    In  re  Chapman,  1  Har.  &  Woil.  449. 

1827 

A  declaration  stated,  that  the  defendant  was 
indebted  to  the  insolvent  before  he  subscribed 
his  petition,  or  executed  the  assignment  of  his 
estate  under  the  Insolvent  Debtors'  Act,  for  goods 
sold  and  delivered  by  him  before  he  became  in- 
solvent :;— Held,  a  sufficiently  certain  allegation 
of  the  time  when  the  debt  accrued.  Ferguson  v. 
Mitchell,  2  C.  M.  &  R.  687 ;   4  Dowl.  P.  C.  513. 

1833 


To  a  bill  filed  by  the  assignee  of  an  insolvent 
debtor,  the  defendant  pleaded,  that  the  consent 
of  the  creditors  and  of  the  Insolvent  Debtors* 
Court,  to  the  institution  of  the  suit,  had  not  been 
obtained ;  plea  overruled.  Casborne  v.  Barsham, 
6  Simon,  317.  1833 

The  assignees  of  an  insolvent  clergyman  do  not 
acquire  anv  right  to  his  benefice,  or  to  the  indome 
of  it,  by  the  assignment,  nor  until  they  have  ob- 
tained a  sequestration,  as  directed  by  7  Geo.  4,  c. 
57,  s.  28,  after  adjudication  by  the  Insolvent 
Debtors*  Court  on  such  insolvent's  petition. 
Bishop  V.  Hatch,  and  Chuter  v.  Hatch,  1  Adol.  db 
Ellis,  171 ;  3  Nev.  Sl  M.  498.  1830 

An  individual  judgment  creditor  ma^  sequester 
the  benefice  for  his  own  debt,  notwithstanding 
the  assignment  to  the  provisional  assignee ;  ana 
the  assij^nees,  after  adjudication,  are  not  entitled 
to  set  aside  tlie  sequestration  of  such  creditor,  or 
to  claim  precedence  over  it  for  a  sequestration 
issued  by  them  pursuant  to  the  act.  Id. 

The  34th  section  of  7  Geo.  4,  c  57,  which  in- 
validates certain  executions  issued  subsequenUy 
to  the  imprisonment  of  an  insolvent  debtor^  upon 
a  judgment  entered  up  on  a  warrant  of  attorney 
or  cognovit  actionem,  does  not  extend  to  a  se- 
questration granted  in  pursuance  of  a  writ  of  se« 
questrari  facias,  issued  upon  such  a  judgment. 

A  l^oy  of  1002.  having  been  bequeathed  to 
the  wife  of  |A.,  and  A.  being  indebted  to  B.  in 
150/.,  A.  sent  B.  the  following  document,  signed 
by  himself  and  wife : — **We   hereby  authorize 

the  executor  of  the  late to  pay  to  you  any 

legacy  or  monies  that  he  may  have  bequeathed 
to  us  or  either  of  us,  in  part  payment  of  the  va- 
rious sums  you  have  so  'indlv  lent  us,  and  yoor 
receipt  shall  be  to  him  a  sumcient  discharge  for 
the  same.  There  appears  to  be  about  150r  due 
to  vou."  B.  communicated  to  the  executor  that 
he  had  a  claim  on  the  legacy  ;  but  the  executor 
said  he  would  pay  it  to  Mrs..  A.  Afler  this  com- 
munication had  been  made,  A.  in  January,  1832, 
went  to  prison,  and  on  the  29th  of  Februarv  pe- 
titioned for  his  discharge  under  the  Insolvent 
Debtors'  Act,  and  executed  an  assignment  to  the 
assignee;  and  on  the  16th  of  May,  1832,  he  ob- 
tained his  discharge  accordingly.  On  the  3rd  of 
April,  1832,  the  executor  paid  Mrs.  A.  the  amount 
of^the  legacy,  which  she  immediately  paid  over 
to  B.,  under  the  authority  before  mentioned: — 
Held,  that  the  property  in  the  legacy  passed  to 
A.'s  assignee  under  the  Insolvent  Debtors'  Act. 
Best  V,  Argles,  2  C.  &  M.  394 :  S.  G.  nom.  Best  v. 
Thorowgooicl,4  Tyr.  256.  1832 

Semble,  that  the  32d  section  of  7  Geo.  4,  c.  57, 
as  to  volnntar7  preferences  by  insolvent  debtors, 
does  not  render  a  judgment  void  as  against  the 
creditors,  unless  obtained  by  collusion  with  the 
insolvent.  Thorpe  v.  Eyre,  3  Nev.  A  M.  214  ;  1 
Adol.  &  Ellis,  926.  1834 

At  an^  rate  the  mere  circumstance  of  the  judg- 
ment being  suffered  by  default,  does  not  make  it 
void  under  that  section,  if  there  be  a  bona  fide 
debt.    Id. 

In  order  to  support  a  security  made  by  an  in- 


[PRISONER  AND  INSOLVENT— PUBLIC  COMPANY]  2599 


lolTent  to  a  creditor  within  three  months  before 
be  is  eooimitled  to  prison,  it  ii  not  necessary  for 
the  latter  to  prove  pressure  by  him  of  the  insol- 
vent It  is  for  assignees  of  the  insolvent,  who 
seek  to  avoid  the  security  under  the  provisions  of 
the  7  Geo.  4,  c.  57,  s  32,  to  make  out  that  it  was 
the  involuntary  act  of  the  insolvent. ,  Doe  v.Gil- 
Jett,  I  Tyr.  &  G.  114.  1833 

An  sasignment  by  a  debtor,  he  being  at  the 
time  in  a  state  of  insolvency,  of  all  his  property 
for  the  benefit  of  all  his  creditors,  is  not  void 
within  the  meaning  of  the  7  Geo.  4,  c.  57,  s.  32, 
(dubitante  Aldersoo,  B.)  Davies  v.  A  cocks,  2  C. 
M.  &.  R.  461  ;  I  Gale,  251.  1833 

An  insolvent  person,  being  in  prison,  endea- 
vored to  make  terms  with  his  creditors,  they  pro- 
posing  that  he  should  execute  a  composition  deed 
tor  their  benefit,  which  he  at  first  refused ;  sub- 
sequently a  letter  was  written  bv  an  agent  of  the 
creditors,  stating  that  they  would  not  consent  to 
his  discharge,  and  that  he  must  either  execute 
ao  assignment,  or  be  made  a  bankrupt.  The  in- 
solvent, after  taking  three  days  to  deliberate  upon 
it,  with  ffreat  reluctance  executed  the  assign- 
ment : — Held,  that  this  was  not  a  voluntary  con- 
veyance within  the  above  section  of  the  Insolvent 
Act.    Id. 

A  conveyance  made  to  a  creditor  for  a  valuable 
eonsideration,  sufficiently  strong  in  itself  to  in- 
floence  the  debtor  to  make  it,  is  not "  voluntary" 
within  the  stat.  7  Geo.  4,  c.  57,  s.  32,  for  relief  of 
insolvent  debtors,  though  part  of  the  considera- 
tion consists  of  a  pre-existing  debt.  Margareson 
V.  Saxton,  1  Y.  &  Col.  625.  1833 

An  attorney  is  entitled  to  recover  from  an  in- 
solvent costs  incurred  in  endeavoring  to  sell  pro- 
perty of  the  latter  while  he  is  in  prison  and  taking 
the  benefit  of  the  act,  if  done  bona  fide,  and  the 
insolvent  has  derived  some  benefit  from  it.  Ta- 
bram  v.  Warren,  4  Dowl.  P.  C.  545 ;  1  Tyr.  <St 
G.  153.  1836 

Semble,  the  discharge  of  an  insolvent  under  7 
Geo.  4,  c.  57,  applies  only  to  the  debts  named  in 
the  schedule,  and  not  to  all  the  debts  due  to  the 
creditors  named.  Bishop  v.  Polhill,  1  M.  dt  Rob. 
363— Patteaon.  1836 

If  a  defendant,  taking  the  benefit  of  the  Insol- 
vent Act,  the  7  Geo.  4,  c.  57,  inserts  in  his  sche- 
dule the  purchase  money  of  an  annuity,  as  well 
as  the  annual  amount  of  the  latter,  he  will  be  dii- 
charged  as  to  the  arrears  of  tiiat  annuity  due  at 
the  time  of  making  out  the  schedule,  although 
they  have  been  omitted,  if  such  omission  dijd  not 
arise  from  an  intention  to  mislead.  Jervis  v. 
Jones,  4  Dowl.  P.  C.  610.  1836 

Where  a  defendant  agreed  to.  pay  a  weekly 
sum,  which  was  to  be  increased  on  a  contingency, 
and  this  was  made  a  rule  of  court : — Held,  that 
a  discharge  under  the  Insolvent  Debtors'  Act  did 
not  extend  to  subsequent  accruing  payments,  and 
tlttt  an  attachment  might  issue  lor  the  non-pay- 
ment. iAwrance  r.  Walker,  3  Dowl.  P.  C.  614 ; 
1  Har.  dt  Well.  205.  1836 

By  an  agreement  for  the  dissolution  of  a  part- 
nersmp  between  the  plaintiff  and  one  L.,  the 
plaintiff,  in  consideration  of  a  sum  of  2252.  4s.  6d. 


doe  to  the  partnership  to  L. ;  and  L.,  A.,  and  the 
defendant,  in  consideration  thereof,  severally  and 
respectively  covenanted  and  agreed  with  the  plain- 
tiff that  they  or  some  one  of  their  executors,  &c. 
should  and  would  pay  the  said  sum  of  2252.  4s.  6d. 
by  instalments : — Held,  that  this  was  an  absolute 
covenant  on  the  part  of  the  defendant  to  pay  such 
sum  at  all  events ',  and  the  defendant  havmcr  been 
discharged  under  the  Insolvent  Debtors'  Act,  7 
Geo.  4,  c.  59,  s.  46,  that  such  discharge  was  a 
good  defence  to  an  action  brought  to  recover  in- 
stalments which  became  due  subsequently  to  his 
discharge.  Guy  v.  Newson,  2  C.  &.  M.  140,;  4 
Tyr.  31.  1838 

An  attornev,to  whom  an  insolvent  was  indebt- 
ed, and  who  neld  a  cognovit  as  a  security  for  the 
debt,  and  who  was  employed  by  the  insolvent  to 
prepare  his  schedule,  and  acted  as  his  attorney  in 
procuring  his  discharge,  agreed  with  the  insol- 
vent to  omit  the  debt  out  of  the  schedule,  and  that 
the  cognovit  should  be  suspended  until  after  the 
discharge,  and  then  revivea.  The  insolvent  ob- 
tained nis  discharge,  and  the  attorney  two  years 
af\erwards  entered  up  judgment  on  the  cognovit, 
and  issued  execution.  TM  court  on  motion  set 
aside  the  judgment  and  execution.  Tabram  v. 
Freeman,  2  C.  d&  M.  451 ;  4  Tjrr.  180.  1838 

Afler  taking  the  benefit  of  the  Insolvent  Act, 
a  debtor  contriicted  a  n^w  debt,  and  accepted  a 
bill  of  exchange  for  the  balance  of  the  old  and 
new  debt.  Bemg  sued  upon  the  bill,  he  gave  a 
warrant  of  attorney  for  the  amount ;  and  judg- 
ment being  entered  up  upon  this  warrant  of  at- 
torney, the  court  refused  to  set  it  aside.  Philpot 
V,  Aslett,  1  C.  M.  d^  R.  85 ;  2  Dowl.  P.  C.  669  v 
4  T^r.  729.  1839 

A  plea  of  a  discharge  under  the  Insolvent 
Debtors'  Act  was  held  bad,  because  it  did  not 
admit  the  existence  of  the  cause  of  action.  Gould 
V.  Rasperry,  2  Dowl.  P.  C.  707.  1840 

Certified  copies  of  the  schedule,  dice,  may  be- 
given  in  evidence  under  the  Insolvent  Act,  by^ 
parties  other  than  the  insolvent  or  his  creditors. 
Price  V.  Assheton,  1  Y.  &  Col.  441.      .         184a 


PUBLIC  COMPANY. 

The  assignees  of  A.,  a  bankrupt,  are  entitled 
to  recover  in  trover  against  the  Bank  of  England 
the  amount  of  bank  post  bills,  converted  into> 
money  by  A.  at  a  Bank  of  England  branch  bank,, 
after  notice  given  at  the  Bank  of  England  itt 
London,  that  A.  had  committed  an  act  of  bank- 
ruptcy. Willis  V.  Bank  of  England,  5  Nev.  & 
M.  478.  184a 

But  they  cannot  recover  the  amount  of  a  bank 
post  biH  paid  to  B.,  a  bona  fide  holder  for  value, 
who  had  received  it  of  A.  after  the  conunission  or 
an  act  of  bankruptcy,  but  without  notice  thereof. 
Id. 

Bank  post-bills,  issued  by  the  Bank  of  Eng- 
land in  London,  are  not  made  payable  at  the 
t>ranch  banks,  by  7  Geo.  4,  c.  46,  s.  15.    Id. 

In  an  action  against  a  corporation  on  a  bond, 
the  condition  of  which  recited  that  the  company 
were  by  'act  of  parliament  authorized  to  raise 


to  be  paid  or  secured  to  him,  assigned  the  debts   money  by  bond,  and  that,  at  a  general  assembly 


52600 


[PUBLIC  COMPANY— ayO  WARRANTO] 


of  the  company  of  proprfetore,  it  had  been  re- 
solvedj  that  the  bond  in  question  should  be  issued 
for  that  purpose,  the  defendants  pleaded  non  est 
factum : — Held,  that  although  the  company  could 
not,  under  that  plea,  show  that  the  bond  exe- 
cuted by  them  was  invalidated  by  collateral  mat- 
ter, they  might  show  that  it  was  void  because 
executed  contrary  to  the  provisions  of  the  act  of 
parliament  Hill  v.  Manchester  and  Salford 
Water  iWorks  Company,  5  B.  &  Adol.  866;  2 
Nev.  &  M.  573.  1849 

Held,  secondly,  that  a  clause  in  the  act  of  par- 
liament, whereby  the  company  were  authorized, 
at  any  general  or  special  assembly,  to  order  and 
dispose  uf  the  custody  of  their  common  seal,  and 
the  use  and  application  thereof,  empowered  them 
to  make  rules  and  regulations  for  its  custody, 
but  did  not  require  their  concurrence  in  each  par- 
ticular act  of  sealing;  and  that  a  bond  to  which 
the  seal  had  been  affixed  by  the  company's  clerk, 
under  a  general  authority  irom  the  directors,  was 
valid.    Id. 

By  another  clause  it  was  enacted,  that  the  clerk 
should,  in  a  book  provided  by  the  company,  keep 
an  account  of  all  acts,  proceedings,  and  transac- 
tions of  the  company,  and  that  everj  proprietor 
should  have  liberty  to  inspect  the  same,  and  take 
-copies  of  the  entries : — Held,  that  entries  of  the 
proceedings  in  the  book  so  kept  by  the  clerk  were 
not  admissible  in  evidence  on  behalf  of  the  com- 
pany, against  one  of  their  own  members  suing 
them.  Id. 

The  directors  of  a  gaa  company  are  answerable 
for  an  act  done,  by  their  superintendent  and  en- 
gineer, under  a  general  autnority  to  manage  the 
works,  though  they  are  personally  ignorant  of  the 
particular  plan  adopted,  and  though  such  plan  be 
a  departure  from  the  original  and  understood  me- 
thod, which  the  directors  had  hq  reason  to  suppose 
discontinued.  Rex  v.  Medley,  6  C.  A.  P.  292 — 
Denman.  1853 

Plaintiff  and  defendants  were  members  of.  a 
joint-stock  company ;  plaintiff  agreed  to  demise 
land  to  defendants  as  trustees  for  the  company ; 
defendants  covenanted  to  p^iy  him  rent ;  and  by 
a  separate  deed,  plaintiff  and  the  other  members 
of  the  company  covenanted  to  indemnify  the  de- 
fendants for  acts  done  by  them  as  trustees: — 
If  eld,  that  plaintiff^  notwithstanding  he  was  a 
member  of  tJie  company,  might  sue  defendants 
on  their  covenant.  Bedford  v,  Brutton,  1  Scott, 
245 ;  1  Bing.  N.  R.  399.  1854 


QUO  WARRANTO. 

By  a  local  act,  the  inhabitants  of  an  incorpo- 
rated district  are  directed  to  elect  governors  and 
directors  of  the  poor,  who  are  authorized  to  make 
orders  and  regulations  respecting  the  poor  and 
the  poor  rates, — are  to  make  out  a  list  of  sixteen 
inhabitants  or  occupiers,  from  which  list  justices 
at  a  petty  sessions  are  to  elect  four  to  be  over- 
Mers  of  the  poor, — are  empowered  to  appoint 
watchmen  and  beadles,  (who  are  to  be  sworn  in 
aa  constables,  and  act  as  such  whilst  in  execn> 
tion  of  the  powers  of  this  act ;  and  who,  together 
with  the  o  nstables  duly  appointed,  are  to  be  un- 


der the  direction  and  control  of  the  governors 
nnd  directors,)  clerks,  collectors,  treasurers,  in- 
spectors, assistant  overseers,  and  all  such  other 
officers  as  they  may  think  fit, — ^to  dismiss  them, 
and  pay  them  sucn  salaries  as  they  may  think 
proper, — are  to  ascertain  and  settle  the  sum  to  be 
assesft^d  for  parochial  purposes,  (for  which  sum 
poor-rates  are  to  be  made  by  the  inhabitants,) — 
are  to  have  vested  in  them  all  houses,  &c.  used 
for  the  accommodation  of  the  poor,  and  of  the 
watchmen  and  beadles,  and  all  other  property 
purchased  for  those  purposes,  and  are  to  sue  and 
be  sued,  and  to  prosecute  by  indictment  or  infor- 
mation: — Held,  that  the  office  of  governor  and 
director  is  not  such  an  office  that  an  information 
in  the  nature  of  a  quo  warranto- will  lie  for  an 
usurpation  of  it.  Rex  v.  Ramsden,  5  Nev.  ^  M. 
325 ;  3  Adol.  &  £ilis,  456.  1856 

A  quo  warranto  information  was  moved  for 
against  an  officer  elected  by  ballot,  on  the  ground 
tnat  a  large  proportion  of  the  persons  who  voted 
were  not  qualified ;  but  it  was  not  shown  for  whom 
the  votes  of  those  persons  were  given  :~-Held, 
that  on  this  application  the  officer  could  not  be 
required  to  prove  his  election  valid,  but  it  lay  on 
the  opposing  parties  to  show  (if  that  were  practi- 
cable) that  his  majority  was  obtained  by  bad 
votes.    Rex  v.  Jefferson,  5  B.A  Adol.  853.   1856 

A  local  aot  created  a  corporation,  consisting  of 
sworn  commissioners,  with  summary  power  of 
seizure  of  goods,  and  imprisonment  of  the  per- 
son,  and  of  preventing  and  removipg  obstructions 
and  nuisances  in  the  streets ;  powers  for  paving, 
cleansing,  and  lighting ;  powers  of  appointing  and 
paying  officers,  of  determining  the  number  of 
watchmen,  of  regulating  them,  and  dismissing, 
paying,  or  pensioning  them ;  of  possessing  pro- 
perty m  materials  required  under  the  act,  of  in- 
stituting prosecutions,  of  imposing  rates,  of  ap- 
pointing and  removing  treasurers,  to  whom  penal- 
ties, imposed  by  the  act,  were  to  be  paid  ror  the 
purposes  of  the  act;  and  of  hearing  appeals  in 
certain  cases,  brought  by  parties  complaming  of 
things  done  under  the  act : — Held,  that  an  intbr- 
mation  in  the  nature  of  a  quo  warranto  would  lie 
against  persons  claiming  to  be  commissioners. 
Rex  V.  Beedle,  3  Adol.  d:  Ellis,  467.  1857 

A  part  of  the  commissioners  were  elected  by 
rated  inhabitants,  M.  and  T.  having  been  can- 
didates ;  and  M.  having  been  elected  and  sworn 
in,  and  a  rule  nisi  having  been  obtained  upon 
affidavits,  that  T.  had  the  legal  majority,  for  a 
mandamus  te  certify  T.'s  election,  and  swear  him 
in,  the  court  discharged  it  with  costs ;  and  at  the 
same  time  granted  a  rule  to  show  cause  why  there 
should  not  be  an  information  in  the  nature  of  a 
quo  warranto  against  M.    Id. 

Held,  per  Lord  Tenterden,  C.  J.,  Taunton  and 
Patteson,  Js.,  (Parke,  J.,  dissentiente),  that  a  quo 
warranto  information  does  not  lie  for  the  office 
of  trustees  under  a  public  local  act,  elected  as 
vacancies  occur,  by  occupiers  in  the  parish,  and 
taking  an  oath  of  office,  with  power  to  appoint 
salaried  treasurers,  collectors,  dx.  of  monies 
raised  under  the  act,  accountable  to  themselves ; 
to  pass  bye-laws  with  penalties ;  to  impose  rates  in 
case  of  certain  other  functionaries  not  so  doing ;  to 


[QUO  WARRANTO— RATE] 


2601 


supply  omiflsions  in  the  rates,  «nd  to  relieve 
parties  agg;neYed  or  incompetent  to  pay  ;  to  ap- 
point salaried  watchmen  ;  to  purchase,  nold,  and 
manage  certain  property  for  the,  purposes  of  the 
act ;  to  contract  for  the  supply  of  tne  poor,  re* 
move  nuisances,  and  apprehend  for  certain  speci- 
fied nuisances ;  to  maintain  the  highways,  and 
prevent  encroachments  thereon;  to  superintend 
the  lighting,  paving,  watching,  and  cleansing  of 
the  streets ;  to  remove  dangerous  buildings,  on 
complaint  upon  oath  (which  they  were  to  admi- 
nister), and  to  sue  in  the  name  of  their  clerk,  or 
one  of  themselves.  Rex  v.  Hanley,  3  Adol.  & 
EUis,  463,  n.  1857 

RATE. 

A  mandamus  will  not  go  to  inspect  the  ac- 
coonta  relating  to  county  rates,  on  an  application 
made  to  the  court  of*  quarter  sessions  for  the  in- 
spection, whilst  the  court  was  in  actual  discussion 
upon  the  accounts.  Rex  v.  Nottingham  (Justices), 
5  Nev.  &  M.  160 ;  1  Har.  &  Woll.  31$. '       1863 

The  4  &  5  Will.  4,  c.  48,  merely  changed  the 
place  where  the  business  of  alio  wing  the  accounts 
was  to  be  transacted,  but  took  no  power  relating 
to  them  from  the  justices.     Id. 

All  business  relating  to  the  assessment,  appli- 
cation, and  management  of  the  county  rai^,  must 
be  transacted  by  the  justices  in  open  court;  but 
no  rate-pa^er,  or  person  not  being  a  member  of 
the  court,  is  entitled  in  any  way  to  interfere  witn 
the  exercise  of  the  iurisdiction  of  the  justices, 
&c.  in  respect  of  such  assessment,  &c.  Id. 

Therefore,  a  rate-payer  present  at  an  a  djourned 
sessions,  held  for  the  purpose  of  allowing  the  ac- 
counts, <&c.  to  be  charged  upon  the  county  rate, 
is  not  entitled  to  the  inspection  of  such  accounts, 
ArC.  previously  to  their  allowance,  although  it 
appear  that  such  accounts,  &c,  were  inspected, 
examined,  and  the  amounts  adjusted  at  a  private 
meeting  of  justices  held  previously  to  such  ad- 
journed sessions,  and  that  at  such  sessions  the 
accounts,  Slc.  were  allowed  upon  the  total  amounts 
thereof,  and  the  names  of  tne  parties  to  whom 
due,  being  openly  read  in  court.  Id. 

Semble,  that  a  rate-payer  is  entitled  to  in- 
spection of  such  accounts,  ^c.  upon  application 
on  a  day  subsequent  to  the  allowance.  Id. 

Qusere,  whether  a  mandamus  will  go  to  justices 
to  direct  an  order  to  the  clerk  of  the  peace  to 
suffer  rate-payers  to  take  copies  of  assessments 
of  county  rates,  and  orders  of  sessions  relative  to 
county  rates,  and  of  all  payments,  made  thereout, 
and  to  the  clerk  of  the  peace  to  produce  his  ac- 
counts of  the  expenditure  of  the  county  rates, 
together  with  his  vouchers  for  the  same ;  the  ob- 
ject of  the  application  being  to  bring  into  question 
the  legality  of  some  of  the  payments.  Rex  v. 
Staffordshire  (Justices),  I  Har.  ^  Woll  11^7. 1863 

A  mandamus  will  not  lie  to  justices  to  enforce 
by  distress  warrants  paving  rates,  laid  within  the 
operation  of  the  Metropolitan  Street  Act,  57 
Geo.  3,  c.  zxix  :  the  38th  section  of  that  act  giving 
a  remedy  by  action,  even  though  the  rates  are 
collected  under  prior  local  acts  applicable  to  par- 
ticular districts,  by  which  the  remedy  by  action 


is  confined  to  cases  where  no  sufficient  distress 
can  be  made.  Rex  v.  Middlesex  (Justices),  5  Nev. 
(&  M.  124  ;  1  Har.  &,  Woll.  462.  1865 

The  57  Geo.  3,  c.  xxix.,  s.  38,  applies  to  dis- 
tricts which  were  before  regulatejd  by  local  acts ', 
and  enlatj^es  the  power  of  recovering  paving 
rates  by  action,  where  the  local  acts  give  only  a 
right  to  recover  by  action  where  no  sumcient  ois- 
tress  can  be  made.    id. 

A  local  act  gave  power  to  commissioners  to 
raise  money  for  paving,  lighting,  and>  watching 
a  town,  by  rating  and  assessing  the  proprietors 
of  houses  according  to  the  value  at  which 
the  houses  were  taxed  to  the  poor.  It  also 
empowered  them  to  assess  and  levy  a  rate  on 
certain  proprietors  for  the  purpose  of  certain  im- 
provements, such  rate  to  he  levied  and  assessed 
in  the  same  planner  as  the  other  rates.  In  de- 
iault  of  payment,  a  justice  was  authorized  to  issue 
a  distress  warrant.  The  act  also  provided,  that^ 
in  case  any  person  thought  himself  aggrieved  by 
any  rate  or  assessment,  he  might  appeal  to  the 
commissioners,  who  were  authorizea  to  give  re- 
lief; and  further,  that  any  one  who  thought  him- 
self aggrieved  by  any  thing  done  in  pursuance  of 
the  act,  might  appeal  to  the  quarter  sessions. 
The  commissioners  assessed  a  proprietor  to  a  rate, 
levied  for  the  purpose  of  the  improvements,  at  an 
annual  value  above  that  at  which  he  was  assessed 
to  the  poor: — Held,  (Taunton,  J.,  dissentiente), 
that,  on  his  refusing  to  pay,  a  justice  might  be 
required  by  mandamus  to  issue  a  distress  warranty 
the  proprietor  not  having  appealed.  Rex  v.  Tre- 
cothick,  2  Adol.  <&  Ellis,  4U5.  1865 

Held,  by  the  court  of  K.  B.  (Parke,  J.,  dubi- 
tanle),'  and  the  judgment  affirmed  on  error,  that 
under  stat.  4  Geo.  4,  c.  64,  two  justices  of  a  town 
and  county  of  a  town,  mentioned  in  schedule  A. 
to  that  act,  miffht  rate  the  inhabitants  for  rebuild- 
ing the  t?aol  of  such  town  and  county  on  a  new 
site.    Thompson  v.  Raikes,  1  Adol.  &  Ellis,  863 

1866' 

Although  by  a  local  act,  which  had  been  car- 
ried into  effi?ct,  it  had  been  enacted,  that  ground 
should  be  purchased  and  conveyed  to  the  corpo- 
ration of  the  said  town,  and  that  the  justices  for 
the  town  and  county  should  cause  a  new  gaol  to 
be  built  thereon ;  tnat  a  limited  sum  shoul^  be 
raised  by  assessment  on  the  town  and  county,  for 
the  purpose  of  the  act  respecting  such  gaol,  the 
surplus  to  be  repaid  proportionably  to  the  parties 
assessed ;  and  that  such  gaol, when  finished,  should 
be  a  public  ^aol,  for  the  town  and  county,  and 
should  from  time  to  time  be  maintained,  support- 
ed, and  repaired  by  the  corporation.  Id. 

The  sixty-eighth  section  of  4  Greo.  4,  c.  64, 
enacts,  that  the  justices  in  sessions  may  raise 
money  on  the  counties,  towns,  ^^c.  to  which  the 
act  extends,  for  defraying  the  expenses  of  the 
matters  and  things  thereinbefore  uirected  to  be 
done  respecting  gaols,  &c.,  in  the  same  manner  as 
rates  applicable  to  the  building,  repairing,  or 
maintenance  of  such  prisons  respectively,  are 
now  directed  to  be  raised  by  law.  Id. 

Held  by  the  court  of  error,  that  this  applies 
only  to  tKe  mode  of  raising  such  rfttes,  and  not 
to  the  persons  on  whom  they  are  to  be  laid.  Id. 


2602 


[RATE— RlfiPLEVIN] 


Held  by  both  courts,  that  the  power  of  the  jas- 
ticee  to  rate,  as  above,  under  atat.  4  Geo.  4,  0.64, 
18  not  limited  by  atat.  5  Geo.  4,  c.  85,  a.  15.  Id. 

Held  by  the  court  of  K.  B  ,  on  the  construe* 
tion  of  4  Geo.  4,  c.  64,  as.  45,  50,  that  when  a 
presentment  has  been  made  as  to  the  propriety  of 
chai^gin^  the  site  of  a  gaol,  and  the  justices  in  ses* 
sions  have  taken  such  presentment  mto.considera- 
tion,  giving  the  notices  required  by  sect.  45,  and 
have  resolved  that  the  site  ought  to  be  changed, 
such  justices  may  at  their  next  sessions  confirm 
the  resolution,  and  contract  for  building  the  new 
gaol,  without  having  given  fresh  notices.  Id. 

Same  decision  (in  K.  B.)  as  in  the  case  above, 
on  the  power  of  the  justices  to  make  the  rate. 
Rex  V.  Kingston-upon-HulI  (Justices),  1  Adol.  &, 
Ellis,  880.  1865 

Held,  that,  under  sUt.  4  Geo.  4,  c.  64,  s.  68, 
which  empowers  justices  to  raise  money  for  the 
purposes  of  the  act,  as  to  gaols,  in  the  same  man- 
ner as  rates  applicable  to  the  building,  repairing, 
or  maintenance  of  such  prisons,  are  now  airected 
to  be  raised,  the  justices  of  a  town  and  county 
might  have  power  to  raise  money  on  the  inhabi- 
tants in  general  for  the  purpose  ol  building  a  gaol, 
though  other  persons  might  have  been  liable  at 
the  time  of  passing  the  act,  and  might  continue 
liable  to  the  expense  of  repairing  and  maintain- 
ing such  gaol.  Id: 


RECOGNIZANCE. 

A  motion  to  discharge  a  defendant  from  es- 
treated recognizances,  under  the  4  Geo.  3,  c.  10, 
must  be  preceded  by  a  notice  to  the  solicitor  of  the 
treasury.    Re  Tipton,  3  Dowl.  P.  C.  177.      1866 

Where  a  defendant  entered  into  a  recognizance 
to  appear  to  and  try  an  indictment  for  perjury 
against  her  in  Trinity  Term,  and  she  had  appeared 
and  pleaded  to  the  indictment,  but  the  mdict- 
ment  had  not  been  tried,  the  court  would  not  in 
Michaelmas  Term  discharge  the  recognizance, 
but  ordered  that  it  should  not  be  put  in  suit  be- 
fore the  last  day  of  the  term.  Rex  v.  Grote,  3 
Dowl.  P.  C.  255.  1867 

Where,  upon  a  recognizance  forfeited  at  ses- 
sions, the  defaulter  has  paid  the  penalty  to  the  sher- 
iff, in  order  to  prevent  a  sale  of  his  gooda  taken  in 
execution,  the  sessions  have  no  power  to  mitigate 
the  penalty  under  3  €reo.  4,  c.  46,  s.  6.  Harper 
17.  Hayton,  5  M.  &  R.  307.  1867 

Where,  upon  a  recognizance  forfeited  at  quarter 
sessions,  the  sheriff  has  levied  part  of  the  penalty, 
and  has  the  defendant  in  execution  for  the  residue, 
the  sessions  have  jurisdiction  over  the  whole  re- 
cognizance, and  if  the  sheriff  has  notice  that  they 
have  discharged  the  defendant  wholly  therefrom, 
before  the  money  levied  had  been  paid  over  to  the 
treasury,  an  action  for  money  had  and  received 
lies  against  the  sheriff  for  the  amount  f  Id. 

Whether  any  notice  of  the  order,  or  any  de- 
mand of  repayment  is  necessary,  qusre  ?  Id. 

By  a  charter  of  Edw.  4,  the  6rown  granted  to 
the  corporation  of  D.  **  all  penalties  forfeited  and 
to  be  forfeited,  dx.  of  all  and  every  the  barons, 
Ac.  in  whatsoever  courts  the  same  barons,  &c. 
should  happen  to  be  adjudged."    By  a  charter  of' 


Carr.  22,  **  all  fines,  forfeitures,  &c.  in  the  courts 
aforesaid,  arising,  Ac."  were  also  |p«nted  to  the 
corporation  : — Held,  that  under  neither  of  these 
charters  did  a  forfeited  recognizance  to  appear  to 
answer  a  charge  of  misdemeanor  pass  to  tne  cor* 
poration.  Rex  v.  Dover  (Mayor,  dfcc),  1  C.  M.  ^ 
R.  736;  5  Tyr.  V9,  1867 


RELEASE. 

The  defendant  and  one  M.  N  gave  the  plain- 
tiff their  joint  and  several  promissory  note  to 
secure  a  separate  debt  due  rrom  each  of  them. 
The  plaintiff  afterwards  executed  a  deed  of  re- 
lease to  M.  N.:— Held,  that  although  this  re- 
lease discharged  both  as  to  the  note,  it  did  not 
enure  to  the  discharge  of  the  separate  debt  of  the 
defendant,  but  that  the  plaintiff  might  recover 
upon  an  account  stated.  Cocks  v.  Nash,  4  M.  ^ 
Scott,  162.  1S70 

Where  an  action  was  brought  by  two  out  of 
four  executors,  and  the  two  executors  who  were 
not  joined  in  the  action  released  puis  darrein 
continuance,  the  court  refused  to  set  aside  the 
plea,  the  plaintiff  having  failed  to  make  ont  a 
case  of  fraud.  Herbert  v.  Pigott,  2  C.  &  M. 
384  J  4  Tyr.  285.  1870 

Semble,  that  such  a  plea  will  not  be  set  aside, 
utaless  in  case  of  gross  fraud.  Id. 

Where  one  of  several  plaintifls  assignees  of  a 
bankrupt  releases  the  cause  of  action,  and  the 
release  is  pleaded,  the  court  will  set  aside  the 
plea,  suspicion  bl*ing  thrown  on  the  defendant's 
conauct  in  the  transaction,  the  co-plaintiff's  in- 
demnifying the  plaintiff,  who  had  given  the  re- 
lease, against  costs.  Johnson  v.  Holdsworth,  4 
Dowl.  P.  C.  63.  1870 

Courts  of  equity  will  presume  a  release  within 
the  same  limitl  of  time,  within  which  juries  will 
be  directed  to  presume  it,  whether  any  statute 
of  limitations  is  applicable  to  the  case  or  not. 
Baldwin  v.  Peach,  1  T.  &  Col.  453.  1870 


REPLEVIN. 

In  replevin,  the  defendant  avowed  for  rent  in 
arrear  from  one  J.  M.,  and  also  claimed  the 
goods  as  being  the  property  of  himself  and 
another  as  assignees  of  J.  M.,  against  whom  a 
commission  of  bankruptcy  had  issued.  A  ver- 
dict having  been  taken  on  the  whole  record,  the 
court  directed  it  to  be  entered  for  the  plaintiff  on 
the  issue  taken  on  the  title  of  the  assignees,  on 
the  ground  that  the  defendant  could  not  be  per- 
mitted on  the  same  record  to  claim  the  goods  as 
a  distress  for  rent,  and  also  to  set  up  the  title  of 
the  assignees.  Emery  v.  Mucklow,  4  M.  dt  Scott, 
263.  1873 

Where  distinct  cognizances  are  made  for  the 
same  gooda  under  several  parties,  not  appearing 
to  be  connected  in  interest,  if  one  of  the  cogni- 
zances be  abandoned  at  the  trial,  the  pat^  un- 
der whom  it  was  made  is  a  competent  witness 
for  the  defence.  King  «.  Baker,  2  Adol.  A  Ellis, 
333.  1876 

On  an  avowry,  or  justification  of  a  taking  as  a 


[REPLEVIN— REVENUE] 


9603 


diet  far 


tar  the  wiiole  vpbI,  a  jury  mmr  find  »  ver- 
the  •am  doe  aooa  an  apportioaiiirDt. 
"  ,1  Gile,  irA  1277 


In  an  action  against  the  ifaehir  for  taking  in 
:ieat  pled^vs  tn  repleriB,  he  »  liable  to  the 
amount  of  the  penal tj  in  the  honl,  riz.  double 
the  valae  of  the  goods  distnined.     Paul  r.  Good- 
2  Binf.  N.  R.  2dt :  1  Hodges,  SM.  S.  C. 
HaU  r.  Goodneke,  2  Scott,  3^:^  1579 

The  wuetiga  in  a  lepferia  bond  are  onhr  liahle 
for  the  valne  of  the  goodi  leiaed,  and  'doable 
eoati ;  and  if  that  value  exceedi  the  amount  of 
rent  doe,  thej  will  onlj  be  liable  lor  the  rent 
Uont  r.  Rovnd,  2  Dowl.  f.  C.  ^6.  ISbS 

Al- 


dridga  V. 


hj  nSittmu.  to  aibitntMHi. 
,  3M.dk  Scott,  519. 


Act,  55Ge«. 


within  the  exception  in  the 
3,  c.  1>1y  and  theveAwe  adi 
stamp,  to  show  a  partnership  between  A.  &  B. 
^  Metnorandum  of  agreement  between  A.  A  B^ 
which  »  the  hone^  to  be  ZU.y  &  to  have  half  at 
17{ ,  and  to  paj  half  of  the  horse's  expense*  being 
with  C,  at  the  same  time  agreed  for  the  hone 
to  go  to  Newcastle  to  be  entered  for  the  handi- 
capand  silver  cap.*'  Maiaon  p.  Short,  2  Scott, 
dl3:  SBing.  N.  R.  115  ;  1  Hodges,2da       IdtS 

A  contract  to  make  a  chattel  and  deliver  it 
within  a  certain  time,  is  a  eontnct  relating  to 
the  mle  of  goods  within  the  ezceptioa  or  thn 
Stamp  Act.  Pinner  v.  Anald,  2  C.  M.  dt  IL 
613;  1  Tjt.  &  G.  1 ;  1  Gale,2n.  1886 


REVENUE. 


Stoa^.] — ^An  agreement  to  indemnilj  A.  from 
all  costs,  charges,  damages,  or  other  expenses 
which  he  mav  incor  as  bail  for  B.,  reqaires  an 
agreement  stampi,  nnder  55  Geo.  3,  c  1S4,  the 
arrest  of  B.,  and  conseqnentlv  the  liability  of 
A.,  being  for  more  than  2M.,  thoogfa  the  costs, : 
dte.  incivred  do  not  amoont  to  that  som.  Wrig-  • 
iej  r.  Smith,  3  Nev.  dk  M.  ISl ;  5  a  dk  Ad<3. 

1117.  1666 

I 
An  "agreement,  minote,  or  memorandum  of 
agreement,"  is  liable  to  be  stamped,  only  where 
the  instrument  is  per  se  binding  on  the  paities  > 
to  it — per  Patteson,  J.     Rex  r.  St.  Martin,  Lei- 
cester, 4  NeT.  dk  M.  202;  2  Adol.  A.  Ellis,  210.  • 

1584 

The  eoort  cannot  sanction  an  agreement  be-  j 
tvpeen  the  parties,  that  an  objection  for  want  of' 
a  proper  stamp  shall  be  vraived ;  if,  therefore,  the  • 
objection  comes  to  the  knowledge  of  the  court, ' 
no  decree  vrill  be  made  until  the  mstrument  duly ' 
stamped  is  produced  to  the  registrar.  Owen  r. ' 
Thomas,  3  Mylne  dk  Keen,  353.  ISdi 

A.*s  attorney  gives  B.  a  written  authority  to 
pajT  money  for  A.  This  authority  does  not  re- 
quire a  ftamp,  either  as  an  agreement  or  as  a 
power  of  attorney.  Parker  v.  Dubois,  7  C  db  P. 
406— Abinger.  ld&4 

Notice  being  given  to  the  plaintiff  of  a  call  on 
certain  mining  shares,  which  he  had  transferred 
to  the  defenduit,  his  attorney  wrote  to  the  defen- 
dant's attorney,  to  inquire  whether  the  defen- 
dant was  desirous  of  avoiding  a  forfeiture  of  the 
diaies,  by  authorizing  plaintiff  to  pay  the  amount 
of  the  call.  The  defendant's  attorney  wrote  in 
reply,  anthorixing  the  plaintiff  to  pay  the  call : — 
Held,  that  these  letten  were  not  a  contract,  or 
evidence  of  a  contract,  and  did  not  require  a 
stamp.    Parker  v.  Dubois,  1  Meee.  dk  Wels.  30. 

1884 

When  an  instrument  is  stamped  under  the  2nd 
section  of  the  37  Geo.  3,  c.  136,  the  proper  stamp 
to  be  applied  is  that  which  is  necessary  at  the 
time  the  stamp  is  actually  affixed.  Buckworth  t^. 
Simpson,  1  Gale,  38.  1886 

The  following  agreement  held  to  be  relating 
to  the  nle  of  **goMls,  wares,  or  merehandiie. 
Vol.  rV.  42 


A  peper  as  follows : — memorandum,  1,  J.  IL, 
consent  to  take  1Q».  per  month  from  W.  H.  U.« 
in  dischazge  of  a  sum  of  32t.,  the  said  W.  H  H. 
intends  giving  him ;  and  upon  the  said  sum  ^ua|[ 
paid,  he  engages  giving  a  receipt  in  full  for  all 
demands ;"  signed  bv  J.  R.«  and  dated,  reqniresa 
stamp,  nnder  stat  59  Geo.  3,  c  184,  scheo.  part 
1.  Agreement,  as  an  agreement  whereof  the  mat* 
ter  is  of  the  value  of  20f .  Remon  v.  Hayvrard, 
2  Adol.  dk  Ellis,  666.  Id86 

A  paper  as  follows:— •^l  hold  of  M.  T.  Sn.  to 
put  into  a  savings  bank  for  her,'*  signed  and 
dated,  is  evidence  of  a  legal  debt  of  S7<.  from  the 
party  signing  to  M.  T.,  the  money  not  having 
been  put  into  a  savings  bank,  but  pertly  paid  to 
the  use  of  M.  T.,  and  does  not  show  a  mere  trust; 
and  M.  T.  may  recover  in  debt,  though  parol 
evidence  be  given  that  the  pvty  signing  had 
received  the  monev  to  be  applied,  at  his  msere- 
tion,  to  the  CMB  of  M.  T.    Id. 

Where  an  agreement  refen  to  another  docu- 
ment, so  that  Uie  two  papers,  in  feet,  form  only 
one  agreement,  it  is  sufficient  if  one  of  the  pa- 

C^rs  only  bear  an  agreement  stamp.    Peale  n. 
icken,  1  C.  M.  dk  R.  «^;  3  Dowl.  P.  C.  171 ; 
5  Tyr.  116.  1889 

Where  a  deed  is  produced  beanng  the  proper 
stamp,  the  court  will  receive  it  in  evidence,  with- 
out entering  into  the  inquiry  whether  it  was  af- 
fixed upon  the  payment  of  a  sufficient  penalty, 
and  within  proper  time,  although  it  is  proved 
not  to  have  been  stamped  when  executed.  Rex 
r.  Preston,  3  Nev.  dk  M.  31 ;  5  B.  dk  Adol.  10S9. 

1890 

But  with  reference  to  the  eflbct  of  the  deed, 
the  court  will  inquire  into  the  time  it  was  stamp- 
ed, in  cases  where  stomping  within  a  limited  pe- 
riod is  required  by  statute.    Id. 

A  memorandum  indoraed  upon  an  instramtnt, 
purporting  to  be  an  acknowledgment  by  the 
commissioaen  of  stamps  of  the  payment  of  a 
penalty,  is  not  receivable  in  evidence.    Id. 

If  an  instrument  offered  in  evidence  is  objected 
to  as  being  improperly  stamped,  the  pvty  offer* 
ing  it  may  either  go  into  the  rest  of  his  evidence 
and  send  the  instrument  to  the  stamp  office,  to 
he  stamped  anew,  taking  the  chance  of  its  coming 
back  sufficiently  early,  or  his  counsel  may  argue 
the  objection,  taking  the  stamp  as  it  is;  but  if 
the  instrument  be  sent  away  to  the  stamp  office. 


9604 


[REVENUE] 


the  jndge  will  not  allow  any  arsliment  as  to  the 
original  stamp  being  proper.  &ckwith  «.  Ben- 
ner,  6  C.  Sl  P.  681— Gurnej.  1890 

The  enactment  in  44  Geo.  3,  e.  98,  a.  10, 
(prohibitinff  the  bringing  of  actions  for  penalties 
'*  incnrBed  oy  virtue  of  that  or  any  other  act  re- 
lating to  the  stamp  duties,"  unless  prosecuted  in 
the  name  of  the  attorney-general,  or  of  the  soli- 
citor of  stamps),  applies  only  to  cases  in  which 
the  subject  matter  of  Uie' action  relates  to  the 
stamp  duties.  Smith  v.  Gillet  or  Gilbert,  4  Nev. 
&  JML  225 ;  2  AdoL  &  Ellis,  361.  1894 

Therefore,  it  does  not  apply  to  actions  brought 
for  penalties  incurred  by  printing  and  publishmg 
a  newspaper  without  complying  with  the  regula- 
tions imposed  by  38  Geo.  3,  c.  78,  ss.  2, 4,  7,  and 
10,  although  that  act  contains  various  provisions 
relating  to  the  stamp  duties.    Id. 

Jistesaed  Taxes."] — ^The  demand  re4|uired  by  43 
Geo.  3,  e.  99,  s.  ^  previously  to  a  distress  being 
levied  for  assessed  taxes,  need  not  be  made  in 
writing,  nor  personally  on  the  party  from  whom 
they  are  due ;  it  is  sufficient  if  a  demand  has  in 
fact  been  made,  and  there  has  been  a  refusal  on 
the  ground  of  inability  to  pay,  or  for  any  other 
cause.  Rex  «.  Ford,  4  Nev.  A  M.  451 )  2  Adol. 
A  Ellis,  588;  1  Har.  &  WoU.  46.  1890 

It  is  not  essential  that  the  demand  to  which 
the  refusal  applies,  should  have  specified  the 
precise  amount  claimed,  if  the  debtor  understood 
what  the  amount  was,  and  did  not  object  to  it. 
Id. 

A  eolleetor  of  taxes  has  no  right  to  take  a  con- 
stable or  other  person  with  him  into  the  house  of 
a  party,  of  whom  he  is  about  to  demand  the  pay- 
ment of  arrears  of  taxes,  and  to  levy  a  distress 
for  such  arrears,  if  necessary, — unless  he  has  rea- 
sonable ground  for  apprehending  that  an  assault 
will  be  committed  on  him,  or  Uiat  the  distress 
will  be  resisted.  Rex  v,  Clarke,  4  Nev.  &  M. 
671 ;  3  Adol.  &  EUis,  287;  1  Har.  ^  WoU.  252. 

1890 

Where,  however.  A.,  a  collector,  unwarranta- 
bly, but  without  any  objection  being  made,  intro- 
duces B.,  a  constable,  into  the  house  of  D.,  a 
'  person  from  whom  he  demands  taxes,  and  after- 
wards, reasonable  ground  to  apprehend  violence 
arising,  the  collector  introduces  C,  another  con- 
stable, upon  whom  D.  commits  an  assault,  it  is 
no  answer  to  an  indictment  against  D.  for  the 
assault  on  C.  in  the  execution  of  his  duty,  that 
the  collector  had  wrongfully  introduced  B.    Id. 

A  collector  demands  taxes  due  from  D.,  the 
owner  of  ^a  house,  and  intimates,  in  case  of  non- 
payment, he  shall  distrain ;  upon  which  D. 
threatens  A.  with  personal  violence,  but  ulti- 
mately promises  to  send  the  amount  on  a  certain 
day.  This  promise  not  being  performed,  A.  goes 
again  to  D.*s  house,  and  demands  the  taxes  of  O. 
0.  leaves  the  room  in  which  A.  is,  and  fastens 
the  outer  door: — Held,  that  A.  was  justified  in 
unfastening  the  door  and  introducing  constables. 
And  held,  that,  upon  D.'s  returmng  into  the 
room,  after  the  introduction  of  the  constables, 
accompanied  with  a  number  of  men,  and  com- 
manding C,  one  of  the  constables  whom  he 


knew  to  be  such,  to  leave  the  house,  it  was  the 
duty  of  C.  and  the  other  eonstahles  to  lemain. 
Id.^ 

A  collector  of  taxes  may  distrain  without  hav- 
ing his  warrant  with  him,  semble.    Id. 

Loiui-Tlix.]  — Where  an  act  of  pariiament 
establishing  a  Railway  Company,  anthorixed  the 
company  to  purchase  lands  of  corporations, 
tenants  for  life,  &c.,  and  directed  that  the  pur- 
chase money  should  be  applied  in  the  redemp- 
tion of  the  land-tax  upon  other  parts  of  the  pro- 
Erty  unsold ; — Held,  that  a  tenant  for  life,  who 
d  redeemed  the  land-tax  before  the  passing  of 
the  act,  might  reimburse  himself  out  of  the  pro- 
ceeds of  the  lands  purchased  of  him  by  the  com- 
pany.   Ex  parte  Northwick,  1  T.  &  Col.  166. 

1891 

The  costs  of  an  application  to  the  court  under 
such  an  act  of  parliament,  to  have  the  purchase 
monev  applied  in  the  redemption  of  the  land-tax, 
will  be  allowed  out  of  the  purchase  money,  al- 
though the  act  only  makes  an  express  provision 
for  such  costs  in  cases  where  the  money  is  to  be 
laid  out  in  the  purchase  of  lands,  to  be  settled  to 
the  like  uses.    id. 

A.,  the  owner  of  a  bouse,  which,  in  eonsider»- 
tion  of  a  premium  paid  to  the  lessor,  and  a  cove* 
nant  to  repair  and  finish,  had  been  demised  to  B. 
at  a  rent  amounting  to  less  than  the  annual  va- 
lue, redeems  the  land-tax  thereon,  under  38  Geo. 
3,  c.  5.  ^,.  is  entitled  to  an  annual  payment 
from  B.  in  respect  of  the  difference  between  the 
rent  and  the  annual  value,  viz.  an  annual  pay- 
ment bearing. the  same  proportion  to  the  wnoie 
land-tax  redeemed,  which  the  difference  between 
the  rent  and  the  annual  value  bears  to  the  an- 
nual value.    Ward  v.  Const,  5  M.  dt  R.  402. 

1891 

Excise.] — Quere,  whether  the  keeper  of  an 
office  of  excise  since  the  statute  3  &  4  Will.  4,  c. 
51,  is  an  officer  of  excise.  Crooday  v.  Clark,  2 
C.  M.  &  R.  273 ;  1  Gale,  177.  1894 

Semble,  that  an  office  for  the  performance  of 
certain  duties  is  abolished  by  a  statute  which 
takes  away  all  the  duties,  though  it  does  not  pro* 
fees  to  abolish  the  office  in  terms.    Id. 

Held,  that  proof  that  the  defendant  had  the 
words  ^^  Excise  office"  over  his  door,  is  no  evi- 
dence that  he  was  the  keeper  of  an  excise  office, 
no  act  being  shown  to  be  performed  by  him  aa 
keeper  of  an  office  of  excise,  since  the  stat.  3  dk 
4  Will.  4,  c.  51.    Id. 

Where  a  count  in  an  inlbrmatioii  to  reoover  a 
penalty  of  lOM.  against  a  maltster,  on  the  stai. 
7  A  8  Geo.  4,  e.  SS,  s.  I,  and  0.53,  s.  18,  ehaiged 
that  the  defendant  made  use  of  a  eislenii,  for  tlk» 
making  of  malt,  without  haviii|[  made  a  true  and 
particular  entr^r  thereof  in  writing,  with  the  of- 
ficer of  excise,  in  whose  survey  such  cistern 
intended  to  be  used  : — Held,  tnat  the  count 
bad.    Att  Gen.  v.  Dyer,  2  C.AM.  664.      1694 

In  an  information  on  s.  40  of  the  former  stat., 
the  count  chai^ged  that  the  defendant  did  firandn- 
lently  conctal  and  convey  firom  the  sight  of  the 


[REVENUE— SALE] 


2605 


o£Soen  of  eicifle  a  Itrge  quantity  of  corn  for 
makinj;  into  malt,  contrary,  &c. : — Held,  that  the 
eoant  waa  good,  and  that  it  wae  not  neoessarjr  to 
Qtmcer 


the  officen  firom  whom  it  wae  ao  concealed, 
or  alle^  it  to  have  been  concealed  from  the  of- 
ficers in  whote  diatrict  the  premises  were  situate. 
Id. 


REWARD. 

Where  an  advertisement  respecting  a  stolen 
'  child  promised  a  reward  to  the  person  who  would 

Ei^e  information  where  the  child  was,  so  as  that 
e  might  be  restored  to  his  parents,  and  the  plain- 
tiff communicated  to  the  defendant  her  suspicion 
where  the  child  was,  in  order  to  put  the  mailer 
into  his  hands  for  hia  benefit,  if  he  chose  to  run 
the  riak,  and  the  child  waa  afterwards  reatored  to 
its  parents  by  the  exertions  of  the  defendant  act- 
ing upon  the  plaintifi's  communication  : — Held, 
that  ue  plaintiff  could  not  recover  from  the  de- 
fendant, to  whom  the  reward  had  been  paid, 
either  the  whole  or  any  portion  of  it  Fallick  v. 
Barber,  1  M.  &  S.  108.  1897 

Rewards,  under  the  stat  7  Geo.  4,  c.  64,  s.  28, 
for  the  apprehension  of  offenders,  are  not  con- 
fined to  cases  where  the  person  apprehending 
has  had  a  loss  of  time  or  has  been  at  any  expense. 
Rex  V.  Barnes,  7  C.  &  P.  166— Coleridge.    1897 

Where  a  reward  is  applied  for  under  the  stat. 
7  Geo.  4,  c.  64,  s.  28.  for  the  apprehension  of  an 
ofiender,  and  the  facta  on  which  the  application  is 

Eounded  have  not  appeared  in  evidence,  the 
irned  jodfe  will  require  them  to  be  laid  before 
him  on  sffidavit.  Rex  v.  Jones,  7  C.  &  P.  167 — 
Park.  1897 


RIGHT,  WRIT  OF. 

As  to  the  practice  upon  the  entry  of  a  nolle 
prosequi  by  the  demandant  in  a  writ  of  intrusion, 
see  Williams  v.  Harris,  4  M.  &  Scott,  358 ;  1 
Ring.  N.  R.  13.  1896 

The  tenant  in  a  real  action  is  not  entitled  to 
eosis  upon  a  nolle  prosequi.    Id. 

Where  the  demandant  in  a  writ  of  right  bad 
neglected  to  proceed  to  trial,  the  court  granted 
judgment  as  in  case  of  a  nonsuit,  leaving  the  de- 
mandant to  his  remedy  by  error,  if  the  stat.  14 
Geo.  3,  c.  17,  did  not  apply  to  writs  of  right.  Ma- 
son, dem.,  Sadler,  ten.,  2  Scott,  510 ;  2  Ring.  N. 
R.  323;  1  Hodges,  358.  1896 

The  tenant  in  a  writ  of  right  not  being  able  to 
discover  who  the  demandant  was,  obtained  a 
judge's  order  directing  the  demandant's  attorney 
to  £diver  to  the  tenant's  attorney  within  four 
days  the  true  name  and  address  of  his  client. 
Tbe  court  refused  to  allow  the  tenant  to  sign 
judgment  of  nonpros  for  disobedience  of  this 
order.  Domsday,  dem.,  Hughes,  ten.,  2  Scott, 
377.  1896 

Senible,  that  the  proper  course  would  be  to 
■lake  the  older  a  ruu»  of  court,  and  apply  for  an 
mttarhment  against  the  attorney.    Id. 

Unti]  a  writ  of  right  has  been  returned,  the 
court  of  C  P.  has  no  jurisdiction  in  the  cause. 
Foot  V.  Sheriff,  4  Dowl.  P.  C.  654;2  Ring.  N.  R. 
—  1686 


The  court  of  C.  P.  has  no  power  to  set  aside  a 
writ  of  right,  that  being  a  writ  out  of  Chancery. 
Id. 

A  writ  of  riffht  issued  on  the  29th  December, 
1834,  returnable  on  the  26th  January,  1835 
The  return  day  was  altered  from  term  to  term, 
until  it  was  finaly  made  returnable  in  Nov.  1835 : 
— Held,  that  the  resealing  made  it  a  new  writ, 
and  the  right  of  action  waa  barred  by  the  3  &  4 
Will.  4,  c.  27,  a.  36.  Leigh  v.  Leigh,  4  Dowl.  P.  C. 
650 ;  2  Bing.  N.  R.  464.  1898 

The  demandant  in  a  writ  of  right  sued  out  a 
writ  of  summons  with  a  wrong  return  day,  and 
afler  having  delivered  the  issue  and  deposited 
the  writ  wiUi  the  sheriff,  he  caused  the  return  to 
be  altered  and  the  writ  to  be  resealed,  and  notice 
of  the  alteration  was  given  to  the  tenant : — Held, 
that  the  writ  was  valid,  it  not  being  executed 
when  the  alteration  was  made.  Muler,  dem., 
Miller,  ten.,  2  Scott,  166 ;  2  Bing.  N.  R.  66 ;  1 
Hodges,  185.  1696 

Where  a  knight  summoned  to  try  a  writ  of 
right  did  not  appear,  the  court  was  willing  to 
allow  the  parties  m  the  cause  to  have  it  tried  with 
three  knights  onlv,  on  their  agreeing  to  waive  the 
error  which  woufd  appear  on  the  record.  Came 
V.  Nicoll,  3  Dowl.  P.  C.  115 ;  1  Scott,  68.    1896 

Semble,  that  when  one  knight  has  made  de- 
fault, the  court  will  not  proceed  to  call  over  tiie 
names  of  the  rest  of  the  grant  assize.    Id. 

In  a  writ  of  a  right  the  tenant  may  withdrew  a 
demurrer  to  the  demandant's  coun  t  Twyning, 
deQi.,  Lowndes,  ten.,  2  Scott,  260 ;  2  Bing.  N.  K. 
133;  1  Hodges,  196.  1896 

On  the  trial  of  a  writ  of  right,  the  demi-n^ark 
was  tendered  after  the  knights  and  several  of  the 
recognitors  were  sworn  : — Held,  in  time.  Davis, 
dem.,  Selby,  ten.,  2  Scott,  74.  1898 


SALE. 


1.  Of  Lands. 

StaiuU  of  FraudsJ] — A  short  time  before  the 
expiration  of  a  lease  of  a  house,  the  landlord 
agreed  with  the  tenant  to  purchase  his  fixtures  at 
a  valuation.  The  lease  expired,  and  the  tenant 
having  quitted  possession  or  the  premises  without 
severing  the  fixtures,  sent  the  kev  to  the  land- 
lord. 'The  broker  appointed  by  tne  latter  afler- 
wards  appraised  the  fixtures  at  more  than  KM., 
and  aigned  the  valuation : — Held,  that  the  plain- 
tiff having,  at  the  defendant's  request,  waived  his 
right  to  remove  the  fixtures,  the  matter  bargain- 
ed for  was  not  an  interest  in  land  within  24  Car. 
2,  c.  3,8. 4,  and  that  the  amount  ascertained  by  tbe 
broker  might  be  recovered  in  (ndebitatus  as- 
sumpsit for  fixtares  and  effects  bar^ined  and 
sold,  without  proving  a  note,  &c.  in  writing. 
Hallen  v.  Runder,  3  Tyr.  959.  1901 

Semble,  that  such  note,  &c.  in  writing  was 
not  required  under  aeetion  17,  respecting  the 
**8ale  of  goods,"  of  10^  value  or  upwards.    Id. 

Upon  a  sale  of  lands  by  auction,  a  written  eon- 
tract  indorsed  on  the  conditions  of  sale,  is  sign- 
ed by  the  purchaser  only :  letten  are  subsequenfly 
written  by  tbe  vendor  to  the  poichuer's  atloniey, 


2606 


[SALE] 


difltinctly  referring  to  the  contract,  and  insisting 
upon  the  completion  of  the  purchase.  This  con- 
tract, and  the  letters  together  constitute  a  suffi- 
cient note  or  memorandam  within  the  statute  of 
frauds,  to  enable  the  vendee  to  sue  the  ven- 
dor for  the  expenses  of  investigating  the  title, 
upon  such  title  being  found  defective.  Dobell  v. 
Hutehinson,  5  Nev.  &  M.  251 ;  3  Adol.  &  Bllis, 
355;  1  Har.  &  Woll.  394.  1901 

And  whete  upon  such  contract,  it  does  not  ap- 
pear upon  the  face  of  it,  or  bj  reierence,  of  whom 
the  property  is  purchased,  letters  written  by  per- 
sons in  the  character  of  vendors  may  be  con- 
nected with  the  contract  for  the  purpose  of  sup- 
plying this  defect.    Id. 

The  defendant  purchased  certain  leasehold 
premises  at  an  auction,  and  signed  a  memoran- 
dum of  the  purchase  on  the  back  of  a  paper  con- 
taining the  particular  of  the  premises,  the 
name  of  the  owner,  and  the  conditions  of  sale  : 
— Held,  that  the  defendant  was  bound  by  his  con- 
tract, notwithstanding  it  was  not  signed  by  the 
vendor.    Laythoarp  v.  Bryant,  2  Bing.  N.  R.  735. 

1901 

A  signature  by  an  auctioneer's  clerk,  in  the 
character  of  witness  merely,  to  a  contract  for  the 
sale  of  property,  which  is  signed  by  the  purchaser 
alone,  is  not  a  sufficient  signing  of  an  agree- 
ment or  memorandum,  or  note  thereof,  by  an 
agent  of  the  seller,  to  satisfy  the  statute  of  frauds. 
Gosbell  V.  Archer,  4  Nev.  &  M.  485;  2  Adol.  & 
Ellis,  500 ;  1  Har.  &  Woll.  31.  1901 

QuoBre,  whether  it  would  have  been  sufficient, 
even  if  the  document  had  shown  upon  the  face  of 
it  that  the  clerk  had  knowledge  of  its  contents.^ 
Id. 

The  receipt  of  deposit  money,  by  an  auction- 
eer's clerk,  which  was  paid  over  to  the  seller, 
and  a  letter  from  the  solicitors  of  the  seller, 
admitting  that  no  title  could  be  made,  and  offer- 
ing to  relinquish  the  purchase,  and  pay  the 
charges  of  investigating  the  title,  do  not  amount 
to  a  ratification  of  an  imperfect  contract  for  the 
sale  of  property  by  auction,  which  was  only 
signed  by  the  purchaser  and  the  auctioneer's 
clerk,  in  the  character  of  witness,  so  as  to  satisfy 
the  statute  of  frauds ;  for  the  receipt  of  the 
money  is  a  transaction  distinct  from  the  power  to 
contract,  and  is  within  the  ordinary  scope  of  the 
clerk's  duty ;  and  the  letter,  not  containing  any 
of  the  terms  of  the  contract,  cannot  be  connected 
with  what  had  been  previously  done,  without  re- 
sorting to  parol  evidence.    Id. 

Upon  the  abandonment  of  an  unwritten  con- 
tract for  the  sale  of  land,  on  defect  of  title,  the 
deposit  money  and  money  paid  by  the  purchaser 
to  the  auctioneer  for  the  purchaser's  moiety  of 
the  auction  duty  may  be  recovered.    Id. 

But  the  expenses  of  investigating  the  title  can- 
not be  recovered  without  proof  of  a  written  con- 
tract bindixig  on  the  vendor,  nor  interest  upon  the 
deposit.    IdT 

Tide.'] — Sale  of  lands,  construction  of  contract 
as  to  title.  Rippinghall  v.  Lloyd,  5  B.  dt  Adol. 
742;  2Nev.  &'M  410.  1906 


The  vendor  of  a  leasehold  interest  is  bound  to 
show  the  lessor's  title  to  demise,  unless  it  be 
otherwise  stipulated  in  the  contract  of  sale. 
Souter  V.  Drake,  3  Nev.  &  M.  40;  5  B.  dt  Adol. 
992.  1907 

No  agreement  to  dispense  with  the  production 
of  the  lessor's  title  will  be  implied  from  the  cir- 
cumstances of  the  term  being  nearly  expired, 
the  small  value  of  the  property,  and  the  absence 
of  any  premium.    Id. 

By  the  conditions  of  sale  of  leasehold  pre- 
mises, the  vendors  stipulated  that  they  should 
deliver  an  abstract  of  the  lease  and  of  subsequent 
title  under  which  the  leasehold  lote  were  held, 
but  should  not  produce  the  lessor's  title.  The 
defendant  became  the  purchaser,  and  on  investi- 
gating the  title  for  himself,  it  appeared  to  be  de- 
tective, and  he  refused  to  complete  the  purchase : 
— Held,  that  the  purchaser  was  not  precluded 
from  inquiring  aliunde  into  the  lessor's  title,  by 
the  stipulation  that  the  vendora  should  not  m 
obliged  to  produce  it.  Shepherd  v.  Keatley,  4 
•Tyr.  571 ;  1  C.  M.  &  R.  117.  1907 

Where  the  plaintiff  steted  in  bis  declaration, 
that  he  was  possessed  of  a  certain  lease  of  cer- 
tain premises  for  a  certain  term  of  year^,  which 
he  put  up  for  sale,  and  which  the  defendant  pur- 
chased; in  an  action  for  not  completing  the 
purchase,  the  plaintiff  in  proving  his  title  must 
prove  the  execution  of  the  original  lease  as  well 
as  of  the  mesne  assignments  to  himself.  Lay- 
thorpe  V.  Bryant,  1  bcott,  327;  1  Bing.  N.  R. 
421 ;  1  Hodges,  19.  1907 

If  the  assignee  of  a  term  brings  an  action 
against  a  purchaser  for  not  completing  the  pur- 
chase, quiere,  whether  he  is  bound  to  prove  the 
execution  of  the  original  lease  ^    Id. 

A  stipulation  to  give  such  a  title  as  shall  be 
satisfactory  to  the  purchaser,  does  not  authorise 
the  purchaser  to  make  any  other  than  the  usual 
objections  to  the  title.  Lord  v.  Stephens,  1  Y.  &. 
Col.  222.  1907 

Deterioration  of  the  estate,  arising  from  de- 
lay in  completing  the  purchase,  is  not  a  ground 
for  rescinding  the  contract,  but  may  be  the  sub- 
ject of  an  allowance  to  the  purchaser.   Id. 

A  purchaser  who  with  full  knowledge  of  cer- 
tain objections  to  the  title  granted  a  lease  of  the 
property  to  a  third  person,  was  held  to  have 
waived  the  objections  to  the  title.  Ex  parte 
Sidebotham,  2  Deac.  &,  Chit.  818.  1907 


Other  Things.l — In  an  action  for  dama^, 
brought  bv  vendee  against  vendor,  for  not  makmg 
a  go^  title  to  an  estate  :~Held,  that  he  is  not  en- 
titled to  recover  for  expenses  incurred  in  negociat- 
ingthe  purchase  or  for  having  the  estate  surveyed 
2.Thatne  is  entitled  to  recover  charges  incurred 
in  investigating  the  title,  including  ue  searching 
for  judgments,  but  not  the  costs  of  drawing  and 
ingrossing  a  conveyance  of  the  estate,  the  same 
having  been  prematurely  prepared.  3.  Tliat 
the  vendor  having  filed  a  bill  in  equity,  against 
the  vendee,  for  a  specific  performance  of  the 
contract,  which  was  dismissed  with  costs,  which 


[SALE] 


2607 


were  accordingly  taxed  and  paid  to  the  vendee 
by  the  Tender: — Held,  that  in  an  action  for 
damages,  the  vendee  could  not  recover  his  ex- 
tra costs,  beyond  the  taxed  costs,  which  were  in- 
curred by  him  in  defending  the  suit  in  equity. 
4.  That  the  vendee  could  not  recover  costs  in- 
curred by  him  in  investigating  the  title  to  the  es- 
tate, afler  the  filing  the  bill  m  equity.  5.  That 
the  vendee  is  entitled  to  be  paid  at  the  rate  of 
five  per  cent,  for  interest  on  his  deposit  money, 
although  the  court  of  Chancery  had  ordered  pay- 
ment at  the  rate  of  four  per  cent.  Hodges  v. 
Litchfield  (Earl),  1  Scott,  443;  1  Bing.  ^.  R. 
492;  1  Hodges,  40.  1913 

The  plaintifl?",  an  attorney,  agreed  for  a  certain 
consideration  to  convey  to  the  defendant  an  es- 
tate, which  the  latter  had  purchased,  upon  the 
terms,  that  the  vendor  and  vendee  should  pay  for 
the  conveyance  in  equal  proportions,  and  the 
plaintiff  also  agreed,  Uiat,  if  the  vendor  objected 
to  pay  any  expenses,  he,  the  plaintiff,  would  not 
apply  to  the  defendant  for  any  further  remunera- 
tion. The  conveyance  was  made  by  the  plaintiff; 
the  defendant  agreed  with  the  vendor,  that,  if  the 
vendor  would  pay  the  whole  expense  of  another 
transaction  between  himself  and  tlie  defendant, 
he,  the  vendor,  should  not  pay  any  of  the  ex- 
penses of  the  above  conveyance : — tield,  that  so 
much  of  those  expenses  as  the  defendant  (as  be- 
tween himself  and  the  vendor)  had  been  allowed 
to  set  off  against  his  share  of  the  liability  on  the 
other  transaction,  was  money  had  and  received  to 
the  plaintiff's  use,  and  mi^ht  be  recovered  by 
him,  besides  the  consideration  originally  agreed 
upon  for  making  the  conveyance.  Noy  v.  Rey- 
nolds, 1  Adol.  &,  Ellis,  159.  1913 

'Where  the  vendor  of  an  estate  (the  vendee 
having  made  a  deposit  in  part  payment  of  the 
purchase  money)  fails  to  make  out  a  good  title 
by  the  time  stipulated,  and  the  vendee  dies,  the 

Kersoofial  representative  of  the  vendee,  and  not  his 
eir,  is  entitled  to  maintain  an  action  to  recover 
damages  for  loss  of  interest  on  the  deposit,  and 
for  expenses  incurred  by  the  vendee  in  endea- 
voring to  procure  a  title — the  injury  accruing 
to  the  personal  estate.  Orme  v.  Broughton,  4  M. 
&  Scott,  417.  1913 

An  agent  employed  to  sell  an  estate  has  not, 
as  such,  authori^  to  receive  payment.  Mynn  v. 
Joliffe,  1  M.  &  Rob.  326— LitUedale.  1912 

Interest  paid  by  a  purchaser  upon  money  bor- 
rowed by  nim  to  complete  the  purchase,  and 
kept  idle,  (pending  an  endeavor  by  the  vendor 
to  clear  up  the  title),  may  be  recovered  as  dam- 
ages against  the  latter,  in  an  action  for  breach  of 
his  contract.    Sherry  v.  Oke,  3  Dowl.  F.  C.  349. 

1913 

Quere,  whether,  consistently  with  the  statute 
of  frauds,  the  court  can  entertain  a  bill  for  rec- 
tiiying  an  executory  contract  for  the  sale  of  lands, 
and  carrying  it,  when  rectified,  into  execution, 
even  where  the  mistake  is  admitted  by  the  an- 
swer ?  Attorney-General  v.  Sitwell,  1  Y.  dt  Col. 
£69.  1913 


II.  Of  Goods. 


tract  for  the  sale  and  purchase  of  goods,  to  satisfy 
the  statute  of  frauds,  is  ^ood,  though  no  men- 
tion be  made  of  price,  provided  none  be  stipulated 
for  ;  and  where  Uie  contract  is  for  the  sale  of  goods 
to  be  manufactured,  and  alterations  or  additions 
are  made  in  the  progress  of  the  work,  such  alter- 
ations or  additions  need  not  be  made  the  subject 
of  a  distinct  contract  in  writing.  Hoadley  v.  Mac- 
laine,  4M.&  Scott,  340.  1915 

In  all  cases  of  executory  contracts  for  the  pur- 
chase and  sale  of  ffoods,  where  the  parties  are  si- 
lent as  to  price,  the  law  will  supply  the  want 
of  an  agreement  as  to  price,  by  inferring  that  the 
parties  intended  to  sell  and  to  buy  at  a  reasona- 
ble price.    Id. 

Delivery  and  AeceptanceJ] — Sale  of  goods,  de- 
livering bill  of  lading  of.  In  re  Wes&inthus,  2 
Nev.  <&  M.  644  ;  5  B.  &  Adol.  817.  1925 

Part  delivery  by  a  carrier  to  the  consignee  is 
prima  facia  such  a  virtual  delivery  of  the  whole 
as  puts  an  end  to  the  consignor's  right  of  stoppage 
in  transitu.  Betts  v.  Gibbins,  4  Nev.  &  M.  64 ; 
2  Adol.  6l  Ellis,  57.  1923 

The  plaintiff  having  purchased  certain  timber 
growing  on  the  land  of  B.,  felled  it,  and  after- 
wards sold  it  to  one  J.  at  a  certain  price  per  cubic 
foot,  J.  to  be  at  liberty  to  convert  the  timber  on 
the  land.  The  trees  were  marked  and  measured 
by  J.,  the  number  of  cubic  feet  in  each  tree  being 
ascertained,  but  the  total  contents  were  not  sum- 
med up.  Some  of  the  trees  were  taken  away  by 
the  purchaser: — Held,  that  the  transfer  of  the 
whole  was  complete,  and  consequently,  that  the 
vendor  had  no  right  of  lien  for  the  unpaid  price 
of  the  timber.  Tansley  v.  Turner,  2  Scott,  238 ; 
2  Bing.  N.  R.  151 ;  1  Hodges,  267.  1921 

In  an  action  for  the  price  of  a  fire  engine  sold 
by  the  plaintiff  to  the  defendant,  the  (fefendant 
pleaded  the  statute  of  frauds,  and  the  plaintiff 
replied,  that  the  defendant  had  accepted  the  goods. 
It  appeared  that  the  defendant,  after  the  sale  of 
the  fire  engine  to  him  by  the  plaintiff,  had  taken 
a  person  to  look  at  it,  and  had  mentioned  who 
were  likely  to  want  to  buy  it,  and  that  to  another 
person  the  defendant  said,  '*  1  know  that  1  am 

foing  to  do  it,"  and  that  to  a  third  he  said,  *^  I 
ave  a  concern  in  the  engine  :"--Held,  that  it  was 
for  the  jury  to  consider  on  this  evidence  whether 
the  defendant  had  treated  the  fire  engine  as  his, 
and  dealt  with  it  as  such,  for  that,  if  so,  the  plain- 
tiff was  entitled  to  a  verdict.  Bains  v.  Jevans,  7 
C.  6l  p.  288— Alderson.  1920 


Contract.'] — In  an  action  by  a  P&rty  who  has 
bargained  with  a  broker  for  the  sale  of  goods  be- 
longing to  a  third  person,  for  assuming  the  right 
to  sell  without  having  authority;  in  order  to 
make  out  a  contract  for  the  sale,  it  is  not  neces- 
sary, in  point  of  law,  that  there  should  be  bought 
and  sold  notes.  Pauli  v.  Simes,  6  C.  &  P.  50b— 
Lyndhurst.  1931 

If  a  party  receiving  an  invoice  does  not  object 
to  it  on  the  ground  of  its  brevity  and  incomplete- 
ness, the  party  furnishing  it  will  be  bound  by  it. 


Statute  of  Frauds.] — A  memorandum  of  a  con-        If  brokers  alter  an  invoice  of  the  owner  of 


3606 


[SALE] 


goctdfl  from  the  name  of  one  porcbaaer  to  another, 
and  aend  it  to  the  latter  with  a  letter^  nying  that, 
to  aimplify  the  transaction,  they  had  transferred 
the  sellers  invoice  to  him,  such  invoice  will 
amount  to  a  contract  of  sale.    Id. 

In  an  action  by  the  vendee  on  a  contract  made 
through  a  broker,  it  is  sufficient  for  the  vendee 
to  produce  the  bought  note,  handed  to  him  bv  the 
broker,  and  to  show  the  employment  of  the  fatter 
by  the  vendor.  If  the  sold  note  vary  from  the 
bought  note,  it  lies  on  the  vendee  to  prove  that 
Tariance  by  producing  the  sold  note.  Hawes  v. 
Forster,  1  M.  &  Rob.  368— Denman.  1931 

When  a  contract  is  made  through  a  broker,  the 
bought  and  sold  notes  delivered  to  the  parties 
constitute  the  contract,  not  the  entry  made  by 
the  broker  in  his  book,  especially  when,  by  the 
uaage  of  trade,  the  bought  and  sold  notes  are 
looked  upon  as  the  contract.     Id. 

An  agreement  was  made,  by  which  the  plain- 
tiff agreed  to  buy,  and  the  defendant  to  sell,  all  the 
naphtha  he  might  make  during  two  years,  say 
from  1000  to  1200  gallons  per  month.  A  decla- 
ration on  this  agreement  contained  no  averment 
of  any  construction  given  by  mercantile  usage  to 
the  word  *^  say ;"  and  it  was  held  on  demurrer  to 
the  pleas,  that  it  was  no  breach  not  to  have  made 
any,  there  being  no  allegation  that  the  neglect  or 
renisal  to  do  so  was  in  fraud  of  the  agreement. 
Gwillim  V.  Daniel,  2  C.  M.  A  R.  61;  1  Oale, 
143.  lf>31 

If  a  party  be  induced  to  purchase  an  article  by 
ihe  fraudulent  misrepresentations  of  the  seller  of 
it,  and,  ailer  discovering  the  fraud,  continues  to 
ideal  in  the  article  as  his  own,  be  cannot  recover 
b^ck  the  money  from  the  seller.  Campbell  v. 
Fleming,  Nev.  &  M.  834 ;  1  Adol.  &  Ellis,  40. 

*  1932 

The  right  to  repudiate  the  contract  is  not  af- 
terwards revived  oy  the  discovery  of  another  in- 
cident in  the  same  fraud — Per  Denman,  C.  J., 
Littledale  and  Patteson,  Js.  Id. 

Where  a  contract,  that  is  silent  as  to  price,  is 
executed  by  the  acceptance  of  the  goods  by  the 
defendant,  the  law  will  supply  the  want  of  an 
agreement  as  to  price,  by  inferring  that  the  par- 
ties must  have  intended  a  reasonable  price.  But 
onere  whether  the  same  inference  arises  where 
the  contract  is  executory  only,  and  the  goods  still 
remain  in  the  possession  or  under  the  control  of 
the  seller.    Acebal  v.  Levy,  4  M.  &  Scott,  217. 

1933 

Payment  of  price.  Elliott  r.  Pybus,  4  M.  & 
Scott,  389.  1933 

Vendor's  lien.] — Vendor's  lien  for  price. 
Dixon  V,  Tates,  5  B.  dk  Adol.  313.  1936 

A  purehaser  of  goods  accepted  a  bill  for  the 
price,  which  the  vendor  indorsed  over ;  and  the 
indoraee  recovered  judgment  on  the  bill  against 
the  purehaser,  but  did  not  take  out  execution ; 
afterwards  the  vendor  took  up  the  bill  and  re- 
ceived a  mortgage  from  the  parehaser,  from 
which,  however,  were  were  no  proceeds: — Held, 
that  the  vendor  was  not,  in  point  of  kw,  paid  for 


the  goods.  Tarleton  v.  Allhnsen,  2  Adol.  Jk  Ellis, 
32.  1996 

To  assumpsit  for  goods  sold,  &c.,  the  defen- 
dant pleaded  as  to  9r.,  part  of  the  debt,  that  he, 
at  the  plaintiff's  request,  put  his  name  as  accept- 
or to  a  stamped  bill  of  exchange  for  20^.,  (there 
being  no  drawer's  name  to  it),  partly  for  the  debt, 
and  partly  for  his  accommodation,  and  delivered 
the  same  to  the  plaintiff,  who  accepted  it  in  pay- 
ment of  the  debt,  and  that  the  bill  had  not  be- 
come  due  at  the  time  the  action  was  commenced. 
The  plaintiff  replied,  that  the  bill  then  remained 
in  his  hands  un negotiated  and  unpaid,  and  with- 
out any  drawer's  name  put  to  it: — Held,  that 
this  replication  was  no  answer  to  the  plea,  and 
that  the  plea  was  good.  Simon  v.  Lloyd,  3  I>owl. 
P.  C.  813.  1936 

Quere,  whether  it  would  have  been  held  good 
if  it  had  been  demurred  to  ?    Id. 


Pro€€edings.] — Quere,  whether  the  vendor  of 
goods  is  precluded  from  maintaining  a  count  for 
goods  bargained  and  sold,  where  the  goods  have 
been  resold  by  him  on  the  vendee's  refusal  to  ac- 
cept them  ?    Acebal  v.  Levy,  4  M.  dit  Scott,  217. 

1936 

The  plaintiffii  in  London  entered  into  the  for- 
lowing  contract  with  the  defendants : — **  October 
11,  1^.  Sold  to  6.  (&  Son  for  account  of 
Messrs.  A.  ^  Co.,  200  firkins  of  M.  St.  Co.'s 
Sligo  butter,  at  7U.  6d.  per  cwt.  free  on  board. 
Payment,  bill  at  two  months  from  the  date  of 
landing.  To  be  shipped  this  month,**  Ac.  "rhe 
butters  were  not  shipped  until  the  following- 
month,  but  the  defendants  had  waived  that  con- 
dition, and  they  accepted  the  invoice  and  the  bill 
of  lading,  wluch  was  indorsed  to  them.  The 
butters  were  afterwards  lost  on  the  voyage : — 
Held,  that  an  action  for  goods  bargained  and 
sold  was  maintainable  to  recover  the  price  of  the 
butters.  Alexander  v.  Gardner,  1  Scott,  281,  630$ 
1  Bing.  N.JI.  671 ;  3  Dowl.  P.  G.  146 ;  1  Hodges, 
147.  lis 

Held  also,  that  the  landing  of  the  goods  was 
not  a  condition  precedent  to  the  claim  of  pay- 
ment.   Id. 

Plaintiff  declared  in  debt  for  goods  sold,  to  be 
paid  for  on  request.  Defendant  pleaded,  that  he 
never  was  indebted  as  was  in  the  declaration  al- 
leged : — Held,  that  (since  the  new  rules  of  |Jead- 
ing),  he  could  not  under  this  plea  give  evidence 
that  the  goods  were  sold  on  a  credit  not  yet  ex- 
pired. Edmunds  v.  Harris,  6  C.  dc  P.  547 ;  2 
Adol.  A  Ellis,  414 :  8.  P.  Taylor  «.  Hilary,  3 
Dowl.  P.  C.  461.  1936 

Semble,  that  under  the  general  issue  evidence 
is  admissible  that  the  period  of  credit  was  not  ex* 
pired  when  the  action  was  commenced.  Knapp 
V.  Harden,  1  Oale,  47.  1996 

Cioods  were  sold  upon  the  following  terms  :-^ 
**  7|  per  cent  discount,  bill  at  three  montha^  10 
per  cent,  discount,  cash  in  fourteen  days:" — Held, 
that  the  vendon  could  not  sue  in  indebitatus  as> 
sumpsit  for  goods  sold  and  deliveied  within  the 
fourteen  days,  even  if  the  sale  had  been  efleeted 
by  fraud  on  the  part  of  the  vendee,  so  that  traver 


[SALE] 


2609 


miffht  haTR  been  maintained  for  the  ffoods.  Startt 
V.  Smith,  1  C.  M.  &  R.  312;  4  Tyr.  1019.     1936 

Under  the  general  issue  to  an  action  for  goods 
sold  and  delivered,  the  defendant  maj  prove  (even 
since  the  new  rales)  that  the  goods  delivered 
were  not  such  as  were  contracted  for,  although 
there  was  a  special  contract  to  pay  for  the  goods 
at  a  certain  price ;  and  the  plaintiff  can  then  re- 
coyer  only  on  the  quantum  meruit.  Cousens  v. 
Paddon,  2  C.  M.  &.  R.  547  ;  4  Dowl.  P.  C.  488 ; 
5  Tyr.  535 ;  1  Gale,  305  :  S.  P.  contra,  Roffey  v. 
Smith,  6  a  &  P.  502.  1936 

Per  Parke,  B.— The  feet  that  the  goods,  &e. 
supplied  have  been  retained  without  complaint 
bv  Uie  defendant,  is  not  conclusive  evidence  that 
tney  were  of  the  quality  contracted  for,  but  it  af- 
fords co^nt  evidence  tor  a  jury  to  draw  that  in- 
ference.   Id. 


111.  Stoppage  iv  TaxHsiTV. 

A.,  residing  in  Guernsey,  employed  the  defen- 
dant as  his  agent  at  Southampton  to  ship  all 
flroods  which  arrived  there  directed  to  A .  The 
Sefendant  paid  the  carriage  and  the  wharfage 
dues,  and  selected  the  ship  by  which  he  forward- 
ed the  goods: — Held,  that  the  transit  of  the 
ffoods  was  not  ended  at  Southampton,  and  that 
3m  vendor  might  stop  them  after  they  had  been 
put  on  board  a  vessel  for  Guernsey.  Nicholls  v. 
Le  Feuvre,  2  Bing.  N.  R.  81 ;  1  Hodges,  255 : 
S.  C.  nom  Slater  v.  Le  Feuvere,  2  Scott,  146 ;  7 
C.  ^  P.  91.  1939 

The  unpaid  vendor  of  goods  remaining  in  his 
own  warenoDse  rent  free  may  stop  in  transitu, 
although  he  has  ffiven  the  vendee  a  delivery 
order,  under  which  part  of  the  goods  have  been 
removed.  Townley  v.  Crump,  B  Nev.  &  M.  606 ; 
1  Har.  Ad  Woll.  564.  1939 

SaUhf  .^iietioA.]— Upon  a  sale  of  houses  by 
auction,  according  to  certain  particulars  and  con- 
ditions of  sale,  one  of  which  was  for  the  delivery 
of  an  abstract  of  title  within  ten  days,  and  an- 
other for  the  payment  of  a  deposit  to  the  auc- 
tioneer, the  purchaser  of  two  houses  paid  a  de- 
posit, ngned  an  agreement  as  purchaser,  and  ob- 
tained a  receipt  from  the  auctioneer  for  the  money 
paid  as  for  a  deposit  on  a  sale  by  auction  of  the 
premises  described  in  the  particulars  and  condi- 
tions of  sale.  The  abstract  of  title  not  being  de- 
livered, the  purchaser  brought  an  action  against 
the  auctioneer  for  the  rpcovery  of  the  deposit: — 
Held,  that  the  production  of  the  receipt,  and  of 
the  conditions  of  sale,  without  producing  the 
written  contract  signed  by  the  purchaser,  was  in- 
sufficient. Curtis  t^.  Greated,  3  Nev.  A  M.  449 ; 
1  Adol.  A  EUis,  167.  1945 

Particulars  of  the  sale  by  auction  of  a  public 
house,  describing  the  premises  as  being  held  for 
an  unexpired  term  of  years,  at  a  rent  of  55^.,  and 
as  comprising,  amongst  other  things,  a  yard.  By 
the  oonditions,  the  contract  was  to  be  completed 
on  the  25th  June,  and  any  error  or  mistake  in 
the  deseriptaon  of  the  property  was  to  be  matter 
ef  rnmpf  iMiriiim,  to  be  fixed  by  arbHiation.    In 


fact,  the  yard  was  not  held  under  the  lease,  but 
under  a  tenancy  from  vear  to  year,  at  a  further 
rent  of  10/.  The  vendors,  however,  procured  a 
lease  for  the  same  term  of  the  yard,  at  an  addi- 
tional rent  of  8/-,  dated  on  23rd  June,  but 
not  in  feet  executed  until  long  afler  the  25th 
June.  The  yard  was  essential  to  the  enjoyment 
of  the  premises : — Held,  that  this  defect  was  not 
matter  of  compensation  under  the  terms  of  the 
condition,  but  such  a  defect  in  title  as  Justified 
the  vendee  in  vacating  the  contract.  Dobell  «. 
Hutchinson,  5  Nev.  &  M.  251 ;  3  Adol.  &  Ellis, 
355 ;  1  Har.  Sl  WoU.  394.  1941 

The  particulars  of  sale  of  certain  leasehold 
premises  in  Covent- garden  stated,  that,  under 
the  original  lease,  *^  no  offensive  trade  was  to  be 
carriedon,  and  that  the  preihises  could  not  be 
let  to  a  coffeehouse-keeper  or  working  hatter." 
The  original  lease,  when  produced,  appeared  to 
prohibit  the  business  of  brewer,  baker,  sunr- 
baker,  vintner,  victualler,  butcher,  tripe  seDer, 
poulterer,  fishmonger,  cheese  seller,  fruiterer, 
herb  seller,  co^ehouse-keeper,  working  hatter, 
and  many  others,  and  the  ssJe  of  potatoes,  or  any 
provisions : — Held,  that  there  was  such  a  mate- 
rial discrepancy  between  the  particulars  and  the 
lease,  as  to  entitle  a  purchaser  to  rescind  his  con- 
tract. Flight  V.  Booth,  1  Scott,  190 ;  1  Bing.  N. 
R.  370.  1941 

,  The  plaintiff",  who  was  an  auctioneer,  sold  to 
the  defendant  by  auction  certain  premises,  and 
the  defendant  paid  as  a  deposit  a  check  for 
1002.  There  being  a  wilful  misrepresentation  in 
the  description  of  Uie  premises,  the  defendant  re- 
fused to  pay  the  check,  upon  which  the  plain- 
tiff' brought  an  action  against  him  on  the  cneck. 
The  defendant  having  pleaded  that  there  was  no> 
consideration  for  making  the  check :— Held, 
afler  verdict  for  the  defendant,  that  evidence  of 
the  wilful  misrepresentation  was  admissible  un- 
der the  plea,  but  that  such  plea  would  have  been 
bad  on  special  demurrer.  Mills  v.  Oddy,  2  C.  M. 
&  R.  103;  3  Dowl.  P.  C.T22;  5  Tyr.  571;  1 
Gale,  92.  1941 

If  a  JMuty  has  given  a  bill  of  exchange  or 
check  tot  the  amount  of  a  deposit  on  a  sale  by 
auction,  any  ground  on  which  the  party  could 
recover  back  his  deposit,  if  paid  in  money,  will 
be  a  good  ground  or  defence  in  an  action  upon 
the  bill  or  ' 
—Parke. 


check.    Mills  v.  Oddy,  6  C.  &  P.  728. 


1942 

Certain  rules  were  posted  up  at  a  repository 
for  horses,  regulating  safes  by  private  oontnct 
there : — Held,  that  iMirties  contracting  at  the  re- 
pository having  ilotice  of  the  rules,  impliedly 
adopted  the  terms  of  the  rule.  Bywater  r. 
Richardson,  3  Nev.  &  M.  748 ;  1  Adol.  &,  Ellis,, 
506.  1941 

In  an  action  of  assumpsit  for  not  comp]etin|^ 
the  purchase  of  a  house,  the  defendant  cannot^ 
under  the  general  issue,  set  up  a  defbnce  that 
the  sale  was  a  sale  by  auction,  and  void  on  th# 
ground  of  puffing,  as  this  must  be  specially 
pleaded.    Iceby  v.  Grew,  6  C.  A?.  671-— Don- 

1942 


An  anetioneer  pnt  op  Ibr  nh  aa  Mttt^  in 
^  three  lots.    Tb«  whole  esUto  wm  msb^t  Ip  m 


2610 


[SALE— SCIRE  FACIAS] 


mortgage  of  22,00(U. ;  the  mort^gee  did  not  con- 
sent to  the  sale.  By  the  conditions  of  sale  the 
mortgagee  was  to  be  appointed,  and  the  vendor 
undertook  to  indemnify  tne  purchaser  against  the 
payment  of  more  than  the  appointed  share.  A 
party  purchased  for  15,500^.  one  lot,  upon  which 
the  apportionment  was  10,5002 : — Held,  that  a 
sale  was  in  substance  a  sale  of  an  equity  of  re* 
demption  for  5,3002.,  and  that,  therefore,  upon 
that  sum  only  was  the  auction  duty  payable. 
Rex  V  Sedgwick,  1 C.  M.  &  R.  603 ;  1  Tyr.  &  G. 
94  ;  1  Gale,  283.  1942 


SAVINGS*  BANK. 

By  the  rules  of  a  savings*  bank,  deposited  with 
the  clerk  of  the  peace  pursuant  to  57  Greo.  3,  c. 
130,  s.  2,  entries  of  deposits  are  to  be  made  in  a 
book  kept  by  the  bank  for  that  purpose,  and  in  a 
duplicate  account  book  to  be  kept  by  the  party 
making  the  deposit,  which  duplicate  is  to  be  a 
voucher  for  the  party  producing  it,  and  a  receipt 
for  the  bank  when  handed  over  to  them.  A.  de- 
posited  in  the  name  of  B.,  and  aflerwarda,  with- 
out B.'s  authority,  received  back  the  amount  and 
delivered  up  the  duplicate  account  book : — Held, 
that  B.  still  continued  to  be  a  depositor.  Rex  v. 
Cheadle  Savings'  Bank  (Trustees),  3  Nev.  &  M. 
418.  1946 

A  party  is  not  entitled  to  a  mandamus  to 
compel  a  savings'  bank  to  refer  to  arbitration, 
under  9  Greo.  4,  o.  92,  s.  45,  unless  he  show  him- 
self to  the  court  to  be  at  the  time  a  depositor.  Id. 

The  directors  of  a  savings*  bank  are  not  com- 
pellable to  appoint  an  arbitrator  under  stat.  9 
Geo.  4,  c.  92,  s.  45,  for  the  purpose  of  deciding 
upon  the  claim  of  persons  professing  to  apply  on 
behalf  of  a  body  ox  depositors,  if  it  is  a  matter  of 
dispute  whether  the  applicants  be  entitled  to  re- 
present the  body.  Rex  v.  Witham  Savings*  Bank, 
3  Nev.  &  M.  416 ;  1  Adol.  &  Ellis,  321.       1946 


SCHOOLMASTER. 

The  master  of  an  ancient  endowed  school  is 
entitled  to  the  school-house,  unless  he  has  been 
in  due  manner  amoved  from  his  office  by  those 
having  authority  to  do  so.  Doe  d.  Coyle  v.  Cole, 
6  C.  £  P.  359— Patteson.  1947 

The  neglecting  of  the  scholars  would  be  a  good 
ground  of  amoval.     Id. 

The  vicar  of  the  parish  cannot  recover  the 
school'house  by  ejectment,  although  it  may  have 
been  built  on  what  is  evidently  part  of  the 
churchyard,  if  it  appear  that  the  house  was  built 
on  the  site  of  a  very  old  school-house,  the  site 
of  which  might  have  been  granted  before  the  dis- 
abling statutes ;  but  if  a  part  of  the  house  is  built 
on  ground  taken  from  the  churchyard  recently, 
the  vicar  may  remove  that  part.    td. 

Where  the  master  of  a  school  refuses  to  deliver 
vp  the  person  of  a  boy  to  his  parent,  on  account 
of  a  quarter's  schooling  not  having  been  paid 
according  to  contract,  out  there  is  no  evidence 
that  the  boy  was  present  at  Uie  refusal,  or  knew 
that  hiB  mother  had  wished  to  take  him  home, 


and  been  refused,  or  was  in  any  way  restrained, 
though  kept  at  school  during  the  Christmas  fort- 
nigh^  an  action  for  false  imprisonment  cannot 
be  maintained  by  him.  Herring  r.  Boyle,  1  C. 
M.&.R.  377;  6C.  4fcP.  496;  4Tyr,  801.    1947 

But,  semble,  his  mother  mijrht  have  maintained 
an  action  in  a  different  form.^d. 


SCIRE  FACIAS. 

Where  a  sci.  fa.  is  unnecessarily  sued  out,  but 
the  defendant's  attorney,  on  his  oehalf,  proposes 
terms  of  compromise,  on  which  the  party  for  a 
time  acts,  the  defendant  cannot  afterwards  object 
to  pay  the  costs  of  the  sci.  fa.  Brewster  v.  Meaks, 
2  Dowl.  P.  C.  612.  1951 

An  application  for  a  sci.  fa.,  upon  a  judgment 
ten  years  old,  will  not  be  granted  upon  an  affi- 
davit of  the  plaintiff's  present  attorney,  which 
merely  states  that  the  debt  and  costs  are  still 
unpaid ;  it  roust  also  be  shown  that  he  was  the 
attorney  when  the  judgment  was  obtained,  or 
there  must  be  an  additional  affidavit  of  the  attor- 
ney then  employed,  or  of  the  plaintiff  himself. 
Norfolk  (Duke)  v.  Spencer  or  Leicester,  4  Dowl. 
P.  C.  746 ;  1  Mees.  ^k  Wets.  204.  1948 

Upon  a  motion  to  revive  a  judgment  by  scire 
facias,  the  validity  of  the  judgment  cannot  be 
impeached  for  the  purpose  of  opposing  that  mo- 
tion, but  a  separate  application  must  be  made  to 
set  aside  the  judgment.  Thomas  v.  Williams,  3 
Dowl.  P.  C.  655.  1948 

If  a  plaintiff  has  judgment  with  a  stay  of  exe- 
cution, by  agreement,  for  any  period,  he  may,  at 
any  time  within  a  year  and  a  day  after  the  ex- 
piration of  such  period,  take  out  execution  with- 
out a  scire  facias  to  revive  the  judgment  His- 
cocks  V.  Kemp, 5  Nev.  &  M.  If 3 ;  1  Bar.  A  Woll. 


384. 


1948 


If  a  plaintiff  sues  a  second  ca.  sa.  on  one  jadjr- 
ment,  and  in  the  declaration  on  such  second  sci. 
fa.  he  misrecites  the  proceedings  on  the  prior  one, 
he  may  abandon  that,  amend,  and  proceed  on  the 
original  judgment.  Klos  v.  Dodd,  4  Dowl.  P.  C. 
67.  1960 

The  rule  for  quashing  a  sci.  fa.  on  the  applica- 
tion of  the  plaintiff,  after  appearance  and  before 
plea,  is  nisi  m  the  first  instance,  although  on  the 
terms  of  paying  costs.  Ade  e.  Stnbbs,  4  Dowl. 
P.  C.  282 ;  1  Har.  6l  WoU.  520.  1951 

If  there  is  an  objection  to  proceedings  in  sci. 
fa.,  on  the  ground  that  the  writ  had  not  lain  a 
sufficient  number  of  days  in  the  office,  the  de* 
fendant  should  not  apply  to  set  aside  the  writ, 
but  the  proceedings  thereon.  Williams  r.  Brown , 
2  Dowl.  P.  C.  749.  1951 

A  defendant  cannot  plead  an^  matter  to  a  set. 
fk.  on  a  judgment  which  he  might  have  pleaded 
to  the  original  action.  Baylis  v.  Hay  ward,  5  Nev. 
&  M.  613.  1950 

And  where,  to  a  sci.  fa.  on  a  judgment,  the 
defendant  pleaded  the  bankruptcy  of  the  plain- 
tiff, but  it  did  not  distinctly  and  affirmativelj 
appear  that  the  bankruptcy  had  occurred  since 


[SCIRE  FACIAS— SESSIONS] 


2611 


the  judgment  in  the  original  action,  the  plea  was 
held  bad  on  special  demurrer.    Id. 

Quere,  whether  it  would  be  good  on  general 
demurrer?    Id. 

It  is  not  necessary  for  a  partv  in  a  sci.  fa.  to 
return  the  demurrer  book ;  and  therefore,  a  judg- 
ment signed  for  not  returning  it,  is  irregular. 
Baylis  v.  Hayward,  3  Dowl.  P.  C.  533.  1951 


SEA. 

A  custom  for  the  inhabitant  landholders  of  a 
parish  to  dig  or  take  from  cloaes  adjoining  the 
sea  shore,  sand  which  had  been  from  time  to 
time  drifVed  from  the  shore,  and  carried  by  the 
wind  from  the  shore  into  and  deposited  upon 
such  closes,  is  bad.  First,  because  the  sand 
when  deposited  becomes  a  part  of  the  soil  of  the 
closes,  and  therefore  the  custom  is  for  taking  a 

Erofit  in  alieno  solo ;  secondly,  for  uncertainty,  it 
eine  impossible  to  distinguish  between  the  ori- 
ipnal  soil  of  the  closes,  and  the  sand  from  all 
time  drifted  upon  It.  Blewitt  v.  Tregonning,  5 
Ner.  ^t  M.  S234 ;  1  Uar.  d&  WoU.  431.  Id52 

Quere,  whether  stich  a  right  might  be  claimed 
by  prescription  ?    Id. 

By  letters  patent  King  Charles  the  First  rrant- 
ed  to  the  mayor  and  bnrcresses  of  Lyme  Regis 
the  borough  or  town  so  called,  and  also  the  pier, 
quay,  or  cob,  with  all  liberties  and  profits,  &c, 
belonging  to  the  same,  and  remitted  also  a  rent 
of  twenty-seven  marks  anciently  payable  by  the 
corporation  to  the  King ;  and  the  King  willed  that 
the  said  mayor  and  burgesses,  and  their  succes- 
sors, all  and  sin^lar  the  buildings,  banks,  sea 
shores,  &.c.  withm  the  said  borough  or  thereto 
belonging,  or  situate  between  the  same  and  the 
sea ;  and  also  the  said  pier,  &c.,  at  their  own 
costs  and  charges,  thenceforth  for  ever  should 
repair,  maintain,  and  support,  as  often  as  it  should 
be  necessary : — Held,  that  the  corporation  having 
accepted  the  charter,  became  bound  to  repair  the 
buildings,  banks,  sea-shores,  dec. ;  and  that  they 
were  liable  in  an  action  on  the  case,  at  the  suit  of 
an  individual,  for  an  iniury  resulting  from  their 
neglect  to  discharge  this  duty.  JLyme  Regis 
(Mayor)  v.  Henley,  1  Scott,  29;  1  Ring.  N.  R. 
222.  1953 

if  Spanish  dollars,  more  than  100  years  old,  be 
found  in  the  sands  of  a  sea-shore,  it  will  be  pre- 
sumed that  they  came  there  by  the  loss  of  some 
vessel  which  was  wrecked,  althouffh  no  part  of 
any  vessel  be  found  near  them.  Talbot  v.  Lewis, 
6  C.  &.  P.  60a-Parke.  1953 


SESSIONS. 

OeneraUy.'] — ^A  court  of  quarter  sessions  cannot 
be  adjourned  by  the  crier  without  the  presence  of 
the  justices.  Kez  r.  Middlesex  (Justices),  3  Nev. 
A  M.  110 ;  5  B.  &  Adol.  1113^  1955 

A  porty  found  g[uilty  by  a  jury  at  a  sessions  ir- 
regularly holden,  is  entitled  to  liave  the  record  of 
the  proceedings  correctly  made  up  according  to 

Vol.  IV.  43 


the  fact;  and  this  court  will  Mnt  a  mandamuf 
to  the  justices  to  make  up  such  record.    Id. 

The  court  of  quarter  sessions,  on  a  case  sent 
by  them  for  the  opinion  of  the  court  of  K.  B.| 
should  state  the  conclusion  of  fac't  which  they 
draw  from  the  evidence,  and  not  the  evidence  it- 
self. Rex  V.  St.  Cuthbert,  Wells,  3  Nev.  &  M. 
100.  1956 

Under  the  5  Geo.  4,  c.  83,  s.  14,  (Vagrant  Act), 
a  subsequent  court  of  quarter  sessions  have  power 
to  give  effect  to  a  judgment  pronounced  at  a  pre- 
vious sessions  of  the  same  court,  by  issuing  pro- 
cess of  execution  upon  a  conviction  as  awarded  at 
such  previous  sessions.  Rex  v.  Warwickshire, 
(Justices),  4  Nev.  &.  M.  370 ;  2  Adol.  &  Ellis, 
768;  IHar.  <&  WoU.  18.  1954 

A  mandamus  to  the  court  of  quarter  sessions 
will  go,  commanding  them  to  issue  such  process 
of  execution  where  there  has  been  no  delay  in 
making  the  application,  or  the  delay  has  been 
satisfactorily  acc^ounted  for.    Id. 

Special  Cases."] — Where  fraud  is  not  expressly 
found  by  the  sessions,'  the  court  of  K.  B.  cannot 
infer  it  from  any  state  of  facts.  Rex  v.  Llanfi- 
hangel  v.  Abercowin,  4  Nev.  &,  M.  355.        1956 

But  in  a  case  where  the  facts  were  such  as  to 
render  it  almost  certain  that  the  decision  of  the 
justices  at  sessions  must  have  proceeded  on  the 
^rround  of  fraud,  the  court  sent  back  the  case  to 
be  amended.    Id. 

Special  cases  from  the  sessions  should  be  drawn 
by  counsel.  Rex  r.  Woolpit,  5  Nev.  A  M.  526; 
1  Har.  dL  WoU.  483.  195& 

The  court  of  King's  Bench  wiU  entertain  no 
objection  to  an  order  of  sessions  which  upon  the 
face  of  it  does  not  appear  to  be  necessarihr  bad, 
unless  the  particular  facts  are  brought  before  the 
court  by  a  special  case.  Rex  d.  Cottingham,  4 
Nev.  A  M.  215;  2  Adol.  <&  Ellis,  250.  1956 

An  order  of  removal,  regular  on  the  face  of  it, 
was,  on  appeal,  quashed  by  order  of  sessions  **  for 
informality."  No  case  having  been  stated,  and 
the  two  orders  being  brought  up  by  certiorari,  this 
court  affirmed  the  order  of  sessions.  The  court 
of  quarter  sessions,  in  the  same  order,  awarded 
costs  to  the  appeUant : — Held,  that  they  had  pow- 
er to  do  so,  under  stat.  8  dt  9  WUl.  3,  c.  30^  s.  3, 
though  the  order  appeared  to  be  quashed  for  in- 
formality only.    Id. 

Where  upon  a  special  case,  it  appeared  that 
evidence  had  been  received  by  the  court  of  quar- 
ter sessions,  which  would  not  be  admissible  with- 
out a  previous  inquiry,  not  stated  to  have  been 
made,  the  court  or  Kind's  Bench  refused  to  pre- 
sume that  such  inquiry  had  been  made.  Rex  v, 
Rawden,  4  Nev.  &  M.  97 ;  2  Adol.  &  EUis,  156. 

195& 

The  court  also  refused,  to  send  the  case  back 
to  the  sessions  to  be  restated,  in  order  that  the 
omission  of  suoh  statement  might  be  supplied. 
Id. 

Where  it  has  been  referred  to  the  chairman  at 
sessions,  on  an  appeal,  to  state  a  case,  and  a  case 
has  afterwards,  on  certiorari,  been  returned  to  this 


2612 


[SESSIONS-.SET-OFF] 


court  by  the  clerk  of  the  peace,  purporting^  to  be 
signed  oy  the  chairman,  tnis  court  will  not  send 
it  Dack  to  be  restated,  or  quash  the  certiorari,  on 
the  ground  of  the  chairman  having  said  that  he 
did  not  recollect  signing  the  case,  and  upon  a 
suggestion  by  the  attorney  for  one  of  the  litigat- 
ing parties,  in  an  affidavit,  that  such  case  does  not 
agree  with  the  facts  proved,  and  that  deponent  be- 
lieves the  chairman  did  not  settle  the  case.  Rex 
V,  Matlock,  5  fi.  db  Adol.  883.  1956 

A  case  sent  back  to  the  sessions  to  be  restated, 
must  be  reheard ;  and  the  sessions  may  receive 
ftirther  eridence,  and  make  a  new  order  on  such 
rehearing.  Ret  v.  Blozam,  1  Adol.  &  Kllis,  386 ; 
SNev.  &M.385.  1956 

The  certiorari  by  which  the  original  order  was 
removed,  does  not  operate  to  remove  the  subse- 
quent one.  The  party  wishing  to  contest  such 
order  must  obtain  a  certiorari,  and  remove  it. 
Id. 

^ppealJ] — Where  by  the  practice  of  the  ses- 
sions eight  days'  notice  of  appeal  was  required  at 
the  first  sessions,  against  an  order  of  removal,  but 
fourteen  days'  notice  of  an  adjourned  appeal,  and 
an  appeal  was  dismissed  for  want  of  sumcient  no- 
tice for  the  adjourned  sessions,  the  court  refused 
to  interfere  with  the  practice.  Rex  v.  Monmouth- 
shire (Justices),  3  bowl.  F.  C.  306)  L  Bar.  <& 
WoU.  111.  1957 

Where  an  appeal  to  the  quarter  sessions  is 
given  by  a  statute  against  any  conviction  under 
it,  to  any  person  aggrieved  by  such  conviction, 
provided  he  gave  to  the  respondent  a  notice  in 
writing  of  sucn  appeal,  and  of  the  cause  and  mat- 
ter thereof,  and  the  court  of  quarter  sessions  are 
directed  to  hear  and  determine  the  matter  of  the 
appeal,  that  court  can  adjudicate  only  on  the 
matter  stated  in  the  notice.  Rex  v.  Boultbee,  6 
Nev.  &  M.  26.  1957 

And  therefore  where,  in  the  appellant's  notice, 
grounds  of  appeal  relating  to  the  merits  only  are 
stated,  the  sessions  cannot  quash  the  conviction 
for  defects  of  form.    Id. 

The  court  will  not  grant  a  mandamus  com- 
manding the  justices  in  sessions  to  try  an  appeal 
dismissra  for  want  of  notice  of  trial,  where  the 
court  of  quarter  sessions  has  granted  a  case  upon 
the  question  whether  it  had  been  rightly  dismiss- 
ed, which  has  been  abandoned  by  the  party  ap- 
ing for  the  mandamus.    Rex  v.  Yorkshire  W. 


t' 


.  (Justices),  3  Nev.  &,  M.  757;  5  B.  &  Adol. 


677. 


1957 


If  a  regular  notice  of  appeal  has  been  given  for 
one  sessions,  and  the  appeal  be  adjourned  at  the 
instance  of  the  appellants,  afler  hearing  counsel 
on  both  sides,  it  is  not  necessary  to  give  a  strictly 
regular  notice  of  trial  for  the  following  sessions. 
Rex  V.  Gloucestershire  (Justices),  3  Dowl.  P.  C. 
298.  1957 

When  the  quarter  sessions  have  improperly 
decided  against  an  appeal  on  a  preliminary  objec- 
tion, the  court  of  K.  B.  will  grant  a  mandamus 
to  them  to  enter  continuances  and  hear  the  ap- 
peal ;  but  where  an  objection  has  been  made  dur- 
ing the  trial  of  an  appeal,  to  the  reception  of  the 


particular  piece  of  evidence,  and  th6  seMums  have 
held  such  objection  valid,  in  consequence  of  which 
the  appeal  has  been  dismissed,  this  court  will  not 
interfere,  unless  the  sessions  send  up  a  case.  Rex 
V.  Frieston,  5  B.  &  Adol.  597.  1957 

SET-OFF. 

A  debt  doe  from  wife  dum  sola,  cannot  be  set 
off  against  a  note  given  to  the  wife  afler  marriage, 
if  the  husband  elect  to  treat  the  note  as  his  seve- 
ral property.    Borough  v.  Moss,  5  M.  &  R.  296. 

As  where  he  sues  upon  it  in  his  own  name.  Id. 

Or  indorses  it  over  to  a  third  person.    Id. 

And  it  is  immaterial  that  the  wife  joins  in  the 
indorsement     [d. 

Whether  the  debt  could  have  been  set  off  in  an 
action  brought  on  the  note  by  the  husband  and 
wife,  qusere  r    Jd. 

No  set-off  of  judgments  will  be  allowed,  even 
though  they  arise  out  of  the  same  award,  without 
satisfying  the  attorney's  lien.  Domett  v,  Helyer, 
2  Dowl.  P.  C.  540.  1962 

Where  two  actions  were  brought  by  and  against 
the  same  parties,  in  the  first  of^which  the  defen- 
dant obtained  an  award  in  his  favor,  and  in  the 
other  the  plaintiff  obtained  a  verdict  with  da- 
mages, the  court  refused  to  stay  proceedings  in 
the  firat  action  until  a  motion  for  a  new  trial  in 
the  other  was  disposed  of,  in  order  that  the  da- 
mages and  costs  m  the  action  might  be  set  off 
against  the  costs  of  the  other.    Johnson  v.  Lake- 
man,  2  Dowl.  P.  C.  646.  19G2 

By  articles  of  agreement  for  altering  and  re- 
pairmg  a  warehouse  for  a  fixed  price,  it  was  sti- 
pulated, that  in  the  event  of  the  work  not  beinr 
completed  in  three  months,  the  builder  should 
forfeit  and  pay  to  the  person  with  whom  he  con- 
tracted to  do  the  work,  51.  weekly;  and  every 
week  such  penalty  to  be  deducted  from  the  amount 
which  might  remain  due  on  the  completion  of  the 
work  : — Held,  in  an  action  brought  for  extra  work, 
that  the  employer  was  entitled,  afler  having  paid 
the  contract  price,  to  set  off  the  penalty  against 
the  extra  work ;  and  that  he  had  a  double  remedy, 
either  to  deduct  it  or  recover  it.  Duckworth  r. 
Alison,  1  Mees.  ^  Wels.  412.  1965 

A  defendant  can  set  off  those  debts  only  which 
were  due  to  him  from  the  plaintiff  at  the  time  of 
action  brouj^ht,  as  well  as  at  the  time  of  plea 
pleaded.  &aithwaite  v.  Coleman,  4  Nev.  dt  M. 
654.  1965 

A  plea  of  a  set-off  on  a  bill  of  exchange,  pay- 
able to  the  order  of  the  defendant,  and  accepted 
by  the  plaintiff,  is  not  supported  by  evidence  of 
a  bill  answering  to  the  description  in  the  plea, 
which  at  the  time  of  acUon  brought  was  in  the 
hands  of  a  third  party,  although  before  plea 
pleaded,  the  bill  had  got  back  to  the  hands  of  the 
defendant.    Id. 

A  rule  for  staying  proceedings  in  a  second  eject* 
ment  until  the  costs  of  the  first  have  been  paid, 
will  not  be  enlarged,  in  order  to  set  off  the  coats 
claimed  against  any  to  which  the  lessors  oF  the 
plaintiff  may  become  entitled  on  the  trial  oF  the 


r 


[SET-OFF— SEWERS] 


2613 


«econd  ejectmmit.  Doe  d.  Maalin  9.  Packer,  4  Tjr. 
144 :  S.  C.  nom.  Doe  d.  Martin  v.  Pucker,  2  C. 
&  M.  457.  1966 

Costa  in  Chancery  cannot  be  let-off  against 
costs  on  a  rule  of  K.  B.  Wenham  v.  Fowle,  2 
Dowl.  P.  C.  444.  1966 

The  court  will  not  order  costs  due  from  one 
party  to  another,  to  be  set  off  against  a  sum  ob- 
tained from  the  former  by  the  latter  to  obtain  his 
liberation  from  an  illegal  arrest,  but  ordered  by 
the  court  to  be  repaid.  Pitt  v.  Coombs,  1  Har.  & 
WoU.  13.  1966 

The  9Srd  rule  of  H.  T.  2  Will.  4,  does  not  pro- 
hibit the  setting-ofr  mutual  claims  for  costs  be- 
tween the  parties  in  the  same  suit.  In  an  action 
against  three  defendants,  a  verdict  was  found 
against  one  and  in  favor  of  the  other  two : — Held, 
that  the  costs  of  the  successful  defendants  might 
be  deducted  from  the  amount  of  damages  and 
costs  payable  to  the  plaintiff  by  the  oilier  defen- 
dant, without  regara  to  the  lien  of  the  plaintiff's 
attorney.  George  v.  Elston,  I  Scott, 518  ;  3  Dowl. 
P.  C.  419;  1  Sing.  N.  R.  513;  1  Hodges,  63. 

1966 

The  costs  of  a  cause  were  allowed  to  be  set-off 
against  a  sum  due  from  the  defendant  to  the 
plaintiff  on  another  account,  but  subject  to  the 
lien  of  the  plaintiff's  attorney :  the  cause  and  all 
matters  in  difference  having  been  referred,  and  the 
arbitrator  having  ordered  a  verdict  to  be  entered 
for  the  defendant,  but  found  that  the  defendant 
was  indebted  to  the  plaintiff  on  other  accounts. 
Caddell  v.  Smart,  4  Dowl.  P.  C.  760.  1966 

The  court  refused  to  allow  the  costs  of  a  case 
in  another  court,  in  which  the  plaiutiff  had  been 
Bonsaited,  to  be  set-off  against  costs  imposed  by 
way  of  penalty  on  the  attorney  for  the  defendant 
in  this  cause,  for  which  costs  an.  attachment  had 
issofid.    Dicas  v.  Warne,  1  Scott,  584.  1966 

Semble,  that  two  pleas  of  set-off  ma^  be  plead' 
ed  to  two  several  counts  of  a  declaration ;  or,  if 
demurrable,  that  it  must  be  on  the  ground  of  mis- 
joinder. Gibson  ur  Gibon  v.  Bell,  2  Scott,  721 ; 
1  Hodges,  136.  1967 

A  plea  of  set*off  of  a  certain  sum  a^inst  a 
larger  sum  claimed  in  the  declaration,  which  sum 
offered  to  be  set-off  the  defendant  alleges  to  be 
equal  to  the  damages  sustained  by  the  plaintiff 
by  reason  of  their  non-performance  of  tne  pro- 
mises mentioned  in  the  declaration,  was  held  bad 
on  special  demurrer.  Mee  v.  Tomlinson,  5  Nev. 
St  M.  ed4.  1967 

A  plea  of  set-off  of  a  particular  amount,  is  not 
supported  by  proof  of  a  set-off  of  a  less  amount ; 
but  the  plea  may  be  taken  distributively,  and  found, 
as  to  the  part  not  proved,  for  the  plaintiff;  and, 
as  to  the  part  proved,  for  the  defendant;  and  if, 
upon  the  finding  on  a  plea  of  nunquam  indebi- 
tatus, it  appears  on  the  record  that  the  plaintiff  is 
not  entitled  to  recover  a  larger  sum  than  that 
which  is  covered  by  the  proof  ^ven  under  the  de- 
fendant's pleas,  the  defendant  is  entitled  to  iudg- 
ment  on  tne  whole  record.  Cousins  v,  Paddon,  2 
C.  M.  dc.  R.  547;  4  Dowl.  P.  C.  488 ;  5  Tyr.535; 
1  GaW,  306.  1967 


A  d«»fendant  pleading  payment  and  a  set-off, 
who  is  unable  to  prove  the  full  amount  mentioned 
in  each  of  the  pleas,  but  proves  suflScient  to  form 
an  aggregate  equal  ^  the  plaintiff 's  demand,  will 
be  entitled  to  have  judgment  on  the  whole  record. 
Id. 

Where  any  plea  is  pleaded  besides  the  general 
issue^  a  notice  of  set-off  will  not  enable  the  de- 
fendant to  give  in  evidence  the  matters  of  his 
set-off  under  2  Geo.  2,  c.  22,  s.  13,  without  plead- 
ing it.  Duncan  v.  Grant,  1  C.  M.  &  R.  383 ;  2 
Dowl.  P.  C.  683;  4  Tyr.  818.  1967 

A  defendant  is  not  entitled  to  give  evidence  of 
a  set-off,  under  a  notice  of  set-off  delivered  with 
the  plea  of  nunquam  indebitatus,  since  the  rules 
of  H.  T.  4  Will.  4 ;  and  the  judges  were  not  re- 
strained by  the  proviso  in  the  3  &  4  Will.  4,  e.  42, 
s.  1,  from  making  the  rule  of  H.  T.  4  Will.  4,  re- 
quiring that,  in  all  cases  a  set-off  shall  be  pleaded. 
Graham  v.  Partridge,  1  Mees.  &  Wels.  395. 1967 

If  the  plaintiff  replies  nunquam  indebitatus  to 
a  plea  of  set-off,  and  the  defendant  proves  his 
plea,  the  plaintiff  will  not  be  at  liberty  under  his 
replication  to  show  that  the  sum  proved,  or  even 
any  part,  has  been  paid.  Brown  v.  Daubeny,  4 
Dowl.  P.  C.  565.  1968 


SEW£RS. 

A  local  act  provided  that  no  ditch,  &c.  should 
be  arched  over,  Slc.  without  the  consent  of  the 
trustees  under  the  act.  Under  a  penalty  of  50/. : — 
Held,  that  a  surveyor,  who,  after  a  sewer  had  been 
commenced,  directed  it  to  be  continued,  (without 
the  consent  of  the  trustees),  had  incurred  the  pen- 
alty. Woodward  v.  Cotton,  1  C.  M.  &  R.  44 ;  6 
C.  &  P.  489 ;  4  Tyr.  689.  1969 

The  arching  over  an  old  ditch  of  smaller  di- 
mensions than  were  mentioned  in  a  consent  to  the 
making  of  a  sewer  in  writing,  by  certain  trustees 
under  an  act  of  parliament,  was  held  to  be  a 
breach  of  a  section,  providing  that  no  ditch,  drain, 
or  other  water-course  ^should  be  narrowed^  filled 
up,  altered,  covered  in,  or  arched  over,  without 
the  consent  of  such  trustees,  nor  in  any  other 
manner  than  should  be  expressed  in  such  consent. 
Id. 

All  persons  whose  property  derives  any  advan- 
tage from  tlie  works  of  the  commissioners  of 
sewers,  may  be  assessed  to  the  sewer's  rate  in  re- 
spect of  that  property.  Soady  v,  Wilson,  4  Nev.  dk 
M.  777 ;  3  Adol.  &  Ellis,  248 ;  1  Har.  &  WoU. 
256.  1969 

And  property  drained  by  sewers,  and  drains 
oriffinally  made  and  alwa^vs  repaired  by  persons 
in<fependent  of  the  eommissionera  of  sewera,  and 
deriving  no  immediate  benefit  from  the  works  of 
such  commissioners,  may  be  assessed  by  reason  of 
the  general  benefit  and  advantage  resulting  from 
such  property  becoming  thereby  accessible,  and 
of  its  approaching  and  neighboring  public  ways 
being  properly  drained  and  cleansed.  Id. 

Held,  that  apartments  in  Somerset  House,  ap- 
propriated to  the  office  of  \ht  eommissionera  for 
auditing  the  public  accounts,  are  rateable  by  the 
oommissioners  of  sewers  for  the  city  and  liberty 


26)4 


[SEWERS— SHERIFF] 


of  WestmiiLster  and  parts  of  Middlesex,  although 
Somerset  House  is  declared  by  act  of  parlia- 
ment to  be  vested  in  the  crown,  free  from  all 
incumbrances,  for  the  purpose  of  establishing 
within  the  same  that  amongst  other  public  of- 
fices. Id. 

By  52  Geo.  3,  c.  46,  s.  7,  all  persons  are  liable 
to  be  rated  to  the  sev^er's  rate,  ni  occupiers  of  pre- 
mises rateable  thereto,  who  are  de  facto  rated  in 
respect  of  such  premises  to  the  poor-rates  of  the 
parishes  to  which  that  act  applies.  Id. 

If  commissioners  of  sewers  have  jurisdiction 
to  rate  a  particular  district,  the  court  will  not  mi- 
nutely inquire  into  the  way  in  which  they  have 
exercised  that  jurisdiction.  Id. 


SHERIFF. 

Liability  for  Acts  of  Ojjicer.l — Declarations 
made  by  an  officer  whilst  in  possession  of  goods 
under  a  fi.  fa.,afler  the  return  of  tlie  fi.  fa.,  are 
evidence  against  the  sheriff;  and  no  new  warrant 
is  necessary  after  a  writ  of  venditioni  exponas  to 
connect  the  officer  with  the  sheriff.  Jacobs  v. 
Humphrey,  2  C.  <&  M.  413 ;  4  Tyr.  272.        1972 

By  the  practice  of  a  borough  court,  writs  of 
ca.  sa.  are  directed  to  A.  B.,  serjeant-at-mace  of 
the  said  borough,  and  also  to  C.  D.  and  £  F. 
(naming  one  or  more),  pereons  who  are  ap- 
pointed by  the  seijeant  to  execute  the  process  of 
the  court,  and  who  give  an  indemnity  to  him. 
No  warrant  is  ever  made  out  on  those  writs.  The 
Serjeant  dismisses  the  officer  at  his  pleasure,  and 
takes  the  fees  for  the  execution  of  the  process 
If  it  is  wished  that  process  should  be  executed  by 
an^  body,  not  being  of  the  persons  so  appointed, 
it  IS  done  by  consent  of  the  serjeant  on  applica- 
tion to  him,  and  in  such  case  a  special  indemnity 
against  the  acts  of  such  person  is  giveki  to  the 
Serjeant  The  s^jeant  is  always  ruled  to  return 
these  writs,  and  he  is  served  personally  with  the 
rule ;  he  does  not  return  them  himself,  but  the 
officers  return  them  in  their  own  names.  Thie 
attachment  for  not  returning,  &.c.  issues  against 
th6  serjeant,  and  bail-bonds  are  always  taken  out 
in  his  name : — Held,  that  the  officers  were  the 
officers  of  the  ser)eant-at-mace,  and  that  he  was 
responsible  for  their  default  in  the  execution  of 
the  process.  Morris  v.  Parkinson,  1  C,  M.  &  R. 
163 ;  4  Tyr.  700,  1978 

In  an  action  against  the  plaintiff  for  the  extor- 
tion of  his  officer,  the  officer  undertook,  by  a  writ- 
ten memorandum,  in  consideration  of  a  sum  of 
money  being  accepted  and  proceedings  stayed, 
with  costs,  in  seven  days,  and,  on  default  thereof, 
that  the  plea  should  be  withdrawn,  and  that  the 
plaintiff  should  have  judgment.  The  undertak- 
ing not  being  complied  with,  the  court  refused  a 
rule  nisi  to  tompel  the  officer  to  perform  his  un- 
dertaking, he  not  being  an  officer  of  the  court. 
Brown  V.  Gerard,  1  C.  M.  ^  R.  595  ;  3  Dowl.  P. 
C.  217;  5  Tyr.  220.  1972 

A  sheriff's  officer  proved  that  he  had  seized 
goods  under  a  warrant  on  a  fi.  fa.,  which  was 
brought  to  him  by  his  man,  who  told  him  that  he 
had  obtained  it  from  the  sheriff's  office.  The 
p.^cer  also  stated,  that  be  knew  the  handwriting 


on  the  warrant,  which  he  had  subsequently  lost : 
— Held,  that  this  was  sufficient  evidence  to  prove 
that  the  officer  acted  under  the  authority  of  the 
sheriff.  Moon  v.  Raphael,  2  Scott,  489 ;  7  C.  &  P. 
115 ;  2  Ring.  >N.  R.  310 ;  1  Hodges,  289.        197^ 

In  trespass  against  bailiff  and  sheriff,  for  taking 
plaintiff  on  a  change  of  felony  to  a  police  station, 
and  thence  to  a  prison,  the  sheriff,  ailer  pleading 
the  general  issue,  justified  the  taking  from  the 
police  station  to  the  prison  under  a  ca.  sa.  The 
plaintiff  admitting  the  writ,  and  the  delivery  of 
the  warrant  to  the  bailiff,  replied  de  injuria  ab- 
sque residue  causa : — Held,  that  under  this  re- 
plication he  could  not  give  evidence  to  involve  the 
sheriff  in  the  <  misconduct  of  the  bailiff,  commit- 
ted before  the  plaintiff  arrived  at  the  police  sta- 
tion :  in  order  to  the  admission  of  such  evidence, 
the  ciroumstances  should  have  been  replied  spe- 
cially. Price  t^.  Peek,  1  Scott,  205 ;  1  Bing.  N.  R. 
380.  1973 

The  sheriff  is  a  constituent  part  of  the  county 
court,  and  acts  as  such  in  issuing  process  of  exe- 
cution, and  is  not  liable  for  the  wrongful  act  of 
the  bailiff  done  in  the  execution  of  such  process. 
Tunno  c.  Morris,  2  C.  M.  &  R.  298 ;  4  Dowl.  P. 
C.  224 ;  1  Gale,  259.  1972 

Croum  Process.] — "Where  a  convict  is  sentenced 
to  death,  the  proper  officer,  in  default  of  express 
order  to  do  execution,  is  the  officer  who  has  the 
legal  custody  of  such  convict.  Rex  v.  Antrobus, 
6  C.  &  P.  784  ;  2  Adol.  &,  EUis,  798  ;  4  Nev.  A; 


M.  565 ;  1  Har.  &  WoU.  96. 


1974 


Supposing  that  the  court  may  authoriie  another 
officer  to  execute,  such  authority  must  be  given 
by  express  order  directing  the  second  officer  to 
execute,  and  sufficiently  explicit  for  the  first  offi- 
cer to  be  bound  by  it  to  surrender  the  custody  to 
the  second.   Id. 

It  is  not  equivalent  to  such  an  order,  if  the 
clerk  of  assise,  by  direction  of  the  judge  who  has 
tried  and  sentenced  the  convict,  shows  to  the 
sheriff  of  the  county  in  which  the  offence  was 
committed,  not  having  the  custody,  a  calendar 
signed  by  the  judge,  with  a  minute  of  the  sen- 
tence in  the  margin,  at  the  same  time  delivering 
him  a  copy.  Id. 

Although  the  sheriff  acknowledge  the  receipt 
of  the  cuendar,  and  at  the  same  time  refuse  to 
e;(ecute.  Id, 

Especially  where  the  officer  having  the  legal 
custody  has  previously  received  an  order  of  ue 
judge,  directmg  that  a  third  officer  shall  do  ex* 
cution.  Id. 

A  sheriff  is  not  bound  to  do  execution  on  ft 
criminal  convicted  in  his  countv,  if  such  criminal 
is  not  in  his  custody ;  unless  the  court  by  a  spe- 
cial mandate  direct  the  party  who  \i^  the  crimi- 
nal in  custody  to  deliver  htu)  to  the  sheriff,  and 
order  the  sheriff  to  receive  the  prisoner,  ana  exe- 
cute him.  Id. 

The  sheriffs  of  the  county  for  the  citv  of  Ches- 
ter have  for  many  years  executed  all  criminals 
sentenced  to  death  for  offences  committed  in 
Cheshire,  by  order  of  the  court  trying  the  pri- 
soners.   Supposing  them  to  h^ve  been  boiind  by 


[SHERIFF] 


3615 


eustoni  to  execute  as  above,  qassre,  whether  this 
costom  was  done  away  by  stat.  1 1  Geo.  4  &  I 
Will.  4,  c.  70  ?  (But  now  see  stat.  5  &.  6  Will.  4, 
c.  1).  id. 

On  the  trial  of  an  information  a^inst  a  sheriff 
of  a  county,  for  notexecuting  a  convict  sentenced 
to  death,  a  witness  cannot  be  asked  whether  he 
has  heard  that  it  was  the  custom  for  the  sheriff 
to  be  exempt  from  performing,  or  for  another 
officer  to  perform  the  duty  in  that  particular 
county.  Although  it  has  been  proved  that  such 
other  officer  has,  in  fact  (under  orders  of  the 
court),  always  performed  it  within  living  mem- 
ory.  id. 

For  the  purpose  of  showing  the  liabilitv  of  such 
sheriff  to  execute  or  gibbet  criminals  when  com- 
manded, orders  made  upon  former  sheriffs  of  the 
same  county  requiring  them  to  perform  the  said 
duties,  and  examined  copies,  from  the  Exchequer, 
of  allowances  by  chancellors  of  the  Exchequer, 
of  their  cravings  for  the  expenses  of  so  doing 
may  be  given  in  evidence,  and  that  without  first 
giving  other  proofs  of  the  judgments  passed  upon. 
such  criminals.  Id. 

.  Quaere,  whether  the  calendar  signed  by  the 
judge  of  assize  can  be  received  in  evidence  against 
a  sheriff,  without  notice  to  produce  the  copy  serv- 
ed on  him  by  the  clerk  of  the  peace  ?  Id.' 

On  a  question,  whether  by  custom  a  sheriff  of 
a  county  is  exempt  from  the  duty  of  executing 
criminals  convicted  in  his  county,  evidence  of  re- 
putation is  not  receivable.  Id. 

Nor  is  evidence  admissible  that  by  custom  the 
sheriffs  of  a  city  are  bound  to  execute.  Id. 

An  information  being  filed  against  the  sheriff 
of  the  county  of  Chester,  for  not  executing  a  cri- 
minal condemned  to  death  for  felony  committed 
in  the  county,  the  court  refused  to  issue  a  man- 
damus to  the  corporation  of  the  city  of  Chester, 
to  allow  an  inspection  on  the  defendant's  behalf, 
of  its  muniments,  so  far  as  they  applied  to  an 
alleged  obligation  of  that  corporation  or  its  offi- 
cers to  execute  such  criminal,  though  it  was 
sworn  that  the  muniments  were  believed,  to  con- 
tain matter  of  importance  to  the  defence,  and 
though  the  partv  applying  for  the  inspection  was 
a  freeman,  who  had  demanded  it  in  that  character, 
stating  at  the  same  time,  that  his  object  was  to 
obtain  information  for  the  benefit  of  the  defend- 
ant. Id. 

Duty  and  [Aalnlity  on  Arrest.'] — It  is  not  nece^ 
sary  that  the  sheriff's  warrant  issued  upon  a  ca- 
pias should  specify  the  court  out  of  which  the  pro- 
cess issues.  Astley  v.  Goodyer,  2  Dowl .  P.  C.  619 : 
2  C.  &  M.  682 ;  4  Tyr.  414.  1975 

A  written  memorandum  of  an  arrest,  and  of 
the  plaee  where  it  occurred,  made  by  a  sheriff 's 
officer,  contemporaneously  with  effecting  the  ar- 
rest, sent  immediately  to  the  sheriff's  office,  and 
there  filed  in  the  course  of  business,  is  not  ad- 
missible evidence  of  the  place  at  which  the  arrest 
took  place  afler  the  deatn  of  the  officer,  in  an  ac- 
tion between  third  persons.  Chambers  v.  Bernas- 
coni  (in  error),  1  C.  M.  &  R.  347 ;  4  Tyr.  531. 

1976 

It  is  no  objection  to  an  arrest,  that  it  takes  place 


in  a  gaol,  if  a  defendant  is  there  for  his  own  pur- 
poses.   Loveitt  V.  Hill,  4  Dowl.  P.  C.  579.    1975 

In  trespass,  for  freaking  into  the  plaintifTs 
house,  which  was^an  unfinished  house,  the  defen- 
dants justified  under  a  writ  of  ca.  sa.  against  plain- 
tiff, and  averred,  tiiat  tliey  peaceably  entered  the 
house  through  a  hole  in  the  wall.  It  appeared 
that  this  hole  in  the  outer  wall  of  the  house 
opened  into  a  small  room  or  closet,  which  had  a 
room  over  it,  and  a  room  under  it,  and  that  hav- 
ing entered  this  place  the  defendants  tore  down 
some  boards,  by  which  a  staircase  window,  which 
opened  into  this  place,  was  boarded  up.  It  was 
proved  by  the  builder,  that  this  hole  in  the  outer 
wall  was  not  intended  to  have  either  a  door  or 
window  put  into  it,  but  was  to  remain  open,  so 
that  the  place  in  question  should  be  used  as  a 
conservatory  :— Held,  that  if  this  hole  in  the  wall 
had  been  intended  tb  have  had  a  door  or  window 
put  into  it,  it  must  be  considered  that  the  outer 
fence  of  the. house  was  left  open,  and  that  the  de- 
fendants were  justified  in  entering ;  but  that,  if 
this  hole  was  always  intended  to  be  lefl  open,  the 
staircase  window  must  be  considered  as  the  oi^ter 
fence  of  the  house,  and  that  the  defendants  were 
therefore  not  justified  in  forcing  it.  Whalley  v, 
WUliamson,  7  C.  &  P.  294— Aldmon.         1976 

Trespass  for  breaking  and  entering  plaintiff's 
dwelling-house,  and  assaulting  and  imprisoning 
him,  &c.  Pleas — first,  not  guilty  ;  secondly,  as 
to  all  the  trespasses  alleged,  except  the  breaking 
of  the  house,  a  justification  under  a  writ  of  ca.  sa. 
and  warrant  thereon,  by  virtue  of  which  the  de- 
fendants entered  the  }iouse,  the  outer  door  being 
open,  and  arrested  the  plaintiff.  Replication,  ao- 
mitting  the  writ  and  warrant,  de  injuria  absque 
residue  causoB.  It  was  proved  that  the  defen- 
dants, who  were,  bailiffs,  m  execution  of  the  war- 
rant broke  open  the  outer  door  of  the  plaintiflTs 
house,  and  so  gained  an  entrance,  and  arrested 
him  : — Held,  first,  that  the  averment  in  the  plea 
that  the  outer  door  wai  open,  was  a  material 
averment,  for  that  the  doors  being  open  was  a 
condition  precedent  to  the  defendant's  right  to 
enter  and  arrest  the  plaintiff  in  his  own  house ; 
and,  therefore,  that  the  plea  was  sufficiently 
traversed  by  the  general  replication,  and  it  was 
not  necessary  to  replv  tne  breaking  of  the 
outer  door ;  secondly,  tnat  the  defendants  hav- 
ing become  trespassers  ab  initio,  by  the  break- 
ing of  the  door,  the  jury  were  rightly  directed, 
that  they  might  (even  on  the  plea  of  not  guilty), 
given  damages  in  respect  of  all  the  injuries  com- 

Slained  of  in  the  declaration.    Kerby  v.  Denby,  1 
lees.  &  Wels.  336.  ,  1976 

The  defendant  was  arrested  on  the  12th  May, 
carried  to  gaol  on  the  15th,  and  a  declaration 
delivered  on  the  28th : — Held,  that  an  application 
on  the  4th  June  to  discharge  him  out  of  custody, 
on  the  ground  that  he  had  been  carried  out 
of  the  county,  and  there  detained  two  days  before 
he  was  taken  to  the  county  gaol,  was  too  late. 
Fownes  v.  Stokes,  2  Scott,  Wb ;  4  Dowl.  P.  C. 
125.  1977 

Quiere,  whether  this  would  be  any  ground  for 
discharging  the  defendant,  even  haa  tqe  applica- 
tion been  made  in  time .'   Id. 

In  an  action  of  debt  for  a  penalty  of  50^  for 


2616 


[SHERIFF] 


carrjiBg  the  plaintiff  to  a  prison  under  mesne 
process,  within  twenty-four  iiours,  the  defendant 
pleaded  that  it  was  by  tii^plaintifTs  own  con- 
eent  Replication,  that  the  plaintiff  did  not  con- 
sent : — Held,  that  on  thene  proceed! ngB  the  de- 
fendant should  begin,  as  the  plaintiff  did  not  go 
for  unliquidated  damages.  Silk  v.  Humphrey, 
7  C.  &  F.  14— Colerid^.  ^  1977 

Taking  a  defendant  to  prison  within  twenty- 
four  hours.  Dewhirst  t.  Pearson,  1  C.  &  M.  36o; 
3  Tyr.  243 :  S.  P.  Simpson  v.  Renton,  2  Nev.  A 
M.  52.  '  1978 

Carrying  an  arrested  party  to  public-houses 
within  twenty-four  hours  after  the  arrest,  with- 
out lodging  him  in  jail  within  that  time,  is  liot 
a  beginning  to  "  carry  to  jail"  within  32  Geo 
2,  c.  28,  s.  T.  Summers  9.  Moseley,  4  Tyr.  158 ; 
2  C.  &  M.  477.  .     1978 

Semble,  if  a  party  is  arrested  on  mesne  pro- 
cess, and  when  called  on  by  the  officer  to  name 
a  safe,  &c.  dwelling-house  to  which  he  will  be 
carried,  names  his  own  house,  to  which  the  offi- 
cer objects,  pursuant  to  section  1  of  the  32  Geo. 
2,  c.  &,  he  cannot  be  carried  to  any  tavern,  dec. 
without  his  free  consent.    Id. 

Refusing  to  accept  a  bail-bond,  conditioned 
according  to  the  exigency  of  a  writ  of  capia)$, 
under  the  Uniformity  of  Process  Act,  subjects  a 
«heriff  to  the  penalties  of  the  23  Hen.  6,  c.  9. 
Evans  v.  Moseley,  2  C.  &  M.  490.  1978 

In  an  action  for  such  refusal,  the  declaration 
-averred  a  tender  of  bail  and  sureties,  that  the 
party  should  within  eight  days  afler  Uie  execu- 
tion of  such  writ,  inclusive  of  the  day  of  such 
execution,  cause  special  bail  to  be  put  in,  Ac. 
The  bond  produced  was  to  cause  special  bail  to 
be  put  in  within  eight  days  from  the  date  thereof, 
the  bond  being  dated  on  the  day  of  the  arrest : — 
Held,  no  variance.  Id. 

A  pcirty  having  been  arrested,  his  attorney  dis- 
covered an  irrejrolority  in  the  proceedings,  and 
^ve  the  plaintiff  notice  of  it,  whereupon  ne  dis- 
•continued  the  action,  and  the  defendant's  costs 
were  accordingly  taxed  and  paid.  The  plaintiff 
afterwards  sued  out  a  second  writ,  upon  which 
the  defendant  was  arrested.  On  the  execution 
of  the  first  writ,  the  defendant's  attorney  gave 
the  sheriff  an  undertaking  to  procure  a  baU-bond, 
And  the  sheriff  having  had  no  notice  from  the 
plaintiff  of  the  discontmuance,  said  he  must  de- 
tain the  defendant  on  both  writs.  On  a  motion  to 
discharge  the  defendant  out  of  custody : — Held, 
that  it  was  unnecessary  to  give  the  sheriff  notice 
of  the  discontinuance;  and  it  not  appearing  that 
the  defendant  had  sustained  any  damage,  the 
4:ourt  refused  the  application.  Price  v.  Day,  1  C 
M.  &  R.  937.  1978 

Where  an  attorney's  clerk  accompanied  a  cre- 
ditor to  his  debtor,  and  pretended  tnat  he  was  a 
sheriff's  officer,  and,  in  consequence,  the  defen- 
dant went  away  with  them,  not  willingly,  but 
supposing  they  had  power  to  compel  him ;  it  was 
held,  that  it  was  a  sufficient  arrest  to  maintain 
trespass  for  false  imprisonment,  although  no  writ 
was  produced,  and  it  did  not  distinctly  appear 
that  either  the  creditor  or  the  clerk  touched  the 
debtor  at  all.  Wood  v.  Lane,  6  C«  &  P.  744— 
TindaU.  1979 


Whete  two  bailiff's  kept  watching  a  defendant 
at  a  particular  house,  and  had  a  warrant  to  arreat 
him,  and  in  fact  would  have  arrested  him  if  he 
had  endeavored  to  get  away,  but  did  not  produce 
the  warrant,  or  act  on  it : — Held,  th&t  it  did  not 
constitute  an  arrest,  and  that  he  might  be  after- 
wards arrested  for  the  same  debt  witliout  a  judge** 
order.  Hender  v,  Robins,  1  Har.  &  WoII.  foA  : 
S.  C.  nom.  Robins  v.  Hender,  3  Dowl.  P.  0. 543. 

1979 

Where  the  plaintiff's  attorney  obtained  from 
the  sheriff's  deputy  in  London  a  warrant,  which 
he  sent  to  an  dficer  in  the  country  by  the  post, 
but  did  not  pay  the  postage,  and  the  officer  hav- 
ing in  consequence  refused  to  take  in  the  letter, 
it  was  returned  to  the  dead  letter  office  : — Held, 
that  under  these  circumstances  the  sheriff  could 
not  be  called  on  to  return  the  writ.  Hart  v. 
Weatherley,  4  Dowl.  P.  C.  171.  1980 

A  writ  issued  on  17th  April,  was-  accounted 
non  est  inventus  on  4th  June,  without  a  judge's 
order  authorizing  the  sheriff  to  make  such  a  re- 
turn before  the  tour  months  expired  : — Held,  that 
as  the  judge's  order  need  not  be  staled  in  the 
writ,  it  must  be  assumed  that  the  return  was  re- 
gularly obtained.    Lewis  v.  Davison,  5  Tyr.  198. 

1979 

Semble,  that  where  one  sheriff  has  made  a 
special  return  to  a  writ  of  capias,  the  court  will 
not  compel  his  successor  to  make  another,  the 
circumstances  remaining  unaltered.  Pasmore  r. 
Wilkinson,  3  Dowl.  P.  C.  635.  1980 

Where  a  defendant  has  been  rescued  from  a 
bailiff,  the  sheriff  may  return  the  rescue  as  from 
his  bailiff,  and  not  from  himself.  Gobbey  v.  Dewes, 
3  M.  &  Scott,  556 ;  2  Dowl.  P.  C.  747.  1990 

The  sheriff  is  bound  to  pay  the  necessary  fee 
for  opening  the  treasury  during  vacation,  in  order 
to  file  his  return,  if  an  order  to  make  the  return, 
under  section  15  of  the  Uniformity  of  Process 
Act,  has  been  made.  Rex  v.  Surrey  (Sheriff),  3 
Dowl.  P.  C.  82.  lOeO 

One  rule  is  sufficient  in  the  Exchequer  to 
make  a  judge's  order  for  returning  a  writ  in 
vacation  a  rule  of  court,  pursuant  to  Reg.  Gen. 
M.  T.  3  Will.  4,  No.  13,  and  also  to  call  on  a 
sheriff  to  show  cause  why  an  attachment  should 
not  issue  against  him  for  disobeying  such  order. 
Kensit  v.  Bolteel,  4  IVr.  59 :  S.  C  nom.  Howell 
tf,  Bulteel,  2  C.  &  M.  339 ;  3  Dowl.  P.  C.  99  n. 

1960 

Contra  in  K.  B,  iStaiuland  v.  Ogle,  3  Dowl.  P. 
C.  99.  Id. 

Action  for  a  false  return.  Goubot  v.  De  Crouy, 
3  Tyr.  906.  1981 


^Udchment.] — It  is  not  necessary  for  bail,  on 
moving  to  set  aside  an  attachment,  to  swear  that 
it  is  at  tneir  expense.  Rex  v.  Middlesex  (Sheriff^v 
2  Dowl.  P.  C.  116.  1984 

A  motion  for  setting  aside  a  re^lar  attach- 
ment against  the  sheriff,  for  not  bringing  in  the 
body  on  payment  of  costs,  must  be  supported  by 
an  affidavit  that  bail  above  have  justified,  or  that 
the  defendant  has  been  arrested.  Rex  v.  Lin* 
colnshire  (Sheriff),  4  Dowl.  P.  C.  455 ;  2  C.  M. 
&R.657;  ITyr.  &G.92.  1964 


[SHERIFF] 


2617 


It  is  not  necemary  for  the  pnrpooe  of  such  a 
niotioii,  that  the  bait  should  deny  coUcuiion,  &c., 
if  the  deiendant  swears  that  he  has  a  good  de* 
fence  to  the, action  on  the  merits-    Id. 

Where  an  attachment  has  been  obtained 
against'  the  sherilT  for  not  bringing  in  the  body, 
it  is  not  necessary  that  bail  above,  who  are  af- 
terwards put  in  for  the  purpose  of  renderingr  the 
defendant,  should  justiiy  before  such  renoer  is 
made,  in  order  to  entitle  them  to  set  aside  the 
attachment  on  payment  of  costs.  Rex  v.  Middle- 
sex (Sheriff),  4  Dowl.  P.  C.  673 ;  1  Mees.  &  Wels. 
182.  1985 

In  order  to  set  aside  an  attachment  against  a 
sheriff  for  not  bringing  in  the  body,  the  affidavit 
should  state  that  Uie  application  is  made  on  his 
behalf,  and  at  his  expense,  as  well  as  that  he  is 
not  in  collusion  with  the  defendant,  by  analogy  to 
Reg.  Gen.  of  K.  B.  M.  59  Geo.  3.  Rex  v.  Surrey 
(Sheriff),  1  C.  M.  &  R.  581 ;  3  Dowl.  P.  C.  174  5  5 
Tyr.  184.  1984 

An  application  to  set  aside  an  attachment  may 
be  made  by  one  of  the  bail  on  his  own  affidavit 
denying  collusion,  without  an  affidavit  from  the 
other  bail.  Rex  v.  Middlesex  (Sheriff),  3  DowL 
P.C.  186.  1964 

Where  there  has  been  a  default,  an  attachment 
•gainst  the  sheriff  may  be  obtained,  though  the 
defendant  is  surrendered  before  the  attacnment 
is  moved  for.    Id. 

In  moving  for  an  attachment  against  the  she- 
riff for  not  bringing  in  the  body,  it  is  sufficient 
to  swear,  that  the  original  rule  and  not  a  copy 
was  served  on  the  under-sheriff.    Leaf  v.  Jones, 

3  Dowl.  P.  C.  315.  1984 

Though  rendering  a  defendant  is  equivalent 
to  justifying  bail,  for  the  purpose  of  setting  aside 
proceedings-  against  the  sheriff,  yet  where  a 
iiidge*s  order  was  obtained  for  time  to  justify 
bai^  and  the  defendant  was  rendered  instead  of 
the  bail  beine  justified,  the  court  would  not  set 
aside  an  attacnment  afterwards  obtained,  ^^^cept 
on  nayment  of  costs*  Rex  0.  Middlesex  (Sheriff), 

4  Dowl.  P.  C.  358.  1985 

A  regular  attachment  for  not  returning  a  writ 
of  capias,  may  be  set  aside  on  payment  of  costs, 
although  the  sheriff  took  a  bail-bond  with  one  se- 
curity only.  Rex  v,  Surrey  (Sheriff),  2  C  M. 
&  R.  498;  1  Tyr.  &  G.  32;  1  Gale,  319.     1985 

Semble,  aJiler  of  an  attachment  for  not  bring- 
ing  in  the  body.    Id. 

Where  the  writ  was  returnable  on  the  22nd, 
and  the  plaintiff  did  not  declare  de  bene  esse  till 
the  30th,  the  court,  on  setting  aside  an  attach- 
ment against  the  sheriff,  on  payment  of  costs, 
refused  to  order  the  attachment  to  stand  as  a 
security,  it  not  appearing  that  the  plaintiff  had 
lost  a  trial.  Rex  v.  Middlesex  (Shenff),  3  Dowl. 
P.  C.  194.  1985 

It  lies  on  the  plaintiff  in  such  a  case  to  show 
that  he  has  lost  a  trial.    Id. 

The  affidavit  of  the  officer  need  not  deny  col- 
lusion with  the  bail,  nor  need  the  bail  deny  col- 
lusion with  the  officer.    Id. 

If  the  sheriff  is  required  by  a  judge's  order  lo 


bring  in  the  body  in  vacaUon,  and  he  does  not 
obey  it  in  due  time,  but  before  an  attach mept  is 
obtained,  the  defendant  is  rendered,  the  contempt 
is  not  purged,  and  he  is  still  liable  to  an  attacn- 
ment. The  court  will  however  set  it  aside,  on 
payment  of  costs,  and  not  order  it  to  stand  as  a 
security  where  the  plaintiff  has  not  lost  a  trial. 
Rex  V.  Middlesex  (Sheriff),  2  Dowl.  P.  C.  432. 

1985 

The  court  ordered  an  attachment  against  the 
sheriff  to  stand  as  a  security,  ^here,  baa  bail  been 
put  in  and  perfected,  tlie  plaintiff  might  have  set 
down  the  cause  for  the  sittings  in^  the  term,  not^ 
withstanding  the  accidental  circumstance  of 
there  being  at  the  time  no  place  for  the  trial  of 
causes  in  the  C  P.  in  term.  Rex  r.  Middlesex 
(Sheriff))  1  Scott,  581 ;  4  Dowl.  P.  C.  142.    1965 

Where,  on  showing  cause  ag^ainst  a  rule  for 
setting  aside  an  attachment  against  the  sheriff, 
on  pavmenl  of  costs,  the  only  question  made  was, 
whether  the  bail-bond  should  stand  as  a  security, 
and  the  court  made  the  rule  absolute  with  that 
term,  but  the  plaintiff  subsequently  discovered 
that  an  error  had  been  made  in  the  dates,  and 
that  he  was  not  entitled  to  have  the  bail-bond 
stand  as  a  security: — Held,  that  he  could  not 
then  urffe  a  formal  objection  to  the  affidavit  on 
which  the  rule  was  obtained^  Langton  v.  Viney, 
1  Mees.  &,  Wels.  479.  1985 

Where  an  arrest  took  place  on  the  5th  of 
January,  and  bail  was  put  in  on  the  12th,  and 
the  body  rule  expired  on  the  20th : — Held,  that 
an  attachment  obtained  in  Hilary  Term  might 
be  set  aside,  without  its  standing  as  a  security, 
as  the  plaintiff  had  not  been  prevented  from  en- 
tering nis  cause  for  trial  in  the  terra  next  after 
the  return  of  the  writ.  Rex  v.  Anthony,  4  Dowl. 
P.  C.  765.  1965 

In  discussing  a  rule  nisi  for  an  attachment 
against  a  sheriff  for  an  insufficient  return  to  a 
writ,  the  court  will  not  take  cognizance  of  the 
return,  unless  an  office  copy  be  produced,  verified 
by  affidavit  by  a  party  as  to  his  belief  that  no 
sufficient  return  has  been  made.  Wilton  e.  Cham- 
bers, 5  Nev.  &  M.  431 ;  1   Har.  A  WoU.  582. 

198& 

Where  a  sheriff  has  paid  to  the  plaintiff  in  an 
action  the  debt  and  costs  under  an  attachment^ 
the  sheriff  has  no  right  to  retain  the  defendant 
in  custody  until  he  is  repaid.  Rimmer  v.  Tumer,^ 
1  Har.  dt  Woll.  193.  198& 

Delivery  of  an  attachment  against  a  sheriff  to> 
the  managing  clerk  of  the  London  agent  of  the 
coroner,  is  not  sufficient  to  allow  of^an  attach* 
ment  issuing  against  the  coroner  for  not  return- 
ing the  attachment.  Fever  v.  Aubin^  I  Har.  A 
Woll.  332.  19d& 


DiU^  amd  UabUiiy  on  Ezeattiatu.] — AlthouA 
there  is  a  strong  reason  to  believe  that  a  fi.  n. 
had  been  issued  in  order  to  defraud  the  execution 
of  a  bona  fide  creditor,  and  that  the  sheriff  is  a 
party  to  the  fraud,  the  court  will  not  interfere 
summarily  to  compel  the  sheriff  to  pay  over  the 
proceeds  of  the  levy  to  the  bona  fide  eieditor,  b«i 


2618 


[SHERIFF] 


the  qaestion  of  fraud  must  be  tried  by  a  jury. 
Barber  v.  MitcheU,  2  Dowl.  P.  C  574.  1089 

The  defendant  as  well  as  the  plaintiff  may  rul^e 
the  sheriff  to  return  the  writ.  France  v.  Clark- 
ion,  2  Dowl.  P.  C.  532.  1990 

A  sheriff  must  sell  goods  seized  Under  a  fi^  fa. 
within  a  reasonable  time,  and  before  the  return 
of  the  yenditioni  exponas,  or  will  be  liable  to  an 
action.  Jacobs  t7.  Humphrey,  4  Tyr.  272:  2  C. 
&  M.  413.  1987 

Where  the  sheriff  sells  under  an  execution 
more  than  sufficient  to  satisfy  the  debt  and  costs, 
he  is  liable  in  trover  for  the  excess.  Batchelor 
V.  Vyse,  4  M.  &  Scott,  652 ;  overruling  S.  C. 
1  M.  &  Rob.  331.  1987 

If  a  sheriff  take  goods  in  execution  after  an 
act  of  bankruptcy,  and  sell  them,  the  jury,  in  an 
action  of  trover  by  the  assignees,  may  allow  to 
the  sheriff  the  expenses  of  the  sale,  if  they  think 
the  assignees  must  have  sold  the  goods,  if  they 
had  not  been  sold  by  the  sheriff;  but  this  is  mat- 
ter for  the  jury.  Cfark  v.  Nicholson,  6  C.  ^  P. 
712 ;  3  Dowl.  P.  C.  454.  1987 

Where  the  sheriff  has  been  allowed  to  with- 
draw from  possession  by  authority  of  a  rule  un- 
der the  Interpleader  Act,  he  cannot  afterwards, 
and  after  he  is  out  of  office,  be  compelled  to  re- 
enter.   Wilton  V.  Chambers,  3  Dowl.  P.  C.  12. 

1987 

A  fi.  fa.  was  put  into  the  sheriff's  hands  on  the 
14th  of  December,  1833,  returnable  on  the  30th. 
The  sheriff  went  out  of  office  on  the  14th  Feb- 
ruary following.  A  rule  to  return  the  writ  was 
taken  out  in  June  following,  which  was  served  in 
the  same  month  on  the  under-sheriff  of  the  new 
sheriff;  but  it  was  not  served  on  the  under- 
sheriff  of  the  old  sheriff  till  November  following: 
— Held,  that  an  attachment  afterwards  obtained 
against  the  old  sheriff  for  not  returning  the  writ 
was  irregular ;  and  the  court  set  it  aside.  Yaroth, 
Ywroth,  or  Yrath  r.  Hopkins,  2  C.  M.  &  R.  250 ; 
3  Dowl.  P.  C.  711 ;  1  Cfale,  141.  1990 

The  plaintiff  sued  out  a  fi.  fa.  into  Bedford- 
shire, and  lodged  it  in  the  office  of  the  deputy 
under-sheriff  m  London.  On  the  receipt  of  it, 
the  under-sheriff  wrote  to  say  the  defendant  had 
no  effects ;  the  plaintiff  thereupon  immediately 
sued  out  a  ca.  sa.,  and  lodged  it  at  the  same 
office.  Before  the  return  of  the  fi.  fa.,  finding 
that  the  defendant  had  effects,  the  plaintiff 'li  at- 
torney wrote  to  the  under-sheriff  not  to  execute 
the  ca.  sa. : — Held,  that  the  sheriff  was  bound  to 
return  the  fi.  fa.  Smith  v.  Johnson,  2  C.  M.  &  R. 
350;  1  Gale,  357.  1990 

And  semble,  the  issuing  of  the  oa.  sa.  was  not 
a  countermand  of  the  fi.  fa.    Id, 

A  return  of  nulla  bona,  made  by  the  sheriff  to 
a  fi.  fa.  against  A.,  is  admissible  in  evidence  upon 
the  trial  of  a  question  as  to  the  property  in  goods 
at  the  time  of  such  return  between  A.  And  a  suc- 
ceeding sheriff.  Avril  v.  Warwick  (Sheriff),  3 
Nev.d^M.  871.  1990 

So,  although  the  Wiliff  intrusted  with  the  ex- 
ecution of  such  writ  did  not  himself  search  for 
goods  of  A.,  but  seat  his  ftssistant.    Id. 


{  Afler  time  had  been  several  times  given  to  a 
sheriff  to  make  a  return  to  a  writ  of  fi.  fa.,  a  rule 
was  made  allowing  him  to  withdraw  from  the 
possession,  and  to  be  at  liberty  to  re-enter  and  re- 
levy,  in  case  the  invalidity  of  a  commission  of 
bankruptcy  in  a  particular  cause  was  established. 
The  sheriff  witharew,  and  the  cause  came  on  for 
trial ;  but  went  off  entirely  on  a  point  of  law,  and 
the  oommission  was  still  contested  before  the 
Lord  Chancellor.  The  goods  had  been  in  the 
meantime  again  seized  by  another  sheriff  under 
another  writ.  The  court,  however,  made  a  rule 
on  the  first  sheriff  to  return  the  first  writ  of  fi.  fa. 
Wilton  V.  Chambers,  3  DowL  P.  C.  333 ;  1  Har. 
&  WolL  116.  1990 

The  mere  fact  of  a  plaintiff  requesting  the 
sheriff  to  direct  his  warrant  to  a  particular  officer, 
does  not  constitute  the  latter  a  special  bailiff,  so 
as  to  render  him  the  plaintiff's  agent.  The  fact 
of  a  compromise  between  the  parties,  or  of  a  claim 
for  rent  by  the  landlord,  does  not  relieve  the 
sheriff  from  the  necessity  of  making  a  return  to  a 
writ  of  fi.  fk.  Balson  v.  Meggat,  4  Dowl.  P.  C. 
557.  ,  1990 

Where  a  defendant,  against  whom  a  fi.  fa.  iiad 
issued,  became  a  bankrupt  afler  the  seisore,  and 
his  assignees  made  an  arrangement  with  the 
sheriff  as  to  the  dislposal  of  the  goods : — Held, 
that  the  sheriff  could  not  be  ruled  to  return  the 
writ  on  behalf  of  the  bankrupt.  Gilbert  v.  Whal- 
ley,  2  C.  M.  &  R.  722.  1990 


iTUferference  on  adverse  Claims.'] — Where  a 
sheriff  has  seized  goods  under  a  fi.  fa.,  and  a 
claim  to  them  is  put  in  bj  another  person,  he  is 
not  bound  to  accept  an  mdemnity  from  the  exe- 
cution creditor,  but  may  obtain  relief  under  the  1 
&  2  Will.  4,  c.  58,  s.  6.  Levy  v.  Champneys,  2 
Dowl.  P.  C.  454.  1995 

Where  the  sheriff  seized  goods  in  execution 
which  were  under  distress  for  rent  due  to  the 
landlord,  the  court  refused  to  grant  him  relief 
under  the  Interpleader  Act,  though  he  had  ap- 
plied for  indemnity  to  the  execution  creditor, 
which  had  been  refused.  Haythorn  v.  Bush,  2  C. 
&  M.  689 ;  2  Dowl.  P.  C.  641.  1995 

The  sheriff  in  applying  for  relief  under  the 
Interpleader  Act,  should  come  promptly,  but  a 
late  application  will,  under  special  circumstances, 
be  allowed.    Dixon  v.  Ensell,  2  Dowl.  P.  C.  621. 

1996 

Where  there  was  great  delay  on  the  part  of  the 
sheriff  in  applying  to  the  court,  in  consequence 
of  negotiations  between  the  parties,  and  the  exe- 
cution creditor  afterwards  abandoned  his  claims, 
the  court  refused  to  make  the  latter  pay  coats.  Id. 

The  sheriff  having  seized  goods  under  a  fi.  fa., 
notice  was  given  to  him  on  the  18th  January 
that  a  fiat  was  about  to  be  issued  out  against  thie 
defendant ;  and,  on  the  28th,  a  claim  was  made  to 
the  goods  by  the  assignees : — Held,  that  an  appli- 
cation by  the  sheriff,  on  the  29th,  for  relief  under 
the  Interpleader  Act,  was  sufficiently  prompt. 
Skipper  v.  Lane,  4  M.  &  Scott,  283;  2  Dowl.  P. 
C.  784.  1995 


[SHERIFF] 


52619 


If  a  sheriff  receives  notice  on  the  33rd  of  Jan- 
uary, of  a  claim  to  goods  seized  by  him  under  a 
fi.  &.,  he  will  not  be  entitled  to  relief  under  the 
Interpleader  Act,  unless  he  comes  to  the  court  in 
Hilary  Term.  Ridgway  v.  Fisher,  3  Dowl .  P.  C. 
567.  1995 

The  sheriff  is  not  disqualified  from  applying 
under  the  Interpleader  Act,  where  a  whole  term 
has  elapsed  after  a  notice  of  claim  under  a  fiat  in 
bankruptcy,  if  the  assignees  were  not  chosen  un- 
til after  the  term.  Barker  v.  Phipson,  3  Dowl. 
P.  C.  590 ;  1  Har.  &  WoU.  191.  1995 

Where  a  sheriff  applied  for  relief  under  the 
Interpleader  Act,  and  it  appeared  that  he  had 
been  fl[uilty  of  neglect,  the  court  refused  to  re- 
lieye  Cm  m>m  any  liability  occasioned  thereby. 
Brackenbury  v.  Laurie,  3  Dowl.  P.  C.  180.    1995 

The  court  will  not  interfere  under  the  Adverse 
aaim  Act,  ]  &  3  Will.  4,  c.  56,  s.  6,  in  favor 
of  a  sheriff  who  has  seized  goods  under  a  fi.  fa., 
unless  an  actual  claim  of  the  property  in  question 
appears  to  haye  been  made  before  moving  for  the 
rule.    Bartley  v.  Hook,  4  Tyr.  229.  1996 

Semble,  in  an  issue  directed  under  the  act,  the 
claimant  should  be  the  plaintiff,  and  the  execu- 
tion creditor  the  defendant.    Id. 

It  is  not  necessary  for  the  sheriff  to  apply  to 
the  dififbrent  parties  for  an  indemnity,  l>eibre  he 
applies  to  the  court  under  the  Interpleader  Act. 
Crossly  v.  Ebers,  1  Har.  <&  WoU.  216.  1995 

The  court  will  not  interfere  to  restrain  a  sheriff 
from  selling  jK^oods  seized  by  him  under  a  fi.  fa., 
or  an  offer  otindemnity  by  a  third  person,  claim- 
ing the  goods.  Harrison  v.  Foster,  4  Dowl.  P.  C. 
558.  1995 

Tho  sheriff  cannot  apply  to  the  court  under  the 
Interpleader  Act,  unless  the  goods  or  money  in 
dispute  are  actually  in  his  hands.  Scott  v.  Lewis, 
2C.  M.  &  R.  289;  4  Dowl.  P.  C.  259;  1  Gale, 
204.  1995 

Where  a  sheriff,  afler  levying  the  amount  of  an 
execution  on  the  defendant  s  gSods,  paid  over  the 
proceeds  to  the  execution  creditor,  not  having  re- 
ceiyed  any  notice  of  a  claim  from  any  one,  and 
afterwards  an  action  was  brought  against  the 
sheriff  by  the  defendant's  assignees  to  recover 
the  value  of  the  goods :— Held,  that  the  sheriff 
was  not  entitled  to  relief  under  the  Interpleader 
Act.    Id. 

Under  the  1  &2  Will.  4,  c.  58,  s.  6,  (the  Inter- 
pleader Act),  the  sheriff  need  not  wait  for  pro- 
ceedings to  be  taken  against  him  before  he  applies 
to  the  court  for  relief.  Green  v.  Brown,  3  Dowl. 
P.  C.  337.  1995 

Where  an  execution  was  levied  under  a  fi.  fa., 
and  the  sheriff  delayed  makiuj;  a  sale  for  more 
than  two  months,  when  a  fiat  m  bankruptcy  is- 
sued against  the  defendant  :-^Held,  that  the 
sheriff  was  not  entitled  to  apply  to  the  court  un- 
der the  Interpleader  Act  Ridgway  v.  Fisher,  1 
Har.  &  Woll.  189.  1995 

The  sheriff  is  not  entitled  to  call  a  party  before 
the  oouit  under  the  Interpleader  Act,  1  &  2  Will. 
4, 0.  28,  on  the  ground  of  claim  set  vp  in  respect 

Vol.  IV.  44 


of  an  interest  as  a  partner,  in  goods  seized  under 
a  writ  of  execution.  Holmes  v.  Mentze,  5  Nev.  &, 
M.  563 ;  4  Dowl.  P.  C.  300.  .    .    1995 

So,  although  the  claim  states  that  the  balance 
of  accoonts  is  so  much  in  favor  of  the  claimant, 
as  to  give  him  the  sole  beneficial  interest  in  the 
property  seized.    Id. 

But  where  the  execution  creditor  refuses  either 
to  admit  or  to  deny  the  alleged  partnership,  the 
court  will  enlarge  the  time  for  the  sheriff's  return 
to  the  writ  until  be  is  indemnified.     Id. 

The  court  will  not  interfere  under  the  Inter- 
pleader Act,  unless  a  dispute  as  to  the  legal  in- 
terest in  the  property  seized  has  actually  arisen. 
Semble.    Id. 

Where  the  sheriff  is  placed  in  circumstances 
which  ^ive  him  an  interest  in  either  side,  the 
court  will  not  relieve  him  under  the  Interpleader 
Act.  Duddin  r.  Long,  1  Scott,  281 ;  1  Bing.  N. 
R.  299;  3  Dowl.  P.  C.  139.  1995 

The  court  refused  to  interfere  in  fiivor  of  the 
sheriff,  under  the  Interpleader  Act,  where  the 
under-sheriff 's  partner  appeared  to  be  concerned 
for  some  of  the  parties.    Id. 

If  the  under-sheriff  is  the  execution  creditor, 
or  partner  in  business  of  the  execution  creditor, 
the  sheriff  is  not  entitled  to  relief  under  the  In- 
terpleader Act.  Ostler  v.  Bower,  4  Dowl.  P«  C. 
G05.  1996 

Where  the  sheriff  obtains  a  rule  for  relief  un- 
der the  Interpleader.  Act,  the  claimants  may  ap- 
pear without  taking  office  copies  of  the  affidavits 
on  which  the  rule  was  obtained.  Mason  v.  Red- 
shaw,  2  Dowl.  P.  C.  595.  1995 

Where  the  sheriff  applies  for  relief  under  the 
Interpleader  Act,  he  need  not,  in  the  affidavit  in 
support  of  the  application,  deny  collusion  with 
the  claimants.  Donniger  «.  Hmxman,  2  Dowl. 
P.  C.  424  :  S.  P.  Dobbins  v.  Green,  2  Dowl.  P.  C. 
509.  1995 

Where  an  execution  creditor  does  not  appear 
on  being  served  with  the  sheriff's  rule,  the  court 
cannot  bar  his  claim.    Id. 

An  exectition  creditor,  served  with  a  sheriff's 
rule  under  Interpleader  Act,  is  not  bound  to  ap- 
pear when  there  are  no  goods  liable  to  his  execu- 
tion. Where,  therefore,  such  creditor  appears 
upon  the  rule,  but  does  not  insist  upon  any  goods 
being  liable  to  his  execution,  he  is  not  entitled 
to  the  costs  of  his  appearance.  Glasier  v.  Cooke, 
5  Nev.  &.  M.  680.  1995 

Where  the  sheriff  applied  for  relief  under  the 
Interpleader  Act,  but  it  appeared  that  an  attach- 
ment had  been  already  obtained  against  him  for 
not  retuning  the  writ,  the  court  would  only 
make  the  rule  absolute  on  the  terms  of  his  pay- 
ing for  moving  for  the  attachment.  Alemore  v. 
Adeane,  3  Dowl.  P.  C.  496.  1995 

Held,  that  where  a  sheriff  obtains  a  rule  under 
the  Interpleader  Act,  calling  upon  an  execution 
creditor  and  a  third  party,  who  claims  goods 
seized  by  the  sheriff  under  a  fi.  fa.,  to  appear  and 
state  the  nature  of  their  claims ;  such  third  party 
must  appear  and  state  by  affidavil  the  nature  ef 


2620 


[SHERIFF] 


htB  claim.    Poweler  «.  Lock,  4  Nev.  &  M.  853. 

1995 

On  application  to  the  court  by  a  sherifF,  under 
section  6  of  the  Interpleader  Act,  a  third  party 
served  Virith  the  rule,  and  not  appearing,  is  bar- 
red by  section  3  from  further  prosecuting  any 
claim  brought  in  question  by  the  rule,  as  well  as 
where  such  application  is  made  by  a  defendant 
under  section  1.  Ford  v.  DiUy,  o  B.  6l  Adol. 
885.  1995 

A  sheriff,  or  other  officer,  applying  to  the  court 
under  the  6th  section  of  the  Interpleader  Act, 
need  not  deny  collusion,  fiond  v.  Woodhall,  3C. 
M.  &  R.  601 ;  4  Dowl.  P.  C.  351  ;  1  Tyr.  &  G. 
11.  1995 

On  motion  by  the  sheriff  under  the  Interpleader 
Act,  it  must  be  made  in  court,  but  cause  may  be 
shown  at  chamben.  Beames  v.  Cross,  4  Dowl. 
P.  C.  128.  1995 

Under  particular  circumstances  the  court  al- 
lowed cause  to  be  shown  at  chamben  to  a  sheriff's 
rule  under  the  Interpleader  Act.  Haines  v.  Dis- 
ney, 2  Scott,  183 ;  1  Hodges,  189.  1995 

Where  a  new  claim  is  raised  after  a  rule  nisi 
under  the  Interpleader  Act  has  been  obtained, 
the  sheriff  may  make  the  new  claimant  a  party 
to  the  rule.    Kirk  t7.  Clarke,  4  Dowl.  P.  C.  363. 

1995 

Where  money,  the  proceeds  of  an  execution, 
has  been  paid  into  court  by  the  sheriff  under  the 
Interpleaoer  Act,  and  the  claimant  abandons  his 
claim,  the  rule  for  paying  the  money  out  of 
court  to  the  execution  creditor,  together  with  his 
costs,  is  n'vBi  in  the  first  instance.  Stanley  v. 
Perry,  4  Dowl.  P.  C.  599.  1995 

If  an  execution  creditor  abandons  his  process, 
seized  under  a  fi.  fa.,  in  favor  of  a  claimant,  the 
sheriff  has  still  a  right  to  show  in  an  action 
against  him,  that  the  goods  were  the  property  of 
the  defendant  Baynton  v.  Harvey,  3  Dowl.  P .  C. 
344.  1995 

Costs  occasioned  by  the  rule.  Lewis  v.  Eicke, 
4  Tyr.  157.  1996 

The  court  will  not  allow  the  sheriff  the  costs 
of  applying  to  the  court,  under  the  Interpleader 
Act,  but  they  will  allow  him  extra  expenses  he 
may  have  been  put  to  by  obeying  the  rule  of 
court  directing  an  issue.  Armitage  v.  Foster,  1 
Har.  &  Woll.2(^.  1996 

Where  the  sheriff  has  not  given  notice  to  the 
execution  creditor  of  an  adverse  claim  being 
made,  and  of  his  intention  to  apply  to  the  court 
under  the  Interpleader  Act,  before  instructions 
have  been  given  to  counsel  to  move  for  an  at- 
tachment for  not  returning  the  writ,  the  court 
will  grant  the  attachment  or  reauire  the  sheriff 
to  pay  the  costs  of  the  motion.  Uraine  r.  Hunt, 
2  C.  &  M.  418  J  2  Dowl.  P.  C.  391 ;  4  Tyr.  243 

1996 

On  an  application  by  the  sheriff,  under  1  d&  2 
Will.  4,  c.  58,  s.  6,  if  the  judgment  creditor  does 


not  appear,  the  court  will  order  him  to  pay  the 
costs  of  the  application  to  the  adverse  claimant. 
Tomlinson  v.  Done,  1  Har.  &.  Woll.  123.      1996 


allow  the  sheriff  his  costs  of  applyng  for  a  rule 
under  the  Interpleader  Act.  West  v.  Rotherham, 
2  Scott,  802  ',  2  Bing.  N.  R.  527.  1996 

The  court  of  C.  P.  will  not  allow  the  sheriff 
applying  to  be  relieved  under  the  Interpleader 
Act  his  costs,  where  the  claimant  does  not  ap- 
pear. Oram  v.  Sheldon,  1  Scott,  697 ;  3  Dowl. 
P.  C.  640 ;  1  Hodges,  92.  1996 

Nor  will  the  plaintiff  be  allowed  his  costs,  ex- 
cept in  the  event  of  extremely  improper  conduct 
in  the  parties.  Id. 

Although  the  sheriff  is  not  actually  allowed 
costs,  on  a  motion  under  the  Interpleader  Act, 
yet,  where  he  has  retained  possession  of  the  goods 
seized  at  the  request  of  the  execution  creditor, 
and  has  sold  them  with  consent  of  all  the  par- 
ties, and  the  execution  creditor  aflerwards  aban- 
dons his  claim,  the  sheriff  is  entitled  to  receive 
from  him  his  costs  of  such  possession  and  sale. 
Dabbs  V.  Humphries,  1  Scott,  325 ;  1  Bing.  N.  R. 
412 ;  3  Dowl.  P.  C.  377 ;  1  Hodges,  4.  1996 

The  court  will,  on  proper  grounds  shown,  order 
the  sheriff,  or  the  execution  creditor,  to  pay  a 
third  party  appearing  and  successfully  prosecut- 
ing his  claim ,  his  costs  of  siich  appearance.  Ford 
V.  Dilly,  5  B.  ^t  Adol.  885.  1996 

The  court  will  not,  under  the  Interpleader  Act, 
allow  the  sheriff  his  costs  incurred  by  keeping 
possession,  in  consequence  of  a  party  refusing 
to  consent  to  a  judge  at  chambers  making  an 
order  in  the  case,  no  authority  for  that  purpose 
being  given  by  the  1  d&  2  Will.  4,  c.  &,  s.  6. 
Clark  V.  Chetwode,  4  Dowl.  P.  C.  635.  1996 

Where  the  sheriff^s  rule,  under  the  Interpleader 
Act,  does  not  pray  costs,  and  the  claimant 
does  not  appear,  the  court  will  not,  on  dis- 
posing of  the  rule,  at  once  order  the  claimant  to 
Eay  costs,  but  will  make  an  order  conditional  on 
is  not  appearing  within  a  certain  period.  Shuttle- 
worth  V.  Clark,  4  Dowl.  P.  C.  561.  1996 

Where  an  issue  is  directed  to  be  tried  between 
an  execution  creditor  and  a  claimant,  brought 
before  the  court  by  the  sheriff  under  the  Inter- 
pleader Act,  but  the  latter  refuses  to  try,  and 
abandons  his  claim,  he  will  be  liable  to  pay  the 
execution  creditor's  costs  down  to  the  time  of  the 
claim  being  abandoned,  and  of  applying  to  take 
the  money  paid  in  by  the  sheriff  out  of  court. 
Wills  V.  Hopkins,  3  Dowl.  P.  C.  346.  1996 

Where,  in  consequence  of  a  claim  made  to 
goods  seized  by  a  sheriff  in  execution,  the  court 
ordered  the  claimant  to  proceed  to  trial  upon 
paying  a  sum  of  money  into  court,  which  he 
neglected  to  do,  and  a  rule  was  then  obtained  to 
compel  him  to  pay  the  costs  occasioned  by  his 
false  claim: — Held,  that  he  was  liable  to  pay 
those  costs  as  well  as  the  costs  of  that  rule, 
though  no  previous  application  had  been  made 
to  him.    Scales  v.  Sargeson,  3  Dowl.  P.  C.  707. 

1996 


Fees  and  Poundage.'] — Where  an    application 
was  made  against  the  deputy  constable  or  bodar 
of  Dover  Castle,  on  the  ground  of  his  havin^r 
taken    larger  fees   for  executing  process    than 
In  ordinary  cases  the  court  of  C.  P.  does  not  1  those  allowed  by  the  23  Hen.  6,  c.  9,  but  only 


[SHERIFF— SHIP] 


2621 


the  usual  feet  had  been  allowed  by  the  Master, 
the  court  refused  to  interfere,  but  lefl  the  party 
to  his  remedy  by  action.  Primrose  v.  Bradley,  ti 
C.  6l  M.  6^;  2  Dowl.  P.  C.  662;  4  Tyr.  995. 

1996 

The  only  fee  allowed  by  law  to  be  taken  by  the 
officer  from  a  party  arrested,  is  4<f.,  the  fee  pre- 
scribed h^  the  Stat.  53  Hen.  6,  c.  9 :  if  he  take 
more,  he  is  liable  to  be  sued  for  the  penalty  im- 
posed for  extortion  by  the  '32  Geo.  2,  c.  28.  J  nnes 
V.  Levi,  2  Scott,  189 :  4  Dowl  P.  C.  116, 195. 

1996 

The  sheriff  cannot  be  required  to  pay  into 
court  money  levied  under  an  attachment,  but  he 
is  not  entitled  to  his  poundage  on  the  sum  levied. 
Rex  V.  Devon  (Sheriff),  3  Dowl.  P.  C.  10.    1997 

The  sheriff  is  entitled  to  poundage  on  the  sum 
he  received  under  the  execution  only,  and  not 
on  the  amount  claimed  or  seized.  Rex  r.  Robin- 
son, 2  C.  M.  &  R.  334 ;  4  Dowl.  P.  C.  447 ;  1 
Gale,  209.  1997 

Under  a  writ  of  extent  for  penalties  under  the 
excise  la ws^  the  sheriffs  levied  goods  of  the  defen- 
dant of  the  value  of  824Z.  A  negotiation  took 
place ;  the  sheriff  remained  in  possession,  and 
ultimately  the  crown  accepted  5002.  in  satisfac- 
tion of  the  penalties,  which  amounted  to  1000/. : 
— Held,  that  the  sheriff  was  entitled  to  pound- 
age only  on  5002.     Id. 

The  sheriff  will  be  allowed  his  costs  of  keep- 
ing possession,  ailer  applying  to  the  court,  where 
it  is  for  the  benefit  of  the  parties,  and  not  in 
furtherance  of  his  duty.  Underden  v.  Burgess,  4 
Dowl.  P.  C.  104.  1997 


SHIP. 

OvmershipJ] — See  5  &  6  Will.  4,c.  W,  by  which 
dke  laws  relaiing  to  merchant  seamen  are  amended 
and  eonsoUdat^. 

The  registered  owner  is  not  liable  for  articles 
furnished  without  his  order  for  the  repair  of  a 
Teasel,  chartered  for  a  year,  by  a  party  who  has 
undertaken  to  repair  the  ship  during  that  term. 
Reeve  v.  Davis,  3  Nev.  &  M.  873 ;  1  Adol.  Sl 
Ellis,  312.  2001 

Nor,  when  there  is  no  charter-party,  unless 
tlie  goods  were  ordered  by  the  agent  of  the 
or  were  beneficial  to  him.    Id. 


owner. 


The  registered  owners  of  a  steam-boat  let  it  to 
A.f  the  captain,  lor  one  year :  the  boat  to  be  re- 
paired by  A.,  the  engines  to  be  repaired  by  the 
owners,  who  are  to  appoint  an  engmeer : — Held, 
that  the  owners  are  not  liable  for  repairs  ordered 
by  A.  unconnected  with  the  engine.    Id. 

By  the  53  Geo.  3,  c.  159,  the  responsibility  of 
shipowners  for  damage  done  by  their  ships  to 
other  vessels,  is  limited  to  the  value  of  the  ship 
doing  the  damage : — Held,  that  such  value  must 
be  ascertained  as  at  the  time  of  the  accident. 
Dobree  v.  Schroder,  6  Simon,  291.  2004 

If  a  person  ship  goods  on  board  a  vessel, 
knowing  that  she  is  cnartered,  the  consignee  of 
the  goods  can  maintain  no  action  against  the 
owner  of  the  ship  if  the  goods  be  injured  by  bad 


stowage.    Major  v.  White,  7  C.  dk  P.  41— Parke. 

2C04 

if  the  shipper  of  goods  was  warned  as  to  the 
way  in  which  the  goods  would  be  stowed,  the 
consignee  cannot  maintain  any  action  for  dam- 
age occasioned  by  such  stowage,  even  if  the  stow- 
age were  bad.  Id. 

The  managing  owner  of  a  ship  chartered  by 
the  East  Inoia  Company,  receives  the  warrants 
for  the  freight,  and  pays  them  into  a  bankers'  in 
his  own  name,  drawmg  checks  from  time  to  time 
for  varioas  sums  out  of  the  proceeds,  part  of  which 
are  applied  for  the  use  of  the  ship,  and  part  for 
other  purposes : — Held,  that  the  other  part-own- 
ers have  no  lien  on  this  fund  in  the  hands  of  the 
bankers,  nor  any  claim  against  the  bankers  as 
their  debtors— Dub.  Sir  J.  Cross.  Ex  parte  Grib- 
ble,  3  Deac.  <&  Chit.  339.  2006 

A  broker  was  employed  to  sell  a  ship  belonging 
to  three  part-owners,  two  of  whom  communicated 
with  him  on  the  subject ;  to  them  he  paid  their 
shares  of  the  proceeds  of  the  sale,  but,  after  ad- 
mitting the  amount  of  the  third  part-owner's 
share  to  be  in  his  hands,  refused  to  pay  it  to  him 
without  the  consent  of  the  other  two ;  an  action 
of  assumpsit  having  been  brought  by  the  third 
part-owner  for  the  share : — Held,  that  he  was  not 
entitled  to  recover.  Hatsall  v.  Grifiith,  2  C.  &  M. 
679 ;  4  Tyr.  487.  2007 

Where  a  person  lends  money  nominally  on  his 
own  account,  but  really  on  account  of  another, 
the  real  lender  cannot  recover  the  money  unless 
he  prove  distinctly  that  the  loan  was  in  reality  in- 
tended to  be  his,  and  was  received  as  such  ;  and, 
therefore,  where  A.,  as  the  managing  owner  of  a 
vessel,  was  permitted  by  the  other  owners  to  have 

Possession  of  two  warrants  or  orders  of  the  East 
ndia  Company,  to  pay  to  the  said  owners  or 
bearer  the  sum  of  money  therein  mentioned,  for 
freight,  and  A.  deposited  those  vrarrants  in  the 
hands  of  his  bankers,  and  they  received  the  mo- 
ney due  on  them,  and  gave  him  credit  for  it  on 
account ;  it  was  neld,  in  assumpsit  brought  afler 
A.'s  death  by  the  surviving  part-owners  against 
the  bankers,  that,  on  proof  of  the  above  facts, 
they  could  not  recover  the  money,  because  it  was 
not  shown  that  the  loan  was  upon  their, account, 
for  the  fact  of  the  warrants  beins  the  property  of 
all  the  part-owners  when  placed  in  the  bankers' 
hands,  was,  upon  the  evidence,  consistent  with 
the  supposition  that  the  loan  of  the  proceeds  to  the 
bankers  was  A.'s  loan.  Sims  v.  Bond,  2  Nev.  A 
M.  608;  5  B.  die  Adol.  389.        •  2007 


Master.'] — A  conviction  under  6  Geo.  4,  c.  ItO, 
s.  27,  and  3  dk  4  Will.  4,  c.  55,  s.  27,  for  detain- 
ing the  certificate  of  a  ship's  registry,  is  bad,  un- 
less it  state  the  purpose  for  which  the  certificate 
was  wanted,  ana  the  person  who  demanded  it  was 
the  "  proper"  officer.  Rex  v,  Walsh,  3  Nev.  &, 
M.  632 ;  1  Adol.  &  EUis,  481.  2012 

The  5  &  6  Will.  4,  c.  53,  is  the  statute  by  uMch 
the  regulation  of  passengers'  ships  is  effected. 

In  an  agreement  under  seal  for  the  hire  of  the 
cabins  and  accommodations  for  passengers  in  a 


9622 


[SHIP] 


■hip,  there  was  a  stipulation,  that,  if  it  should  be 
necessary  for  the  convenience,  and  at  the  ^quest 
of  the  hirer,  to  put  into  an  intermediate  port  for 
stock  or  otherwise,  he  (the  hirer)  would  pay  all 
port  and  necessary  charges  consequent  thereon  : — 
Held,  that  this  raised  an  implied  covenant,  on 
the  part  of  the  captain  who  let  the  cabins,  Ac, 
to  put  into  any  such  port,  if  requii^d.  Corbyn  v. 
Leader,  6  C.  d&  P.  32~Tindal.  2015 

There  was  also  another  covenant  on  the  part 
of  the  captain,  to  permit  and  suffer  the  hirer  to 
stow  away  the  baffffaee  of  the  passengers  in  a  part 
of  the  hold: — Held,  that  this,  in  connection  with 
a  covenant  to  promote  the  comfort  and  conve- 
nience of  the  hirer  and  his  passen^rs,  fairly  im- 
ported that  there  should  be  some  demand  or  re- 
quest made  by  the  hirer  for  the,  clearing  the  space 
agreed  on.    Id. 

A  covenant  to  keep  up  a  supply  of  the  neces- 
sary and  usual  quantity  of  water,  for  the  use  of  the 
passengers,  &c.,  is  not  broken  by  a  deficiency  for 
a  short  time,  occasioned  by  the  unusal  length 
of  the  voyage.    Id. 

It  is  the  duty  of  the  captain  of  a  merchant 
vessel, 'in  case  of  misconduct  of  one  of  the  crew, 
previously  to  the  infliction  of  punishment,  to  in- 
stitute inquiry,  with  the  assistance  of  others,  and 
to  have  the  result  entered  in  the  log.  Murray  v. 
Moulrie,  6  C.  &  P.  47l^Tindal.  2015 

A  seaman  employed  in  cutting  blubber  on 
board  a  whaler  in  consequence  of  a  quarrel  with 
the  captain  followed  by  a  b]ow  from  the  mate, 
threw  down  his  knife,  and  refused  to  do  any  more 
work  in  the  ship : — Held,  that  such  conduct  was 
an  act  justifying  moderate  punishment;  and  that, 
althotigh  the  punishment  were  excessive,  yet,  if 
the  seaman,  by  some  concession,  might  have  put 
an  end  to  it,  and  refused,  he  could  not  recover 
damages  for  the  continuation  of  the  punishment 
after  such  refusal.    Id. 


Seamen,'] — A  ship  was  hired  by  government  to 
take  out  convicts  to  Van  Dieman's  Land.  From 
that  place  it  sailed  to  Batavia,  and  on  several 
other  trading  voyages.  It  sailed  on  the  home- 
ward voyage  to  England,  and  arrived  safe  at  St 
Helena,  but  was  lost  before  arrival  at  the  port  of 
discharge,  and  all  on  board  perished  : — Held,  that 
proof  of  these  facts,  and  of  a  seaman  having  ffone 
on  board  the  ship  in  £ngland,  and  having  been 
seen  working  on  board  at  Van  Dieman's  Land, 
at  Batavia,  an^  afterwards  at  St.  Helena,  was 
sufficient  to  go  to  the  jury,  as  evidence  to  entitle 
the  seaman  to  wages  pro  rata  for  the  vovage  out. 
Harris  v.  Ive,  1  Har.  &  Woll.  238.         '       2016 

A  seaman  entered  into  articles  to  serve  on 
board  the  ship  R.,  "  bound  from  the  port  of  L.  to 
the  S.  8.,  to  procure  a  cargo  of  sperm  oil,  and 
to  return  therewith  to  the  port  of  L.,  where  the 
vc^age  was  to  end  ;*'  instead  of  wages  he  was  to 
receive  a  certain  share  of  the  net  proceeds  of  the 
cargo  ;  and  it  was  stipulated  that  no  one  of  the 
crew  should  "  demand  or  be  entitled  to  his  share 
of  the  net  proceeds  of  the  said  cargo  until  the  arri- 
val of  the  said  ship  or  vessel  at  L.,  and  her  cargo 
should  be  there  sold  and  delivered,  and  the  mo- 


ney for  the  same  actually  received  by  the  owners." 
A  cargo  was  procured,  the  ship  was  afterwards 
condemned  in  a  foreiffn  port,  and  the  manner  ac- 
companied  part  of  the  cargo  on  its  homeward 
voyage,  Tit  having  been  transhipped  into  another 
vessel,  the  A.),  but  died  at  sea: — Held,  that 
"  until*'  in  the  above  articles  is  a  word  of  limita- 
tion of  the  mariner's  right  to  wages,  and  not  of 
postponement  of  payment  of  them  merely  ;  and, 
consequently,  that,  as  the  ship  did  not  return  to 
L.,  the  administrator  of  the  mariner  was  not  en- 
titled to  recover  his  share  of  the  net  proceeds  of 
the  R.'s  car^o,  but  only  to  recover  on  a  ouantum 
meruit  for  his  servic«*son  board  the  A.  Jessee  v. 
Roy,  1  C.  M.  &  R.  316;  4  Tyr.  626.  2018 

Where  a  seaman,  about  to  proceed  on  a  trading 
voyage,  entered  into  and  signed  articles,  whereby 
Jie  agreed  not  to  sue  for  wages  any  of  the  owners, 
except  one,  who  was  the  captain,  and  who  alone 
was  a  party  to  the  articles : — Held,  that  he  could 
not  sue  the  other  owners,  although  they  sold  and 
received  the  proceeds  of  the  cargo,  and  one  of 
them,  the  managing  owner,  adiosted  the  wa^es, 
with  the  seamen.    M'Auliffe  v.  Bick- 


and  settled 

nell,  2  C.  M.  4&  R.  263;  1  Gale,  232 


2019 


The  plaintiff's  wages  were  adjusted,  and  the 
balance  struck,  subject  to  certain  deductions  for 
insurance  and  interest  on  advances  made  to  him 
before  and  during  the  voyage.  It  was  proved 
that  such  charts  were  the  usual  ones  in  trading 
voyages,  and  that  the  accounts  were  always  made 
out  so.  The  plaintiff  remonstrated  against  those 
deductions,  but  ultimately  accepted  the  balance, 
and  ffave  a  receipt  for  the  whole  wages : — Held, 
that  he  could  not  recover  the  amount  of  such  de- 
ductions.   Id. 

So  also,  where,  in  another  voyage,  he  had  sti- 
pulated for  a  90th  share  of  the  net  proceeds  of  the 
cargo  on  a  whaling  adventure  in  lien  of  wages, 
ana  was  charged  with  insurance  on  such  share. 
Id. 

Held,  also,  tliat  such  deductions  need  not,  un- 
der the  circumstances,  be  made  the  subject  of  a 
set-off.    Id. 


Charter- jMiriy.'] — Defendant,  by  charter-party 
of  October  20th,  1832,  agreed  to  go  in  ballast 
from  P.  to  St.  M.,  and  bring  back  a  cargo  of  fruit 
direct  to  L. ;  the  charterer  was  to  be  allowed 
thirty-five  running  days  fi^r  loading  and  unload- 
ing, to  commence  on  December  first  then  next ; 
and  if  the  vessel  did  not  arrive  at  St.  M.  by  the 
31st  of  January,  1833,  the  charterer  was  to  be  at 
liberty  to  rescmd  the  charter-party : — Held,  thai 
the  defendant  was  bound  to  proceed  at  once  to 
St.  M  ,  and  was  not  at  liberty  to  make  an  inter- 
mediate voyage  for  his  own  purposes,  althoogh, 
notwithstandinff  such  intermediate  voyage,  he 
arrived  at  St.  M.  before  the  31st  January,  1833. 
M' Andrew  t*.  Adams,  4  M.&  Scott,  517;  1  Bin 
N.  R.  29. 


>mg. 
2G^ 


In  a  declaration  on  a  charter-party,  by  which 
the  ship  was  to  sail  from  Hamburgh,  being  tight, 
staunch,  strong,  and  every  way  fitted  for  the 
voyage,  in  the  course  of  the  next  November,  and 
proceed  to  Lima,  and  having  discharged  her  out- 


[SALE] 


2623 


ward  cttrffn,  forthwith  to  he  made  leady,  vnd  pro- 
ceed to  Co«ta  Rica,  and  there  take  on  board  a 
cargo,  and  then  proceed  to  Liverpool ; — breaches 
were  alleged  aa  tbllowB ;  that  the  vessel  was  not, 
in  November,  or  afterwards,  until  or  when  she 
sailed,  to  wit,  on  the  20th  of  December,  tight, 
staunch,  strong,  or  in  any  way  fitted  for  the 
voyage  ;  and  that,  though  she  did  tlien  sail  from 
Hamburgh,  vet,  by  reason  of  her  not  being  tight, 
dbc.,  when  sue  so  sailed,  she  was  obliged  to,  and 
did,  pat  back  into  Altona,  and  was  detained  there 
for  a  long  time,  to  wit,  until,  &c. ;  though  she  did 
then  afain  set  sail  on  her  voyage  from  Altona, 
she  did  not  proceed  on  the  voyage  according  to 
its  due  course,  or  with  proper  dispatch,  but  was 
nnnecessarily  delayed,  and  deviated,  ike.  die. ) 
by  means  of  which  several  premises,  the  vessel 
did  not  arrive  at  Lima  until,  Jtc,  and  the  plaintiff 
lost  the  benefit  of  a  homeward  cargo  from  Costa 
Rica,  Ac.  The  defendant  pleaded,  (amongst 
other  things),  as  to  so  much  of  the  declaration  as 
related  to  the  vessel  not  being  fitted  for  the  voy- 
age, and  by  reason  thereof  Ming  obliged  to  put 
back  into  Allona,  and  being  detained  there  lor 
snch  time  as  was  necessary  to  put  further  ballast 
on  board)  payment  into  court  of  ]5.,  and  no  da- 
mages ultra ;  and  as  to  so  much  as  related  to  her 
being  detained  at  Altona  beyond  the  time  ne- 
cessary to  put  the  ballast  on  board,  that  she  was 
not  detained  there  by  reason  of  her  not  being 
tight,  staunch,  &c.,  modo  et  forma : — Held,  on 
special  demurrer,  that  the  latter  plea  was  bad,  as 
answering  only  a  part  of  the  4)reach  to  which  it 
applied,  viz.  the  detention  at  Altona,  and  the  sub- 
sequent delay  aud  deviation,  even  if  that  was 
a  breach,  and  was  not  merely  a  statement  of  spe* 
cial  damage.  Porter  v.  Izat^  1  Mees.  ^  Wels. 
381.  S023 

Agreement  to  proceed  to  the  East  Indies,  and 
there  load  a  full  and  complete  cargo ;  the  fore- 
cabin  to  be  filled  with  light  goods ;  veight  4Z.  15« 
per  ton  of  20  cwt.  for  sugar,  coffee,  and  rice,  and 
for  pepper  for  18  cwt.  to  the  ton ;  100  tons  of  rice 
or  sugar  to  be  shipped,  previous  to  any  otlier  part 
of  the  loading,  to  ballast  the  vessel : — Held,  that 
the  owner  was  obliged  to  furnish  what  further 
ballast  was  necessary,  and  that  the  freighter,  after 
shipping  the  100  tons  of  rice  or  sugar,  was  at  lib- 
erty to  complete  the  cargo  with  light  goods.  Ir- 
ving r.  Clegg,  1  Bing.  N.  R.  53;  4  M.  &  Scott, 
572.  2025 

A  ship's  husband  covenanted  that  his  ship 
should,  at  one  port,  take  in  a  quantity  of  brandy 
and  convey  it  to  another  port,  and  tnere  receive 
a  cargo  of  fruit,  &c.,  which  the  fi:eighters  of  tlie 
ship  covenanted  to  supply.  He  did  not  take  the 
brandy,  and  the  fireignters  did  not  furnish  a  full 
homeward  cargo,  for  which  he  recovered  damages 
ajgainst  them.  They  afterwards  brought  an  ac- 
tion against  his  widow  and  representative,  to  re- 
cover damages  for  the  breach  of  his  covenant : — 
Held,  that  they  could  not  recover  in  any  shape, 
in  tiiat  action,  either  the  damages  the^  had  paid, 
or  the  costs  they  had  incurred  in  defending  the 
former  action,  although  they  were  prevented  from 
obtaining  the  homeward  cargo  by  the  neglect  of 
the  ship  8  husband,  in  not  taking  in  the  brandy. 


Walton  V,  Fothergill,  7  €.  &  P.  30S^-Tindal. 

2026 

Where  several  goods,  belonging  to  one  owner, 
are  carried  the  same  voyage,  a  delivery  of  part 
does  not  defeat  the  lien  upon  the  remamder  fox 
the  whole  freight.  But  if  there  be  two  contracts 
to  carry,  with  different  termini  to  the  voyage  in 
each  contract,  no  lien  attaches  for  freight  under 
the  one  contract  upon  goods  shipped  under  the 
other,  and  improperly  £tained  on  board  by  the 
carrier.  Goods  are  divested  of  a  lien  by  a  com- 
plete delivery.  It  is  for  the  jury  to  say,  whether 
there  has  been  a  complete  delivery,  fiemal  v. 
Pirn,  1  Gale,  17.  2027 

Defendants  chartered  plaintiff's  ship  from  Lon- 
don to  B.,  there  to  deliver  her  cargo,  reload,  and 
proceed  to  a  port  between  G.  and  A. :  freight  for 
voyage  out  and  home,  13002.,  if  delivered  at  G., 
in  S.,  London  or  Liverpool ;  2002.  to  be  paid  in 
London  on  the  vessel's  departure,  the  remain- 
der on  final  delivery  of  the  homeward  cargo.  The 
ship  proceeded  to  B.,  delivered  her  cargo  there, 
and  sailed  again  with  a  cargo  of  hides,  which  de- 
fendants consigned  to  G.  At  F.,  the  ship  and 
about  one-third  of  the  hides  were  lost.  The  vice- 
consul  of  F.,  acting  on  behalf  of  defendants,  at 
the  request  of  the  captain  of  the  ship,  transmit- 
ted the  residue  of  the  hides,  by  another  vessel,  to 
defendant's  consignees  at  G ,  where  they  were 
accepted,  and  the  freight  from  F.  to  G.  paid  by 
defendants : — Held,  that  plaintiff  was  not  entitled 
to  the  1300/.  freight;  that  he  was  not  entitled 
pro  rata  itineris  for  freight  to  B.,  or  from  F.  to 
G.,  but  that  he  was  entitled  to  freight  pro  rata, 
from  B.  to  F.  Mitchell  v.  Darthez,  2  Scott,  771 ; 
2  Bing.  N.  R.  555.  2031 

In  indebitatus  assumpsit  for  freight,  it  appear- 
ed  tbatgoods  were  laden  in  Jamaica  on  board  the 
plaintiff's  ship,  according  to  a  bill  of  lading^ 
which  stated  them  to  have  been 'shipped  by  W^ 
J.,  on  a  vessel  bound  for  London,  on  account  or 
the  defendant,  and  that  they  were  to  be  delivered 
in  London  to  the  consignees,  paying  fireight  for 
the  same  at  the  rate  therein  mentioned :  the  goods 
so  shipped  were  the  property  of  the  defendant. 
The  captain  having  oelivered  the  goods  tb  the- 
consignees  without  recovering  the  freight,  it  wsk 
held,  that  the  defendant  was  liable  by  law  to  pay 
the  freight  to  the  shipowners,  and  that  indepen- 
dently of  any  express  contract  by  charter-party^ 
Domett  V.  Beckford,  5  B.  &  Adol.  521.  2034 

Plaintiffs  agreed  with  defendants  to  convey  a^ 
cargo  to  O.,  and  if  the  river  was  in  possession  or 
an  enemy,  to  unload  at  F.,  outside  the  harbor^ 
The  freight  was  to  be  475Z.,  or,  if  the  vessel  could 
enter  O.,  discharge  and  reload  there,  3002.  only : 
twenty-five  days  were  allowed  for  unloading. 
Plaintiffs  arrived  at  F.  June  the  2nd,  and,  an 
enemy  being  in  possession  of  the  river,  com- 
menced unloading  there.  The  vessel  was  de- 
tained at  F.,  paruy  for  the  convenience  of  de- 
fendants, and  partly  by  bad  weather,  till  August 
25th,  and  by  that  time  had  discharged  seven- 
eighths  of  aer  cargo.  The  enemy  then  having 
quitted  the  river,  she  entered  O.,  where  she  dis- 
charged the  remaining  eighth  of  her  cargo.    In 


2624 


[SHIP— SMUGGLING] 


July,  the  defendants'  agent  at  O.  gave  plaintiff 
a  bill  for  the  larger  freight  In  September,  the 
vessel  obtained,  at  O.,  a  full  cargo  for  England  : 
— Held,  that  plaintiffs  were  entitled  to  the  larger 
freight,  and  to  demarrage  from  the  28th  of  June. 
Gibbens  v.  Buisson,  1  Sing.  N.  R.  263;  1  Scott, 
J 33.  2035 

Pilots  and  Ports.] — The  master  of  a  vessel  does 
not  incur  the  penalties  imposed  by  6  Geo.  4,  c. 
125,  s.  58,  for  refusing  to  take  a  pilot  on  board, 
unless  it  distinctly  appear  that  the  pilot,  at  the 
time  of  offering  his  services,  produced  his  license. 
Hammond  v.  Slakes  5  M.  dt  R.  361.  2041 

The  erection  of  any  building  in  a  port  or  na- 
vigable river,  which  of  itself  is  such  a  hindrance 
to  the  navigation  thereof  as  to  amount  to  a  nui- 
sance, is  an  indictable  misdemeanor,  although 
such  building  is  productive  of  collateral  benent, 
sufficient,  in  the  opinion  of  the  jury,  to  counter-, 
balance  the  injury  done  to  the  navigation.  Rex 
V.  Ward,  6  Nev.  <&  M.  38.  2043 

Therefore,  the  erection  by  an  individual,  of  an 
embankment  projecting  into  a  public  navigable 
river,  and  causing  the  navigation  to  be  less  free, 
is  indictable  as  a  nuisance,  althousrh  it  be  shown 
that  a  public  advantage  is  produced  by  facilitating 
the  landing  of  passengers  and  goods,  the  launch- 
ing of  boats  in  foul  weather,  and  the  affording 
protection  to  small  boats  in  certain  states  of  the 
wind.    Id. . 

A  port  may  be  created  in  modern  times,  with 
a  right  to  receive  a  port  duty  from  all  who  come 
within  its  limits.  Jenkins  v.  Harvey,  1  Gale,  23  ; 
5  Tyr.  326.  2043 

A  port  duty  ez  vi  termini,  implies  a  considera- 
tion tor  it.    Id. 

In  1795,  the  corporation  of  Truro  let  to  the 
plaintiff's  testator  the  office  of  meter  of  the 
borough,  with  all  fees,  emoluments,  &.c.  arising 
from  Uie  measuring  of  coal,  ik.c.  which  should  be 
imported  or  exported  within  the  limits  of  the 
borough,  afler  proviiu^  the  corporation's  right  to 
toll.  Ill  assumpsit  for  this  toll,  it  was  proved 
that,  from  1772  to  1828,  (fifly-siz  years),  their 
lessees  had  received  4d.  a  chaldron  upon  the 
measuring  of  coal  imported  as  above.  The  judge 
told  the  jury  that  he  knew  no  rule  of  law,  which, 
upon  the  evidence  of  modern  usage  laid  before 
them,  would  prevent  them  from  presuming  the 
immemorial  existence  of  the  rieht  to  the  pay- 
ment, but  did  not  inform  them  that  the  plaintiff 
might  be  entitled  to  it  as  a  port  duty,  and  there- 
fore, not  against  common  right,  or  requiring  an 
origin  so  ancient  as  the  time  of  legal  memory : — 
Held,  that  though  this  omission  might  not  amount 
to  a  misdirection,  a  new  trial  must  be  granted. 
Id. 


SMUGGLING. 

The  statute  3  &  4  Will.  4,  c.  52,  s.  20,  enacU, 
that  goods  taken  or  delivered  out  of  any  ware- 
house, not  having  been  duly  entered,  shall  be 
forfeited.  The  King's  warehouse  is  a  warehouse 
within  this  clause.  Att.  Geo.  «.  Voudiere,  1  C. 
M.  &,  R.  571 ;  5  Tyr.  211.  2046 


By  sUt.  3  &  4  Will.  4,  c.  53,  s.  28,  if  goods, 
which  shall  have  been  warehoused  or  otherwise 
secured  for  home  consumption  or  exportation, 
shall  be  clandestinely  removed  from  or  out  of 
any  warehouse  or  place  of  security,  they  shall  be 
forfeited.  Quasre,  whether  the  King's  warehouse 
is  within  this  clause  ?    Id. 

The  King's  warehouse  is  a  warehouse  within 
the  meaning  of  the  3  &  4  Will.  4,  c.  53,  s.  44, 
prohibiting  ue  illegal  removal  of  goods  from  any 
warehouse  or  place  of  security  in  which  they  shall 
have  been  deposited.  Lowe  v.  Att.  Gen.,  2  C. 
M.  &  R.  544  ;  1  Gale,  249.  2046 

If  a  vessel,  having  on  board  goods,  spirits,  &c., 
which  she  has  unshipped  at  more  than  a  league 
from  the  shore,  during  the  same  voyage  ap- 
proach within  one  league,  she  is  liable  to  for- 
feiture by  the  stat.  3  <&  4  Will.  4,  c.  13,  s.  2. 
Diet.  But  she  incurs  the  forfeiture  in  such  case 
only  by  coming  within  the  distance  during  the 
same  voyage,  and  not  by  doing  so  in  any  subse- 
quent and  distinct  voyages.     Att.  Gen.  v.  Schiers, 

2  C.  M.  &  R.  286;  1  Gale,  223.  2047 

An  information  charged  that  defendant,  not 
being  a  subject  of  his  majesty,  was,  on  the  28th 
of  October,  found  on  board  a  vessel  within  a  part 
of  the  United  Kingdom,  and  within  one  league  of 
the  coast  of  the  United  Kingdom,  such  vessel  be- 
ing liable  to  forfeiture  under  an  act  relating  to  the 
customs: — Held,  that  a  conviction  for  a  pecu- 
niary penalty  on  this  information  was  bad ;  stat. 

3  &  4  Will.  4,  c.  53,  s.  48,  not  having  made  it 
an  offence  in  a  foreigner  to  be  on  board  such 
vessel  within  any  port  besides  those  of  the  Isle 
of  Man,  and  the  offence,  created  by  the  same 
section,  of  being  on  board  such  vessel  within  one 
league  of  the  coast  of  the  United  Kingdom  hav- 
ing been  done  away  with,  so  far  as  relates  to  the 
pecuniary  penalty,  by  stat.  4^5  Will  4,  c.  13, 
(22nd  of  May,  1834).  Rex  v,  Pereira,  2  Adol.  & 
Ellis,  375.  2049 

On  an  information  for  penalties  on  the  stat  6 
Greo.  4,  c.  108,  s.  45,  it  was  proved,  that  about 
two  miles  ftom  shore,  but  within  the  limits  of  the 
port  of  Dover,  as  set  out  bv  commissioners  un- 
der the  stat.  13  dt  14  Car.  2,  c.  11,  s.  14,  goods 
were  transferred  from  a  foreign  vessel,  without 
payment  of  duties,  to  boats,  which  conveyed  them 
within  the  low  water-mark  : — Held,  that  whether 
or  not  the  transfer  from  the  vessel  to  the  boats 
was  or  was  not  within  the  United  Kingdom,  that 
there  was  an  illegal  unshipment  within  the  stat 
Att.  Gen.  v.  Tomaett,  2  C.  M.  ds  R.  170 ;  5  Tyr. 
514;  1  Gale,  147.  2049 

Goods,  the  importation  of  which  is  prohibited 
when  coming  from  particular  places,  may,  under 
the  3  &  4  Will.  4,  c.  53,  s.  30,  be  described  in  an 
information  for  penalties,  as  goods  liable  to  and 
unshipped  without  payment  of  duty,  and  the  de- 
fendant may  be  charged  with  having  been  con- 
cerned in  the  unshipping,  the  duties  not  hav- 
ing been  first  paid  or  secured,  although  it  ap- 
peared that  they  were  in  fact  imported  from  a 
place  to  which  the  prohibition  applies.  Att.  Gen. 
V,  Greaves,  2  C.  M.  <&  R.  669;  1  Tyr.  &  G.  48. 

2049 


[SMUGGLING— SUNDAY] 


2625 


A  fbretgner  telling  and  deliveringr  goods 
abroad  to  a  British  subject,  may  recover  the 
price,  although  he  knows,  at  the  time  of  the  sale 
and  deliver?,  that  the  buyer  intends  to  smuggle 
them  into  this  country.  Pellecat  v.  Angell,  2  C. 
M.  &  R.  311 ;  1  Gale,  187.  2049 

A  plea  stated  the  consideration  of  a  bill  of 
exchange  to  be  a  sale  of  goods  abroad  to  the 
defendant,  an  Englishman,  as  the  plaintiff  well 
knew,  at  a  small  price,  being  less  than  the 
real  value  for  the  same,  for  the  purpose  of  the 
defendant  getting  them  smuggled  into  England : 
— Held,  that  the  plea  did  not  show  any  participa- 
tion by  the  plaintiff  in  the  illegal  purpose  of  the 
defendant,  and  that,  therefore,  the  plaintiff*  was 
entitled  to  recover.    Id. 

Semble,  that  the  bill  would  have  been  avoided 
if  the  plaintiff  had  made  out  invoices  of  the 
goods  at  a  false  price,  to  enable  the  plaintiff  to  im- 
port them,  on  payment  of  less  than  the  legal  duty, 
the  bill  being  given  for  the  full  price,  or  for  the 
difference  between  it  and  the  false  price.  Id. 

SPIRITUOUS  LIQUORS. 

The  Stat.  24  G^o.  2,  c.  40,  s.  12,  which  pre- 
vents a  person  from  recovering  for  spirits  sup- 
plied to  a  smaller  amount  than  20«.  at  a  time, 
does  not  apply  to  spirits  supplied  by  a  hotel- 
keeper  to  a  ^est  who  is  resiaent  in  his  hotel. 
Proctor  V,  Nicholson,  7  C.  &  P.  67 — Abinger. 

2051 

The  vendor  of  spirits  in  small  quantities,  for 
the  price  of  which  he  ia  disabled  from  recovering 
by  24  Geo.  2,  c.  40,  s.  12,  who  has  another  de- 
mand against  the  vendee,  may  apply  a  payment 
made  to  him  by  his  debtor  to  the  price  of  the 
apirits,  unless  at  the  time  of  payment  the  debtor 
direct  a  different  appropriation  of  it.  Phil  pott 
V.  Jones,  4  Nev.  &  M.  14 ;  2  Adol.  &  Ellis,  41. 

2051 

In  the  absence  of  such,  contemporaneous  di- 
rections by  the  debtor,  the  creditor  may  so  apply 
the  payment  at  any  time  aflerwards.    Id. 

And  a  jury  may,  upon  the  trial  of  an  action 
brought  by  such  creditor  against  the  debtor,  find 
that  such  appropriation  has  been  made,  although 
in  the  particulars  of  demand  the  plaintiff  haa 
stated  that  the  action  was  brought  to  recover  the 
amount  of  his  bill,  being  the  whole  of  his  ori- 
ginal demand,  including  the  charges  for  spirits, 
d. 


STATUTE. 


f, 


A  statute  pasned  in  a  session  of  parliament  be- 
gun in  the  second,  and  continued  in  the  third 
jrear  of  a  King's  reign,  must  not  be  pleaded  as 
passed  in  the  second  and  third  years  of  the  reign, 
although  such  act  be  recited  in  a  later  statute  as 
**  passed  in  the  second  and  third  years,"  6lc.  Rex 
V.  Biers,  3  Nev.  &.  M.  475;  1  Adol.  &  EUis,  327. 

2055 

On  indictment  for  conspiracy,  laying  in  the 
indictment  that  the  defendants  knew  trie  party 
conspired  against  to  bear  a  certain  character,  and 


to  be  liable,  in  that  character,  to  the  operation  of 
an  act  passed  in  the  second  and  third  years,  &c.y 
adding  the  title  of  the  act  correctly,  the  judg- 
ment was  arrestee^  for  auch  misrecitaf.    Id. 

And  this,  although  there  was  a  general  count, 
(to  which  the  objection  did  not  apply),  stating 
merely  that  the  defendants  conspired,  ^^  by  false, 
artful,  and  subtle  stratagems  and  contrivances,  as 
much  as  in  them  lay,  to  injure,  oppress,  aggrieve, 
and  impoverish"  the  prosecutors.    Id. 

Although  in  an  act  of  parliament  it  is  ex- 
pressly enacted  that  it  shall  commence  and  take 
effect  from  a  day  named,  yet,  if  the  royal  assent 
be  not  obtained  until  a  day  subsequent,  the  pro- 
visions of  a  particular  section,  in  its  terms  pro- 
spective, dtf  not  take  e£fect  until  such  subsequent 
day.  Bum  v,  Carvalho  (in  error),  4  Nev.  &.  M. 
893.  2055 

A  p^ty  suing  for  penalties  for  the  violation  of 
an  act  of  parliament,  will  not  have  the  discre- 
tion of  the  court  exercised  in  his  favor,  if  the 
action  be  merely  within  the  letter  of  the  act,  and 
not  iU  spirit.    Ex  parte  Swifl,  3  Dowl.  P.  C.  636. 

2057 


STOCK. 

Where  a  bond  is  given  by  the  borrower  of  a 
sum  of  stock,  to  secure  the  replacement  of  the 
stock,  and  payment  in  the  meantime  of  sums 
equal  to  the  interest  and  dividends,  and  a  bonus 
is  aflerwards  declared  upon  the  stock,  the  lender 
has  an  equity  to  be  placed  in  the  same  situation 
as  if  the  stock  had  remained  in  his  name,  and  is 
consequently  entitled  to  the  replacement  of  the 
original  stock  increased  by  the  amount  of  the 
bonus,  and  to  dividends  in  the  meantime,  as  well 
upon  the  bonus  as  upon  the  original  stock. 
Vaughan  v.  Wood,  1  Mylne  dt  K.  403.  2059 

To  obtain  a  transfer  of  stock  under  the  provi- 
sions of  the  56  Geo.  3,  c.  60,  it  is  not  necessary 
for  the  petitioners  to  show  that  they  are  benefi- 
cially entitled  to  it ;  it  is  sufficient  if  they  prove 
their  legal  claim.    In  re  Bigg,  1  T.  &  Ool.  245. 

2059 

Foreign  securities  are  not  within  the  Stock 
Jobbing  Act,  7  Geo.  2,  c.  8.  Oakley  v.  Rigby,  2 
Bing.  N.  R.  732.  205.9 

Gambling  transactions  in  foreign  funds  are 
not  within  the  prohibition  of  that  statute.  Wells 
V.  Porter,  2  Bing.  N.  R.  722.  2059 


SUNDAY. 

An  attorney  is  not  within  the  29  Car.  2,  c.  71, 
8.  1,  which  prohibits  certain  persons  firom  doinff 
any  work  of  tlieir  ordinary  calling  on  the  Lord  s 
day.  Peate  v.  Dickens,  3  Dowl.  P.  C.  171 ;  1  C. 
M.  &  R.  422 ;  5  Tyr.  116.  2061 

An  attorney,  who,  acting  on  behalf  of  his 
client,  agrees  to  become  personally  responsible 
for  part  of  the  debt  owing  by  him,  does  not 
thereby  do  any  work  of  nis  ordinary  calling 
within  the  meaning  of  that  act.    Id. 

A  plea,  that  the  promise  and  undertaking  men- 


2626 


[SUNDAY— TIMBER  AND  TREES] 


tioned  in  the  declaration  was  made  on  a  Sunday, 
need  not  conclude  contra  formam  statuti  (2d  Car. 
2,.c.7).  Id. 

SURETY. 

A.,  principal,  and  B.,  surety,  gave  their  pro- 
missory note  to  C.  C  sups  A.,  and  takes  a  cog- 
novit, payable  by  instalments,  the  first  instal- 
ment to  be  paid  on  the  day  before  that  on  which 
C.  might  have  signed  final  judgment  in  the  action 
if  no  cognovit  had  been  given,  with  power  to 
issue  execution  for  the  whole  debt  in  case  of  de- 
fiiult.  A.  makes  a  default  at  the  day  : — Held,  tliat 
B.  is  not  discharged.  Price  v.  Edmunds,  5  M.  di. 
IL287.  2064 

Whether  B.  would  have  been  difteharged  if  the 
first  instalment  had  been  duly  paid,  and  the 
further  instalments  had  thereby  stood  deferred 
to  a  day  subsequent  to  that  on  which  final  judg- 
ment could  have  been  signed  if  no  cognovit  had 
been  given,  qussre  ?    id. 

Defendant,  after  he  had  become  bankrupt,  was 
discharged  out  of  custody,  on  a  ca.  sa.,  upon 
executing  a  warrant  of  attorney,  with  two  sure- 
ties, the  sureties  consentiiig  that  the  plaintiff,  in 
order  to  lessen  their  liability,  should  prove  his 
debt  under  the  commission.  The  plaintiff  hav- 
ing proved  his  debt,  but  no  dividend  having  been 
paid,  the  court  refused,  on  summary  application, 
to  exonerate  the  sureties.  Duncan  v.  Sutton,  1 
Scott,  33H ;  1  Bing.  N.  R.  431.  2065 

In  general,  a  release  to  the  principal  debtor  is 
in  equity  a  release  to  the  surety,  but  if  the  sure- 
ty has  previously  to  the  release  given  by  the  cre- 
ditor paid  part  of  the  debt,  and  given  a  security 
for  the  remainder,  the  general  rule  will  not  ap- 
ply, but  the  creditor,  notwithstanding  the  release, 
will,  in  the  absence  of  evidence  to  the  contrary, 
retain  his  right  against  the  surety.  Hall  v. 
Hutchons,  3  Mylne  <&  K.  426.  2065 


TENDER. 

In  an  action  of  debt  the  defendant  pleaded  the 
general  issue  as  to  part,  and  aa  to  the  other  part 
a  tender,  but  omitted  to  pay  the  money  into  court : 
judgment  having  been  on  that  account  signed  as 
for  want  of  a  plea,  the  court  set  Aside  the  judg- 
ment for  irregularity.  Chapman  v,  Hicas,  2 
DowL  P.  C.  641  ;  2  C.  &  M.  633.  2067 

A  tender  before  an  action  brought  is  not  plead- 
able to  an  action  for  unliquidated  damages. 
Searle  v.  Barrett,  4  Nev.  A;  M.  200;  3  Dowl.  P. 
C.  13.  2067 

On  a  plea  of  tender  of  U.  '[2s.  5d.,  the  jury 
found  specially,  that  defendant's  attorney  called 
on'  plaintiff,  and  said,  ^<  1  come  to  pay  you  1/. 
125. 5d.,  which  defendant  owes  you ;"  that  the  at- 
torney put  his  hand  in  hb  pocket,  but  did  not 
produce  the  money ;  the  plaintiff  said,  ^  1  can- 
not take  it,  the  matter  is  now  in  the  hands  of 
my  attorney:" — Held,  upon  a  writ  of  false  judg- 
ment, that  such  finding  did  not  warrant  a  judg- 

,1   Scott, 
2068 


ment  for  defendant.    Finch  v-  Brook 
70;  2  Scott,  511 ;  1  Bing.  N.  R.  253. 


Th«  fiusta,  however,  appearing  on  a  special  ver- 


dict, in  which  the  jury  had  not  fotmd  that  there 
was  a  valid  tender : — Held,  that  though  the  jury 
might  have  inferred  a  tender,  the  court  could 
not.     Id. 

The  plaintiff  *s  attomev,  before  bringing  the 
action,  wrote  to  the  defendant  to  say,  that,  unless 
the  debt,  together  with  his  (the  attorney's)  charse 
for  that  letter,  were  paid  at  his  office  on  the 
Wednesday  following,  at  12  o'clock,  proceedings 
would  be  commenced.  On  the  Wednesday,  at 
10  o'clock,  an  agent  of  the  defendant  went  to  the 
attorney's  office,  and  there  saw  a  boy,  to  whom 
he  tendered  the  amount  of  the  debt  only.  The 
boy,  afler  referring  to  the  letter-book,  refused  to 
accept  it,  unless  uie  charge  were  also  paid.  It 
appeared  that  the  writ  was  issued  at  11  o'clock 
on  that  day: — Held  (Parke,  B.,  dubitanle),  that 
this  was  a  trood  tender.  Kcrton  r.  Braithwaite, 
1  Mees.  A  Wels.  310.  206B 


THEATRE. 

The  proprietors  of  Coven  t  Garden  Theatre 
agreed  with  an  actor,  that  he  should  act  for  24 
nights  during  a  certain  period  of  time,  at  their 
theatre,  and  that  in  the  meantime  he  should  not 
act  at  any  other  place  in  London  :-^HeId,  that 
the  court  cannot  enforce  the  positive  part  of  the 
contract,  and  therefore,  it  will  not  restrain  by  in- 
junction a  breach  of  the  negative  part.  Keitible 
V.  Kean,  6  Simon,  333.  2ffTl 

An  agreement  that  plaintiffs  should  be  paid 
360/.  on  the  31st  of  December,  183.1,  for  3137. 
lent  by  him  on  the  26th  of  April,  1^,  if  four 

K arsons" named  should  be  alive  on  the  31st  of 
ecember,  and  that  plaintiff  should  have  the  use 
of  two  boxes  at  the  V.  theatre,  in  the  interme- 
diate time,  gratuitously ;  but  if  either  of  the  four 
persons  should  die,  plaintiff  should  pay  a  reason- 
able sum  for  the  use  of  the  boxes : — Held,  not  an 
sgreement  running  with  the  land,  and  therefore 
not  binding,  as  to  ue  use  of  the  boxes,  on  an  ae- 
signee  of  the  theatre.  Flight  v.  Glossop,  2  Scott, 
m ;  2  Bing.  N.  R.  125 ;  f  Hodges,  2^.        2072 


TIMBER  AND  TREES* 

A  tenant  for  life,  subject  to  impeachment  for 
waste,  is  entitled  to  the  interest  of  money  pr»- 
duced  hy  the  sale  of  timber  cut  by  order  ofthe 
court.    Tooker  v.  Annesley,  5  Sim.  235.       2073 

An  executor  is  entitled  to  sne  the  lessee  of  his 
testator  for  a  covenant  not  to  fell,  stub  up, 
lop,  or  top  timber  trees,  excepted  out  of  the  de- 
mise, such  breach  having  been  committed  in  the 
lifetime  ofthe  testator.  Raymond  e.  Fitch,  2  C. 
M.  Sl  R.  588.  2073 

The  arbitrator  made  a  special  award,  finding 
the  following  facts :— That  the  parish  and  manor 
of  H.,  and  all  the  messuages,  lands,  and  tene- 
ments in  his  award  mentioned,  were  fh>m  time 
immemorial  within  C.  chase,  and  so  continued 
until  the  said  chase  was  disfranchised;  and  that 
in  the  17th  year  of  the  reign  of  Eliz.,  the  lord  of 
the  manor,  and  the  owner  of  certain  woods  and 
coppices,  whose  estate  A.  then  had,  granted 
several  leases  of  the  same  messoages,  lands,  and 


1 


[TIMBER  AND  TREES— TRESPASS] 


2627 


tenements,  then  held  of  D.  and  P-  respectively, 
for  the  term  of  1000  yeilrs,  with  common  of  pas- 
tore  as  appurtenant  thereto  for  certain  beasts, 
oyer  and  upon  the  said  woods  and  coppices  to  be 
used  and  enjoyed  in  the  manner  then  accustomed 
by  others  haying  common  of  pasture  over  the 
same  for  the  like  commonable  cattle.  He  then 
stated  that  the  riirht  of  common  then  accustomed 
was  from  the  12th  of  May  to  the  22nd  of  Novem- 
ber, except  only  such  part  of  the  woods  wherein 
the  owner  or  occupier  thereof,  from  time  to 
time,  at  his  frpe  will  and  pleasure,  cut  down  the 
wood  and  underwood  ;  which  parts  so  cut  down 
the  owner  or  occupier  was  accustomed  to  inclose 
with  a  fence  to  preserve  the  growth  of  the  wood 
and  underwood  therein,  and  thereby  excluded  all 
beasts  therefrom  until  the  end  of  three  succes- 
sive years  from  the  time  of  such  cutting,  when 
the  cfeer  of  the  chase  were  admitted  mto  the 
woods  and  coppices,  and  all  other  beasts,  until 
the  end  of  four  successive  "years  from  the  time  of 
such  cutting,  when  the  commonable  cattle  were 
admitted.  He  then  found  that  the  lessees,  their 
tenants,  &c.  had  used  and  enjoyed  common  of 
pasture  in  the  said  woods  and  coppices.    The 

aoestion  which  the  arbitrator  raised  was,  whether 
le  owner  of  the  woods  was  entitled  to  inclose 
the  coppices  and  woods,  so  from  time  to  time 
to  be  out  down,  and  exclude  therefrom  all  the 
commonable  cattle  for  seven  successive  years, 
for  the  preservation  of  the  wood  and  underwood : 
— Held,  that  the  owner  of  the  woods  was  not 
so  entitled ;  that  the  statute  22  Edw.  4,  c.  7,  did 
not  apply  to  woods  wherein  rights  of  common 
existed ;  and  that  the  statute  35  Hen.  8,  c.  17,  s.  8, 
which  provides,  that  the  space  where  wood  is  in- 
tended to  be  cut  may  be  inclosed  and  kept  in 
■everaltv  for  seven  years,  only  applied  to  woods 
in  whicn  immemorial  rights  of  common  existed, 
and  not  to  rights  of  common  claimed  by  grant. 
Dibbin  v.  Anglesey  (Marquis), 2  C.  ^k  M.  722;  4 
Tyr.Sag.      *       ^  2073 


TIME,  COMPUTATION  OF. 

Where  a  certain  number  of  days*  notice  of  an 
intention  to  do  an  act  is  required,  the  day  of  the 
aenriee  of  the  notice  is  excluded  from  the  com- 
putation, and  that  on  which  the  act  is  to  be  don^ 
IS  included,— unless  there  be  some  special  pro- 
vision requiring  a  different  mode  of  computation. 
Rex  V.  Cumberland  (Justices),  4  Nev.  &,  M.  378 ; 
1  Har.  Sl  WoU.  16.  2076 

Therefore,  notice  to  magistrates  of  an  intention 
to  apply  on  the  25th  day  of  the  month,  for  a  cer- 
tiorari to  remove  an  order  made  by  them  for  the 
allowance  of  accounts  of  surveyors  of  highways, 
served  upon  the  20th  of  the  same  month,  is  not 
a  sufficient  notice  within  13  Geo.  2,  c.  18,  s.  6, 
xequiring  six  days*  notice  to  be  given.    Id. 

Semble,  that  the  word  '^  till"  is  inclusive  of  the 
day  to  which  it  is  prefixed.  Dakins  v.  Wagner,  3 
0owl.  P.  C.  535.  2076 

Semble,  the  mode  of  calculating  the  number 
of  days  in  any  notice  provided  by  statute,  is  the 
same  as  that  prescribed  for  the  same  purpose  by 
Reg.  Gen.  Hil.  2  Will.  4,  No.  8,  in  matters  af- 

Vol.  IV.  45 


fected  by  the  rules  or  practice  of  the  courts.  Bux- 
ton V.  Spires,  1  Tyr.  A  G.  74.  2076 

Where  parties  contract  that  the  purchase  of 
lands  shall  be  completed  within  so  many  months, 
calendar  and  not  lunar  months  are  intended. 
Hipwellt^.Knight,!  Y.  &Col.  401.  2076 


TOLLS. 

A  mere  claim  of  a  right  to  take  certain  tolls, 
without  showing  clearly  that  it  is  a  bona  fide 
claim,  is  not  sufficient  to  oust  justices  of  the 
jurisdiction  to  convict  for  taking  them  impro- 
perly. Rex  V.  Hampshire  (Justices).  3  Dowf.  P. 
b.47.  ^  '  2077 

Under  charters  granting  to  a  dean  and  chap- 
ter, *^  that  they  and  all  their  men  shall  be  quit 
of  toll,  passage,  cheminage,  &c.  in  city  and 
borough,  fair  and  market,  in  the  passage  of 
bridges,  and  all  parts  of  the  sea,  in  all  places 
throughout  England,"  their  lay  tenant  of  lands 
included  in  the  charters  is  exe^mpt  from  n^rket 
toll  and  toll  traverse,  not  only  for  articles 
going  to  or  coming  from  the  lands  for  the  neces- 
sary manurance  and  enjoyment  of  them,  but 
also  for  goods  sent  out  or  coming  in  for  the 

Eurpose  of  merchandize.    Middleton  (Lord)  v. 
Ambert,  1  Adol.  &,  Ellis,  401 ;  3  Nev.  &  M. 
841.  2077 

Quere,  whether  in  the  latter  case  the  exemp- 
tion could  have  been  claimed  by  ecclesiastical 
persons  ?    Id. 

Quaere,  also,  whether  the' exemption  from  toll 
claimable  at  common  law  by  ecclesiastical  per- 
sons and  tenants  in  ancient  demesne,  extended 
to  goods  bought  and  sold,  or  carried  for  the 
mere  purpose  of  trade  ?    Id. 

If  the  lessee  of  tolls  under  a  corporation  vary, 
bv  temporary  agreement,  the  amount  of.  toll 
claimed  of  individuals,  it  shall  not  afiect  the 
right  to  the  tolls,  if  it  appear  to  have  been  a  va- 
riation, not  for  the  purpose  of  claiming  more  at 
one  time  than  another,  but  for  the  convenience 
of  both  parties.  Lancum  v.  Lovell,  6  C.  Sl  P. 
46a-Tindal.  2077 


TRESPASS. 

Assault  and  Imprisonment.] — In  trespass  for' 
fiilse  imprisonment,  proof  must  be  given  of  cir- 
cumstances, from  which  the  judge  and  jury  may 
decide  whether  there  was  or  was  not  a  restraint 
or  detention  of  the  person ;  and  it  is  not  enough 
for  witnesses  to  swear  that  they  considered  the 
plaintiff  was  in  custody,  and  thought  that  he  was 
under  restraint ;  nor  is  it  enough  to  show  that 
the  defendant,  at  a  police-office,  stood  before  the 
plaintiff  and  said,  "  You  cannot  go  awav  till 
the  magistrate  comes,'*  if  it  appears  that  he  re- 
linquished that  attitude,  and  went  to  another 
part  of  the  office  before  the  plaintiff  had  made 
any  attempt  to  depart.  Cant  r.  Parsons,  6  C  & 
P.  504— Lyndhurst.  2079 

Where  an  action  is  brought  for  false  imprison- 
ment, and  the  defendant  afterwards  prefers  an  in- 
dictment aj?ainst  the  plaintiff  for  an  assault.  Which 
was  the  offence  charged  to  have  been  committed 


2628 


[TRESPASS] 


when  the  plaintiff  was  imprisoned,  the  coart  will 
not  compel  the  plaintiff  to  try  his  cause,  until  the 
other  proceedings  are  terminated.  Long  v.  Hutch- 
ins,  1  Hodges,  56.  2079 

Trespass  for  assault  and  false  imprisonment, 
and  taking  the  plaintiff  to  a  police  station.     Plea, 
that  the  defendant  was  possessed  of  a  dwellinir- 
house,  and  that  the  plaintiff  entered  the  dwell- 
ing-house, and  then  and  there  insulted,  abused, 
and  ill-treated  the  defendant  and  his  servants  in 
the  dwelling-house,  and  greatly  disturbed  them 
in  the  peaceable  possession  thereof,  in  breach  of 
the  peace ;  whereupon  the  defendant  requested  the 
plaintiff  to  depart,  which  he  refused  to  do,  and  con- 
tinued in  the  house,  making  the  said  disturbance 
and  affray  therein  ]  that  thereupon  the  defendant, 
in  order  to   preserve  the  peace,  and  restore  good 
order  in  the  house,  gave  charge  of  the   plamtiff 
to  a  certain  policeman,  and  requested  the  police- 
man to  take    the    plaintiff    into    his    custody, 
to  be  dealt  with    according  to   law;  and    that 
the  policeman,  at  such  request  of  the   defendant, 
gently  laid  his  hands  on   the  plaintiff,  for  the 
cause  aforesaid,  and  took  him  into  custody.    It 
appeared  in  evidence,  that  the  plaintiff  entered  the 
defendant's  shop  to  purchase  an  article  in  the 
shop,  when  a  dispute  arose  between  the  plaintiff 
and  the  defendant's  shopman ;  that  the  plaintiff 
refusing  on  request  to  go  out  of  the  shop,  the 
shopman  endeavored   to  turn  him  out,  and  an 
affray  ensued  between  them ;  that  the  defendant 
came  into  the  shop  during  the  affray,  which  con- 
tinued for  a  short  time  after  he  came  ;  that  the 
defendant  then  requested  the  plaintiff  to  leave 
the   shop  quietly  ;  but  he  refusing  to  do  so,  the 
defendant  {rave  him  in  charge  to  a  policeman, 
who  took  him  to  a  station-house : — Held,  first, 
that  the  defendant  was  justified,  under  the  cir- 
cumstances, in  giving  tlie  plaintiff  in  charge  to  a 
policeman,  for  uie  purpose  of  preventing  a  re- 
newal of  the  affray : — Held,  secondly,  that  the 
plea  was  not  substantially  proved,  inasmuch  as 
the  alleged  assult  on  the  defendant  himself  was 
not  proved.     Timothy  r.  Simpson,  1  C.  M.  &  R. 
757  J  5  Tyr.  244 ;  6  C.  &  P.  499.  2080 


If,  in  an  action  for  an  assault,  the  defendant 
plead  that  he  was  possessed  of  a  public-house, 
in  which  the  plaintiff  was  making  a  disturbance, 
and  that  the  plaintiff  refusing  to  depart,  the  de- 
fendant laid  hands  on  him,  and  turned  him  out. 
This  plea  is  proved,  if  it  be  shown,  that,  in  con- 
sequence of  the  plaintiff  refusing  to  go,  the  de- 
fendant assaulted  him,  with  a  view  of  turning 
him  out  of  the  house,  though  in  fact  the  defen- 
dant could  not  succeed  in  actually  turning  the 
plaintiff  out.  Moriarty  r.  Brooks,  6  C.  &  P.  684 
— Lyndhurst.  2060 

If  A.  comes  up  to  attack  B.,  and  B.  puts  himself 
into  a  fighting  attitude  to  defend  himself,  this  is 
not  an  assault  by  B.,  and  will  not,  in  an  action  by 
B.  against  A.  for  an  assault,  support  a  plea  by 
A.  of  son  assault  demesne.  Id. 

Upon  issue  taken  on  a  plea  of  son  assault 
demesne,  it  is  necessary  to  prove  an  assault  com- 
mensurate with  the  trespass  sought  to  be  justified. 
Reece  r.  Taylor,  4\Nev.  <fc  M.  470;  1  liar.  & 
Woll.  15.  2060 


Where  there  are  a  series  of  matters  complained 
of  in  trespass,  and  the  plea  amounts  to  a  instifi- 
cation  of  all ;  in  order  to  entitle  the  defendant  to 
a  verdict,  it  is  incumbent  upon  him  to  make  out 
all  the  material  allegations  in  his  plea;  therefore, 
where  the  declaration  complained  of  an  assault, 
putting  the  plaintiff  out  of  a  shop,  and  imprison- 
mg  him  in  custody  of  a  police-officer,  and  the 
plea  was  molliter  manus  imposuit,  to  remove  the 
plaintiff  from  the  defendant's  shop,  and  a  justifi- 
cation of  the  imprisonment,  because  the  plaintiff 
had  assaulted  defendant,  and  the  assault  on  the 
defendant  was  not  proved : — Held,  that,  although 
without  it  the  first  part  of  the  plea  was  sustain- 
able, yet,  being  a  material  allegation  to  maintain 
the  plea  as  to  the  imprisonment,  it  was  neces- 
sary to  prove  it  to  entitle  the  defendant  to  a  ver- 
dict.   Id. 

Semble,  that  it  is  not  necessary  to  reply  excess 
in  every  case  where  the  allegations  in  a  declara- 
tion in  trespass  are  covered  by  a  plea  of  justifica- 
tion ;  but,  that  evidence  of  acts  consistent  with 
the  declaration,  but  not  within  the  justification, 
may  be  given  under  de  injuria.    Id. 

In  tre/ipass  for  an  assault  and  battery,  the  re- 
plication de  injuria,  to  a  plea  that  the  plaintiff 
was  the  defendant's  apprentice,  whom  he  mode- 
rately chastised  for  improper  conduct,  does  not 
put  in  issue  the  question  of  the  moderation  of  the 
chastisement.  Penn  v.  Ward,  2  C.  M.  dt  R.  33B ; 
4  Dowl.  P.  C.  215 ;  1  Gale,  189.  2061 

In  an  action  of  trespass  and  false  imprison- 
ment, for  causing  a  person  to  be  taken  to  a  po- 
lice station-house ;  it  it  appeared  that  the  going 
proceeded  originally  from  the  plaintiff's  own  wil^ 
the  defendant  will  be  entitled  to  a  verdict  on 
either   "not  euilty,"   or  "leave   and   license,'* 

E leaded  ;  but  flie  plaintiff  will  not  be  deprived  of 
is  right  to  recover  damages,  if  it  appear  that, 
being  acted  upon  by  the  defendant's  having" 
made  a  charge  of  felony  against  him  in  the  pre- 
sence of  a  policeman,  he  went  voluntarily  with 
the  policeman  to  tlie  station-house  for  the  pur- 
pose of  meeting  the  charge.  Peters  o.  Stanway, 
6  C.  <&  P.  737— Alderson.  2082 

A  private  person  cannot  apprehend  another 
upon  a  suspicion  of  felony,  for  the  purpose  of 
taking;  him  to  the  place  where  the  theti 
committed,  in  order  to  ascertain  whether  he 
the  thief    Hall  v.  Booth,  3  Nev.  dt  M.  316. 

2082 

A.  caused  B.  to  be  taken  into  custody  on  sus- 
picion of  felony,  and  taken  before  a  magistrate, 
who  remanded  B.  for  two  days,  and  then  dis- 
charged him : — Semble,  that  B.,  on  a  declaration 
for  false  imprisonment  (in  the  usual  form),  can- 
not recover  for  the  two  days'  imprisonment  after 
the  remand.  Holtum  v.  Lotun,  o  C  <&  P.  726— 
Parke.  2082 

Whether  he  could  do  so  if  it  were  stated  as 
special  damage,  quiere  .'*  Id. 

In  an  action  for  false  imprisonment,  the  de- 
fendant pleaded  that  the  plaintiff  had  stolen 
feathers  from  a  bed  in  a  ready-furnished  bed- 
room, let  to  him  by  the  defendant,  and  that  he 
therelbre  gave  the  plaintiff  intp  the  custody  of  a 


[TRESPASS] 


2629 


polieeman,  who,  because  the  plaintiff  resisted, 
beat  the  plaintiff,  and  took  him  to  a  station- 
house.  There  was  no  evidence,  either  of  any  re- 
sistance by  the  plaintiff,  or  of  any  blow  j^iven  by 
the  policeman : — iicld,  that,  on  proof  of  the 
other  allegation,  the  plea  was  substantially  made 
out.  Atkinson  v.  Wame,6  C.  &  P.(>67 — Gurney. 

2082 

The  plaintiff  declared  for  an  assault,  in  seizing 
and  laying  hold  of  him,  pulling  and  draggmghim 
about,  striking  him,  forcing  him  out  of  a  field 
into  and  through  a  pond,  and  then  imprisoning 
him  ;  plea,  justifying  the  assaulting,  seizing,  and 
laying  hold  of  the  plaintiff,  and  pulling  and  drag- 
ging him  about: — Held,  no  sufficient  answer 
to  the  entire  charge  in  the  declaration.  Bush  v. 
Parker,  4  M.  &.  Scott,  5»8 :  1  Bing.  N.  R.  72. 

2083 

A  declaration  in  trespass  for  assault  and  bat- 
tery stated,  that  defendant  assaulted  plaintiff, 
and  wrenched  a  stick  from  his  hand,  and  with  the 
said  stick  and  with  his  fists  gave  the  plaintiff  many 
violent  blows,  &c.  &c.  rlea,  as  to  the  assault- 
ing the  plaintiff  with  the  stick  and  his  fist,  d&c., 
•on  assault  demesne : — ^Held,  after  verdict,  that 
the  plea  sufficiently  justified  the  battery  with  the 
stick  as  well  as  the  assault  with  it.  Blunt  v. 
Beaumont,  2  C.  M.  <&  R.  412 ;  4  Dowl.  P.  C.  219. 

2083 

To  Personal  Property.'} — If,  in  trespass  for  tak- 
ing goods,  the  defendants  plead  that  W.  L.  was 
possessed  of  a  room,  and  that  they,  as  his  ser- 
vants, removed  the  goods,  which  were  incumber- 
ing  the  room,  to  a  convenient  distance ;  this  plea 
is  disproved,  if  it  be  shown  that  the  defendants 
locked  up  the  goods  in  the  room,  and  took  away 
the  key.  Jones  v.  Lewis,  2  C.  &  P.  343— Cole- 
ridge. 2084 

A  replication  to  a  plea  to  trespass  de  bonis 
asportatis,  justifying  the  removal  of  the  chattels 
because  they  encumbered  a  close,  as  to  a  part 
of  the  goods,  de  injuria,  and  as  to  other  parts, 
extra  force  and  violence,  was  held  good  on  special 
demorrer.  Vivian  v.  Jenkins,  3  Sev.  &  M.  14 ; 
1  Har.  &  WoU.  469.  2084 

Sncfa  a  replication  may  afford  a  several  an- 
swer to  di^rent  portions  of  the  chattels.    Id. 

If  one  answer  be  insufficient  on  demurrer,  it 
will  not  affect  the  validity  of  the  others.    Id. 

A  replication  of  de  injuria  to  a  plea,  setting 
out  a  title  by  demise,  giving  color  to  the  plain- 
tiff, and  justifying  as  a  servant  in  trespass  qu.  cl. 
fir.,  is  bad.    la. 

A  replication  of  excess  to  a  plea  in  trespass 
de  bonis  asportatis,  justifying  the  removal  of 
chattels,  damage  feasant,  required,  before  the 
new  rules,  U.  T.4  Will.  4,  a  prayer  of  judgment; 
and  the  objection  that  there  was  no  such  con- 
clusion might  be  taken  on  special  demurrer.     Id. 

To  Real  Property.] — In  a  declaration  in  tres- 
pass c[uare  clausum  fregit,  the  plaintiff 's  close  is 
descnbed  by  abuttals;  plea,  seisin  in  fee  in  the 
defendant,  and  issue  thereon.  The  plaintiff  is 
entitled  to  recover  for  a  trespass  done  in  a  close 
in  his  lawful  possession,  answering  to  the  de- 


1  scription  in  the  declaration,  although  the  defen- 
dant also  has  a  close  answering  to  the  same  de- 
seription  Lempriere  v.  Humphrey,  4  Nev.  & M. 
6:«;  3Adol.&  Ellis,  181 ;  1  Har.  &  WoU.  170. 

2086 

So,  although  the  abuttals  are  stated  with  such 
generality,  that  the  declaration  would  have  been 
bad  on  special  demurrrer,  and  it  is  only  by  reason 
of  such  generality  of  description  that  the  plain- 
tiff's close  comes  witliin  the  description.    Id. 

As  where  the  locus  in  quo  is  described  as 
abutting  in  the  direction  of  the  four  cardinal 
points,  towards  certain  closes,  and  the  plaintiff 
proves  a  trespass  on  a  close  of  a  triangular  shape 
abutting  towards  such  closes.     Id. 

When,  in  a  declaration  in  trespass  quare  clau- 
sum fregit,  the  locus  in  quo  is  described  as  abutp 
ting  towards  certain  closes,  the  defendant  may  de- 
mur  specially^  or  may  obtain  a  judge's  order  for 
a  more  certain  description  of  the  close.    Id. 

But  such  defect  cannot  be  taken  advantage  of 
at  the  trial  of* an  issue, /raised  upon  a  plea  of 
seisin  in  fee  or  liberum  tenementiim.    Id. 

Nor  could  tlie  objection  have  been  taken, 
though  the  defendant  had  pleaded  a  denial  of  the 
plaintiff 's  possession  of  the  alleged  close.  Sem- 
ble.    Id. 

A  plea  of  seisin  in  fee  or  liberum  teneihentum 
in  trespass,  admits  the  plaintiff's  possession,  in 
fact,  of^a  close  corresponding  with  the  description 
of  the  close,  either  by  name  or  by  abuttals  in  the 
declaration.    Semble.     id. 

Where,  in  trespass  q.  c.  f,  the  defendant  in  his 
plea  claims  an  interest  in  the  land,  a  replication 
of  de  injuria  is  bad  on  general  demurrer.  Hooker 
V.  Nye,  1  C.  M.  &  R.  258 ;  4  Tyr.  477.         2087 

In  trespass  quare  clausum  fregit,  a  person 
claiming  to  be  owner  of  the  locus  in  quo  may  be 
a  witness  to  disprove  the  plaintiff's  title.  Wool- 
way  V.  Rowe,  3  Nev.  dc  M.  849.  .  2087 

Declaration  for  seizinsr  pigs:  plea,  that  de- 
fendant was  possessed  of  a  close  named  H.,  in 
which  the  pigs  were  eating,  &c.,  and  were  taken 
damage  feasant :  replication,  that  defendant  was 
not  possessed  of  the  said  close  in  the  said  plea 
mentioned,  in  which  the  pigs  were  alleged  to  be 
eating,  «&c.  and  issue  thereon.  There  were  several 
adjacent  closes  called  H. : — Held,  that  the  defen- 
dant was  bound  to  show  that  he  was  possessed 
of  a  close  in  which  the  pigs  were  eating,  Ac.,  and 
that  it  was  not  enough  ior  him  to  show  his  pos- 
session of  a  close  named  H.     Bond  v.  Downton, 

2  Adol.  &  Ellis,  26.  2087 

Proof  that  plaintiff  was  in  separate  possession 
of  two  rooms  of  a  house : — Held,,  sufficient  to 
satisfy  an  allegation  that  plaintiff  was  in  posses- 
sion of  the  messuage  upon  which  defendant  had 
taken  issue.     Fenn  v.  Urafton,  2  Bing.  N.  R.  617. 

2087 

To  a  declaration  for  breaking  and  entering 
plaintiff's  close,  defendant  pleaded,  first,  not 
guilty ;  secondly,  that  the  close  was  not  the  close 
of  the  plaintiff ;  thirdly,  that  the  close  was  the 
soil  and  fireehold  of  the  defendant : — Held,  that 
evidence  of  possession  was  sufficient  to  entitle 


2630 


[TRESPASS— TROVER] 


plaintiff  to  a  Terdict  on  the  second  plea.  Heath 
V.  Milward,2  Scott,  160;  2  Bing.  N.  R.98;  1 
Hodges,  198.  2097 

Trespass  for  breaking  and  entering  three  closes, 
describing  them  by  abuttals.     Plea,  that  the  said 
closes  in  which  6lc.  were  the  closes,  soil,  and 
freehold  of  one  T.  L.,  and  justifying  as  his  ser- 
vants.    Replication,  that  before  the  said  times 
when,  &c.,  and  before  the  said  T.  L.  bad  any- 
thing in  the  said  closes,  in  which,  &c.,  one  K. 
T.  and  his  wife,  in  right  of  his  said  wife,  one  A. 
L.,  and  one  E.  K.,  were  seised  in  their  demesne 
as  of   fee  of  and  in  two  undivided  third  parts, 
6lc.  of  and  in  the  said  closes,  in  which,  ^c, 
and  one  A.   R.  was  also  then  seised  in  her  de- 
mesne as  of  fee  of  and  in  the  other  undivided  third 
part  of  and  in  the  said  closes  in  which,  &,c.    And 
the  said  R.  T.,  and  M.  his  wife,  being  so  seised, 
aflerwards  and  before  the  said  T.  L.  had  any- 
thing in  the  said  closes,  in  which,  &c.,  to  wit,  on 
&c.,  at  &c.,  a  certain  fine  was  had  and  levied  of, 
inter  alin,  the  parts,  shares,  and  interests  of  the 
said  R.  T.  and  M.,  his  wife,  of  ^nd  in  the  said 
closes,  in  which,  Ac,  which  fine  was  then  had 
and  levied,  inter  alia,  to  the  use  of  P.  M.  C.  and 
his  heirs,  during  the  life  of  the  said  M.  T. ;  by 
virtne  of  which  fine,  the  said  P.  M.  C.  became 
seised  in  his  demesne  as  of  freehold,  for  the  term 
of  the  life  of  the  said  M.,  of  and  in  the  said  parts, 
&c.  of  the  said  R.  T.  and  M.,  his  wife,  of  and  in 
the  said  closes,  in  which,  Ac.    And  the  said  P. 
M.  C,  A.  L.,  E.  K.,  and  A.  R.,  being  so  seised, 
afterwards  and  before  the  said  T.  L.  had  any- 
thing in  the  said  closes,  in  which,  &c.,  and  before 
the  said  times  when,  d&c,  demised  to  the  plain- 
tiff, who  thereupon  entered  and  was  possessed 
until     the    defendants    wrongfully    broke    and 
entered  therein,  &c.     Rejoinder,  traversing  the 
seisin  of  R.  T.  and  M.,  his  wife,  A.  L.,  E.  K., 
and  A.  R  ,  in  the  said  closes,  in  which,  &c. ;  on 
which  issue  was  joined.     At  the  trial  the  plaintiff 
proved  a  case  as  to  two  of  the  closes,  but  offered 
no  evidence  as  to  the  third : — Held,  that  the  issue 
was  distributable,  and  that  the  plaintiff  was  entitled 
to  a  verdict  as  to  the  two  closes,  and  the  defendants 
as  to  the  third.     Phythian  ??.  White,  1  Mees.  & 
Wels.  216 ;  4  Dowl.  P.  C.  714.  2087 

Several  Defendants.'] — In  an  action  of  trespass 
against  several,  the  plaintiff  having  proved  a  joint 
trespass  committed  by  all  the  defendants,  cannot 
waive  that  and  give  evidence  of  another  trespass 
committed  by  only  one  defendant.  Tait  r.  Harris, 
1  M.  &.  Rob.  282^Lyndhur6t.  2090 

If  a  person  does  not  assist  in  a  trespass  either 
in  worn  or  deed,  he  is  not  liable  for  it.  Timothy 
«.  Simpson,  6  C.  &  P.  499— Parke.  2090 


of  debt  made  and  filed  &c.,  and  the  defendant  re- 
joins that  there  was  such  afiidavit,  and  sets  out 
an  irregular  affidavit,  and  the  plaintiff  demurs : — 
Held,  that  the  defendant  was  entitled  to  judg- 
ment, trespass  not  being  maintainable  whefte  the 
process  is  irregular  merely,  and  net  void.     Id. 


Justification  under  Proeess."] — In  an  action  for 
fidse  imprisonment  for  an  arrest  upon  a  writ  of 
capias  issued  on  an  informal  afiSdavit,  the  defen- 
dant may  justify  under  the  writ,  if  it  has  not  been 
set  aside.  Reddell  t>.  Pakeman,  2  C.  M.  &  R.  30 ; 
1  Gale,  104.  2089 

Where,  in  trespass  for  false  imprisonment,  the 
defendant  justifies  under  process  of  outlawry, 
and  the  plaintiff  replies  that  there  was  no  affidavit 


Pleading  and  Evidence  generally.'] — In  tres- 
pass, a  replication  de  injuria,  also  newly  assign- 
ing that  the  goodii  were  taken  as  a  distress,  not 
only  for  the  sum  alleged  in  the  justification,  but 
also  for  another  sum,  &c.,  is  double.  Gisborne  v. 
Wyatt,  1  Gale,  35.  2092 

To  a  declaration  coikaiuing  one  count  only  in 
trespass  for  assault  and  false  imprisonment,  the 
plea  justified  the  apprehending  the  plaintiff  on  a 
charge  of  felony,  and  proceeded  to  aver  that  the 
plaintiff  resisted,  whereupon  he  beat  him,  &c. 
At  the  trial,  the  justification  as  to  the  apprehen- 
sion for  felony  was  proved;  but  the  defendant 
did  not  prove  the  resistance  of  the  plaintiff.  The 
jury  having  found  for  the  defendant: — Held, 
that  the  verdict  was  right,  the  defendant  having 
proved  as  much  of  his  pica  as  was  necessary  to 
cover  the  declaration,  and  it  not  being  necessary 
for  him  to  prove  what  was  unnecessarily  alleged. 
Atkinson  v.  Warne,  1  C.  M.  &  R.  827;  5  Tyr. 
481 ;  3  Dowl.  P.  C.  483.  2092 


TROVER. 

Property  and  Possession.] — While  the  right  of 
property  in  a  chattel  is  sidmitted  to  be  in  one 
person,  the  right  of  possession  of  that  chattel 
cannot  be  absolutely  and  adversely  in  another. 
Clerk  V.  Adam.  1  Clark  &.  Fin.  242.  2092 

Trover  mav  be  maintained  by  a  gratuitoQS 
bailor  of  cattle  against  a  wrong-doer  who  takes 
them  out  of  the  possession  of  the  bailee.  NicoIIt 
V.  Bastard,  1  Tyr.  <(&  G.  156 ;  2  C.  M.  &  R.  659; 
I  Gale,  295.  2092 

The  plea  of  no  property  in  the  plaintiff  in 
trover,  means  no  property  as  against  the  defen- 
dant.   Id. 

In  trover  the  defendant  pleaded  that  I.  H.  was 
possessed  of  the  goods  as  of  his  own  property,  and 
that  to  prevent  them  being  taken  in  execution 
he  covinoosly  pretended  to  sell  them  to  the 
plaintiff.  The  replication  traversed,  that  1.  H. 
did  for  the  purposes  ^fc,  covinously  pretend  to 
sell  the  said  goods : — Held,  that  the  replication 
did  not  admit  Siat  the  goods  were  the  property  of 
How  ;  but  that  the  onus  was  on  the  defendant  of 
proving  a  fraudulent  sale  by  How  to  the  plaintiff. 
Id. 

Where  a  declaration  proceeds  for  a  number  of 
chattels,  if  the  plaintiff  succeed  in  proving  his 
right  to  a  part  only,  the  defendant  is  entitled  to 
have  the  issue  as  to  the  residue  found  in  his 
favor ;  but  he  is  not  entitled  to  any  costs,  unless 
he  has  been  put  to  expense  as  to  th^  residue  so 
claimed  in  the  declaration.     Id. 

He  is  not  entitled  in  such  a  case  to  any  costs, 
if  the  particulars  inform  him  for  what  the  plain- 
tiff intends  to  proceed.    Id. 


[TROVER] 


2631 


For  v)kat  it  lies.] — ^Trover  lies  for  a  lost  bank- 
note, which  the  defendant  has  tortiously  con- 
verted to  his  own  use,  though  part  of  the  pro- 
ceeds had  been  paid  bj  him  to  the  plaintiff.  Burn 
».  Morris,  4  Tyr.  4d5 ;  a  C.  &  M.  579.  20'J6 

The  acceptance  of  part  does  not  affirm  the  tak- 
ing, so  as  to  waive  the  tort,  bnt  the  amount  re- 
ceived will  go  in  reduction  of  damages.    Id. 

The  owner  of  chattels  stolen,  who  prosecutes 
the  thief  to  conviction,  may  recover  their  value  in 
trover  from  a  person  who  purchased  them  from 
the  thief  by  a  bona  fide  sale,  but  not  in  market 
overt  before  the  conviction,  notice  of  the  felony 
having  been  given  whilst  they  were  in  his  pos- 
oession.  Peer  v.  Humphrey,  2  Adol.  «&  Ellis,  495 ; 
4  Nev.  &r  M.  430 ;  1  Har.  &  WoU.  28.         2096 

Even  though  the  defendant  sold  the  ^oods  in 
market  overt  before  the  prosecution  of  uie  felon. 
Id. 

A.,,  resident  abroad,  remitted  a  bill  to  B.,  his 
a^nt  in  England,  drawn  by  A.,  and  specially  in- 
dorsed by  him  to  C,  with  whom  his  children 
were  at  school,  in  payment  of  C's  account  for 
their  board  and  education.  B.  got  the  bill  ac- 
cepted by  the  drawees,  and  sent  a  letter  by  post 
to  C,  stating  that  he  had  received  a  commission 
from  A.  to  pay  her  some  money  on  account  of 
his  children,  and  desired  to  be  informed  when 
and  how  it  should  be  delivered.  While  the  bill 
remained  in  B.'s  hands,  he  received  directions 
from  A.,  to  keep  it,  and  the  proceeds,  in  his  hands, 
and  to  haveaiair  investi^tion  into  C.'s  accounts, 
and  after  such  investigation,  to  pay  her  what  might 
be  due  to  her.  No  such  investigation  took  place, 
and  B.  detained  the  bill : — Held,  that  C.  could 
not  recover  it  in  trover.  Brind  r.  Hampshire,  1 
Mees.  &  Wels.  365.  2097 

If  a  defendant,  liable  in  trover  for  taking  goods, 
pays  rent  due  from  the  plaintiff  on  the  premises, 
whence  they  are  taken,  the  execution  may  be 
limited  to  the  excess  of  the  verdict  in  trover  be- 
yond the  rent  paid.  Plevin  v.  Henshell,  2  Dowl. 
P.  C.  743.  2099 


Conversion.] — The  forcible  taking  possession 
of  a  house  and  fixtures  by  the  assignee  of  a  term 
in  the  houses,  is  not  a  conversion  of  such  fix- 
tures.   Longstaff  v.  Meagoe,  4  Nev.  &M.  211. 

2101 

On  a  demand  of  goods  by  the  real  owner,  the 
defendant  refused  to  deliver  them,  stating  as  his 
reason  for  the  refusal,  that  they  had  been  attach- 
ed in  his  hands  by  a  foreign  attachment  in  a  suit 
against  a  third  party,  from  whom  he  had  received 
iheitk  as  his  own,  which  was  the  fact: — Held, 
that  there  was  no  evidence  of  a  conrersion.  Ver- 
rail  V.  Robinson,  2  C.  M.  &  R.  495;  4  Dowl.  P. 
C.242;  1  Gale,  244.  2101 

The  widow  and  administratrix  of  an  insolvent, 
being  applied  to  hj  his  assignees  for  some  papers 
that  nad  been  in  his  possession  at  the  time  of  his 
decease,  answered  that  they  were  in  the  hands  of 
her  attorney : — Held,  not  sufficient  evidence  of  a 
conversion  to  sustain  an  action  of  trover.  Canot 
V,  Hughes,  2  Bing.  N.  R.  448.  2101 


R.  being  employed  to  procure  a  bill  of  exchange 
to  be  discounted  for  plaintiff,  instead  of  doing  so, 
indorsed  it,  and  placed  it  in  the  hands  of  defen- 
dant, who  was  the  clerk  to  a  creditor  of  R.  De- 
fendant carried  the  bill  to  R.'8  account  with  his 
creditor,  and  though  afterwards  apprized  of  the 
circumstances  under  which  R.  held  the  bill,  re- 
fused to  restore  it: — Held,  that  defendant  was 
liable  to  plaintiff  in  trover.  Cranch  v.  White,  1 
Bing.  N.  R.  414.  2101 

To  support  a  plea  of  the  statute  of  limitations 
in  trover,  by  showing  a  conversion  more  than  six 
years  before  action  brought,  the  defendant  must 
either  prove  an  actual  conversion  in  fact,  or  give 
evidence  of  a  positive  and  absolute  demand  and 
refusal  before  that  period.  Philpott  v.  Kelley,  4 
Nev.  &  M.  611 ;  3  Adol.  &  Ellis,  106;  1  Har.  &. 
WoU.  134.  2101 

The  demand  and  refusal  necessary  to  afford 
evidence  of  a  conversion  in  trover,  must  be  abso- 
lute and  unqualified.    Id. 

A  pipe  of  wine  belonging  to  the  plaintiff  was 
deposited  in  the  defendant's  cellar,  and  was  bot- 
tled at  a  time  during  which  there  were  conflicting 
claims  to  it  by  the  plaintiff  and  the  assignees  m 
the  party  to  whom  it  was  sent,  and  who  resided 
in  the  defendant's  house.  By  whom  or  by  whose 
orders  the  wine  was  bottled  did  not  appear,  though 
there  was  some  evidence  that  it  was  likely  to  be 
injured  from  not  being  bottled: — Held,  that  it 
was  a  question  for  the  jury,  whether  the  act  of 
bottling  operated  as  a  conversion : — Held,  also, 
that  it  was  a  question  for  the  jury,  to  say,  under 
all  the  circumstances,  whether  the  drinking  of  a 
part  of  the  wine,  taken  in  connexion  with  the  bot- 
tling, amounted  to  a  conversion  ;  and  they  hav- 
ing found  that  it  did  not,  the  court  refused  to  dis- 
turb the  verdict.    Id. 

The  mere  taking  away  and  destroying  a  part 
of  the  property  which  is  m  the  hands  of  a  bailee^ 
who  may  deliver  up  the  rest,  is  not  a  conversion 
of  the  whole,  so  as  to  enable  the  party  entitled  to> 
maintain  trover  for  the  whole — Per  Patteson,  J.^ 
and  Coleridge,  J.    Id. 

A  letter  written  to  a  bailee  by  the  bailor's  at- 
torney, within  six  years  before  action  brought^ 
in  which  he  says  that  the  bailor  has  instructed 
him  to  commence  the  necessary  proceedings  for 
the  recovery  of  the  goods,  which  were  deposited 
with  the  bailee,  and  demanded  as  long  ago  as  on 
a  day  named — more  than  six  years  before  action 
brought, — and  threatening  to  commence  proceed- 
in|[s  if  the  goods  are  not  delivered  within  a  week» 
-^is  evidence  of  a  demand  and  refusal,  more  than 
six  years  before  action  brought,  proper  to  be  sub- 
mitted to  the  jury  under  a  plea  of  the  statute  of 
limitations  to  trover  for  the  goodtf,  ^mble.    Id. 

A.  lent  goods  to  B.,  who  died,  and  on  his  death 
the  goods  came  into  the  possession  of  C,  who, 
when  the  goods  were  demanded  of  him,  said  that 
he  should  do  nothing  but  what  the  law  required. 
C  did  not  afterwards  deliver  up  the  goods: — 
Held,  in  an  action  of  trover,  to  be  a  sufficient  con- 
version by  C.  Davies  v.  NichoUis,  7  C.  &  P.  339 
—Coleridge.  2101 


I 


2632 


[TROVER— TRUSTEE] 


J9e£i0n.] — In  an  action  of  trover,  the  plea  of  not 
guilty  admits  the  plaint'rff 'b  propertj^  or  riffht  of 
possession,  but  only  a  property  or  right  of  pos- 
session to  the  extent  necessary  to  maintain  the 
action ;  therefore,  it  is  open  to  the  defendant  to 
show  that  he  and  the  plaintiff  were  tenants  in 
common.  Standi^  v.  Hardwick,  2  C.  M.  &  R. 
1 ;  3  Dowl.  P.  C.  762;  5  Tyr.  551 ;  1  Gale,  127. 

2104 

If,  however,  the  defendant  has  made  a  conver- 
sion in  fact,  which  he  proposes  to  justify  by  rea- 
son of  his  joint  control  over  the  chattel,  he  must 
plead  in  confession '  and  avoidance ;  the  plea  of 
not  guilty,  putting  in  issue  the  fact  only  of  the 
conversion,  and  not  the  tortious  nature  of'^it     Id. 

Semble,  that  where  a  defendhnt  has  a  lien  on 
goods,  and  the  only  evidence  of  a  conversion  is  a 
demand  and  refusal,  it  is  not  necessary  to  plead 
the  lien  specially.    Id. 

If  a  defendant  in  trover  plead,  that  the  goods 
«( are  not,  nor  were  the  property"  of  the  plaintiff, 
in  manner  and  form  as  in  the  declaration  is  al- 
leged, (concluding  to  tbe  country) ;  this  will  be 
uSien  to  be  an  informal  plea,  traversing  the  alle- 
gation of  the  declaration,  that  the  plaintiff  **  was 
possessed"  of  the  goods  "  as  of  his  own  pro- 
perty •"  and,  therefore,  on  this  plea,  it  will  be  a 
good  defence  to  show  that  the  goods,  though  the 
property  of  the  plaintiff,  had  been  pledged  by 
him  as  a  security  for  money.  Samuel  v.  Morris, 
6  C.  &  P.  620~Alderson.  2104 

But  whether  this  plea  would  not  be  bad  on 
special  demurrer,  quaere  ?    Id. 

Where  the  plaintiff  in  trover  claims  under  a 
sale,  the  defendant,  under  a  plea  that  the  goods 
are  not  the  plaintiff's  property,  cannot  show  the 
sale  to  have  been  fraudulent.  The  fraud  must 
be  pleaded.  Howell  v.  White,  1  M.  &  Hob.  400 
— Patteson.  2104 

A  party,  who,  being  employed  by  plaintiff  to 
procure  a  bill  of  exchange  to  be  discounted,  lodg- 
ed it  instead  with  defendant,  as  a  security  for  a 
debt  due  to  defendant,  was  held  a  competent  wit- 
nes  lor  plaintiff  in  an  action  of  trover  brought  by 
plain  tin  for  the  recovery  of  the  bill.  Faneourt 
V.  Bull,  1  Bing.  N.  R.  6»1 .  2104 

A  written  demand  in  trover  made  by  A.  B., 
stated  that  he  held  the  plaintiff's  power  of  attor- 
ney ;  and  the  defendants'  attorney  said,  in  the 
presence  of  the  defendants,  that  he  would  admit 
the  service  of  the  demand  and  tender  of  the 
charges,  but  that  the  defendants  declined  to  de- 
liver the  goods,  and  would  leave  A.  B.  to  seek 
such  rem^y  as  the  law  would  give  him  : — Held, 
that  it  was  not  necessary  on  the  trial  of  the  cause 
to  produce  the  power  of  attorney.  L«nckart  v. 
Cooper,  7  C.  <&  P.  119— Tindal.  2104 

In  troVer  for  |foods,  the  defendant  pleaded  pay- 
ment of  money  mto  court,  and  the  plam tiff  replied 
that- he  had  sustained  more  damages :  the  defen- 
dant paid  into  court  the  cost  price  of  the  goods, 
having  offered  the  goods  in  specie  to  the  plaintiff 
two  days  only  ailer  they  ought  have  been  deliver- 
ed. The  plaintiff  proved  that  he  had  sustained 
inconvenience  and  loss  by  not  having  the  goods 
delivered  at  a  proper  time.    The  jury,  howeyer, 


found  for  the  defendant,  and  the  court  refused  to 
set  aside  the  verdict.  Evans  v.  Lewis,  3  Dowl. 
P.  C.  819.  2104 

Where,  after  an  act  of  bankruptcy,  a  sheriff 
seizes  and  sells  foods  in  trover  by  the  assiffnees, 
the  jury  may  deduct,  in  their  estimate  of  the  da- 
mages, the  expenses  of  the  sale.  Clarke  v.  Nich- 
olson, 1  C.  M.  &  R.  724 ;  5  Tyr.  233.  2104 

Defendant,  a  sheriff,  who  held  goods  taken  in 
execution,  delivered  them  to  plaintiffs,  assignees 
of  a  bankrupt,  aAer  an  action  of  trover  had  been 
commenced  by  them  :  the  plaintiffs  accepted  the 
goods  without  condition  : — Held,  that  they  could 
not  recover  in  the  action  more  than  nommal  da- 
mages ;  at  all  events,  not  without  alleging  special 
damage  in  the  declaration.  Moon  v.  Raphael,  2 
Scott,  489;  7  C.  &  P.  115;  2  Bing.  N.  R.  310 ;  1 
Hodges,  289.  2104 


TRUSTEE. 

A  new  trustee,  appointed  under  11  Geo.  4  &  1 
Will.  4,  c.  60,  without  a  reference  to  the  Master, 
the  petitioner  being  the  only  person  interested  in 
the  trust  property.    Ex  parte  Shick,  5  Sim.  281. 

2105 

A  testator  devised  his  freehold  estates  to  trus- 
tees, upon  trust  as  to  three  undivided  fourth  parts, 
"  to  pay  to,  or  permit  and  suffer"  his  wife  and 
daughters  to  receive  "  the  clear  yearly  rents  and 
profits,"  and  as  to  the  other  undivided  fourth  part, 
*^to  permit  and  suffer"  his  son  to  receive  "tbe 
clear  yearly  rents  and  profits."  He  further  di- 
rected that  the  shares  of  his  wife  and  daughters 
should  be  for  their  sole  and  separate  use;  and 
that  the  trustees  should  let  the  estates  upon  cer- 
tain conditions,  and  out  of  the  rents  should  pay 
all  taxes,  and  for  repairs : — Held,  that  the  legal 
estate  in  the  whole  of  the  premises  vested  in  Die 
trustees.  White  v.  Parker,  1  Scott,  542 ;  1  Bing. 
N.  R.  574 ;  1  Hodges,  112.  21& 

The  above  devise  was  to  two  trustees,  *'  their 
heirs  and  assiffns,"  and  the  testator  directed  that 
upon  the  death,-  incapacity,  or  refusal  to  act,  of 
any  trustee  or  trustees,  a  new  trustee  or  trustees 
should  be  appointed.  One  of  the  trustees  died, 
and  the  survivor,  by  a  deed  of  lease  and  release 
and  appointment,  to  which  all  the  cestui  que 
trusts  were  parties,  renounced  the  trust,  and  con- 
veyed the  premises  to  one  new  trustee,  who  acted 
in  execution  of  the  trusts :-— Held,  that  notwith- 
standing the  intention  of  the  testator,  that  two 
trustees  should  always  be  in  existence,  and  not- 
withstanding the  appointing  new  trustees  was  not 
strictly  pursued,  tne  legal  estate  in  the  premises 
vested  m  the  trustee  so  appointed,  and  that  he 
was  therefore  liable  to  be  sued  in  covenant  as  as- 
signee of  the  reversion  of  certain  premises  be- 
longing to  the  testator.    Id. 

Where,  by  the  terms  of  a  settlement,  it  appears 
to  be  the  intention  of  the  parties  that  there  should 
at  all  times  be  two  trustees  of  the  property  com- 
prised in  the  settlement,  the  appoinUnent  of  a 
single  trustee  in  the  place  of  two  original  trus- 
tees, and  the  transfer  by  them  of  the  trust  pro- 
perty to  snch  single  trustee,  is  a  breach  of  trasti 


[TRUSTEE— USE  AND  OCCUPATION] 


9633 


and  the  original  trusteeB  are  Tesponeible  accord- 
iBgly.    Hulme  v,  Halme,  2  Mylne  &  K.  682. 

2105 

A  trustee  who  hu  parchaaed  the  trust  pro- 
perty, and  sold  it  at  a  profit,  and  who  has  been 
compelled  by  a  suit  in  equity  to  refund  the  profit, 
will  not,  under  circumstances  affecting  him  with 
moral  fraud,  be  charged  with  the  costs  of  the  suit. 
Baker  v.  Carter,  1  T.  ^S&  Col.  250.  2107 

If  a  trustee  mixes  trust  funds  with  his  private 
monies,  and  employs  both  in  a  trade  or  adven- 
tare  of  his  own,  the  cestui  que  trust  may,  if  he 
prefers  it,  insist  upon  having  a  proportionate  share 
of  the  profits,  instead  of  interest  on  the  amount 
of  the  trust  funds  so  employed.  Docket  v.  Somes, 
2  Mylne  &  K.  655.  2107 

If  a  trustee  admits  that  a  balance  belonging  to 
the  cestui  que  trust  is  in  his  hands,  an  action  at 
law  for  money  had  and  received  may  be  main- 
tained by  the  cestui  que  trust  on  such  admission. 
Roper  V.  Holland,  4  Nev.  &  M.  668;  3  Adol.  & 
Kills,  99 ;  1  Har.  &  WoU.  167.  2108 

Where  the  trustee  of  an  estate,  who  had  funds 
belonging  to  his  cestui  que  trust  in  his  hands, 
said  that  he  was  ready  to  pay  him  10/.  down  if  he 
would  give  credit  for  certain  repairs  : — Held,  that 
it  was  such  a  statement  of  account  and  declara- 
tion of  a  balance  due  as  would  maintain  an  action. 
Id. 

When  a  court  of  equity  traces  out  trust  money 
in  the  hands  of  a  person  who  has  not  prima  facie 
a  right  to  hold  it,  that  money  must  be  paid  into 
court.    Leigh  v.  Macauley,  1  Y.  i&  Col.  260. 

2108 

UNIVERSITY. 

A  member  of  the  University  of  Oxford  cannot 
be  arrested  by  civil  process  out  of  the  court  of  the 
Chancellorof  the  Universitv,  unless  such  process 
issue  in  a  suit  commenced  against  him  whilst 
resident  within  the  precincts  of  the  University. 
Perrin  v.  West,  5  Nev.  <&  M.  291 ;  3  Adol.  dc  Ellis, 
405  ;  1  Har.  6l  Woll.  401.  And  see  Thornton  v. 
Ford,  15  East,  634.  2110 

-  Upon  the  return  to  a  habeas  corpus  cum  causa 
to  remove  the  body  of  a  defendant,  in  custody 
under  a  warrant  of  the  Chancellor  of  the  Univer- 
sity of  Oxford,  the  defendant  will  be  discharged, 
unless  it  appear  distinctly,  and  not  merely  by  in- 
ference that  the  defendant  was  resident  within 
the  jurisdiction  of  the  Chancellor's  court  at  the 
commencement  of  the  suit.  Id. 

Whether  a  defendant  can  be  arrested  out  of  the 
precincts  of  the  University  of  Oxford,  upon  a 
warrant  of  the  Chancellor  of  the  University, 
qcuere  ?    Id. 


USE  AND  OCCUPATION. 

Where  there  has  been  an  actual  enjoyment,  as- 
sumpsit for  use  and  occupation  lies  in  respect  oi 
incorporeal  hereditaments.  Bird  r.  Higginson,  4 
Nev.  AM.bOS;  1  Har.  &  WoU.  61.  2111 

Semble,  that  where  a  count  in  assumpsit  to  re- 
cover a  rent  reserved  by  parol  demise  by  the 


plaintiff  to  the  defendant  of  an  incorporeal  here- 
ditament, states,  that  the  defendant  actudly  oc- 
cupied under  such  demise,  the  plaintiff  may  re- 
cover for  the  use  and  occupation.    Id. 

But  where  a  count,  upon  a  parol  demise  of  a 
messuage,  and  the  right  to  hunt,  &c.  over  a  ma- 
nor, stated  merely  that  the  defendant  entered  and 
became  and  was  possessed  of  the  messuage,  right, 
liberties,  and  premises,  so  to  him  grantea  as  ajfore- 
said  : — Held,  that  the  plaintiff  could  not  recover 
for  the  use  and  occupation.  Id. 

In  an  action  of  use  and  occupation,  the  defen- 
dant cannot  show,  by  the  cross-examination  of 
the  plaintiff's  witnesses,  that  the  premises  are 
held  under  a  written  agreement,  but  it  afterwards 
appeared  by  the  evidence  of  the  defendant's  wit- 
nesses that  the  premises  are  so  held,  the  plain- 
tiff is  not  bound  to  put  in  the  written  agreement. 
Marston  v.  Dean,  7  C.  &  P.  13 — Coleridge. 

2111 

Use  and  occupation  cannot  be  maintained  by 
the  lessor  of  a  tenancy  from  year  to  year  against 
the  trustees  under  a  deed  of^^assignment  for  Uie 
benefit  of  creditors,  upon  an  occupation  by  them 
for  the.  purpose  of  disposing  of  the  insolvent's 
property,  unless  they  have  actually  occupied  as 
tenants.  How  v,  Kennett,  5  Nev.  w  M.  1 ;  1  Har. 
i&  Woll.  391.  2114 

The  question  whether  the.  acts  of  the  trustees 
show  an  intention  to  become  tenants,  which  was 
acted  upon  by  the  lessor,  is  a  question  for  the 
jury.  Id. 

It  is  no  misdirection  in  such  a  case  to  submit 
the  case  upon  all  the  facts  to  the  jury,  to  say 
whether  the  acts  of  the  trustees  amounted  to  a 
contract  to  become  tenants  of  the  premises ;  that 
is,  whether  they  meant  to  become  tenants,  or,  if 
not,  whether  they  so  acted  as  that  the  lessor  was 
induced  to  believe,  and  did  believe,  that  they 
meant  to  become  his  tenants.  Id. 

An  action  brought  against  two  persons,  being 
the  executors  of  a  deceased  termor,  for  the  use 
and  occupation  by  them  of  the  demised  premises, 
and  entry  and  occupation  by  one  was  proved :— 
Held,  that  it  did  not  enure  as  that  of  both,  so  as 
to  make  them  jointly  liable  de  bonis  propriis  in 
assumpsit  fo^  use  and  occupation.  Nation  v.  To- 
zer,  4  Tyr.  561.  2114 

Where  lands  were  let  by  auction,  subject  to 
conditions  of  sale,  and  a  memorandum  of  the 
terms  was  signed  by  the  auctioneer  and  the  ten- 
ant, and  underneath  there  was  a  signature  of  ap- 
proval by  the  owner,  and  a  direction  to  pay  the 
rent  into  the  hands  of  the  auctioneer.  In  an  ac- 
tion for  use  and  occupation  brought  by  the  auc- 
tioneer against  the  tenant,  in  whi^  a  verdict  has 
been  found  for  the  plaintiff,  the  court  granted  a 
new  trial,  upon  the  ground  that  the  case  nad  been 
led  as  an  entire  question  of  fact,  without  the  at- 
tention of  the  jury  having  been  called  to  the  legal 
effect  of  the  memorandum.  Evans  v.  Evans,  3 
Adol.  &  Ellis,  132 ',  1  Har.  &  Woll.  239.       2114 

Semble,  that  in  such  a  case  the  auctioneer 
could  not  maintain  use  and  occupation.  Id. 

In  an  action  for  use  and  occupation  since  the 
new  rules,  it  cannot  be  left  to  the  jury  to  say 


2634 


[USE  AND  OCCUPATION— USURY] 


whether  the  evidence  produced  by  the  defendant 
does  not  amount  to  an  admission  by  the  plain- 
tiff that  it  has  been  paid,  and  that  nothing  is  due, 
without  a  plea  of  payment  or  settlement ;  and 
such  evidence  is  inadmissible  under  a  plea  of 
set-off  for  money  due  on  an  account  stated  be- 
tween the  parties.  Linley  v.  Polden,  3  Dowl  P.  C. 
780.  2116 

Nil  habuit  in  tenementis  cannot  be  pleaded  to 
a  count  for  use  and  occupation,  either  in  as- 
sumpsit or  debt.  Curtis  v.  Spitty,  4  M.  &  Scott, 
554.  2116 

In  an  action  for  use  and  occupation  of  lodg>- 
ings,  a  witness,  who  was  the  only  person  who  had 
occupied  them,  was  called  to  prove  that  the  de- 
fendant had  taken  them  of  the  plaintiff,  and  had 
put  her  in  them : — Held,  that  sh^  was  a  compe* 
tent  witness  without  a  release.  Harman  v.  Hoi- 
brook,  1  Gale,  176.  2116 

In  an  action  for  use  and  occupation,  the  fact  of 
the  mortgagee  of  the  premises  having  given  the 
defendant  notice  to  pay  the  rent  to  him,  may  be 
given  in  evidence  under  the  general  issue,  if'^the 
rent  sought  to  be  recovered  accrued  due  afler  the 
notice ;  but  if  the  rent  accrued  due  before  the 
notice,  this  defence  must  be  specially  pleaded. 
Waddilove  v.  Barnett,  4  Dowl.  P.  C.  347.     2116 


USURY. 

Defendant  lent  money  at  usurious  interest  to 
plaintiff;  to  color  the  transaction,  a  sale  of 
goods  for  the  amount  of  the  money  lent  was 
made  by  plaintiff  to  defendant,  and  the  goods 
were  transferred  ;  and  it  was  agreed  that  they 
bhould  be  resold  to  plaintiff  at  a  higher  price,  if 
a  bill  drawn  by  defendant  on  plaintiff  for  the  re- 
purchase money,  should  be  dishonored.  The 
bill  was  dishonored,  and  the  defendant  retained 
the  ^oods  : — Held,  that  the  plaintiff  might  reco- 
ver m  trover  for  the  full  value  of  them,  without 
deducting  the  money  advanced  on  the  first  pie- 
tended  sale.  Hargreaves  v.  Hutchinson,  2  Adol. 
&  Ellis,  12 ;  4  Nev.  &  M.  1 1.  2117 

On  demurrer  to  a  declaration  framed  on  a  con- 
tract, which  is  in  terms  a  purchase  of  an  annuity 
of  201.  for  sixty  years,  for  the  price  of  200^, 
the  court  will  not  infer  usury.  Ferguson  v. 
Sprang  or  Spring,  3  Nev.  &  M.  665 ;  1  Adol.  & 
Ellis,  576.  2120 

A  deed  by  which  A.,  in  consideration  of  200Z., 
grants  to  B.  an  annuity  or  rent-charge  of  20/.  a 
year  for  sixty  years,  is  not  on  the  face  of  it  usu- 
rious f  to  raise  the  question  of  usury  upon  a  de- 
claration on  such  a  deed,  the  defendant  must 
plead  an  usurious  contract,  and  thereby  raise  an 
issue  of  fact  for  the  jury ;  >the  declaration  is  good 
upon  demurrer.  When  it  is  a  matter  of  calcu- 
lation, (other  than  the  very  simplest),  whether  a 
contract  is  usurious,  the  court  will  not  look  at  it 
to  see  whether  it  is  so ;  that  is  a  question  for  the 
jury.  The  risk  of  the  insolvency  of  the  grantor 
of  an  annuity,  otherwise  usurious,  is  not  such  a 
risk  of  the  principal  money  as  will  operate  to 
make  such  a  grant  valid.    Id. 

A  customer  applied  to  his  bankers  to  lend  him 


40002.  at  52.  per  cent ,  which  the  bankers  agreed 
to.  He  then  asked  the  bankers  what  balance  he 
was  expected  to  keep  with  them ;  they  answered, 
he  could  not  keep  less  than  10002.;  upon  which 
tlie  customer  said,  "  Very  well ;  they  might  leave 
it  to  him."  The  customer  paid  into  and  drew 
out  from  the  banking-house  in  one  year,  various 
sums,  anaounting  to  108,0002.  •.—Held,  that,  un- 
der the  circumstances,  the  loan  was  not  usurious. 
Ex  parte  Patrick,  3  Deac.  &  Chit.  638.         2121 

A.  employs  B.  as  a  calico-printer,  and  before 
the  accounts  for  printing  become  due,  from  time 
to  time  advances  him  various  sums  of  money, 
charging  him,  besides  interest,  with  12.  IQs.  per 
cent,  as  a  trade  premium,  which  it  was  customary 
for  persons  in  the  same  trade  to  take  under  the  like 
circumstances.  A.  was  also  in  the  habit  of  pay- 
ing debts  owing  by  B.  to  other  persons  before 
they  became  due,  when  A.  deducted  the  usual 
discount,  but  charged  B.  with  the  full  amount  of 
the  debt,  besides  interest,  and  the  trade  premium 
above  mentioned.  Semble,that  both  these  modes 
of  dealing  were  usurious.  £z  parte  Millington, 
3  Deac.  &  Chit.  298.  2123 

By6&,6  Will.  4,  c.  41,  so muchof  the  I2^nne^ 
St.  2,  c.  16,  as  enacts,  that  any  notty  bUl,  or  mort- 
gage  shall  be  void  by  reason  of  usury,  is  repealed; 
and  it  is  enacted  instead,  that  such  securities  shall 
be  deemed  and  taken  to  have  been  made,  drawn^ 
accepted,  given,  or  executed  for  an  illegal  conside- 
ration only.  2124 

By  3  &  4  Will.  4,  c.  96,  s.  7,  bUU  not  having 
more  than  three  montJis  to  run,  are  not  to  be  subject 
to  the  usury  laujs.  2124 

Bills  and  notes  not  having  more  than  three 
months  to  run,  by  which  more  than  ,52.  per  cent, 
interest  is  secured,  or  which  are  discounted  on 
usurious  terms,  are  by  3  &  4  Will.  4,  c.  98,  s.  7, 
rendered  available  securities  for  all  purposes,  for 
the  whole  amount  for  which  they  were  intended 
to  secure,  including  the  usurious  interest  Con- 
nop  r.  YeaU  or  Mei^Ls,  4  Nev.  &.  M.  303 ;  2  Adol. 
&  Ellis,  326.  2124 

Therefore,  a  warrant  given  to  secure  the  amount 
of  an  usurious  bill  of  three  months,  which  had 
been  dishonored  at  maturity,  was  held  also  to  be 
protected  by  the  act.    Id. 

Where  sums  of  money  advanced,  and  to  be  ad- 
vanced,  are  secured  by  deed,  and  any  of  the  deal- 
ings then  contemplated  by  the  parties  are  tainted 
by  usury,  the  deed  is  wholly  void  as  a  security, 
althougn  the  legal  debt  is  not  impeached.  Lx 
parte  MiUington,  3  Deac.  &  Chit.  298.  2125 

In  a  declaration  for  usury,  the  day  from  which 
the  forbearance  is  to  commence  must  be  alleged 
and  proved  precisely  as  stated,  although  laid  un- 
der a  videlicet ;  and  if  a  different  day  is  proved,  or 
no  day  at  all  is  proved,  it  is  not  sufficient.  Fox 
V.  Keeling,  2  Adol.  &  Ellis,  670;  4  Nev.  d;  M. 
523 ;  1  Har.  <&  Woll.  66.  2127 

Where  usurious  interest  was  alleged  to  have 
been  taken  on  the  renewal  of  a  bill,  and  the  con- 
tract to  forbear  and  the  forbearance  were  alleged 
to  have  been  from  the  time  of  making  the  agree- 
ment for  renewal,  until  tlie  second  bill  became 
due,  but  no  evidence  was  given  of  any  precise  day 


1 


[USURY— VESTRY] 


2635 


on  which  the  trannction  took  place : — Held,  that 
the  naurj  was  not  sufficiently  made  out.   [d. 


VESTRY. 

A  local  Testry  act  directs,  that  vestrymen  shall 
take  an  oath  tfaiat  they  will  faithfully  execute  the 
duties  reposed  in  them  as  yestrymen  appointed 
in  pursuance  of  that  act,  and  that  they  are  duly 

aauified  according  to  the  rate  of  qualification 
lereby  prescribed;  by  a  public  vestry  act  the 
constitution  of  the  vestry  is  changed :  vestrymen 
elected  under  the  new  act  cannot  be  required  to 
take  the  oath  prescribed  by  the  former  act.  Rex 
V.  St  Pancras,  3  Nev.  &  M.  425 ;  1  Adol.  & 
Elhs,  80.  2131 

In  parishes  which  have  adopted  the  Vestry  Act, 
1  dc  2  Will.  4,  c.  60,  the  number  of  vestrymen 
to  be  lotted  out  at  the  first  election  of  vestrymen 
under  that  act  is  one-third  of  those  vestrymen 
who,  at  the  time  of  the  election,  were  in  actual 
existence,  and  nut  ene-third  of  a  complete 
yeetnr,  nor  one-third  of  a  complete  vestry  deauct- 
inc  nom  such  third  the  number  of  the  vacancies. 
Id. 

In  parishes  within  the  metropolitan  police  dis- 
trict, or  the  city  of  London,  or  in  which  the  rated 
householders  exceed  3000  persons,  persons,  to 
be  eligible  as  vestrymen,  and  to  be  capable  of 
acting  as  such  within  1  &  2  Will.  4,  c.  60,  must  be 
Vesident  householders,  rated  upon  a  rental  of  40^. ; 
but  it  is  not  necessary  that  such  rating  should 
be  in  respect  of  property  in  their  own  occupation. 

So,  as  to  eligibility  in  parishes  not  being  within 
the  metropolitan  police  district,  or  the  city  of 
London.  Id. 

So,  as  to  capacity  to  act  as  vestrymen  in  such 
^nmshes,  semble.  Id. 

A  parish  is  not  **  divided  into  districts  for  ec- 
clesiastical or  other  purposes,"  within  the  sect. 
22  of  1  A  2  Will.  4,  c.  60,  where  a  small  portion 
of  the  parish  is  annexed  to  a  chapelry,  created  in 
an  adjoming  parish,  or  where  the  parish  has  been, 
for  the  convenience  of  collectinff  the  poor-rates, 
divided  into  four  districts,which  chstricts  have  been 
adopted  bv  the  returning  officer  of  a  borough 
(within  wnich  the  parish  is  situated),  for  the  pur- 
pose of  taking  the  poll  at  an  election  for  memoers 
of  parliament.  Id. 

The  trustees  appointed  and  acting  under  a  lo- 
cal act  of  parliament  for  building  a  church,  which 
authorizes  them  to  levy  rates  upon  the  inhabit- 
ants of  the  parish,  and  directs  tnat  the  accounts 
shall  be  audited  and  allowed  by  the  quarter 
sessions,  are,  nevertheless,  compellable,  under 
■eeL  34  of  the  General  Vestry  Act,  and  I  Sl2 
Will.  4,  c.  60,  to  produce  and  explain  their  ac- 
counts before  the  auditors  of  the  parish  accounts, 
applied  under  and  in  consequence  of  the  adoption 
of  the  last-mentioned  act.  Rex  v.  St.  Pancras 
New  Church  (Trustees),  5  Nev.  SlM.  219. 

2131 

Semble,  that  all  boards,  Ac,  having  power  to 
levy  rates  on  the  inhabitants  of  a  pariso  which 

Vol.  IV.  46 


adopts  the  General  Vestry  Act,  are  conipellable 
to  produce  and  explain  their  accounts  before  the 
auditors.  Id. 

Auditors  of  parish  accounts,  appointed  under 
that  act,  can  hold  meetings  only  in  the  board  room 
of  the  vestry.  Id. 

A  mandamus  to  appear,  and  produce  and  ex- 
plain accounts  to  auditors,  cannot  direct  the  parJ 
ties  to  appear,  <Ste.,  ^*  at  such  time  and  place  as  the 
auditors  may  appoint,  and  give  notice  thereof," 
where  by  statute  tiie  parties  are  only  required  to 
appear  at  a  meeting  directed  to  be  held  at  a  cer- 
tai|i  place.  Id. 

When,  upon  a  motion  to  quash  the  return  to 
a  mandamus  for  insufficiency,  and  to  issue  a 
peremptory  mandamus,  the  matter  is  set  down  in 
the  crown  paper  for  argument,  the  counsel  for 
the  crown  is  entitled  to  begin,  although  the  coun- 
sel for  the  defendants  propose  to  urge  objections 
to  the  mandamus  itself.  Id. 

The  court  has  power  to  mould  the  rule  for  a 
mandamus,  but  cannot  remould  the  writ  after  it 
has  issued,  and  award  a  peremptory  mandamus 
in  a  more  limited  form  than  the  original  manda- 
mus. Id. 

By  a  local  act  the  inhabitants  of  the  parish  of 
C-,  paying  church  and  poor-rates,  were  empow- 
ered to  elect  guardians  of  the  poor ;  in  the  Vestry 
Act  (58  Geo.  3,  c.  69),  which  regulates  the  mode 
of  voting  in  vestries,  is  a  proviso,  that  that  act 
shall  not  afifect  the  right  or  manner  of  voting  in 
any  vestry  held  by  ancient  usage  or  by  a  special 
act : — Held,  that  this  proviso  did  not  except  the 
parish  of  C.  from  the  operation  of  56  Greo.  3,  c. 
69 ;  and  that  to  bring  a  vestry  within  the  excep- 
tion it  must  have  a  peculiar  constitution.  Rex 
V.  ClerkenweU,  3  Nev.  Sl  M.411 ;  1  Adol.  Sl  El- 
lis, 317.  2131 

The  magistrates  are  bound,  under  59  Geo.  3, 
c.  12,  to  appoint  all  persons  nominated  and  elect 
ed  by  the  parishioners  to  be  members  of  the  se- 
lect vestry,  and  have  no  discretion  to  reject  any 
person  so  noifiinated  and  elected.  Rex  v.  Kent 
(Justices),  4  Nev.  &  M.  299 :  S.  C.  nom.  Rex  v. 
Adam,  2  Adol.  ik  Ellis,  409.  2131 

An  inhabitant  may  be  a  member  of  a  select 
vestry,  although  he  be  a  magistrate  acting  within 
the  parish.  Id. 

An  overseer  may  be  a  select  vestryman,  bv 
virtue  of  an  election  by  the  parishioners,  although 
he  be  also  a  member  cm  the  select  vestry  by  virtue 
of  his  office.  Id. 

The  court  will  not  grant  a  mandamus  to  church- 
wardens to  assemble  the  parishioners  for  the  pur- 
pose of  taking  a  poll  upon  a  motion,  carried  by  a 
show  of  hands  at  a  vestry  meeting,  to  do  an  illegal 
act,  as,  to  apply  a  portion  of  a  fund  held  in  trust 
for  charitable  purposes  to  the  erection  of  a  monu- 
ment to  the  memory  of  the  donor  of  the  iUnd. 
Rex  V.  St.  Saviour  8  Southwark,  3  Nev.  Sl  M. 
879 ;  1  Adol.  &  Ellis,  380.  2131 

A  vestry  being  about  to  be  held  in  Manches- 
ter, for  the  election  of  churchwardens,  notice  was 
,  given  that  the  meeting  would  be  held  in  the  pa- 
'  rish  church,  but  that,  if  a  poll  was  demanded,  it 


2636    [VESTRY— WARRANT  OF  ATTORNEY  AND  COGNOVIT] 


would  be  adjourned  to  the  town-hall.  At  the 
meeting  there  was  a  show  of  hands,  upon  which 
a  poll  was  demanded ;  and  thereupon  the  chair- 
man, without  taking  the  sense  of  the  meeting, 
adiourned  the  election  to  the  town-hall,  where  a 
poll  was  taken  : — Held,  that  the  proceeding  was 
regular,  no  business  having  been  interrupted  bj 
it,  and  the  adjournment,  in  a  particular  event, 
being  part  of  the  original  appointment.  Rex  v. 
Chester  (Archdeacon),  1  Adol.  &  Ellis,  342. 

2131 

WARRANT  OF  ATTORNEY  AND  COG- 
NOVIT. 

DefBazanee.'] — ^The  defeazance  to  a  warrant  of 
attorney,  dated  5th  June,  1824,  stated  that  it  was 
given  to  secure  the  payment  of  420Z.  (with  costs 
of  judgment,  if  signed)  on  the  5th  December, 
1826,  and  that  it  was  agreed  that  the  plaintiff 
should  enter  up  judgment  thereon  at  his  plea- 
sure, and  issue  execution,  &c. : — Held,  that  the 
plaintiff  was  restrained  by  this  defeazance  from 
suing  out  execution  before  the  5th  December, 
182&  Hiscocks  v,  Kemp,  5  Nev.  &  M.  113:  1 
Har.  Sl  WoU.  384.  2135 

J.  executed  a  warrant  of  attorney  to  confess 
judgment;  the  defeazance  recited  a  mortgage 
made  by  M.  to  A .,  with  a  proviso  for  redemption 
on  payment  of  the  principal  on  a  day  named, 
with  mterest  in  the  meantime ;  the  defeazance 
further  recited,  that  J.  gave  the  warrant  of  attor- 
ney as  a  security  for  the  payment  of  the  interest 
after  thd  rate,  at  the  time  and  in  manner  ap- 
pointed by  the  mortgage  deed ;  and  that  it  was 
intended  that  judgment  should  be  entered  up 
forthwith.  It  further  provided,  that  no  execution 
should  be  issued  till  default  should  be  made  of 
the  interest,  at  the  times,  &c.  (as  before) ;  but 
that,  if  default  should  be  made  in  such  payment, 
execution  might  be  issued  at  any  time,  and  from 
time  to  time  thereafter,  for  all  the  arrears  of  in- 
terest then  due,  and  thenceforth  to  accrue  due. 
Judgment  was  entered  up  on  the  warrant.  The 
interest  due  up  to  the  day  named  in  the  mortgage, 
inclasively,  was  paid  soon  after  that  day.  After- 
wards demand  was  made  on  J.  for  payment  of  in- 
terest accruing  after  the  day.  On  application  to 
the  court  to  order  satisfaction  to  be  entered  on 
the  roll : — Held,  that  the  motion  was,  at  all  events, 
premature,  execution  not  having  issued ;  and,  per 
Littledde  and  Williams,  Js.,  that  it  was  not  suf- 
ficiently clear,  from  the  defeazance,  that  tlie 
warrant  of  attorney  was  intended  to  cover  only 
the  interest  up  to  the  day  named,  inclusively,  for 
the  court  to  interfere.  Atkinson  v.  Jones,  2  Adol. 
<&  Ellis,  439.  2135 

Where  the  defeazance  to  a  warrant  of  attorney 
requires  any  thing  to  be  done  on  demand,  before 
judgment  can  be  entered  up  there  must  be  an 
actual  demand  upon  a  person  capable  of  giving  a 
substantial  answer ;  therefore,  a  demand  made 
upon  an  insane  person  is  not  sufficient  to  autho- 
rize the  judgment  to  be  entered.  The  only  re- 
medy is  by  an  application  to  equity.  Capper  v. 
Dando,  2  Adol.  Sl  EUis,  458 ;  4  Nev.  &;  M.  335  ; 
1  Har.  &,  Woll.  11.  2135 


Presence  tf  Attorney.} — Fisher  v.  Paptnteoias, 
4  Tyr  44.  2136 

Where  a  defendant  in  custody  was  about  to 
execute  a  cognovit,  and  the  defendant's  attorney 
being  absent  from  home,  the  plaintiff's  attorney 
suggested  another  attorney  to  act  for  him,  to 
whom  the  defendant  made  no  objection,  but  went 
to  his  office,  and,  on  being  asked  by  that  attor- 
ney if  he  wished  him  to  attest  the  execution  as 
his  attorney,  answered  in  the  affirmative : — Held, 
that  this  was  an  express  naming  of  the  attorney, 
within  the  meaning  of  the  72nd  rule  of  H.  T.  2 
WiU.  4.  filigh  V.  Brewer,  I  C.  M.  dk  R.  651 ;  3 
Dowl.  P.  C.  205 ;  5  Tyr.  222.  .  2135 

It  is  not  necessary  that  the  attorney  who  attends 
on  behalf  of  a  prisoner,  to  explain  and  attest  a 
cognovit,  should  make  the  declaration  required 
by  the  rule  of  H.  T.  2  Will.  4,  c.  72,  in  writing  on 
the  cognovit.  Robinson  v.  Brooksbank,  4  Dowl. 
P.  C.  3^.  2135 

It  is  a  sufficient  compliance  with  the  rule  of 
1  Reg.  Gen.  H.  T.  2  WiU.  4,  s.  72,  if  the  attor- 
ney who  is  called  on  by  a  defendant  in  custody 
to  witness  a  cognovit,  make  the  declaration  re- 

Juired  by  the  riue  viva  voce.     Wilson  v.  Price,  4 
)owl.  P.  C.  213.  2135 


Stamp.] — ^The  court  refused  to  grant  a  rule  for 
setting  aside  a  cognovit  at  the  instance  of  the 
defendant,  because  it  was  not  stamped.  Clarke  o. 
Jones,  3  Dowl.  P.  C.  277.  2137 

A  cognovit  containing  terms  of  agreement  must 
be  stamped;  but  it  is  sufficient  to  support  an 
execution  under  it,  if  it  is  stamped  by  tne  time 
cause  is  shown  against  a  rule  for  setting  aside 
the  execution,  on  the  ground  of  its  not  naving 
been  stamped.  Rose  v.  Tomblinson,  3  Dowl.  P. 
C.  49.  2137 


Jvi^en/]— Since  the  rules  of  H.  T.  4  Will. 
4,  s.  1 ,  Ripg.  3,  it  is  not  necessary,  in  order  to  sign 
judgment  on  an  old  warrant  of  attorney,  to  show 
that  the  defendant  was  alive  within  the  term. 
Robinson  v.  Lester,  3  Dowl.  P.  C.  531 :  S.  P. 
Cockman  v.  Hillyer,  2  Dowl.  P.  C.  816 ;  4  M.  d& 
Scott,  487.  2138 

In  order  to  obtain  judgment  on  an  old  warrant 
of  attorney,  it  is  necessary  to  show  that  the  de- 
fendant was  "alive'*  and  not  merely  "seen" 
witliin  a  reasonable  time  before  the  application. 
Chell  V.  Oldfield,  4  Dowl.  P.  C.  629.  2138 

In  order  to  obtain  judgment  on  an  old  warrant 
of  attorney,  it  is  sufficient  if  the  affidavit  states 
that  the  defendant  was  "  seen  alive  within  ten 
days."    Ktell  V.  Jay,  4  Dowl.  P.  C.  600.       213B 

The  court  of  K.  B.  will  now  grant  a  rule  to 
enter  up  judgment  on  a  warrant  of  attorney ,  upon 
an  affidavit  showing  that  the  defendant  was  alive 
within  a  reasonabfe  time,  whether  the  day  on 
which  he  is  shown  to  have  been  alivd  be  in  "term 
or  not.  Jordan  v.  Farr,  4  Nev.  4k,  M.  347 ;  2 
Adol.  &  Ellis,  437.  2138 

The  court  granted  a  rule  moved  for  on  the 
third  day  of  term,  upon  an  affidavit  stating  Umt 


[WARRANT  OP  ATTORNEY  AND  COGNOVIT] 


2637 


the  defendant  was  alive  on  a  day  six  days  preTi- 
ously  to  the  commencement  of  the  term.    Id. 

It  being  shown  that  one  of  two  defendants,  who 
bad  given  a  joint  and  several  warrant  of  attorney, 
was  alive  within  a  reasonable  time,  the  court  al- 
lowed judgment  to  be  entered  up  as  against  htm 
alone.    Id. 

Where  a  defendant  was  seen  alive  on  the  23rd 
of  April,  and  a  motion  to  enter  up  judgment  on  a 
warrant  of  attorney  was  made  on  the  27th  of  May, 
it  was  granted.  WatU  v.  Bury,  4  Dowl.  P.  C.  44 ; 
1  Har.  A  Woll.  371.  2138 

The  court  refused  to  enter  up  judgment  on  a 
warrant  of  attorney,  where  the  attesting  witness, 
an  attorney  of  the  court,  refused  from  malice  to 
make  the  necessary  affidavit.  Mille  v.  Donoughoo, 
1  Har.  A  Woll.  184.  2138 

Where  an  attesting  witness  to  an  old  warrant 
of  attorney  is  abroad,  his  affidavit  need  not  be 
produced   Taylor  v.  Leighton,2  Dowl.  P.  C.  746. 

2138 

The  affidavit  of  the  attesting  witness  to  a  war- 
rant of  attorney  cannot  be  dispensed  with,  merely 
on  the  ground  of  his  illness.  Owen  v.  Holies,  4 
Dowl.  P.  C.  572.  2138 

Judgment  may  be  obtained  on  an  old  warrant 
of  attorney,  although  only  an  office  copy  of  the 
affidavit  of  its  due  execution  is  produced.  Webb 
«.  Webb,  4  Dowl.  P.  C.  599.  2138 

An  affidavit,  in  support  of  a  motion  for  enter- 
ing up  judgment  on  a  warrant  of  attorney  (given 
when  no  suit  is  pending),  need  not  be  entitled  in 
any  cause.  Davis  v.  Stanbury,  3  Dowl.  P.  C.  440. 

2138 

it  is  no  objection  to  entering  np  iudgment 
on  an  old  warrant  of  attorney,  that  the  cTefendant, 
since  the  execution  of  it,  had  become  insane. 
Piggot  V.  KiUtck,  4  Dowl.  P.  C.  287 ;  1  Har.  <& 
Woll.  518.  2138 

It  is  necessary  to  obtain  leave  of  the  court  to 
enter  up  judgement  against  husband  and  wife,  on 
a  warrant  of  attorney  executed  by  the  wife  dnm 
sola.    SUplefl  V,  Purser,  2  Dowl.  P.  C.  764.  2138 

in  the  Exchequer,  where  the  defendant  gives 
a  cognovit,  the  costs  may  be  taxed  before  judg- 
ment is  signed  :  and  if,  by  the  terms  of  the  cog- 
novit, the  plaintiff  is  at  liberty  to  tax  costs  and 
sign  judgment,  bnt  signs  his  jud^ent  before  the 
costs  are  taxed,  the  judgment  is  irregular.  Wil- 
son V.  Northern,  4  iJowl  P.  C.  212.  2139 

Affidavit  of  debt  unpaid.  Ashman  v.  Bowdler, 
4  Tyr.  84.  2139 

Where  a  warrant  of  attorney  refers  to  the 
plaintjffl  *'  his  executors  and  administrators,"  but 
the  affidavit  of  execution  makes  no  mention  of 
*'  exeeotors  or  administrators,"  the  court  will  not 
allow  judgment  to  be  entered  up.  Baldwin  v. 
Thompson,  2  Dowl.  P.  C.  591.  2139 


ParHea  ] — Where  a  joint  warrant  of  attorney 
ii  given  by  two  or  more  persons,  one  of  whom  is 
an  infimt,  tlie  court  will  order  it  to  be  vacated  as  I 
tgainst  tlie  latter,  and  to  stand  against  the  other  1 


parties.    Ashlin  o.  Langton,  4  M.  &  Scott,  719. 

2133 

To  entitle  a  defendant  to  relief  from  s  judg- 
ment signed  on  a  warrant  of  attorney,  given  by 
him  for  the  price  of  goods  supplied  by  the  plain- 
tiff, on  the  ground  of  infancy,  the  defendant,  at 
the  time  of  keeping  a  shop,  and  acting  as  if  he 
were  of  age,  he  ought  to  make  out  a  clear  case ; 
merely  swearing  that  he  is  an  infant  of  the  age 
of  20  years,  and  giving  an  extract  iirom  a  register 
of  births,  is  not  sufficient  for  the  court  to  act  upon. 
Weaver  v.  Stokes,  4  Dowl.  P.  C.  7!^4 ;  1  Mees.  &. 
Wels.  203.  2133 

The  court  set  aside  a  judgment  on  a  warrant 
of  attorney,  entered  up,  even  oefore  the  late  rules 
of  H.  T.  4  Will.  4,  where  the  defendant  was  dead 
at  the  time  of  signing  judgment,  although  in  the 
defeazance  it  was  stipulated  that  the  plaintiff 
should,  without  leave  of  court,  be  at  liberty  to 
enter  up  judgment,  notwithstanding  the  defen- 
dant's death.  Heath  v.  Brindley,  4  Nev.  &>  M. 
235;  2  Adol.  &  Gllis,  365.  2140 

Quiere,  whether  judgment  entered  up  on  a 
warrant  of  attorney  more  than  12  monttis  old, 
without  leave  of  the  court,  but  in  pursuance  of  an 
express  agreement  on  the  defeazance  that  the 
plaintiff  shall  be  at  liberty  to  do  so,  is  valid.    Id. 

Ijeave  granted  to  enter  up  judgment  on  a  war- 
rant of  attorney,  where  one  of  three  plaintiffii 
was  dead.  Harper  v.  Jackson,  1  Har.  &,  WoU.214. 

2140 


Jimaunt.] — Under  a  co^ovit,  by  which  it  is 
agreed  that  no  judgment  is  to  be  signed  or  exe- 
cution issued,  unless  default  made  in  payment  of  a 
certain  sum,  with  costs,  by  instalments,  the  plain- 
tiff may  sign  judgment  and  issue  execution  for 
the  whole  sum,  ir  default  is  made  in  one  instal- 
ment.   Hose  V.  Tomblinson,  3  Dowl*  P*  C.  49. 

2141 

Where  a  warrant  of  attorney  is  given  for  the 
payment  of  a  sum  of  money  by  instuments,  with 
a  power  reserved  to  the  plaintiff  to  issue  execu- 
tions from  time  to  time,  as  the  payments  become 
due  ;  semble,  that  the  body  of  a  defendant  may 
be  taken  in  execution  a  second  time,  although  he 
has  been  discharged  under  a  previous  execution. 
Atkinson  v.  Bayntun,  1  Hodges,  7 :  S.  C.  not  S. 
P.  1  Bing.  N.  R.  444.  2141 

M.  being  in  custody  on  execution,  pursuant  to 
a  warrant  of  attorney,  by  which  he  nad  agreed 
that  execution  should  issue  from  time  to  time  for 
certain  instalments  of  a  mortgage  debt,  defen- 
dant, in  consideration  that  plaintiff  would  dis- 
charge M.  out  of  custody,  undertook  that  he 
shoidd,  if  necessary,  be  forthcoming  for  a  second 
execution: — Held, that  defendant's  was  a  valid 
contract.  Atkinson  v.  Bayntun,  1  Bing.  N.  R. 
444 :  S.  C.  not  S.  P.  1  Hodges,  7.  2141 

B.  gives  A.  a  cognovit,  by  the  terms  of  which 
the  debt  and  costs  are  to  tie  paid  by  instalments, 
and  in  case  of  any  default  the  whole  to  be  levia- 
ble, C,  as  surety,  undertaking  that  B.  shall  at- 
tend at  a  certain  place  within  seven  days  after 
any  notice  requiring  such  attendance,  so  that  in 
the  event  of  any  instalment  not  being  discharged 


2638 


[WARRANTY  AND  DECEIT] 


before  the  time  appointed  for  sach  attendance,  a 
ca.  aa.  may  be  exeeoted ;  default  being  made  and 
notice  given,  B.  attends  and  offers  to  surrender, 
but  obtains  time  from  A.  for  the  payment  of  the 
instalment  Uien  due : — Held,  that  the  undertak- 
ing of  C.  is  discharged.  Turner  v.  Pyne,  3  Ney. 
&  M.  354 ;  1  Adol.  &,  Ellis,  34.  2141 

Wherein  a  cognovit  it  is  stipulated  that  judg- 
ment shall  not  be  entered  up  until  after  the  final 
he^rinff  of  a  Chancery  suit,  and  the  final  decree 
or  onfer  thereupon,  when,  in  the  event  of  the 
final  decree  or  order  being  in  favor  of  the  plain- 
tiff, the  judgment  and  execution  upon  the  cogno- 
vit are  to  operate  in  accordance  with  the  decree 
or  order,  and  the  plaintiff  is  to  be  entitled  to  levy 
for  tiie  amount  decreed,  and  no  more ;  the  plain- 
tiff is  not  authorized  to  enter  up  judgment,  pend- 
ing an  appeal  to  the  Lord  Chancel&r,  against  a 
final  decree  at  the  Rolls  dismissing  the  defen- 
dant's bill.  Jones  v.  Reynolds,  3  Nev.  &  M .  465 ; 
1  Adol.  <fc  Ellis,  384.  2141 

Where  a  defendant  is  in  custody  upon  a  cogno- 
vit, which  it  is  alleged  has  been  satisfied,  the 
court  will  refer  it  to  the  Master,  to  see  whether 
there  is  anything  due  upon  it,  but  will  not  order 
the  defendant  to  oe  discharged.  Wilson  v.  Price, 
4  Dowl.  P.  C.  213.  2142 


WARRANTY  AND  DECEIT. 

The  warranty  of  a  servant,  respecting  whose 
authority  from  his  master  no  more  appears  than 
that  he  was  entrusted  not  to  sell,  but  to  deliver  a 
horse  and  to  receive  another,  with  some  money 
in  exchange,  pursuant  to  some  previous  bargain, 
the  terms  of  which  are  not  shown,  will  not  bind 
his  principal.    Wooden  v.  Burford,  4  Tyr.  264. 

2142 

Bone  spavin  in  the  hock  is  unsoundness  in  a 
horse,  ana  therefore  is  a  breach  of  a  warranty  of 
soundness,  whether  it  produces  lameness  apparent 
at  the  time  of  the  warranty  or  not,  and  though  it 
may  not  produce  lameness  for  yean  afler.  Wat- 
son v.  Denton,  7  C.  &  P.  65— Tindal.  2144 

Mere  badness  of  shape,  though  rendering  the 
horse  incapable  of  work,  is  not  unsoundness. 
Dickinson  p.  Follett,  1  M  &  Rob.  299~-Alder- 
son.  21 44 

The  fir^  vendor  of  a  horse  warranted  sound,  is 
not  competent  to  prove  soundness  for  his  vendee, 
in  an  action  brought  as^inst  him  on  a  subsequent 
sale  with  warranty.  Bias  v.  Mountain,  1  M.  & 
Rob.  302— Alderson.  2145 

Plaintiff  bought  a  horse,  warranted  sound,  by 
private  contract,  at  a  repository.  At  the  time  of 
sale  there  was  a  board  fixed  to  the  wall  of  the  re- 
pository, havinff  certain  rules  painted  upon  it,  one 
of  which  was,  uat  a  warranty  of  soundness  there 
given  should  remain  in  force  at  noon  of  the  day 
following,  when  the  sale  should  become  com- 
plete, and  the  seller's  responsibility  terminated, 
unless  a  notice  and  sur^on's  certificate  of  un- 
soundness were  given  m  the  meantime.  The 
rules  were  not  particularly  referred  to  at  the 
time  of  this  sale  and  warranty.  The  horse 
proved  unsound,  but  no  complaint  was  made 


till  after  twelve  cm  the  following  day.  The  un- 
soundness was  of  a  nature  likely  not  to  be  imme- 
diately discovered ;  some  evidence  was  given  to 
show  that  the  defendant  knew  of  it ;  and  the 
horse  was  shown  at  the  sale  under  circumstances 
favorable  for  concealing  it.  Afler  verdict  for 
the  plaintiff:— Held,  that  there  was  sufiicient 
proor  of  the  plaintiff  having  had  notice  of  the 
rules  at  the  time  of  the  sale  to  render  them  bind- 
ing on  him.  Also,  that  the  rule  in  question  was 
such  as  a  seller  might  reasonably  impose,  and 
that  the  facts  did  not  show  such  fraud  or  artifice 
in  him  as  would  render  the  condition  inoperative. 
By  water  V.  Richardson,  3  Nev.  &  M.  748;  1 
Adol.  Sl  Ellis,  508.  2145 

Where  a  horse  has  been  sold  under  a  warranty 
of  soundness,  the  seller  is  liable  to  an  action,  if 
the  horse  is  not  sound  at  .the  time  of  sale, 
though  the  horse  is  returned,  and  though  the 
buyer  suffers  a  considerable  time  to  elapse  before 
he  complains  of  the  unsoundness,  or  offers  to  re- 
turn the  horse.  Patteshall  v.  Tranter,  4  Nev.  &> 
M.649;  3  Adol.  &.  Ellis,  103;  1  Har.  dc;  WoU. 
178.  2146 

If  a  person  has  bought  a  horse  with  a  warran- 
ty, which  has  been  broken,  and  he  tenders  the 
horse  back  to  the  seller,  who  refuses  to  receive  it, 
the  buyer  is  entitled  to  keep  the  horse  for  a 
reasonable  time  till  he  can  fairly  sell  it,  and  may 
recover  against  the  seller  for  keeping  the  horse 
during  that  time.  Ellis  v.  Chinnock,  7  C.  &  P. 
169— Coleridge.  2147 

Where  a  horse,  warranted  sound,  turns  out  to 
be  unsound,  and  is,  afler  notice  to  the  seller,  re- 
sold by  the  purchaser,  the  latter  may  recover  not 
only  the  difference  of  price  between  the  firet  and 
second  sales,  but  also  for  the  keep  of  the  horse  for 
a  reasonable  time.  Chesterman  v.  Lamb,  4  Nev. 
&  M.  195 ;  2  Adol.  &.  EUis,  129.  2147 

But  the  question,  whether  the  horse  has  been 
kept  an  unreasonable  time  before  the  re-sale,  is  a 

Question  for  the  jury ;  and  if  the  seller  rests  his 
efence  on  the  soundness  of  the  horae,  and  does 
not  request  the  judge  to  put  the  question  of  time  to 
the  jury,  the  court  will  not,  upon  motion  for  a  new 
trial,  look  into  the  evidence  upon  this  point.    Id. 

A.  sold  a  picture  to  B.,  warranting  it  a  Claude. 
B.  sold  it  to  J.,  and  warranted  it  a  Claude  to  him. 
The  picture  was  not  a  Claude,  and  J.  brought  an 
action  against  B.  on  the  warranty.  B.  defended 
the  action,  and  J.  recovered  damages  and  costs 
against  him.  B.  then  brought  an  action  against 
A.  upon  the  first  warranty : — Held,  that  B.  was 
in  this  action  entitled  to  recover  against  A.  the 
amount  of  the  damages  and  costs  that  B.  has 
paid  to  J.,  and  also  She  costs  incurred  by  B.  in 
defending  the  first  action ;  but  that,  if  the  jury 
should  be  of  opinion  that  the  sale  from  B.  to  J. 
was  not  a  real  sale  of  the  picture  in  the  ordinary 
course  of  business,  but  merely  a  colorable  sale, 
on  the  usurious  discount  of  a  bill,  they  ought  to 
disallow  these  sums.  Pennell  v,  Woodburn,  7  C. 
&  P.  117— Tindal.  2147 

Upon  a  sale  of  pictures,  a  bill  of  parcels  of 
"  four  pictures,  views  in  Venice,  Canaletti,  1602.,** 
is  evidience  from  which  a  jury  is  at  liberty  to  infor 


[WARRANTY  AND  DECEIT— WATER] 


2639 


a  warnnty  that  the  pictaree  were  the  production 
of  that  artist.  Power  o.  Barham,  6  Nev.  &>  M. 
62;  7  C.  &  P.  356;  1  Har.  &  Woll.  683.      2148 

If  in  an  action  on  a  warranty  of  pictarea,  it  appear 
that,  before  the  sale,  the  vendor  stated  to  the  ven- 
dee that  they  were  the  works  of  a  particular 
master,  it  will  be  for  the  jury  to  consider  whether 
the  vendor  made  this  representation  as  a  part  of 
the  contract  of  sale,  or  whether  the  defendant 
made  the  representation  as  matter  of  opinion  only. 
If,  in  such  an  action,  the  defendant  plead  non- 
assumpsit  only,  the  genuineness  of  the  pictures 
is  not  m  issue,  and  the  jury  only  need  consider  it 
with  a  view  to  the  amount  of  damages.    Id. 

An  action  of  deceit  does  not  lie  against  a  per- 
aon  making  an  untrue  representation  to  another, 
on  the  fiiith  of  which  the  hearer  acts,  and  thereby 
incurs  damage,  if  the  party  making  such  repre- 
■entationdia  not  know  it  to  be  untrue.  Freeman 
V.  Baker,  bh,&.  Adol.  797.  2148 

The  owners  of  a  ship  circulated  advertisements 
of  sale,  beginning  with   a  description  of  the  ship 
which  stated  her  to    be    copper-fjistened,   after 
which  was  a  notice,  that  the  hull,  masts,  yards, 
and  rigg[ing,  were   to  be  taken  with  all  faults. 
Under  this  was  printed  the  *'  inventory,"  which 
was  followed  by  a  list  of  the  ship's  stores  and 
tackle,  and  there  was  then  a  further  announce- 
ment, that  the  vessel  and  her  stores  were  to  be 
taken  with  all  faults,  and  without  allowance  for 
weight,  length,  quality,  quantity,  or  any  defect 
whatever.    The  owners  afterwards  executed  a 
written  contract  of  sale,  not  stating  the  vessel  to 
be  copper  fastened,  but  containing  this  clause : — 
'*  On  payment  of  the  purchase  money,  the  said 
brig,  with  what  belongs  to  her,  i^all  be  delivered 
according  to  the  inventory  which  hath  been  ex- 
hibited ;  out  the  said  inventory  should  be  made 
good  as  to  quantity  only  ;  and  the  said  brig,  tose- 
ther  with  her  stores,  shall  be  taken  with  all  faults, 
in  the  condition  they  now  lie,  without  any  allow- 
ance for  weight,  length,  quality,  or  any  defect 
whatsoever :" — Held,  (assuming  that  the  adver- 
tisements could,  by  words  of  reference,  be  incor- 
porated with  the  contract  of  sale),  that  the  word 
**"  inventory"  in  the  contract  referred  only  to  the 
list  of  stores,  Slo  ,  and  not  to  the  prior  part  of  the 
advertisement;  and  therefore,  that  on  the  two 
documents  taken  together,  no  warrantv  appeared 
that  the  ship  was  copper-fastened.    Id. 

In  an  action  on  an  agreement,  in  which  fraud 
is  pleaded,  the  plea  is  not  supported,  unless  some 
wilful  misrepresentation  should  have  been  made. 
Stevens  v,  Webb,  7  C.  <&  P.  60— Parke*.        2148 

A  defendant  in  an  action  for  goods  bargained 
and  sold  at  a  specific  price,  will  not  be  allowed  to 
show,  either  in  bar  of  the  action  or  in  mitigation 
of  damages,  that  there  was  a  false  representation 
of  the  quality  of  the  goods,  unless  it  be  specially 
pleaded.  Where  timber  was  sold,  warranted 
**  sound,"  and  an  issue  was  taken  as  to  whether 
it  was  sound  or  not,  evidence  was  allowed  to  be 
given,  with  a  view  of  showing  that  in  the  timber 
trade  the  word  "sound"  had  a  technical  and 
conventional  meaning.  Woodhouse  v.  Swift,  7 
C.  &  P.  310— Alderson.  2148 


Action  against  the  defendant  for  falsely  repre- 
senting that  the  life  interest  of  A.  B.  in  certain 
trust  Innds,  of  which  the  defendant  was  trustee, 
was  charged  with  only  three  annuities,  whereby 
the  plaintiff  was  induced  to  advance  a  sum  of 
money  for  the  purchase  of  an  annuity  from  A. 
B.,  secured  by  his  bond,  Slc.  ;  and  also  by  an 
assignment  of  such  trust  funds,  whereas  the  de- 
fendant, at  the  time  he  made  such  representation, 
well  knew  that  the  same  funds  were  also  charged 
with  a  mortgage  for  20,000Z.  It  appeared  on  the 
trial,  that  ue  representation  in  question  was 
made,  if  at  all,  by  parol.  Lord  Abinger,  C.  B., 
and  Gurney,  B.,  were  of  opinion  that  this  was  a 
representation  concerning  or  relating  to  the  credit 
and  ability  of  A.  B.,  so  as  to  come  within  the  9 
Geo.  4,  c.  14,  s.  6.  Parke,  B.,  and  Alderson,  B., 
were  of  opinion  that  it  was  not.  Lyde  v.  Bar- 
nard, 1  Mees.  &  Wels.  101.  2148 

The  vendor  of  a  trading  concern  guaranteed 
the  net  profit  of  the  business  sold,  and  of  anothor 
business  in  which  the  purchasers  were  also  en- 
gaged at  a  certain  specinc  sum : — Held,  that  Uiis 
guarantie  applied  to  the  profits  made  by  the  two 
concerns,  after  deducting  the  interest  allowed  on 
the  amount  of  further  capital  advanced  by  the 
purchasers,  for  the  purpose  of  carrying  on  the 
concerns.     Kirby  v.  Wright,  2  Mylne  £  K.  131. 

2149 


WATER. 

If  water  has  been  accustomed  to  flow  along  a 
channel  from  time  immemorial,  and  it  has  been 
appropriated,  the  first  owner  of  the  adjoining 
lands  on  both  sides  who  appropriates  it,  without 
doing  any  injury  to  any  one,  either  above  or 
below  him,  acquires  sucn  a  right  by  his  appro- 
priation, that  though  he  may  not  have  enjoyed  it 
for  twenty  years,  he  may  maintain  an  action 
against  any  owner  of  the  lands  above  him  who 
wrongfully  diverts  the  water  from  its  ancient 
channel.  Frankum  v.  Falmouth  (£arl),  6  C.  db 
P.  529— Alderson.  2150 

If  a  party,  who  has  a  right  to  the  use  of  run- 
ning water,  as  an  owner  of  adjoining  lands,  has 
appropriated  it,  and  by  his  declaration  claim  the 
right  to  it  as  the  owner  of  a  mill  not  twenty  years 
old,  this  is  bad,  and  the  judge  at  the  trial  will 
not  allow  it  to  be  amendea ;  and  even  if  the  jury 
find  the  plaintiff's  right  specially,  and  it  be  in- 
dorsed on  the  postea,  under  the  stat  3  &  4  Will. 
4,  c.  42,  s.  24,  the  court  above  will  not  give  judg- 
ment for  the  plaintiff  on  that  finding;  Eecause,  li 
the  plaintiff  nad  stated  his  right  properly,  the 
defendant  might  have  pleaded  oifferentfy.    Id. 

Plaintiff  declared  that  he  was  possessed  of  a 
mill ;  and  by  reason  thereof  was  entitled  to  the 
use  of  a  certain  stream  for  the  mill,  and  that  the 
water  ought  to  run  and  flow  to  the  mill,  and 
that  defendant  **  wrongfully  and  injuriously  di- 
verted the  same :" — Held,  that,  on  a  plea  of  not 
guilty,  the  only  matter  in  issue  was  the  fact 
of  the  diversion,  and  that  the  right  to  the  use 
of  the  stream,  as  claimed,  was  lulmitted.  The 
defendant  also  pleaded,  that  the  plaintiff  was 
not  entitled  to  the  water-course  by  reason  of 


2640 


[WATER— WAY] 


the  possession  of  the  mill ;  and  also  that  the 
water  oa^ht  not  to  run  and  flow  to  the  mill.  The 
jury  (bemg  directed  by  the  judge  to  find  spe- 
cially) found  that  the  defendant  had  diverted  the 
stream,  and  prevented  it  from  supplying  water 
necessary  for  the  proper  enjoyment  of  the  plain- 
tiff's premifies,  as  they  existed  before  the  mill 
was  erected,  but  found  no  right  in  respect  of  the 
mill : — Held,  that  on  this  finding,  the  variance  in 
the  declaration  was  material,  and  that  the  court 
could  not  give  judgment  for  the  plaintiff  under 
Stat.  3  <&  4  Will.  4,  c.  42,  s  24.  Frankum  v.  Fal- 
mouth (Earl),  4  Nev.  &  M.  330;  2  Adol.  &  Ellis, 
452;  1  Har.  &  Woll.  1.  2150 

The  court  directed  that  judgment  should  be 
entered  for  the  defendant  on  the  last  two  issues, 
and  for  the  plaintiff  on  the  first,  without  damages. 
Id. 

In  an  action  for  diverting  water  from  the  mill 
of  A.,  he  obtained  a  verdict;  A.  &,  B.,  afterwards 
in  possession  of  the  mill,  brought  an  action  for  a 
similar  injury  against  the  same  defendants : — It 
was  held,  that  as  A.  <&  B.  were  in  possession  of 
the  mill  formerly  in  the  possession  of  A.,  it  must 
be  presumed  they  were  privy  in  estate  with  him, 
and  that  consequently  the  record  was  admissible 
in  evidence  in  the  second  action.  Blakemore  v. 
Glamorgan  Canal  Company,  1  Gale,  78.       2152 

In  a  declaration  in  trespass  on  the  case,  the 
plaintiff  stated,  by  way  of  inducement,  that  the 
defendant,  before  the  committing  of  the  griev- 
ance thereinafter  mentioned,  was  possessed  of  a 
close  used  as  a  private  road,  and  then  the  injury 
was  stated  to  have  been  sustained  by  tlie  defen- 
dant digging  a  sewer  in  the  said  close,  used  as  a 
private  roao,  and  thereby  withdrawing  the  water 
irom  a  pond  on  the  plamtiff 's  close.  It  was  in 
evidence  that,  at  the  time  of  digging  the  sewer, 
the  defendant*s  close  was  not  used  as  a  private 
road : — Held,  that,  under  the  plea  of  not  guilty, 
the  defendant  admitted  idl  matters  of  induce- 
ment: and  semble,  that  the  allegation  of  the 
user  of  defendant's  close  was  surplusage.  Dukes 
V.  GosUing,  1  Scott,  570 ;  1  Bing.  N.  R.  589 ;  1 
Hodges,  120.  2152 

The  wrongful  act  complained  of  was  the  dig. 
gingr  and  continuing  the  sewer,  and  thereby  di- 
verting the  water  from  the  pond.  The  evidence 
was,  that  the  water  was  not  diverted  by  digging 
the  sewer,  but  previously,  for  the  purpose  of 
making  the  sewer ;  and  it  appeared,  that  since 
the  sewer  had  been  made,  the  water  in  the  pond 
oould  not  rise  to  its  former  height :— Held,  that 
there  was  no  variance  between  the  declaration 
and  the  proof,  so  far  as  it  related  to  the  continu- 
ing of  the  sewer.    Id. 

Defendants  having  erected,  on  their  own  pre- 
mises, a  permanent  obstruction  to  a  navigable 
drain,  leading  from  &  river  through  defen(»nt*s 
premises  to  plaintiff's  close : — Held,  that  an  ac- 
tion lay  for  the  plaintiff,  notwithstanding  the 
portion  of  the  drain  which  passed  through  plain- 
tiff's close  had  for  sixteen  years  been  completely 
choked  up  with  mud.  Bower  v.  Hill,  1  Scott, 
626;  1  Bing.  N.  R.  549.  2152 


la  case  for  obstrueting  plaintiff's  right  of  way 


to  his  close  by  a  navi^ble  water-coarse,  K  ap- 
peared that  the  plaintifli^s  close  which  abutted 
on  the  water-course,  had  been  detached,  about 
five  years  before  the  action,  from  certain  pre- 
mises called  the  King's  Head  Inn.  The  only 
evidence  of  user  was  hy  persons  frequenting  the 
King's  Head  Inn  in  boats,  before  the  plaintiffs 
close  was  detached  : — Held,  not  evidence  to  go 
to  a  jury  to  support  the  right  claimed  by  the 
plaintiff.  Bower  v.  Hill,  1  Scott,  526;  2  Bing. 
N.  R.  339;  1  Hodges,  45.  2152 

In  an  action  on  the  case  for  disturbing  the 
plaintiff  in  the  use  of  a  well,  b^  putting  rubbish 
into  it,  the  plaintiff  will  be  entitled  to  recover,  if 
by  means  of  the  rubbish,  the  water  has  been  shal- 
lowed, and  the  well  rendered  less  convenient  for 
use ;  but  if  the  effect  only  was  to  make  the  water 
temporarily  muddy,  that  is  too  minute  a  damage 
to  support  the  action  If  in  an  action  on  the 
case,  a  plaintiff,  in  the  first  count,  claimed  the  right 
to  the  use  of  a  well  as  appurtenant  to  **  a  certain 
dwelling-house  :"  and,  m  a  second  count,  com- 
plain that  the  defendant  obstructed  a  water- 
course, which  the  plaintiff  claims  as  appurtenant 
to  "  a  certain  other  dwelling-house  ,  the  word 
^*  other"  is  here  not  matter  of  description,  and 
therefore  is  no  ground  of  nonsuit,  that  both  the 
rights  claimed  were  appurtenant  to  the  same 
house.  Taylor  r.  Bennett,  7  C.  &  P.  329— Cole- 
ridge. 2152 


WAY. 

Higku>ays.]^The  S  ds  6  Will.  4,  c.  50,  is  the 
present  consolidated  act  relating  to  kightoays. 

The  general  turnpike  act,  4  Geo.  4,  c.  95,  s.  87i 
gives  an  appeal  to  the  sessions  to  any  person  who 
shall  think  himself  a^rgrieved  by  any  thing  done 
by  any  two  justices,  m  pursuance  of  that  act  or 
any  local  turnpike  act ;  and  declares  that  the  de- 
termination of  the  sessions  shall  be  final  and 
conclusive,  and  that  no  proceeding  to  be  had  in 
pursiuince  of  that  act  shall  be  removed  by  cer- 
tiorari. The  sessions,  on  appeal  against  a  cer- 
tificate of  two  justices,  that  a  turnpike  road,  made 
under  a  local  act,  had  been  completed,  and  was 
fit  to  be  travelled  upon,  having  decided  that  the 
certificate  was  void  in  point  of  law,  and  having 
refiised  to  go  into  the  merilB  of  the  appeal  in 
point  of  fact,  this  court  refused  to  grant  a 
mandamus  to  them  to  hear  the  ground  that 
their  decision  was  contrary    to  the    local    act. 

A  local  turnpike  act  recited,  *'  that  the  making 
and  maintaining  a  new  road  from  L«eds  to  join 
the  Wakefield  and  Halifax  turnpike  road,  at  a 
certain  point,  and  several  brancn  roads  (therein 
also  described)  from  out  of  the  said  main  turn- 
pike road,  would  be  an  advantage  to  the  inhabi- 
tants of  Leeds  and  Halifiix,  and  to  the  public  in 
general;"  audit  authorized  the  making  of  the 
said  several  roads,  and  enacted,  **  that  ue  said 
new  roads  should  not  be  respectively  open  to  the 
public,  oY  become  public  roads  until  two  justices 
should  have  certified  that  the  said  roads  respec- 
tively, and  the  works  thereon  respectively,  were 
completely  made,  and  fit  to  be  travelled  upon, 
throughout  the  whole  length  of  anch  roada  is- 


[WAY] 


2641 


spect'iTely."  Semble,  per  Littledale  and  Taunton, 
Js.,  that  the  making  of  all  the  branch  roads  waa 
Dot  a  condition  precedent  to  the  main  road  be- 
coming a  public  road  as  soon  as  it  was  completed 
and  fit  to  be  travelled  on ;  bnt  that  the  main 
road,  when  so  completed,  and  certified  so  to  be 
by  two  justices,  became  a  public  road,  although 
the  branch  roads  were  still  unfinished.  Rex  v, 
Yorkshire  W.  R.  (Justices),  5  B.  &  Adol.  1003. 

2154 

Where,  by  an  act  of  parliament,  trustees  are 
authorized  to  make  a  main  line  of  road  from  one 
point  to  another,  and  a  portion  only  of  tlie  road 
IB  completed,  the  district  through  wnich  the  part 
completed  is  situate  is  not  bound  to  repair  it, 
although  made  by  the  trustees,  and  used  by  the 
public  and  repaired  by  the  district  for  upwards 
of  30  years,  and  although  it  be  of  great  utility  to 
the  public.    Rex  v.  Edge  Lane,  6  Nev.  ^  M.  81 

2154 

Nor  does  it  make  any  dlfFerence  that  the  line 
of  road  has  been  in  some  measure  varied  by  sub- 
sequent acts  of  parliament,  and  the  completed 
parts  made  the  subject  of  distinct  enactments 
with  respect  to  repairs  and  tolls  to  be  done  and 
taken  by  the  trustees ;  the  object  of  all  the  acts 
being  to  make  a  communication  between  the 
same  districts.    Id. 

Where  a  public  way  crosses  the  bed  of  a  river 
which  washes  over  it  at  every  high  tide,  and 
leaves  a  deposite  of  mud,  semble,  the  parish  is  not 
bound  to  make  it  good.  Rex  v.  Landulph,  1  M. 
Sl  Rob.  393— Patteson.  2156 

Upon  a  question  whether  waste  land  en  the 
side  of  a  road  belonged  to  the  owner  of  the  ad- 
joining inclosure,  or  to  the  lord  of  the  manor, 
grants  made  by  the  lord  of  the  waste  lands  lying 
on  both  sides  of  the  road  at  a  considerable  dis- 
tance from  the  spot  in  dispute,  but  in  continuity 
with  it,  are  admissible  in  evideiMe  ;  acts  of  owner- 
ship having  been  proved  to  have  been  exercised 
by  the  lor^  on  the  waste  in  the  immediate  vici- 
nity of  the  wastes  adjoining  to  the  plaintiff 's  en- 
closure. Doe  d.  Barrett  v.  Kemp,  2  Scott,  9  ;  2 
Bing.  N.  R.  102 ;  1  Hodges,  231.  2156 

But  grants  made  by  the  lord,  of  waste  lands 
in  other  parts  of  the  manor,  which  were  not  in 
continuity  with  the  spot  in  dispute,  are  not  ad- 
missible m  evidence.    Id. 

The  court  will  not  compel  a  magistrate  by 
mandamus,  to  issue  a  warrant  for  a  parish  high- 
way rate,  under  stat.  13  Greo.  3,  c  78,  as.  45, 67, 
made  upon  the  occupier  of  lands  within  his 
district,  if  it  appear  that,  in  the  magistrate's  be- 
lief, and  in  fact,  there  is  a  legal  doubt  as  to  the 
occupier  being  liable  to  contribute  to  the  repairs 
of  the  parish  highways,  and  that  the  magistrate 
is  likely  to  be  sued  if  the  warrant  be  granted  and 
acted  upon,  and  this  although  the  occupier  has 
not  appealed  i^inst  the  rate.  Rex  v.  Greame,  2 
Adol.  &  Ellis,  615.  2157 

On  motion  for  a  mandamus  to  justices  to  grant 
a  distress  warrant  for  levying  a  highway  rate,  it 
appeared  that  the  rate  was  contested  on  the  fol- 
lowing grounds  :  1.  The  lands  in  respect  of  which 
paymsnt  had  been  refused,  were  part  of  a  district 


inclosed  35  years  ago  by  act  of  parliament, 
leaving  none  but  private  roads,  which  were  re- 
paired by  the  landholders,  and  never  having  been 
assessed  to  the  highway  rate.  2.  No  statute 
duty  had  been  called  for  in  respect  of  these 
lands,  before  making  the  present  rate.  3.  The 
special  session  at  which  the  order  for  making 
such  rate  was  signed,  had  been  convened,  with- 
out notice  from  the  high-constable.  4.  The 
order  was  signed  by  two  persons  not  stating 
themselves  to  be  justices.  5.  The  rate  was  not 
dated.  The  occupier  against  whom  the  rate  was 
applied  for  had  not  appealed  to  the  sessions,  but 
he  threatened  the  justices  with  an  action  if  they 
granted  a  warrant,  and  the  opposite  party  made 
no  express  offer  to  indemnify  them  : — Held,  that 
a  mandamus  ought  not  to  go,  it  being  doubtful 
whether  upon  some  objection  among  those  taken, 
the  justices  might  not  be  liable  to  an  action  if  they 
granted  the  warrant.  Rex  v.  Morehouse,  2  Adol. 
&  Ellis,  632.  2157 

In  a  cognizance  for  a  highway  rate,  made  for 
the  purposes  mentioned  in  the  30th  and  45th 
sections  of  13  Geo.  3,  c.  78,  such  rate  must  be 
expressly  alleged  to  be  an  equal  assessment  of 
9d.  in  the  pound  ou  the  yearly  value  of  the 
lands,  Ac.  The  statement  of  its  being  an  equU 
assessment  of  9d.  in  the  pound  upon  all  oc- 
cupiers of  lands,  &c.  within  the  parish,  is  not 
sufficient.    Morrell  v.  Harvey,  6  Nev.  Jt  M.  35. 

2157 

The  court  refused  to  award  a  mandamus,  com- 
manding justices  to  enforce,  by  issuing  a  warrant 
of  distress,  a  highway  rate  assessed  upon  land 
which  had  never  *  been  rated  before,  and  the 
liability  of  which  to  be  rated  was  denied.  Rex 
V.  Somersetshire  (Justices),  4  Nev.  d&  M.  394. 

2157 

And  the  prosecutor  having,  previously  to  the 
motion  for  a  rule  for  a  mandamus,  merely  pur- 
posed to  call  a  meeting  for  the  purpose  of  ob- 
taining an  indemnity  for  the  magistrates,  with- 
out actually  offering  a  sufficient  mdemnity,  the 
rule  was  discharged  with  costs.    Id. 

A  public  thoroughfare  was  stopped,  whereby 
the  plaintiff,  a  bookseller,  whose  snop  was  in  the 
thoroughfare,  suffered  a  loss  of  custom : — Held, 
sufficient  special  dama^  to  entitle  him  to  his 
action  on  the  case.  Wilksv.  Hungerford  Market 
Company,*  Scott,  446;  2  Bing.  N.  R.  281;  1 
Hodges,  281.  2158 

By  statute,  it  was  provided  that  no  action 
should  be  brought  **  after  six  calendar  months 
after  the  cause  of  such  action  should  have  arisen." 
A  nuisance  was  caused  on  the  2nd  of  April,  and 
continued  until  the  2nd  of  July,  and  the  jury 
gave  damages  at  the  rate  of  102.  per  month ;  the 
action  was  not  commenced  until  the  .30th  De- 
cember : — Held,  that  damages  for  two  days  only 
could  be  recovered,  the  action  being  brought  too 
late  to  sustain  the  previous  damage.  Id. 

It  was  enacted  by  a  statute,  made  for  the  pur- 
pose of  enabling  a*  company  to  build  a  market, 
that  it  should  be  lawful  for  the  company  to  build 
on  part  of  a  certain  thoroughfare,  provided  an- 
other avenue  was  made  on  an  adjacent  spot ;  the 


26^ 


[WAY] 


eomrany,  for  the  purpose  of  carrying  on  their 
buildinff,  pat  up  a  barrier,  which  stopped  the 
thoroughfare,  and  continued  it  for  an  unreason- 
able time  : — Held,  in  an  action  for  so  stopping 
the  thoroughfare,  that,  the  plaintiff  need  not  com- 
plain that  the  company  had  stopped  the  whole 
way,  and  neglected  to  open  the  new  one,  but 
that  it  was  sufficient  to  state  in  the  declaration 
that  the  old  way  was  stopped  for  an  unreasonable 
time — Gaselee,  J.  dissentiente.  Id. 

A  local  act  directed  that  no  person  should  be 
capable  of  '^  acting  as  a  commissioner  in  execu- 
tion thereof,  in  any  case  wherein  he  should  be 
personally  interested  in  the  matter  in  question," 
and  that  any  person  who  should  so  act  as  a  com- 
missioner being  so  disqualified,  should  forfeit 
lOOf.  The  commissioners  were  in  part  elected 
by  parishes  within  a  certain  precinct.  An  order 
had  been  made  by  them  for  constructing  a  foot- 
way along  the  frontage  of  the  defendant  s,  among 
other  premises,  in  a  particular  manner.  The 
defendant,  who  was  afterwards  elected  a  commis- 
sioner, attended  at  a  special  meetin^r  of  the  com- 
missioners, and  first  moved  to  rescmd  the  order 
as  to  all  Except  his  own  premises,  which  was  ne- 
gatived. On  amotion  being  made  to  alter  the 
order,  by  adopting  a  less  expensive  mode  of  pav- 
ing, he  supported  the  proposition  in  a  speech, 
and  took  au  active  part  in  the  discussion  and  in 
opposing  the  original  order.  He  then  proceeded 
to  the  ballot  with  the  other  commissioners.  In 
an  action  of  debt  for  the  penalty,  there  was  a 
count  charging  the  defendant  with  acting  as 
commissioner  where  he  was  personally  interested, 
and  voted  accordingly.  Another  count  only 
charged  him  as  acting  as  such  commissioner,  in 
which  he  was  personally  interested.  The  jury 
found  that  the  defendant  did  not  vote  on  the 
occasion  in  question,  and  gave  him  a  verdict : — 
Held,  that  he  did  not  act  as  a  commissioner  in 

eropoeing  or  rescinding  the  order,  except  as  to 
is  own  premises,  but  Uiere  was  evidence  that  he 
bad  ''acted"  as  a  commissioner  bv  addressing 
the  meeting  on  the  motion  for  altermg  the  order, 
And  by  takmg  an  active  part  in  the  discussion ; 
and  that,  as  the  only  question  left  to  them  was 
whether  he  had  voted,  and  not  whether  he  had 
aeted  as  a  commissioner  in  any  other  manner,  he 
was  entitled  to  a  new  trial.  Charlesworth  v. 
Eudgard,  1 C.  M.  &  R.  496  ^  4  Tyr.  824.         2158 

The  evidence  of  a  person  who  prooteds  to  a  bal- 
lot, is  admissible  as  to  the  share  he  personally 
took  in  it.     Id. 

Semble,  the  addressing  commissioners  of  pav- 
ing by  a  commissioner,  m  complaint  of  a  griev- 
ance affecting  him  individually,  is  not  *'  acting*' 
as  a  commissioner.    Id. 


Tummke  Roads.'] — By  a  turnpike  act  a  toll  was 
imposea  ''for  every  horse,  ^c.  drawing  any 
coach,  Ac.,"  with  a  proviso  that  no  person  should 
be  subject  to  pay  toll  more  than  once  in  any  one 
day,  "  for  or  in  respect  of  any  carriage,  or  any 
horse,  &c."  passing  through  the  gates  of  the 
trust,  such  person  producing  a  ticket  denoting 
that  the  toll  had  been  paid  on  that  day.  The 
plaintifib  passed  with  a  stage-coach,  drawn  by 


four  horses,  and  paid  toll ; — Held,  that  they  were 
not  liable  to  a  second  toll  for  passing  again  on 
the  same  day  with  the  same  horses,  thoogh 
drawing  a  different  carriage — ^the  toll  being  im- 

Rosed  on  the  horses  only.    Niblett  v.  Pottow,  4 
1.  &  Scott,  595.  2166 

A  clerk  to  turnpike  trust'^es  is  not  personally 
liable  under  a  clause,  by  which  they  may  sue 
and  be  sued  in  his  name.  Emery  v.  Day,  4  Tyr. 
695.  2164 

A  local  turnpike  act  directed  that  the  trustees 
should  keep  books,  in  which  they  should  enter 
their  accounts,  and  also  their  orders  and  proceed- 
ings, and  that  all  persons  should  have  access  to 
such  entries.  By  a  subsequent  local  act  it  was 
directed,  that  the  trustees  should  keep  a  book, 
in  which  they  should  enter  their  accounts,  which 
book  should  be  open  to  the  inspection  of  the 
trustees,  or  of  any  creditor  on  the  tolls.  The 
General  Turnpike  Act,  3  Geo.  4, c.  126,  s.  73,  re- 
enacted  the  latter  provision  as  to  all  turnpike- 
road  accounts;  and  sect.  72  directed,  that  all 
trustees  of  turnpike-roads  should  keep  a  book  of 
their  orders  ana  proceedings,  which  should  be 
open  to  the  inspection  of  any  of  the  trustees,  and 
should  be  read  as  evidence  in  courts,  as  there 
directed.  That  act  also  provides,  that  the  enact- 
ments therein  contained  shall  extend  to  all  other 
turnpike  acts,  except  where,  by  that  act,  it  is 
otherwise  ordered : — Held,  that  these  clauses  of 
the  general  and  of  the  second  local  act,  super- 
sedea  the  provisions  of  the  original  act  and 
limited  the  power  of  inspection  at  first  given  to 
the  whole  public,  confining  it  to  trustees,  and  to 
trustees  and  creditors  in  the  respective  cases  of 
orders  and  accounts.  Rex  v.  Trustees  of  North 
Leach  and  Whitney  Roads,  5  B.  &  Adol.  978. 

2164 

By  a  memorandum  of  an  agreement  between 
the  trustees  of  a  turnpike-road  and  N.,  the  trus- 
tees agreed  to  let  and  N.  to  take  the  tolls  for  a 
year  at  a  certain  rent ;  and  N.,  as  renter  of  the 
tolls,  and  D.  as  his  surety,  severally  promised  the 
trustees  that  N.  should  pay  the  rent  at  the  ap- 
pointed times,  and  perform  certain  conditions  an- 
nexed to  the  agreement : — Held,  that  the  contract 
was  several  and  not  joint,  and  that  the  trustees 
could  not  sue  the  parties  jointly  for  arrears  of  the 
rent.  Lee  v,  Nixon,  1  Aaol.  &.  Ellis,  201 ;  3  Nev. 
&  M.  441.  2165 

QusBre,  whether  a  contract  for  the  demise  of 
tolls  by  the  trustees  of  a  turnpike-road,  signed 
by  one  only  of  two  persons  appointed  by  the 
trustees  to  the  office  of  clerks  to  the  trustees, 
is  a  valid  demise  under  3  Geo.  4,  c.  126,  s-  57  f 
Id. 

A  local  turnpike  act  imposed  tolls  for  every 
horse  not  drawmg ;  it  provided,  generally,  that  if 
the  tolls  had  in  any  one  day  been  paid  for  the 
passing  of  any  horse,  such  horse  should  on 
that  day  be  permitted  to  repass  onoe  toll  free ; 
but  enacted,  that  the  toll  for  horses  drawing  any 
stage-coach,  should  be  payable  everjr  time  of 
passing.  The  trustees  let  the  tolls,  with  power 
to  collect  them  according  to  the  act,  and  subject 
to  such  rukfl  and  raitrictums  as  should  be  nwde 


r 


[WAT] 


9643 


hy  the  tnuteet ;  and  the  lenee  coTenanted  with 
the  tniiiees,  to  permit  the  owners  of  stage- 
coaches,  waggons,  &c.  to  pass  in  following  man- 
ner, viz.  horses  drawing  any  such  carriage  as 
thereinbefore  mentioned,  to  be  returning  at  any 
time  during  the  same  day.  Horses  passed 
through  a  ^te,  drawing  a  stage-coach,  and  full 
toll  was  paid  for  them ;  they  returned  the  same 
day,  drawing  another  stage-coach,  and  the  lessee 
exacted  full  toll : — Held,  that  the  lessee  ought, 
by  his  covenant,  to  have  demanded  quarter  toll 
only.    Fenton  v.  Swallow,  1  Adol.  &,  £Uis,  723. 

2166 

By  the  general  act,  13  Oeo.  3,  c.  84,  the  tros- 
lees  of  tiumptke-roads  were  empowered  to  de- 
mand and  take  for  every  waggon  having  the 
fellies  of  the  wheels  of  less  breadth  or  gauge  than 
mx  inches,  and  for  horses  drawing  the  same,  one 
half  more  than  the  tolls  which  should  be  payable 
for  the  same  respectively.  By  s.  7  of  the  3  Geo. 
4,  e.  126,  which  repealed  the  13  Geo.  3,  c.  64, 
the  trustees  under  any  local  act  were  empowered, 
from  and  after  the  1st  of  January,  1833,  to  take 
for  any  waggon  having  the  fellies  of  the  wheels 
of  less  breadth  than4|  inches,  or  for  the  horses 
drawing  the  same,  one  half  more  than  the  tolls 
|MmU>le  hv  such  act  for  any  carriage  having  the 
wheels  of  the  breadth  of  six  inches.  By  the  4 
Geo.  4,  c.  95,  s.  5,  it  is  provided,  **  that  where  the 
trustees  of  any  road  should  not,  previously  to  the 
passing  of  the  3  Geo.  4,  c.  126,  have  taken  and 
collected  the  additional  tolls  directed  by  the  13 
Geo.  3,  c.  84,  and  the  local  act  should  not  have 
provided  a  scale  of  tolls  applicable  to  the  road, 
such  trustees  should,  from  the  1st  January,  1824, 
eontinue  to  take  and  receive  for  every  waggon 
having  the  fellies  of  the  wheels  of  less  breadth 
than  41  inches,  the  same  tolls  as  were  by  such 
local  act  payable  in  respect  of  such  waggon  ;" 
and  by  s.  6,  *'  that  where  any  local  act  snould 
have  a  prescribed  rate  of  toll  in  respect  of  the 
breadth  of  the  wheels  of  carriages,  and  where  the 
additional  toll,  authorized  to  be  taken  by  the 
13  Geo.  3,  c.  84,  should  not  have  been  collected 
and  imposed,  the  trustees  should,  after  the  Ist 
January,  1824,  continue  to  collect  tolls  prescribed 
in  the  local  act,  and  should  not  collect  the  in- 
creased toll  under  the  7th  sect,  of  the  3  Geo.  4, 
c.  126.  By  a  local  act,  1  dc  2  Geo.  4,  e.  85,  a 
scale  of  toll  was  prescribed,  by  which  a  to]]  of 
4|^.  was  imposed  for  each  horse  drawing  any 
waggon  drawn  by  four  horses,  whether  the  Tellies 
of  the  wheel  were  of  the  breadth  of  six  inches 
and  upwards,  or  less.  The  trustees  under  this 
act  had,  previously  to  the  passing  of  the  3  Geo.  4, 
c.  126,  taken  and  collected  the  additional  toll 
directed  to  be  taken  by  the  13  Geo.  3,  c.  84  : — 
Held,  that  such  increased  toll  {6ld.)  wss  properly 
demsnded;  the  case  not  falling  within  the  ex- 
emption contained  in  the  5th  &,  6th  sections  of 
the  4  Geo.  4,  c.  d5.  Pickford  v.  Davis,  4  M.  d^ 
Scott,  683.  2169 

A  local  act  empowerd  trustees  of  a  turnpike* 
road  leading  into  a  town  to  collect  tolls  from  per- 
sons passing  more  than  a  hundred  yards  along  it, 
and  to  borrow  money  on  the  eredit  of  the  tolls. 
By  an  aet  for  improving  the  town,  the  road  tms- 


tees  were  prohibited  from  repairing  a  certain  por- 
tion of  it  nearest  the  town,  and  the  town  com- 
missioners were  to  maintain  it  in  future : — Held, 
that  the  road  trustees  might  still  take  tlie  same 
tolls  for  passing  over  that  part,  and  that  it  still 
continued  part  of  the  same  turnpike-road  for  all 
purposes  but  that  of  repair.  Phipson  v.  Harvett^ 
1  C.  M.  d^  R.  473 ;  5  Ty r.  54.  2169 

Surveyors.] — Under  13  Geo.  3,  c.  78,  (the  Ge- 
neral highway  act),  s  waywarden  may  charge  in 
his  account  law  expenses  incurred  in  the  dis- 
charge of  his  duty,  though  not  incurred  on  the 
occasions  specified  in  the  65th  section  of  the  act 
Rex  0.  Fowler,  3  Nev.  &  M.  b26 ;  1  Adol.  &,  Ellis, 
836.  2159 

Law  expenses  incurred  in  resisting  a  rule  for 
a  certiorari  to  remove  the  allowance,  oy  a  justice, 
of  the  accounts  of  the  preceding  waywardens,  are 
expenses  which  a  waywarden  may  insert  in  his 
account,  and  which  the  justices  may  allow,  if 
they  think  proper.    Id. 

All  expenses  bona  fide  incurred  by  a  waywar- 
den, in  the  execution  of  the  duty  imposed  upon 
him  by  the  Highway  Act,  may  be  inserted  in  his 
account,  and  may  be  allowed  or  disallowed  by 
the  justices  in  their  discretion.    Id. 

The  13  Geo.  3,  c.  78,  s.  48,  which  requires  the 
accounts  of  the  surveyors  of  highways  to  be  laid 
before  one  justice,  and  on  his  refusal  to  allow 
them,  before  the  justice  at  petty  sessions,  gives 
no  original  jurisdiction  over  the  accounts  to  the 
justices  at  petty  sessions,  even  if  by  consent  of 
all  parties  they  be  laid  before  them.  Kex  v.  Cum- 
berland (Justices),  5  Nev.  &  M.  578;  1  Har.  &» 
Woll.  497.  2159 

A  charter  granted  by  the  Crown,  exempting 
the  tenants  of  the  demesne  lands  in  a  manor 
from  the  payment  of  chimagium,  or  road  money, 
is  no  excuse  for  the  non-performance  of  statute 
duty  on  tlie  highways.  Rex  v.  Siviter,  5  Nev.  & 
M.  125 ;  1  Har.  Jk  Woll.  376.  2159 

An  allowance  of  a  surveyor's  accounts  at  spe- 
cial sessions  is  irregular,  if  they  have  not  nrst 
been  carried  before  a  single  justice,  though  the 
vestry  did  not  desire  it,  and  though  no  notice 
was  taken  of  the  omission,  on  the  accounts  being 
discussed  at  the  special  sessions.  Rex  v.  Good- 
enough,  2  Adol.  &,  Ellis,  463.  2159 

A.  and  B.,  being  co-surveyors  of  the  highways 
of  a  parish,  it  was  agreed  between  them  that  A. 
should  deliver  up  the  rate-book  to  B.,  and  that 
B.  should  pay  A.  out  of  the  monies  he  should 
collect  under  the  rate,  the  sum  of  15/-,  which  A. 
had  advanced  beyond  the  amount  collected  by 
the  previous  rate.  The  book  was  accordingly 
delivered  to  B.,  who  collected  more  than  lu!., 
but  expended  the  whole  in  the  repair  of  the 
roads,  and  did  not  pay  A.  the  15^.: — Held,  that 
A.  might  maintain  an  action  to  recover  it  Lud- 
dard  or  Liddard  v.  Holmes,  2  C.  M.dbR.  586 ;  1 
Tyr.  &  G.  9.  2159 

Chnrchwardens  and  overseers  have  not  such  a 
property  in  the  aceount-books  of  a  late  surveyor 
of  the  highways  as  to  enable  them  to  maintain, 
trover  for  them ;  and  their  remedy  is  under  the 


Vol.  IV. 


47 


2644 


[WAY] 


Btat  13  Greo.  3,  c.  78,  t.  48.  A  late  lurreyor  of 
hifi^hwajs,  on  his  accountrbtmks  being  demanded 
or  him  at  the  yestry,  said,  '*  1  hare  not  got  them, 
I  have  delivered  tnem  to  my  brother  J.,  who  in 
hia  presence,  said,  **  I  have  them,  and  I  will  keep 
them."  J.  was  one  of  the  overseers  of  the  poor 
of  the  parish : — Held,  in  an  action  of  trover 
against  A.,  that  this  was  no  evidence  of  a  con* 
version  by  A.,  as  the  overseer  is  a  person  to 
whom  the  books  are  to  be  delivered  under  the 
Stat  13  Geo.  3,  c.  78,  s.  48,  and  the  judge  will 
not  leave  it  to  the  jury  to  say  whether  this  deli- 
very over  was  colorable.  Addison  v.  Round,  7 
C.  &  P.  285— Alderson.  2159 


Stoppage  and  Dirersion.] — Justices  cannot 
make  an  order  for  stopping  up  part  of  a  high- 
way as  unnecessary,  under  5o  Qeo.  3,  c.  60,  s. 
2,  unless  they  have  viewed  the  highway  toge- 
ther; nor  unless  the  finding  that  it  is  unneces- 
sary be  the  result  of  that  view.  Rex  v.  Cam- 
bridgeshire (Justices),  5  Nev.  &  M.  440.       2161 

But  it  is  no  objection,  that  previously  to  the 
view  the  road  had  been  stopped  up  de  facto  by 
the  owner  of  the  adjoining  land  without  legal 
authority.    Id. 

The  view  is  sufficiently  stated  upon  the  order 
in  these  terms,  "  we  havmg  upon  view  found," 
&.C.    Id. 

It  is  no  objection  to  such  order,  that  in  the 
part  of  it  which  directs  that  the  soil  of  the  road 
to  be  stopped  up  shall  be  sold  to  the  owner  of 
the  adjoining  land,  if  he  be  willing  to  purchase, 
or  to  some  other  person  that  the  words,  "  for  the 
full  value  thereof,"  occur  only  at  the  end,  and 
not  also  after  the  part  which  directs  a  sale  to  the 
owner  of  the  adjoining  land,  if  willing.    Id. 

Nor,  that  it  does  not  contain  any  direction  as 
to  the  application  of  the  money  arising  from  the 
■ale.    Id. 

Nor,  that  no  certificate  of  sale  is  written  by 
the  justices  at  the  foot  of  the  order.    Id. 

Nor,  that  the  owner  of  the  land  adjoining  to 
the  road  stopped  up  was  himself,  at  the  time  of 
making  the  order,  waywarden  of  the  parish  in 
which  the  road  is  situate.     Id. 

Nor  that  the  road  has  become  nnnecesiaxy 
by  reason  only  of  the  substitution,  by  the  owner 
of  the  adioinmg  land,  of  another  road  over  his 
own  land,  ana  the  adoption  by  the  public  of 
such  substituted  road.    la. 

Semble  that  upon  motion  for  a  certiorari  to 
bring  up  an  order  of  sessions  confirming  an  or- 
der of  justices  for  stopping  up  a  highway,  the 
court  cannot  entertain  objectir  ns  to  the  vaildily 
of  the  order,  whf  ther  on  the  ground  of  want  of 
jurisdiction,  or  otherwise,  unlcsps  such  objec- 
tions arise  upon  the  (ace  of  the  order  itself  1^. 

A  notice  of  appeal  against  an  order  for  stop 
ping  up  a  highway,  is  sufficient  if  it  state  that 
the  appellants  are  aggrieved  by  being  compolled 
to  go  a  greater  distance  to  the  next  market  town 
from  their  respective  residences  than  they  would 
have  gone  if  the  road  intended  to  be  stopoed  up 
were  put  and  kept  in  a  proper  state  or  repair. 


Rez  V.  Ady,  4  Nev.  &  M.  365 ;  1  Hat  &   Woll. 
42.  2161 

It  need  not  expressly  state  that  they  are  ag- 
grieved by  the  order.    Id. 

An  act  for  inclosing  landain  the  parish  of  A. 
authorized  commissioners  to  make  new  roado, 
and  also  to  divert,  turn,  alter,  or  stop  up  any  of 
the  present  public  roads,  as  they  should  think 
proper :  it  directed  them  to  prepare  and  sign  a  map 
describing  the  roads,  and  to  give  certain  notices 
therein  prescribed,  and  to  hold  a  meeting  for  the 
purpose  of  hearing  objections,  in  which  they 
were  to  be  assisted  by  a  justice  of  the  peace — 
the  said  commissioners  and  iostioes  to  have 
power  to  confirm  and  alter  the  map-— and  all 
roads  set  out,  or  finally  ordered  and  directed  to 
be  set  out  and  continued,  were  to  be  for  ever 
stopped  up  and  extinguished,  and  deemed  and 
taken  to  be  part  of  the  lands  to  be  divided  and  al- 
lotted :  provided  that  no  roads  passing  through  old 
inclosures  should  be  stopped  up,  diverted,  turned, 
or  altered,  without  an  order  of  two  justices : — 
Held,  that  a  road  passing  partly  through  old  in- 
closures and  partly  over  Unas  to  be  inclosed, 
was  not,  nor  was  any  part  of  it  extinguished,  by 
reason  of  its  not  bemg  mentioned  or  set  out  in 
the  map  or  award,  and  of  the  latter  part  of  it 
being  included  within  a  private  allotment.  Rez 
V.  Downshire  (Marquis),  6  Nev.  &  M.  92.     2161 

By  an  order  of  justices,  it  was  stated,  that 
three  justices  having  particularly  viewed  the  pub- 
lic roads  within  the  parish  of  A.,  thereinafUr  de- 
scribed, and  bein|^  satisfied  that  they  were  unne- 
cessary to  be  contmued,  did  order  that  such  roads 
should  be  stopped  up  and  extinguished  :— Held, 
that  this  order  was  invalid,  inasmuch  as  it  did  not 
appear  upon  the  fiice  of  it  that  the  justices  were, 
upon  the  view,  satisfied  that  the  roads  were  an- 
necessary.  Id. 

The  court  will  make  the  same  intendment  in 
fiivor  of  an  order  of  justices  as  in  &vor  of  a 
conviction.    Id. 

Bridges.] — Though  there  cannot  be  a  bridge 
which  the  county  is  bound  to  repair,  where  there 
is  no  oursus  aquie,  yet  it  is  a  question  of  fiiet  in 
each  case,  whether  oA  arch  thrown  over  a  cnrsua 
aquae,  is  such  a  bridge  or  not,  semble.  Rex  v. 
Whitney,  4  Nev.  ^  M.  594  ;  3  Adol.  db  Ellis,  ^ ; 
7  C.  &  P.  208 ;  1  Har.  &  Woll.  147.  2171 

The  fact  of  the  arch  or  bridge  having  no  para- 
pets, does  not  of  itself  prevent  its  being  a  county 
bridge.    Id. 

Judgment  by  default,  upon  an  indictment  for 
non-repair  of  a  highway,  is  not  conclusive  evi- 
dence against  the  parish,  pf  a  liability  on  their 
part  to  repair  such  highway,  seiuble.    Id. 

An  infant  seised  of  lands  in  the  actual  posses- 
sion of  his  guardian  in  socagfe,  in  not  indictable 
for  the  non-repair  of  a  bridgre  ratione  tenursB. 
Rex  V.  Sutton,  5  Nev.  <&  M.  3o3;  1  Har.  Sl  WoII. 
426.  2173 

The  guardian  in  socage,  if  in  possession  of  the 
lands  cnarged  with  the  repairs,  is  indictable.    Id. 

So,  any  occupier  of  the  lands  charged.     Id. 


[WAY— WHARF] 


2645 


I 


\ 


Whether  the  ffoardian  in  socage,  or  other  own- 
er of  the  lands  charged,  not  in  poBaeasion,  would 
be  also  indictable,  quere  ?    Id. 

Ferrie*.]— Where  there  is  an  ancient  ferry 
from  A.  to  B.,  which  leads  to  a  public  highway, 
and  another  constructs  a  landing  place  in  C,  a 
short  distance  from  B.,  and  carries  passengers 
vTcr  from  A.  to  C,  from  whence  they  pass  to  the 
ame  highway  upon  which  the  ancient  ferry  is 
Mtablished,  before  it  reaches  any  town  or  vil- 
lain, it  is  an  ininry  to  the  ancient  ferry,  for  which 
an  action  will  lie.  Huzzy  v.  Field,  3U.  M.  &  R. 
433 ',  1  Gale,  177.  2173 

But  where  there  is  a  river  passing  b^  several 

towns  or  places,  the  existence  of  an  ancient  ferry 

over  such  river  from  a  particular  point  on  one 

aside  to  a  particular  point  on  the  other,  does  not 

Ereclude  persons  from  using  the  river  as  a  public 
ighway,  from  or  to  all  the  towns  or  places  on  its 
bonks,  which  are  not  in  a  line  leading  from  one 
terminus  of  the  ierxy  to  the  other.  Id. 

Where  the  owner  of  a  boat  which  was  accus- 
tomed to  ply  for  hire,  and  to  carry  passengers 
across  a  haven,  employed  a  servant  for  that  pur- 
pose, and  the  servant  on  one  occasion  received  a 
passenger  on  board,  and  carried  him  across  the 
oaven,  near  the  line  of  an  ancient  ferry,  and  paid 
the  fare  over  to  his  master: — Held,  that  the  ser- 
vant was  acting  at  the  time  in  the  course  of  his 
master's  service,  and  for  his  master's  benefit,  and 
that  the  master  was  answerable  for  his  act,  and 
would  have  been  liable  in  an  action  on  the  case 
for  such  act,  if  it  had  been  distinctly  proved  to 
have  amounted  to  an  evasion  of  the  ferry.  Id. 

PripotB  Ways.'i'r-The  plaintiff,  assise*  of  a 
lease  granted  for  lives  by  a  bishop  in  right  of  his 
see,  used  a  way,  without  interruption,  to  and 
from  his  premises  for  more  than  twenty  years, 
over  the  locus  in  quo,  called  the  A.;  the  defen- 
dant, bv  assignment  of  a  similar  lease  of  it,  ob- 
Btracied  the  way ;  in  an  action  on  the  case  for 
this  obstruction : — ^Held,  first,  that  since  the  2  & 

3  Will.  4,  c.  71,  the  above  user  confe^d  no  title 
as  ajzainst  the  reversioner,  the  bishop ;  nor,  ae- 
concUy,  against  his  lessee,  or  persons  claiming 
under  such  lessee  during  the  term.  Walker  v. 
Bright,  1  C.  M.  &  R.  211 ;  4  Tyr  ^.         2176 

A  declaration  claiming  a  right  of  wa^  **by 
reason  of"  the  possession  of  certain  premises,  is 
supported  by  proof  of  a  reservation  of  wa^  in  a 
conveyance  or  them  granted  by  a  tenant  tor  life 
to  the  plaintiff.    Id. 

Right  of  way  for  tithe-owner.    James  r.  Dodds, 

4  Tyr.  101.  2176 

Trespass.  Plea,  way  used  fqf  forty  yean  by 
the  occupiers  of  the  defendant's  farm,  as  of  right, 
and  without  interruption.  Replication,  travers- 
ing the  user  as  of  right: — Held,  that  under  this 
issue  plaintiff  might  give  in  evidence  that  the  way 
had  been  used  by  leave  and  licence  only.  Beas- 
ley  «.  Clarke,  2  Bing.  N.  R.  705.  2177 

A  plea  of  twenty  years'  right  of  way,  under 
2  A3  Will.  4,  c.  71,  IS  not  defeated  by  proof  of 
an  agioed  alteration  of  the  line  of  way,  nor  by  a 


temporary  non-nser,  under  an  agreement  of  the 
parties.  Fayne  v.  Shedden,  1  M.  &  Rob.  362-^ 
Fatteson.  2177 


WEIGHTS  AND  MEASURES. 

Malt  was  sold  by  defendant  to  plaintiff  by  a 
measure  called  a  hobbett,  being  a  measure  esta- 
blished by  local  custom,  without  specifving  the 
proportion  which  that  measure  bore  to  tne  stand- 
ard, and  as  directed  by  5  Geo.  4,  c.  74,  s.  15. 
The  parties  aflerwards  settled  their  accounts,  and 
inter  alia  las  to  the  malt : — Held,  that,  in  an  ac- 
tion by  the  plaintiff  a^piinst  the  defendant  for 
wages,  the  defendant  might  prove  the  settlement 
of  accounts  as  a  payment  of  the  plaintiff's  de- 
mand. Owens  V.  Denton,  1  C.  M.  &  R.  711 ;  5 
Tyr.  359.  2178 


WHARF. 

An  order  signed  by  O.  for  the  delivery,  by  the 
defendants,  wharfingers,  of  twenty  sacks  of'^flour 
to  the  plaintiff,  (the  party  named  in  the  order), 
was  lodged  witn  ana  accepted  l^y  them  in  the 
usual  course  of  business,  they  at  the  same  time 
declaring  they  had  but  five  sacks  to  spare,  which 
the  party  might  have,  and  he  received  according- 
ly. On  application  for  the  rest,  the^  declined  to 
deliver  it.  On  trover  brought  agamst  them  by 
the  partv  named  in  the  order,  it  did  not  appear 
that. he  Knew  that  O.  had  any  other  flour  in  the 
defendants'  possession,  and  the  defendants  did  not 

8 reduce  any  delivery  orders  by  which  any  such 
our  had  been  previously  appropriated  by  O. 
The  jury  found  that  the  defendants  had  accepted 
the  order  generally,  and  gave  a  verdict  for  the 
plaintiff  for  the  value  of  the  fifteen  sacks.  The 
court  refused  to  disturb  the  verdict,  and  held,  that 
trover  was  maintainable,  as  the  defendants  had 
not  limited  their  acceptance  of  the  order  to  any 
minor  quantity  of  O.'s  flour  then  in  their  hands, 
or  alleged  that  they  must  select  the  sacks  to  be 
delivered  to  the  plaintiff.  Gillett  v.  Hill,  2  C.  & 
M.  531 ;  4  Tyr.  290.  2179 

Where  goods  consigned  to  A.,  in  London,  and 
deliverable  in  the  river,  were,  by  his  direction,  he 
being  insolvent,  landed  on  a  wharf  at  which  he 
had  Deen  in  the  habit  of  landing  goods,  A.  hav- 
ing no  premises  adjoining  the  river,  but  having 
a  warehouse  in  the  citv,  and  the  goods  were  stop- 
ped in  transitu  in  the  hands  of  the  wharfinger : — 
Held,  in  an  action  of  trover  for  the  goods,  by  the 
assignees  of  A.,  (who  became  bankrupt  a  few 
days  aflerwardsj,  against  the  wharfingers,  that  the 
proper  question  to  be  left  to  the  jury  was,  whether 
the  wharfingers  received  the  goods,  as  A.'s  agents, 
to  take  possession  of  them  for  his  own  benefit  as 
owner,  or  as  agents  only,  to  forward  them  to  him, 
or  to  keep  them  for  the  seller.  James  v.  Griffin, 
1  Mees.  &  Wels.  20.  2179 

Goods  were  forwarded  by  K.,  a  carrier,  from 
London  to  Liverpool,  addressed  to  the  plaintiff 
rat  the  Isle  of  Man),  *(care  of  D.,  (the  defen- 
aant),  Brunswick  Street,  Liverpool."  The  goods 
were  landed  bv  K.  on  a  pnbbc  wharf  at  Liver- 
pool, and,  on  tne 'same  day,  notice  was  sent  to 


2646 


[WHARF— WILL] 


the  defendant  of  their  airriTa],  and  be  aigned  the 
carrier's  book,  containing  an  acknowledgment 
that  the  goods  in  Question  had  arrived  for  him, 
{the  defendant).  He  caused  them  to  be  entered 
in  the  clearance  and  manifest  of  a  steam  vessel 
about  to  sail  for  the  Isle  of  Man.  It  was  proved 
als«,  that,  on  former  occasions,  when  goods  had 
been  brought  by  K.  for  the  defendant,  he  had  de- 
sired that  they  might  remain  at  the  wharf  till  he 
sent  for  them.  1%e  defendant  never  sent  to  the 
wharf  for  the  boxes  until  six  days  after  their  arri- 
val, when  they  were  not  to  be  found  :— Held,  in 
an  action  on  the  case,  against  the  defendant  for 
negligence  in  not  taking  proper  care  of  the  goods, 
that  there  was  evidence  for  the  jury  of  a  delivery 
to  and  an  acceptance  by  him.  Quiffirin  v.  Duff, 
1  Mees.  db  Wels.  174.  2179 


WILL. 

The  statute  25  Geo.  2,  c.  6,  makes  void  a  devise 
to  an  attesting  witness,  although  there  be  three 
other  attesting  witnesses  to  Die  will.  Doe  d. 
Taylor  v.  Mills,  1  M.  &,  Rob.  288— Denman  and 
Bolland.  2182 

A  will  or  codicil,  containing  a  devise  of  real 
estates,  but  not  duly  witnessed,  is  good  if  con- 
firmed by  a  subsequent  eodicil,  having  the  proper 
attestation,  though  the  latter  document  be  in  no 
way  annexed  to  the  will  or  prior  codicil,  and 
though  the  attestinff  witnesses  to  the  latter  codi- 
cil did  not  see  the  former  one  or  the  will :  Sem- 
We,  however,  that  the  instrument  relied  upon  as 
confirming  a  previous  one,  should  distinctly  re- 
fer to  It.  TesUtor  by  several  unwitnessed  mem- 
orandums subsequent  to  his  will,  left  a  freehold 
house,  acquired  among  other  estates  since  the 
date  of  the  will,  to  his  daughter;  and  he  after- 
wards  made  the  following  codicil,  which  was  duly 
**Mi"*^  =^"  1  make  this  a  further  codicil  to  my 
will;  I  give  and  devise  all  real  esUtes  purehased 
hj  me  since  the  execution  of  my  said  will  to  the 
trustees  therein  named,  their  heire,  &c.,  to  the 
uses  and  upon  the  trusts  theijein  exprewed,  con- 
cerning the  residue  of  my  real  esUtes :"— -Held, 
Mat  the  house  passed  to  the  trustees,  and  not  to 
EUi  *^  Utterton  v,  iiobins,  I  Adol.  &. 

A  testator  devised  all  his  seal  estates  to  his 
4!liildren  equally,  and  afterwards  entered  into 
«ontracts  for  the  sale  of  his  estates,  b#t  died  be- 
lore  they  were  completed.  The  purchasens  after- 
wards  abajodoned  their  conUmcte,  because  they 
were  unable  to  procure  a  conveyance  from  some 
*J  **>«  <^evisees  who  were  infants :— Held,  that 
tftough  the  contracts  were  properly  abandoned, 
tne  Will  wu  revoked  as  to  the  premises  therein 
comprised.     Tebbott  v.   Voule*,  6  Sin»on,  40. 

2192 

"^•ll^^?^  *■****■  ^^  ^^'^^^  *»«  ^^  only  the 
ecjuitable  fee,  and  afterwards  agreed  to  sell  part 
or  the  estates,  and,  to  remove  an  objection  tsJten 
oy  the  purchaser,  but  which  was  not  well  founded, 
h«  roffered  a  recovery  .—Held,  that  though  the 
woovery  was  an  equitable  one,  and  the  purpose 
«Mr  which  It  wu  suflted  was  exp^^ssly  loeotion- 


ed  in  the  deed  declaring  the  uses;  and  though 
the  limitations  thereby  made  of  the  property  not 
intended  to  be  sold  were  precisely  the  same  as 
before  the  recovery,  and  were  expressed  to  be  in 
restoration  and  confirmation  of  them,  the  will  was 
revoked.    Locke  v.  Foote,  6  Simon,  618.      2192 

The  right  of  an  equitable  owner  of  a  copyhold 
estate  to  dispose  of  his  equitable  interest  by  will, 
cannot  be  controlled  by  the  custom  of  a  manor. 
Lewis  V.  Lane,  2  Myhie  A  K.  449.  2199 

Devise  of  >>all  my  freehold  and  leasehold,  and 
all  my  money,  securities,  stock,  goods,  chattels, 
and  an  other  my  property  whatsoever  and  where- 
soever ;  to  hold  the  same  unto  and  for  the  use  of 
the  devisee,  her  heirs,  executors,  administrators, 
andassigns:"— Held,  to  pass  testotor's  copyhold 
oroperty.  Edwards ».  Barnes, 2  Bing.  N.  R.  252;. 
2  Scott,  411 ;  1  Hodges,  293.  2199* 

A.  devised  certain  copyhold  lands  to  his  widow, 
M.  E.,  for  life,  remainder  to  his  nephew,  J.  E^ 
and  his  wife  S.'  £.,  for  their  lives,  remainder  to 
8.  E.,  (the  daughter  of  J.  E.  and  S.  E),  for  life, 
and  after  the  death  of  M.  E.,  J.  E  ,  and  S.  E., 
and  of  S.  E.  the  daughter,"  to  revert  to  my  next 
male  heirs  for  ever  r— Held,  that  these  worda 
meant  ^  heirs  male  of  the  body,"  and  that  as  the 
testator  died  without  issue,  the  reversion,  on  the 
determination  of  the  life  estates,  descended  to  the 
customary  heir.  Doe  d.  Eustace  v.  Easlev,  1  C. 
M.  &  K.  823;  5  Tyr.  450;  1  Gale,3&  5199 

Since  the  sUt.  55  Geo.  3,  e.  192,  copyholds  will 
pass  bv  a  devise,  the  words  of  which  are  general, 
thouffh  the  devisor  has  both  freehold  and  copy, 
hold.lands,  and  has  not  made  any  surrender  to  the 
u«e  of  his  will.  Doe  d.  Edmunds  e.  Lkwellin,  2 
C.  M.  &  R.  503;  1  Gale,  193..  21^ 

An  heir  at  law  is  not  to  be  disinherited  with« 
out  express  words,  necessary  implication,  or  de- 
claration plain.  Davis  dem.,  Selby  ten.,  2  Scott, 
B2.  2201 

If  the  general  intention  of  a  testator  can  be 
collected  upon  the  whole  will,  particular  terma 
used  which  are  inconsistent  with  that  intention, 
may  be  rejected  as  introduced  as  the  testator'e 
mistake  or  ignorance  of  the  force  of  the  worde 
used.    Sherratt  v.  BenUey,  2  Mylne  &  K.  149. 

2901 

That  construction  of  a  will  is  to  be  preferred, 
which,  consistently  with  the  rules  of  law,  givee 
effect  to  the  greatest  part  of  it.  Gallini  v.  Doe  d. 
Gallini  (in  error),  4  Nev.  &  M.  894 ;  3  Ado),  db 
Ellis,  341 ;  5  B.  &^  Adol.  621.       ~  2201 

Whether  the  doctrine,  that  a  genera]  intent  i« 
to  be  preferred  to  a  particular  intent  manifested 
in  a  Will,  is  incorrect  and  vague,  qusre  ?    Id. 

Testator  being  seised  in  tail  of  lands  at  C, 
with  remainder  to  his  son  in  tail,  and  revereioo 
to  himself  in  fee«  and  being  seised  in  fee  of  other 
lands  at  D.,  deyised  t«all  hia  real  estates  what- 
soever, over  which  he  had  any  disposing  power," 
to  R.  and  his  heirs,  in  trust  for  testator's  eon  for 
life,  with  several  remainders  over  in  tail,  subject 
to  terms  for  the  payment  of  debts,  annuities,  and 
munage  portions  :-^|Ield,  that  by  this  devke. 


[WILL] 


2647 


lMtator*8  reyenionary  interest  in  the  land  at  C. 
passed  to  the  devisee.  Mostyn  v.  Champneys,  1 
Bing.  N.  R.  341 )  1  Scott,  293.  2^7 

A  devise  was  made  to  J.  of  the  messuage  or 
tenement  wherein  the  testatot  resided,  witn  the 
offices  and  other  edifices  and  buildings,  yards, 
gardens  to  the  same  adjoining,  and  all  the  seve- 
ral closes,  &c.  called  by  the  names,  &c.,  with  the 
appurtenances,  part  of  the  farm  and  lands  then 
in  bis  own  occupation.  A  further  devise  was 
made  to  B.  of  ail  other  the  testator's  closes, 
and  ID  the  same  place,  with  their  appurtenances, 
except  what  he  had  before  devisea  to  J.  Seve- 
ral cottages  adjoining  the  house  in  which  the 
testator  resided,  had  been  purchased,  together 
with  it,  by  him,  but  had  been  separated  by  a 
wall,  and  were  not  at  any  time  in  his  occn- 

SKtion : — Held,  that  they  passed  by  the  devise  to 
.: — Held,  also,  that  evidence  of  declarations 
by  the  testator,  made  at  the  time  of  giving  in- 
structions for  and  executing  bis  will,  were  inad- 
missible for  the  purpose  of  showing  that  he  in- 
tended the  cottages  to  go  to  B.  Doe  d.  Preedy 
V.  Holton,  5  Nev.  db  M.  391 ;  1  Har.  <&  Woll 


628. 


2207 


Devise,  by  a  testator,  describing  himself  as  of 
Leverington,  of  **  all  and  singular  the  messuages, 
lands  tenements,  and  hereditaments,  of  what  te- 
nure soever  the  same  may  be,  situate,  Ivinff,  and 
beinff  at  Leverington  aforesaid,  and  in  Wisbeach 
St  Peter's  and  Wisbeach  St.  Mary's,"  to 
trustees,  one  of  whom  he  described  as  of  Lever- 
ington Parson  Drove.  The  parish  of  Levering- 
ton included  a  chapelry  called  Leverington  Par- 
son Drove,  and  the  testator  had  lands  situate  at 
Leverington,  as  well  within  that  portion  of  it 
called  Leverinffton  Parson  Drove,  as  the  other  : 
—Held,  that  uie  land  situated  in  Leverington 
Parson  Drove  passed  by  the  will.  Doe  d.  Edwards 
9.  Johnson,  1  Har.  &,  AVoll.  439.  ^  2207 

A  rent  charge  is  extinguished  by  a  devise  to 
the  grantee  of  part  of  the  land  out  of  which  the 
rent  charge  issues,  notwithstanding  the  devise 
is  expressly  made  over  and  above  the  rent  charge. 
Dennett  v.  Pass,  1  fiing.  N.  R.  388 ;  1  Scott,  218. 

2213 

'When  a  charge  on  the  land  is  clear,  and  upon 
the  construction  of  a  will  it  is  doubtful  whether 
or  not  the  testator  meant  to  transfer  the  charge 
from  the  realty  to  the  personalty,  it  will  be 
held  to  continue  a  charge  on  the  land.  Id. 

W.  G.,  in  1775,  devised  his  manor  house  and 
estates  to  his  nephew  for  life  -,  remainders  to  the 
nephew's  first  and  other  sons  in  tail  male.  The 
nephew's  son,  T.  Q.,  took  under  the  will ;  and 
upon  his  marriage,  in  1801,  suffered  a  recovery, 
and  conveyed  the  estates  to  the  use  of  himself 
for  life,  remainders,  subject  to  a  term,  in  S.  H.  F. ; 
and  another,  for  securmfir  a  jointure  and  raising 
portions  for  younger  children,  to  the  use  of  the 
settlor's  first  and  other  sons  by  the  marriage  in 
tail  male.  Power  was  given  to  the  trustees  to 
sell  and  exchange  the  lands,  and  invest  the 
monies.  In  1804,  8.  H.  F.,  the  termor  and 
tmstee  under  the  settlement,  devisml  his  own 
estates  in  trust  for  the  seeond  son  of  J.  G ,  the 
settlor,  in  ttil  male,  and  in  like  manner  to  the 


third  and  other  sons,  &c.,  with  a  power  to  the 
trustees,  if  at  any  time  the  person  entitled  to  the 
possession,  or  to  the  rents  and  profits  of  the  said 
estates,  should  be  a  minor,  to  receive  and  apply 
such  rents  and  profits  during  the  minority.  Pro- 
viso, that  in  case  and  so  oflen  as  the  manors^ 
lands,  &c.  devised  by  the  will  of  W.  G.  for  an 
estate  in  tail  male  should  descend  to  or  devolve 
upon  any  son  of  the  said  J.  T.  (the  settlor),  or 
heir  male  of  the  body  of  such  son,  and  the  person 
on  whom  the  same  should  so  descend  or  devolve 
should,  under  the  trusts  of  the  present  will, 
be  tenant  in  tail  male  of  the  messuages,  lands, 
&c.  devised  by  this  will,  so  as  to  be  then  actually 
in  possession  or  entitled  to  the  rents,  issues,  and 
profits  thereof;  and  there  should,  at  the  same 
time,  be  any  other  son,  &c.  of  the  said  T.  G., 
then  the  estate  by  this  will  declared  to  be  in  trust 
for  the  person  so  becoming  entitled  under  the 
will  of  W.  G.  should  cease  and  determine,  and 
the  now  devised  premises  should  be  in  trust  for 
the  person,  who  would  be  entitled  if  the  forfeiting 
party  were  dead,  and  there  were  a  failure  of  issue 
in  tail  male.  No  express  reference  was  made  in 
this  will  to  the  settlement  of  1801.  S.  H.  F. 
died  in  1813,  and  his  devised  estates  vested  in  the 
trustees  for  the  second  son  of  T.  G.  The  eldest 
son  of  T.  G.  died  in  1816,  and  T.  G.  himself  in 
1828 ;  whereupon  his  estates  vested  in  the  same 
second  son :  he  was  still  a  minor.  Several  chil- 
dren of  T.  G.  by  the  marriage  of  1801,  and  like- 
wise the  widow,  survived  him.  Many  parts  of 
the  settled  estates  had  been  sold  and  exchanged 
by  the  trustees  under  the  settlement : — Held,  by 
Denman,  C.  J.,  and  Patteson,  J.,  (Taunton,  /., 
dissentiente),  that  under  these  circumstances  the 
estate  devised  by  S.  H.  F.  to  the  second  son  of  T. 
G.  did  not  go  over  by  the  shifting  clatflb. 
Faiakerley  v.  GUbert,  1  Adol.  &  EUis,  897. 

8218 

T,  J.  S.  devised  estates  in  fee  in  the  following 
words :  **  to  my  right  and  lawful  heir  at  law,  fo^ 
the  better  finding  out  of  whom  I  direct  adver- 
tisements to  be  published  immediately  after  uy 
decease  in  some  of  the  public  papers,"  and  then 
he  added,  *^  that  if  no  heir  at  law  was  found,  he 
constituted  W.  L.  his  lawful  heir,  on  condition 
that  he  changed  his  name  to  S."  The  testator 
knew  Uiat  he  nad  cousins  alive  ez  parte  matema^ 
and  the  estates  were  chargeable  with  the  paj^- 
ment  of  legacies  within  twelve  months  after  his 
decease :— Held,  that  the  testator  intended  to- 
designate  an  heir  of  the  blood  of  the  S.'s,  and 
not  an  heir  ex  parte  materna.  Davis  v.  Lowndes, 
1  Bing.  N.  R.  597;  1  Hodges,  125.  2220 

Semble,  that  the  condition  as  to  taking  the 
name  of  S.,  was  satisfied  by  usinff  it  in  conjunc- 
tion with  that  of  Lowndes,  and  that  it  was  unne> 
cessary  to  obtain  a  sign  manual  from  the  king. 
Id, 

For  the  purpose  of  showing  the  right  under 
which  the  tenant  held  the  lands,  certain  decreet 
in  Chancery,  touching  the  tiUe  to  the  same  lands^ 
made  in  a  cause  in  which  other  parties  were 
claimants,  were  held  inadmissible  m  evidence. 
Id. 

Where  a  fine  was  levied  by  the  devisee  by  Ui 


t648 


[WILL] 


new  name  of  S. : — Held,  no  objection,  the  lands  I 
being  properly  described.  Id. 

Vide,  what  would  be  the  effect  of  the  fine  if 
levied  by  a  trostee.  Id. 

R.  B.  devised  certain  freehold  premises  to  his 
wilb  during  widowhood,  and  aAer  her  death  or 
marriage  to  his  nephew,  R.  B.  R.,  for  life,  and 
after  his  decease  '*  unto  and  equally  between  all 
and  every  the  children  of  his  said  nephew,  R.  B. 
R.,  their  heirs  and  assigns  respectively,  as  te- 
nants in  common,  if  more  than  one,  and  if  there 
should  be  but  one  child,  then  the  whole  to  such 
only  child,  his  or  her  heirs  and  assigns ;  but  in 
case  there  should  be  no  child  or  children  of  his 
said  nephew,  R.  B.  R.,  living  at  the  time  of  the 
decease  or  marrying  again  of  the  testator's  said 
wife,  then  over;"  and  ne  devised  the  residue  of 
his  real  estate  to  certain  other  persons  in  fee. 
By  a  codicil,  bearing  tlie  same  date  as  the  will, 
and  executed  at  the  same  time,  the  testator  di- 
rected ^*  that  neither  the  said  R.  B.  R.,  nor  any 
or  either  of  his  issue,  shall  by  virtue  of  this  my 
will  take  or  be  considered  as  entitled  to  a  vested 
interest  or  interests,  unless  and  until  they  shall 
respectively-  attain  the  a^  of  twenty-one  years." 
The  testator's  widow  died  in  the  lifetime  of 
R.  B.  R.,  who,  (having  attained  twenty-one), 
upon  her  decease,  entered  into  possession  of 
the  devised  estate,  and  afterwards  died,  leaving 
several  children  him  surviving,  all  under  the 
age  of  twenty-one  years : — H^d,  that  the  de- 
vise to  the  children  and  the  substituted  de- 
visees over  failed  of  effect,  and  that  tlie  devised 
estate  descended  to  the  testator's  heir  at  law. 
Russell  V.  Buchanan,  2  C  &.  M.  561 ;  4  Tyr.384. 

2220 

A.  devised  to  his  daughter  for  life,  remainder 
to  F.  J.  B.  for  life,  remainder  to  preserve  re- 
mainder to  the  first  and  every  other  son  of  F.  J. 
B.  in  tail,  ^  and  for  and  in  default  of  such  issue, 
unto  the  younger  branches  of  B.  W.  lawfully 
begotten,  and  to  their  heirs  for  ever,  to  be  equally 
divided  between  them,  share  and  share  alike,  and 
to  take  as  tenants  in  common ;  and  in  default  of 
Much  issue,  unto  the  elder  branches  of  B.  W . 
lawfully  be^tten,  and  to  their  heirs  for  ever,  to 
be  equally  divided  between  them,  share  and  share 
alike,  and  to  take  as  the  tenants  in  common." 
F.  J.  B.  died  without  issue  after  the  death  of 
the  devisor.  The  only  descendant  of  B.  W. 
living  at  the  date  of  the  will  were  two  daughters, 
M.  H  and  A.  £.  M.  H.  had  four  daughters,  two 
of  them  were  the  lessors  of  the  plamtiff ;  also 
J.  K.,  only  child  to  the  eldest  son  of  B.  W.,  and 
T.  W.,  only  child  of  the  third  son  of  B.  W.  The 
mme  persons  were  living  at  the  death  of  the 
devisor,  and  between  that  time  and  the  date 
of  the  will  T.  W.  had  had  a  daughter.  At 
the  time  of  the  death  of  F.  J.  B.,  all  the  above- 
mentioned  persons  were  dead,  except  the  two 
lessors  of  the  plaintiff.  Several  persons,  de- 
scended from  the  third  son  of  B.  W.  and  from 
one  of  the  lessors  of  the  plaintiff,  came  in  esse 
between  the  death  of  the  testator  and  the  death  of 
F.  J.  B.,  and  were  living  at  the  latter  time : — Held 
that  if  the  devise  was  not  altogether  void  for  un- 
certainty, still  the  lessors  of  Uie  plaintiff  could 


not  take  under  it.  Doe  d.  Smith  v.  Fleming,  2  C. 
M.  &  R.  638  ;  1  Gale,  278.  22^ 

Devise  of  freehold,  copyhold,  and  leasehold 
estates,  and  all  other  the  testator's  real  and  per- 
sonal estates,  unto  N.,  H.,  and  H.,  their  heirs 
administrators,  executors,  and  assigns,  and  to  the 
heirs,  executors,  administrators,  and  assigns  of 
the  survivor,  upon  trust  to  pay  and  apply,  or  per- 
mit and  suffer  M.  to  take  the  rents  and  profits  for 
her  absolute  use  for  life,  and  after  her  decease, 
upon  trust  for  A.,  B.  and  C.,  and  their  lawful  issue 
respectively,  in  tail  genersd,  with  benefit  of  sur- 
vivorship to  and  amongst  their  issue  respectively, 
as  tenants  in  common,  such  issue  not  to  have 
a  vested  interest  till  twenty-one;  and  the  said 
trustees  after  the  death  of  A.,  B.,  and  C-,  or 
either  of  them,  to  applv  the  whole  or  any  part  of 
the  rents  and  profits  of*^  the  trust  estates,  not  ex- 
ceeding the  presumptive  share  of  each  child, 
towards  his  or  her  maintenance  during  minority : 
— Held,  that  the  trustees  took  an  estate  in  fee 
in  the  freehold  and  copyhold,  and  an  absolute 
interest  in  the  leaseholds.  Cursham  v.  Newland, 
2  Scott,  113 ;  2  Bing.  N.  R.  64  ;  1  Hodges,  278. 

2225 

Devise  of  land  to  trustees,  in  trust  to  permit 
testator's  wife  and  daughters  to  receive  the  clear 
rents,  three  parts  to  their  sole  and  separate  use, 
and  the  testator's  son  the  clear  rent  of^  the  fourth 
part ;  the  trustees  to  pay  all  outgoings,  to  repair, 
and  to  let  the  premises : — Held,  that  the  legal 
estate,  as  to  all  the  four  parts,  vested  in  the 
trustees.  White  v.  Parker,  1  Scott,  542 ;  1  Bing. 
N.  R.  574 ;  1  Hodges,  112.  2225 

Upon  the  death  of  one  of  two  trustees,  the 
survivor  was  to  appoint  another  in  place  of  the 
deceased,  and  to  convey  the  premises  to  him,  to 
hold  Uiem  jointly  wiih  the  survivor.  One  of  the 
trustees  being  dead,  the  survivor  by  a  deed,  to 
which  the  cestui  que  trusts  were  parties,  appointed 
P.  sole  trustee,  in  place  of  himself  ana  the  de- 
ceased, and  conveyed  the  premises  to  P.,  to 
hold  to  him  and  his  heirs,  and  not  jointly  with 
the  surviving  trustee : — Held,  that  the  whole 
legal  estate  passed  by  that  conveyance  to  P.  Id. 

A  devise  to  a  woman,  "  her  heirs  and  assigns 
for  ever,  with  the  intentioi^that  she  may  enjoy 
the  same  during  her  life,  and  by  her  will  dispose 
of  the  same  as  she  thinks  proper,"  gives  an  estate 
in  fee.  Doe  d.  Herbert  v.  Lewis,  4  Nev.  &,  M. 
696;  3  Adol.  &  Ellis,  123;  1  Har.  &.  Woll.  231. 

2230 

Devise  of  freehold  estates  to  T.  P.,  the  testa- 
tor's cousin,  for  the  term  of  his  life,  with  a  power 
to  lease  for  seven  years,  and  subject  to  the  said 
estate  for  life,  the  testator  devised  the  same  to 
such  of  his,  the  testator's  relations,  of  the  name 
of  P.,  being  a  male,  as  the  said  T.  P.  should  ap- 
point or  adopt ;  and  in  default  of  such  appoints 
ment  or  adoption,  then  **  unto  the  next  and  nearest 
relation,  or  nearest  of  kin  of  the  testator  of  the 
name  of  P.,  being  a  male,  who  should  be  living 
at  the  testator's  decease,  his  heirs  and  assigns  for 
ever ;"  the  said  T.  P.,  who  was  the  nearest  rela- 
tion of  the  testator  of  the  name  of  P.,  died  with- 
out making  any  appointment  or  adoption  in  pur- 
suance of  the  directions  contained  in  the  will : — 


[WILL] 


9649 


Held,  that  T.  P.  took  an  estate  in  fee  under  the 
nltimate  limitation.  Pearce  v.  Vincent,  2  Scott, 
347  ;  2  Bin^.  N.  R.  329 }  1  Hodges,  358.        2230 

T.  J.  Selby  by  his  will  devised  as  follows : — 
^  To  my  right  and  lawful  heir-at-law,  (for  the 
better  finding  of  whom,  1  direct  advertisements 
to  be  published  immediately  aAer  my  decease  in 
some  of  the  pnblie  papers),  all  my  manors,  lands, 
Ac.,  in  B.,  to  hold  the  aforesaid  manors,  &c  ,  to 
my  heir-at-law,  his  heirs,  executors,  administra- 
tors, or  assigns  for  ever,  subject  and  chargeable 
with  the  payment  of  all  my  just  debts,  mneral 
charges,  bonds,  annuities,  and  all  legacies  h<^rein- 
aller  mentioned,  (various  legacies  to  relations  on 
his  mother's  side),  all  which  debts,  legacies',  &c 
I  do  hereby  order  and  direct  to  be  paid  by  the 
■aid  heir-at-law,  his  heir,  executor,  or  assigns, 
within  twelve  months  after  my  decease;  but 
should  it  BO  happen  that  no  heir-at-law  is  found, 
I  do  hereby  constitute  W.Lowndes,  «&e.,my  law- 
ful heir,  on  condition  he  changes  his  name  to 
Selby :  and  I  five  the  estates  and  all  manors  be- 
fore mentioned,  together  with  all  rights,  &c.,  be- 
fore mentioned,  to  the  aforesaid  W.  Lowndes,  sub- 
ject to  and  chargeable  with  all  the  legacies,  debts, 
&c.  before  mentioned  : — Held,  that  on  failure  of 
an  heir  cf  the  blood  of  the  testator  within  the  time 
limited  for  payment  of  the  le^cies,  d&c.,the  fee- 
simple  vested  under  this  devise  in  W.  Lowndes ; 
and  that  the  condition  was  satisfied  by  his  chang- 
ing his  name  to  Selby  within  a  reasonable  time, 
and  without  a  licence  from  the  crown.  Davies, 
dem.,  Selby,  ten.,  2  Scott,  71.  2230 

Testator  devised  lands  to  his  wife  and  certain 
trustees  in  fee,  in  trust  for  his  wife  for  life ;  and 
after  her  decease,  for  the  use  of  his  three  children 
for  their  lives,  in  equal  sliares,  and  to  the  issue 
of  their  respective  bodies  for  their  respective  life 
only,  in  equal  shares,  for  ever ;'  and  in  case  of  the 
death  of  either  of  the  three  without  issue,  then 
upon  trust  for  the  survivors  ur  survivor  in  equal 
snares,  for  life  only,  or  to  their  respective  lawful 
issues,  in  equal  shares  for  life  only ;  and  in  case 
there  should  be  only  one  child  then  living,  in  trust 
for  such  only  child  for  life  only,  and  the  issue  of 
such  only  child  for  life,  in  equal  shares ;  and  if 
hot  one  issue  of  such  child,  to  such  issue  for  life 
only,  and  the  heir  of  his  or  her  body,  for  ever :  in 
case  there  should  be  no  issue  of  such  child,  re- 
mainder over.  Either  child  who  should  many 
was  to  have  a  power  to  make  a  settlement  of  hu 
share  for  the  lives  of  the  parties,  and  the  lives  of 
their  issue,  with  remainder  over  in  tail.  By  a 
codicil,  reciting  (he  above  devise,  the  testator, 
afler  the  decease  of  his  wifis,  devised  the  same  land 
to  the  trustees  in  fee,  in  trust  for  his  three  children 
as  tenants  in  common,  for  the  terra  of  99  years 
from  his  decease,  if  they  or  either  of  them  should 
BO  long  live;  and  afler  the  dptermination  of  that 
term,  and  subject  thereto,  to  the  trustees  in  fee,  to 
preserve  continorcnt remainders:  and  the  usps  ex- 
pressed in  the  will, as  far  as  th^l  iw  would  permit, 
Wfre  to  be  carried  into  perfect  exncution  : — Held, 
that  under  the  will  and  codicil,  the  three  children 
of  the  testator  took  in  the  lands  drvised  estates 
for  the  term  of  JK>  years,  if  they  should  re8p*»c- 
tively  BO  long  live,  as  tenants  m  common,  with 
remainder  to  the  trustees  in  the  codicil  named, 


and  their  heirs,  durinjg  the  respective  lives  of  the 
said  three  children,  m  trust  to  preaerve  contin* 
gent  remainders,  with  remainder  to  the  said  three 
children  as  tenants  ha  common  in  tail  general, 
with  cross  remainders  between  them  in  tad  gene- 
ral.   Brooke  v.  Turner,  2  Scott,  611 ',  2  Bing.  N. 

R.  422.  2236 

• 

Devise  to  A.  for  life;  remainder  to  B.  in  tail 
male.  During  A.'s  life  B.  dies  leaving  a  daugh- 
ter, C,  who  ako,  during  the  life  of  A.,  dies,  leav- 
ing a  son,  D.  A.  dies.  D.  cannot  take.  Doe  d. 
Parker  v.  Gregory,  4  Nev.  &  M.  308-  2236 

Devise  to  A.,  B.,  and  C,  and  their  lawful  issue 
respectively  in  tail  general,  with  benefit  of  sur- 
vivorship amonp  the  issue  respectively  as  tenants 
in  common: — Held,  that  A.,  B.,  and  U.,  took  life 
estates,  and  their  children  contingent  remainders 
in  tail  ^neral,  by  purchase,  in  uieir  respective 
parents  shares,  with  cross-remainders  in  tail 
among  A.,  B.,  and  C. :  the  testator  having  used 
the  word  ^'  issue"  as  synonymous  with  **  sons" 
or  '*  daughters."  Cursham  v.  Newland,  2  Scott, 
105 ;  2  Bing.  N.  R.58 ;  1  Hodges,  272.         2237 

Whatever  be  the  prima  facie  meaning  of  the 
word  "  issue"  in  a  will,  it  is  not  a  technical  ex- 
pression and  will  yield  to  the  intention  of  the 
testator,  to  be  collected  from  the  words  of  the 
will ;  and  therefore  it  requires  a  less  demonstra- 
tive context  to  show  the  testator's  intention  ia 
regard  to  tlis  word  "  issue,"  than  in  regard  to  the 
technical  expression  ''  heirs  of  the  bony."  Leea 
V.  Mosley,  1  Y.  &  Col.  589.  2237 

A  testator  afler  giving  a  pecuniary  legacy  to 
his  heir-atrlaw,  directed  his  debts  and  funeral 
expenses  to  be  paid  and  discharged  by  his  exe- 
cutrix bereinafler  named.  He  afterwards  gave 
to  his  daughter,  £.  S  ,  whom  he  made,  consti- 
tuted, and  ordained  his  executrix,  all  and  singu- 
lar his  lands,  tenements,  snd  messuages,  byner 
freely  to  be  possessed  and  enjoyed : — Held,  that 
the  executrix  took  only  a  hfe  estate.  Doe  d. 
Ashby  V.  Baines,  2  C.  ^l.  &  R.  23;  1  Gale,  135^ 

2243 

A.  devised  copvhold  lands  to  his  son,  D.  S.,  and 
his  wife,  and  J.  H.  and  his  wife,  or  the  survivor 
of  them  for  their  lives ;  and  after  the  decease  or 
all  of  them,  to  the  male  heir-at-law  of  him  the- 
testator,  his  heir  and  assigns  forever;  he  tiien 
bequeathed  legacies  to  three  other  sons  and  after* 
wards  died,  leaving  five  boub  and  one  daughter^ 
three  by  his  first  wife,  and  three  by  the  second  : 
— Held,  that  the  fee  vested  at  the  testator's- 
death  in  the  person  who  was  then  his  male  heir- 
at-law,  and  did  not  remain  contingent  until  the 
determination  of  the  life  estates.  Doe  d.  PiUcing- 
ton  V.  Spratt,  5  B.  <fc  Adol.  731 .  fS&2^ 

A  testator  devised  certain  real  estates  to  trus- 
tees and  their  heirs,  upon  trust  that  his  daughter 
M.  should,  until  she  should  attain  the  age  of 
twenty-one,  if  sole  and  unmarried,  receive  out  of 
the  n^nts  nnd  profits  an  annuity  of  60/.,  and  that 
shf  sh-»uldthfreaflerand  until  she  attained  thirty- 
one,  if  sole  and  unmarried,  receive  a  further  an- 
nuity of  40/. ;  but  in  cat<e  his  said  da  ujrhter  should 
marry  without  the  consent  of  h's  trustees,  then 
she  should  be  paid  only  an  annui^r  of  50Z.  for 
her  sole  use,  and  that  the  estate  abosld  immer 


26S0 


[WILL— WORK  AND  LABOR] 


diately  upon  the  manriaM  be  in  trust  for  the 
children  of  his  daughter,  M.,  as  tenants  in  com- 
mon in  tail ;  and  for  default  of  such  issue,  in  trust 
for  his  the  testator's  sister,  S.,  and  her  heirs  for 
ever:  provided  always,  tliat  in  case  his  said 
daughter,  M.,  should  marry  with  the  consent  of 
the,  trustees,  it  should  be  lawful  for  them  to  set- 
tle the  estates  upon  M.  and  her  husband  for  their 
joint  lives,  and  the  life  of  the  survivor,  with 
remainder  to  the  issue  of  the  body  of  his  said 
daughter,  in  such  shares  and  proportions  as  the 
trustees  should  appoint,  and  in  oe&ult  of  such 
appointment,  in  such  shares  and  proportions  as 
were  thereinbefore  limited.  M.  married  with 
the  consent  of  the  trustees,  (upon  which  occasion 
a  settlement  was  made  pursuant  to  the  will),  and 
died  without  issue : — Held,  that  the  remainder  to 
S.  was  conditional,  depending  on  M.'s  marriage 
without  consent ;  and  that  M.  having  married 
with  consent,  the  remainder  to  S.  failed  although 
M.  died  without  issue.  Toldervey  v.  Colt.  1  Mees. 
&Wels.250.  2255 

A.  devises  land  to  B.  and  his  heirs,  but  in  case 

B.  dies  without  heirs,  then  to  C.  and  his  heirs ;  or 
in  case  B.  offers  to  mortgage  or  levy  a  fine,  or 
suffer  a  recovery  upon  Uie  whole  or  any  part 
thereof,  then  to  go  to  C.  and  his  heirs.    B.  and 

C.  are  strangers  m  blood.  The  fee  vests  in  B., 
and  the  executory  devise  to  C.  is  void.  Ware  v. 
Cann,  5  M.  &  R.  341.  2256 

Devise  of  leaseholds  to  testator's  dughter  for 
life ;  remainder  to  her  two  sons  for  life ;  and  in 
case  she  should  not  have  a  son  or  sons  to  attain 
the  age  of  twenty -one,  and  of  such  sons  dying 
without  lawful  issue,  then  to  her  daughters,  their 
executors,  administrators,  and  assigns;  and  if 
such  daughters  should  die  without  issue,  remain- 
der over :  all  the  residue  of  testator's  estate 
to  his  daughter : — Held,  that  the  testator's  daugh- 
ter took  an  estate  for  life  in  the  leaseholds,  with 
remainder  to  her  two  sons  for  life,  with  the  ulti- 
mate remunder,  on  certain  contingencies,  to  her- 
self Bradshaw  v.  Sktlbeck,  2  Scott,  294 ;  2  Bing. 
N.  R.  182;  1  Hodges,  240. 


»mg. 
2243 


Testator,  seised  in  fee  of  several  estates,  devised 
them  to  trustees  in  fee,  upon  trust  to  permit  his 
sons  and  daughters  respectively  and  severally  to 
receive  the  rents  and  profits  of  the  respective  es- 
tates, with  a  clause  for  preserving  contingent  re- 
mainders. And  firom  and  immediately  after  the 
decease  of  any  of  his  said  children,  the  testator 
devised  the  estate  limited  to  him  or  her  for  life, 
unto  or  among  his  or  her  child  or  children,  living 
at  his  or  her  decease,  for  their  natural  lives,  as 
tenants  in  common,  but  with  equal  bf*nefit  of 
survivorship  among  the  rest  of  the  said  children, 
if  more  than  one,  and  any  one  nf  them  should 
die  without  leaving  issue ;  the  child  or  children  of 
each  son  or  daughter  taking  the  rents  and  pro- 
fits of  his  or  her  parent's  estate  only.  And  from 
and  after  the  decease  of  all  the  children  of  each 
of  bis  sons  and  daughters  without  issue,  he  gave 
the  estate  or  estates  to  them  respectively,  limited 
to  and  amonor  all  the  issue  of  such  child  or  chil- 
dren during  meir  lives  as  tenants  in  common,  and 
to  descend  in  like  manner  to  the  issue  of  his ! 
Mid  sons  and  daoghten  respectively,  so  k>ng  as 


there  should  be  any  stock  or  oApriiig  remaiBing. 
And  for  default,  or  in  failure  or  issue  of  any  of 
his  said  sons  and  daughters,  he  devised  the  es- 
tate limited  to  him  on  ner  dying  without  issue  to 
the  survivors  of  his  sons  and  daughters,  for  their 
respective  lives,  as  tenants  in  common ;  and  after 
their  respective  deaths  to  the  children  of  the  sur- 
vivors or  them,  during  their  respective  lives,  is 
tenants  in  common,  with  such  benefit  of  survi 
vorship  as  aforesaid ;  and  afler  the  decease  of  all 
of  them,  to  the  issue  of  such  children,  in  like 
manner  as  the  testator  had  devised  the  original 
estate  of  each  of  the  sons  and  danghters.  And 
for  default,  or  in  failure  of  issue  of  all  his  sons 
and  daughters  but  one,  he  devised  all  the  eslatei 
to  that  one  in  fee : — Held,  that,  under  this  de- 
vise, a  son  of  the  testator  did  not  take  an  imme- 
diate estate  tail  in  the  premises  devised  to  him, 
but  an  estate  for  life,  with  remainder  in  tail  to 
his  children  as  tenants  in  common,  remainder  to 
himself  in  tail.  Doe  d.  Gallini  v.  Gallini,  3  Adol. 
Sl  Ellis,  341 ;  4  Nev.  &  M.  894 ;  S.  C.  5  B.  & 
Adol.  G21.  2243 


WORK  AND  LABOR. 

Where  work  was  not  duly  performed  according 
to  a  special  contract,  and  there  is  a  common 
count  for  work,  labor  and  materials,  as  well  as  a 
special  count,  the  defendant  mav  prove  the  in- 
ferioritv  of  the  work  and  materials,  and  the  plain- 
tiff will  only  be  entitled  to  recover  on  the  com- 
mon count  for  so  much  as  the  work,  labor,  and 
materials  are  worth.  Chappel  v.  Hicks,  4  Tyr. 
43;  2C.  &M.214.  W2 

Where  there  is  a  special  contract  for  work,  to 
be  done  at  a  fixed  price,  and  the  declaration  con- 
sists of  the  common  counts  in  debt  on  simple 
contract  for  work  and  labor,  to  which  the  de- 
fendant pleads  that  he  never  was  indebted,  he 
may  prove  as  well  since  the  new  rules  of  plead- 
ing, Hil.  4  Will.  4,  Nos.  1  &  2,  as  before,  that 
the  work  was  done  in  an  improper  manner.  Cou- 
sins V.  Faddon,  5  Tyr.  535 ;  2  C.  M.  &  R-  547;  4 
Dowl.  P.  C.  488 ;  1  Gale,  305.  2Z73 

Where  a  specific  contract  has  not  been  per- 
formed, a  plaintiff  cannot  recover  upon  it  on  a 
Sneral  indebitatus  count ;  therefore,  the  defen- 
nt,  on  a  plea  of  non-assumpsit,  or  nunqunm 
indebitatus,  may  show  that  the  work  was  done 
under  a  specific  contract,  and  that  the  specific 
contract  was  not  performed ;  but  where  a  plaintiff 
is  entitled  to  recover  quantum  meruit,  the  plea 
of  non-assumpsit  or  nunquam  indebitatus  to 
such  a  count  puts  in  issue  the  quantum  of  the 
value,  and  if  no  value  have  been  given,  the  plain- 
tiff is  not  entitled  to  even  a  nominal  sum.    Id. 

Per  Parke,  B. — If  a  workman  contract  to  "^np- 
ply  labor,  it  must  be  taken  to  meau  that  the 
labor  shall  be  of  the  quality  which  would  be 
bestowed  by  a  workman  of  ordinary  skill  in  hie 
trade.     Id. 

Assumpsit  for  goods  (a  machine)  sold  and  de- 
livered : — Held,  that  the  defendant  might  shew 
under  the  general  issue  that  the  machine  wae 
manufactured  by  the  plaintiff  for  the  defendant, 
under  a  condition,  that  if  it  did  not  work,  nothiaf 


' 


[WORK  AND  LABOR] 


2651 


\ 


should  be  paid  for  it ;  that  it  could  not  be  made  | 
to  work,  and  that  it  was  useless  to  the  defendant :  I 
— Held,  also,  that  although  the  machine  was  not ! 
proved  to  have  been  returned  to  the  plaintiff,  he  I 
was  not  entitled  to  an^  damages  on  the  quantum 
▼alebat,  without  showmg  some  new  implied  con- 
tract arising  from  the  defendant's  dealing  with 
the  goods.     Grounsell  v.  Lamb,  1  Mees.  &  Wels. 
352.  2*^72 

An  allegation  in  a  plea,  of  an  agreement  that 
a  workman  should  not  be  paid,  unless  the  work 
should  be  completed  within  14  days  before  Mich- 
aelmas day,  was  held  not  to  be  supported  by 
evidence  of  an  agreement,  that  he  should  not  bie 
paid  unless  the  works  should  be  completed  14 
days  before  Michaelmas  day.  Thomas  v.  Lam- 
bert, 3  Adol.  &  Ellis,  51 ',  4  Nev.  <fe  M.  592 ;  1 
Har.  &  Woll.  224.  2273 

To  a  plea,  that  work  in  respect  of  which  plain- 
tiff sued,  was  not,  according  to  agreement,  done 
to  the  satisfaction  of  defendant  or  his  surveyor ; 
plaintiff  replied  that  it  was  done  to  the  satisfac- 
tion of  defendant  and  his  surveyor ;  without  this, 
that  it  was  not  done  to  the  satisfaction  of  defen- 
dant or  his  surveyor : — Held,  that  upon  this  issue 
it  was  sufficient  to  show  that  the  work  was  done 
to  the  satisfaction  of  the  defendant.  Bradley  v. 
Milnefl,lScott,626;  1  Bing.N.R.644;  iHodges, 
158.  ja73 


In  assumpsit  for  refusing  to  allow  the  plaintiff 
to  proceed  with  certain  work  according  to  agree- 
ment, the  defendant  pleaded  that  the  work  was 
to  be  done  to  thfi  satisfaction  of  A.  B.,  and  that 


part  of  the  work  which  was  done  was  not  to  his 
satisfaction,  and  therefore  he  discharged  the  plain- 
tiff : — Held,  that  upon  this  issue  it  was  not  neces- 
sary for  the  defendant  to  call  A.  B.  Vickers  v. 
Cocks,  3  Dowl.  P.  C.  492.  2273 

In  an  action  of  debt  for  work  and  labor  on  an 
implied  contract,  the  defendant,  on  the  plea  that 
he  never  was  indebted,  may  go  into  evidence  to 
prove  that  the  work  was  done  under  such  circum- 
stances, and  show  that  there  was  no  implied  con- 
tracts to  pay  any  thing ;  but  upon  this  plea  the 
defendant  cannot  go  into  evidence  of  misconduct, 
except  such  as  goes  to  show  that  there  was  no 
implied  contract  to  pay.  Cooper  v.  Whitehouse, 
6  C.  <&  P.  545— Alderson.  2274 

Where  an  action  was  brought  by  a  builder  for 
the  amount  of  extra  work  done,  there  having  been 
a  written  contract  between  the  parties: — Held, 
that  the  plaintiff  ought  to  have  produced  the 
written  contract  at  the  trial,  in  order  that  it  might 
appear  what  was  within  the  contract,  and  wnat 
not. '  But  as  the  objection  was  not  taiten  by  the 
defendant  at  the  trial,  the  court  set  aside  the  ver- 
dict which  the  jury  had  found  for  the  defendant ; 
and  ordered  a  new  trial  without  costs.  Jones  v. 
HoweU,  4  Dowl.  P.  C.  176.  2274 

A  letter  signed  by  both  parties,  speci^nff  the 
prices  to  be  charged  for  some  work  to  be  done, 
)s  not  in  itself  a  complete  contract ;  and  there- 
fore, parol  evidence  is  admissible  of  a  contempo- 
raneous agreement  as  to  the  period  of  payment. 
Knapp  V.  Harden,  1  Gale,  47.  2270 


Vol.  IV. 


48 


AN 


ANALYTICAL    DIGEST, 


&c. 


ABATEMENT. 

1.  Thi  foar  days  within  which  the  plea  in 
ahatement  must  be  delivered,  are  to  be  computed 
exclusively  of  the  first,  and  inclusively  of  the 
last  day.  Ryland  v.  Wonnald,  2  Mees.  &  W. 
(XX.)  393;  and  5  Dowl.  (p.  c.)  580. 

2.  A  plea  of  coverture  in  abatement,  held  not 
a  plea  of  non-joinder  within  the  3  &  4  W.  4,  c. 
42,  B.  8,  so  as  to  entitle  the  plaintiff  to  si^n  judg- 
ment, for  non-compliance  with  the  requisites  of 
the  statute.  Jones  v.  Smith,  3  Mees.  &  W.  (xx.) 
526. 

3.  Where  the  action  was  not  commenced  until 
on  the  verge  of  the  Statute  of  Limitations,  and  a 
plea  of  abatement  for  non-joinder  of  parties  was 
put  in,  the  Court  refused  to  deprive  the  party  of  a 
defence  which  the  law  gives,  by  permitting '  an 
amendment,  or  to  go  into  tne  equities  of  the  case. 
Roberto  v.  Bate,  6  Add.  A  £11.  (k.  b.)  778. 

And  see  Ecclxsiastical  Persons. 


ACCORD. 

Flea,  in  covenant  for  neglecting  to  repair,  that 
in  consideration  of  the  defendant,  at  the  request 
of  plaintiff  having  become  tenant  from  year  to 
year,  and  promised  to  repair,  the  plaintin  would 
give  time  until,  Ac,  for  that  purpose,  and  would 
relinquish  all  tlaim  in  respect  or  the  breaches  of 
covenant,  averring  that  defendant  was  ready  and 
willing  to  perform  the  agreement,  and  that  the 

Slaintiff  commenced  an  action  on  the  covenanto 
efore  the  day  given,  held  bad,  and  judgment  for 
plaintiff;  mm  obst.  vered.  Bayley  v.  Homan,  3 
Bing.  N.  S.  (c.  p.)  915. 


ACCOUNT. 

1.  Where  in  an  action  of  account  against  a  co- 
partner and  bailiff,  upon  the  plea,  amounting  to 
that  of  pUne  eomputavU^  the  evidence  did  not 
show  that  the  result  of  the  account  so  rendered 
was  a  balance  ascertained  and  agreed  upon  be- 


tween the  parties,  but  the  plaintiff  insisted  that 
in  the  account  the  defendant  should  be  charged 
as  factor  onlv  for  a  moiety,  and  as  a  partner  for 
the  other,  and  liable  to  losses ;  held,  not  sufficient 
to  sustain  the  plea,  and  that  the  plaintiff  was  en- 
titled to  judgment,  quod  computet^  generally  upon 
the  whole  declaration,  and  that  the  account 
should  be  taken  according  to  the  real  relation 
between  the  parties.  Baxter  v.  Hosier,  5  Bing. 
N.  S.  (c.  p.)  288. 

2.  Where  A.  being  indebted  to  three  persons, 
jB.,  C.  a  D.^  constituting  the  firm  of  B.  A  Co., 
covenanted  with  them  for  the  payment :  two  of 
the  firm  dying,  and  the  third  retiring,  having  as- 
signed all  the  interest  to  £.,  who  with  F.  uler- 
wards  continued  trading  under  the  same  firm  of 
B.  A  Co.,  with  whom  Ji.  continued  to  deal,  and 
made  paymento:  C  afterwards  sued  Ji.  on  the 
covenant ;  held,  firsL  that  in  the  absence  of  any 
assent  on  the  part  of^  C,  Ji.  could  not  apply  the 
paymento  to  the  subsequent  partners  in  liquida- 
tion of  the  sum  secured  by  the  covenant :  held 
also,  that  although  on  the  ground  of  apparent 
unity  of  interest,  A.  miffht  sustoin  a  bill  of  dis- 
covery against  £.,  yet  the  then  subsequent  part- 
ners could  not  be  joined  as  parties  to  discover 
what  they  miffht  show  as  witnesses,  and  that  in 
the  absence  of  any  connexion  appearing  between 
their  accounto  and  those  of  A.,  C.  and  £.,  they 
could  not  be  joined  in  a  bill  for  an  account  by  A, 
against  C.  and  E. ;  that  the  bill  setting  up  a  par- 
tial case  of  equity  in  connexion  with  the  case  for 
discovery,  and  introducing  improper  parties,  was 
therefore  bad  on  demurrer.  Jones  v.  Maund,  3 
Tounge  A  C.  (ex.  xq.)  347. 

3.  Upon  numerous  exceptions  to  the  allowance 
and  disallowance  of  items  in  a  deceased  agent*ii 
accounto  by  the  Master,  a  review  ordered,  with 
directions  not  to  allow  items  merely  because  ap- 
pearing in  the  books,  unless  the  monies  also  ap- 
nearea  from  other  entries  to  have  been  received. 
Maybe w  v.  Brettingham,  1  Coop.  (ch.  c.)  43. 

4.  Where  preliminary  accounto  or  inquiries  are 
necessary,  the  pUintiff  to  be  at  liberty,  on  notice, 
to  move  to  have  them  taken,  and  an  order,  Ac., 


2654 


[ACCOUNT— ACTION] 


without  prejudice  to  any  qneation  in  the  case, 
where  parties  ore  not  competent  to  consent;  or 
where  competent,  and  consent,  the  defendants 
may  not  have  put  in  their  answer.  Reg.  Gen.  5, 
May,  1839, 1  Beav.  (ch.)  Ap.  xi. 

5.  Where  the  subject  matter  in  which  the  ac- 
count was  sought  to  be  taken  was  not  matter  of 
set-off,  but  matter  of  damages,  demurrer  allowed. 
Glennie  v.  imri,  3  Younge  &  C  (kx.  e^.)  436. 

And  see  Trdstex  ;  Limitations,  Stat,  of  ; 
MoBTOAGx;  Partner. 


ACCUMULATION. 

1.  Upon  a  bequest  of  stock  to  trustees  to  invest 
the  dividends  in  the  purchase  of  more  stock,  un- 
til for  so  long  as  M.  J.  should  live,  and  then  to 
pay  the  fund,  with  the  accumulations,  to  R.  T. 
and  his  issue,  and  he  ffave  also  the  residue  to  R. 
T.  and  his  issue;  held,  that  the  dividends  and 
accumulation,  ailer  21  years,  and  until  the  death 
of  M.  /.,  was  undisposed  of,  and  passed  to  the 
residuary  legatees.  O'Neill  v.  Lucas,  2  Keene, 
(cH.)  313. 

2.  Where  the  testator  was  entitled  to  a  sum 
charged  on  an  estate,  and  devised  it  to  accumu- 
late for  20  yean,  and,  subject  to  certain  payments, 
he  gave  the  sum,  specifying  it,  with  its  accumu- 
lations, for  the  benefit  of  grandchildren,  and  afler 
the  end  of  20  years,  '*  the  principal  of  the  said 
sum  to  merge  in  the  estate ;"  held,  that  the  grand- 
children were  entitled  to  the  accumulated  interest 
only.  Scott  v.  Earl  of  Scarborough,  1  Beav. 
(cH.)  154. 

3.  The  39  ^  40  Geo.  3,  c.  98,  was  not  intend- 
ed, nor  does  it  operate,  to  alter  any  disposition  of 
a  testator,  except  his  direction  to  accumulate ; 
and  the  income  which  the  statute  forbids  to  accu- 
mulate must  go  as  in  the  case  of  intestacy  : 
where  the  testator  empowered  trustees  to  sell  tne 
real  estate  when  they  pleased  after  his  death,  but 
if  not  done  before  the  death  of  his  youngest 
child,  then  to  sell  for  the  benefit  of  the  grand- 
children or  their  children,  and  his  youngest  child 
survived  him  29  years ;  held,  that  the  direction 
that  the  income  should  accumulate  after  21  yeare 
was  void,  and  that  the  void  accumulation  be- 
longed to  the  next  of  kin,  but  the  unexhausted 
interest  arising  out  of  the  real  estate  to  the  heir. 
Eyre  V.  Manden,  2  Keene,  (ch.)  564. 

4.  Upon  a  bequest  to  the  grandchildren  of  the 
testator  living  at  his  death,  to  be  divided  on  the 
death  of  the  survivor  of  three  persons,  and  a  gift 
over  in  case  of  the  death  of  any  before  he  should 
be  entitled  to  recover  his  share,  to  be  paid  at  the 
same  time  and  manner  as  directed  as  respected 
the  original  share  ;  held,  that  such  gift  over  ap- 
plied to  accruing  as  well  as  original  shares.  Eyre 
V.  Marsden,  2  Keene,  (cii.;  564. 

5.  Where  the  testator,  by  blending  real  und 
personal  estate,  rendered  a  suit  necessary,  the 
costs  directed  to  be  paid  pro  rat'i  by  the  heir  and 
personal  representative,  out  of  void  accumula- 
tions, devolve  on  them  respectively,    lb. 

And  see  Leoact;  Limitation  of  Estates; 
Will. 


ACT  OF  PARLIAMENT. 

Where  a  dock  company  were  by  an  Act  em- 
powered to  sell  lands,  and  reinvest  the  proceeds 
m  other  lands,  the  expenses  of  reinvestment  to 
be  paid  by  them ;  and  m  the  same  Act  the  Lords 
of  the  Treasury  were  empowered  to  purchase 
certain  quays  within  a  given  time,  but  nothing 
was  there  expressly  said  as  to  payment  of  expen- 
ses by  them  :  by  a  subsequent  Act  the  time  was 
extended,  and  all  the  former  provisions  extended 
to  the  latter  Act :  held  that  the  clauses  as  to  the 
reinvestment  and  payment  of  expenses  applied 
mutatis  mutandis^  and  that  the  Lords  of  the  Trea- 
sury were  liable  to  pay  the  expenses  of  reinvest- 
ing the  purchase-money  of  the  property  pur- 
chased by  them.  In  re  Lords  of  Treasurv,  7 
Sim.  (cu.)  154  ;  and  affirmed  on  appeal,  1  Myl. 
A  Cr.  (cH.)  876. 

And  see  Corporation,  4,  See. 


ACTION. 

[A]  When  maintainable. 

!B]  Parties  to. 
CJ  Form  of. 
[DJ  Notice  of. 

[AJ  When  maintainable. 

1 .  Where  the  contract  on  the  face  of  the  re- 
cord appeared  to  be  a  bargain  for  a  horse  condi- 
tioned for  his  trotting  against  time,  and  within 
the  mischief  and  against  the  stat.  9  Ann.  c.  14 ; 
held,  that  the  action  could  not  be  maintained. 
Brogden  v.  Marriott,  3  Bing.  N.  S.  (c.  p.)  06. 

2.  Where  the  defendant  sold  a  gun  to  the  plain- 
tiff 's  father,  with  a  warrantv  that  it  was  of  a  cer- 
tain maker,  and  knowing  tnat  it  was  purchased 
for  the  plaintiff's  use  :  tne  plaintiff  having  sus- 
tained injury  by  its  bursting,  being  of  an  inferior 
make,  and  not  according  to  the  warranty  ;  held, 
that  he  might  sustain  an  action  on  the  case  for 
tlie  injury  consequent  upon  the  defendant's  fraud, 
although  s€mb.  he  could  not  upon  the  contract, 
it  being  made  with  another  party.  Langridge  v. 
Uvy,  2  Mees.  &  W.  (ex.)  519. 

3.  Where  the  plaintiff  had  authorized  a  party 
to  purchase  a  cow,  which  he  had  done,  but  was 
taken  away  by  the  defendant ;  held,  that  by  bring- 
ing the  action  the  plaintiff  had  elected  to  take  iSe 
bargain,  and  had  a  sufficient  right  of  property  to 
mamtain  the  action.  Thomas  v.  Philips,  7  C.  dt 
P.  (H.  p.)  573. 

4.  Where  the  jury  found  the  hiring  to  be  by 
the  year,  but  wages  payable  quarterly,  and  the 
plaintiff  having  l^n  dismissed,  and  after  tender 
and  refusal  of  his  services,  brought  an  action  be- 
fore the  quarter  for  which  he  claimed  to  be  paid 
had  expired  ;  held,  that  be  could  not  maintain  the 
action  for  service  done  and  performed.  Smith  v. 
Hay  ward,  2  Nev.  &  P.  (q.  b.)  432 ;  preferring  the 
authority  of  Archard  v.  Homor,  3  C.  dt  P.  349, 
to  that  of  Gandell  v.  Pontigny,  4  Campb.  375. 

5.  Assumpsit  held  maintainable  by  a  corpora- 
tion on  an  executory  contract  for  the  supply  of 
gas,  the  object  for  wnicb  the  company  was  mcor- 
porated,  and  although  made  by  parol ;  held  also, 
that  the  Court  were  bound  to  take  notice  that  the 


[ACTION] 


2655 


plaintiffs  were  a  corporation,  having  been  so  ere* 
ated  by  statute,  ana  the  action  brought  in  that 
character.  Church  v.  Imperial  Gas  Company,  3 
tJev.  6l  p.  (q.  B.)  35;  and  Ad.  &,  Ell.  846  ;  over- 
ruling the  distinction  in  East  Ix>ndon  Waterworks 
Company  v.  fiailey,  4  Bing.  283. 

6.  Where  foods  sold  upon  sale  or  return,  had 
been  detained  an  unreasonable  time ;  held,  that 
assumpsit  for  goods  sold  and  delivered  was  main- 
tainable. Beverley  r.  Lincoln  Gas  Company,  2 
Nev.  &  P.  (K.  B.)  J283 ;  and  6  Ad.  &  £11.  829. 

7.  Held  also,  that  assumpsit  may  be  maintained 
against  a  corporation  aggregate,  without  a  head, 
on  an  executed  parol  contract.    lb. 

8.  A  mere  expression  to  a  third  party  of  inten- 
tion to  marry  the  plaintiff  is  not  sufficient  to  sup- 
port the  action  for  breach  of  promise ;  and  where 
coupled  with  a  statement,  ^  as  soon  as  my  busi- 
ness is  settled,"  held  only  conditional,  and  that 
performance  must  be  averred.  Cole  v.  Cotting- 
ham,  8  C.  ^b^  P.  (n.  p.)  75.     . 

9.  Money  having  been  embezzled  by  the  clerk 
to  a  savings  bank  ;  held,  that  an  action  could  not 
be  maintained  against  the  trustees  and  managers 
of,  but  that  the  remedy  was  by  arbitration  under 
9  Geo.  4,  c.  92,  s  45.  R.  v.  Mildenhall  Savings 
Bank,  2  Nev.  <fc  P.  (k.  b.)  278. 

And  see  Crisp  v.  Bunbury,  8  Bing.  394. 

10.  Where  goods  were  sold  on  5th  October,  to 
be  paid  for  in  two  months ;  held,  that  tlie  action 
could  not  be  maintained  until  after  the  5th  De- 
cember; in  such  cases  the  computation  of  time 
would  be  by  calendar  months,  and  to  exclude  the 
day  on  which  the  contract  is  made.  Webb  v. 
Fairmanner,  3  Mees.  ds.  W.  (ex.)  473. 

11.  Where  the  defendant  be'mg  indebted  for 
shares  to  the  K.  company,  sent  a  check  to  the 
plaintiffs,  their  agents,  which  was  by  them  lost ; 
and  upon  a  correspondence  between  tliem  and  the 
defendant,  the  latter  offered  to  give  a  fresh  check, 
if  the  plaintifls  would  give  an  indemnity ;  the 
plainttfff  having  paid  the  amount  to  the  K.  com- 
pany ;  held,  that  they  could  not  maintain  the  ac- 
tion for  money  paid,  the  payment  having  exone- 
rated the  defendant  from  no  debt  for  which  he 
was  Iiab% ;  nor  on  the  count  for  an  account  sta- 
ted, to  support  which,  there  must  be  an  admission 
of  a  subsisting  debt ;  the  only  action  would  have 
been  upon  the  special  promise.  Lubliock  v. 
Tribe,  3  Mees.  &  W.  (ex.)  607. 

And  see  Tucker  r.  Barrow,  7  B.  A  Cr.  624. 

12.  Where  afler  a  seizure  by  the  excise  of 
spirits,  and  several  applications  made  for  the  res- 
toration on  giving  bonds  for  securing  any  penal- 
ties which  might  have  been  incurred  on  paying 
the  ralue  into  the  receiver's  hands,  to  abide  the 
event,  which  were  refused ;  the  defendants  then 
offered  "to  give  up  all  claim  to  the  seizure,"  and 
hold  themselves  responsible  for  such  proceedings 
as  might  be  instituted,  upon  which  on  rec<*ipt  of 
the  money,  they  were  given  up ;  a  general  ver- 
dict was  ailerwards  found  against  the  parties, 
and  one  penalty  by  consent  taken ;  in  an  action 
to  recover  back  the  former  sum  paid,  held  that 
the  payment  having  been  made  upon  a  compro- 
mise, and  voluntary  settlement  upon  good  con- 
sideratJoD,  the  goods  having  been  rightfully  ta- 


ken, it  was  final,  and  the  action  not  maintainable. 
Atlee  V.  Backhouse,  3  Mees.  6l  W.  (kx.)  633. 

13.  Upon  an  agreement  for  partnership  in  a 
stage-coach,  to  run  at  certain  hours,  and  stipu- 
lating that  so  long  as  the  plaintiff  should  continue 
in  the  business  of  a  coach  proprietor,  the  defen- 
dant would  not  by  himself,  or  with  any  other 
party,  run  or  use  any  coach  over  any  part  of  the 
road  at  certain  hours,  under  n  penalty  of  40/.,  to 
be  recovered  as  liquidated  damages,  and  each 
also  bound  himself  in  the  penalty  of  1(0/.,  for 
the  true  performance  of  the  agreement,  to  be 
recovered  as  aforesaid ;  held,  first,  that  the  agree- 
ment for  the  partnership  was  a  sufHcient  conside- 
ration for  the  partial  restraint  on  the  defendant's 
trade,  and  an  action  maintainable  for  breach  of 
it,  afler  dissolution  of  the  partnership  by  notice 
from  the  plaintiff;  and  secondly,  that  the  40/. 
was  to  be  considered  as  liquidated  damages,  and 
not  as  a  penalty.  Leighton  v.  Wales,  3  Mccs. 
&  W.  (kx.)  545. 

14.  Where  parish  officers  had  for  a  long  time 
obtained  posse»sion  of,  and  let  portions  of^waste 
land  to  paupers,  and  cultivated  portions  for  the 
use  of  parish  paupers,  without  molestation  by  the 
lord  or  the  copyholders,  and  the  defendant  was 
found  by  the  jury  to  be  a  mere  stranger,  held 
that  the  bare  possession  was  sufficient  to  entitle 
the  plaintiffs  to  maintain  trespass.  Matson  v. 
Cook,6Sc.  (c.  p.)  179. 

15.  Where  the  defendants  were  empowered  to 
make  a  canal,  passable  for  all  boats,  and  to  re- 
ceive tolls  for  their  passive,  and  to  raise  sunken 
boats,  if  the  owners  should  omit  to  do  so  for  24 
hours,  and  to  detain  the  boats  until  the  expenses 
of  raising  were  paid ;  held,  that  it  was  compul- 
sory on  them  to  do  so,  and  that  an  action  was 
maintainable  against  them  for  injury  occasioned 
to  the  plaintin 's  boats,  in  consequence  of  the 
non-removal  of  a  sunken  vessel.  Parnaby  v. 
Lancaster  Canal  Company,  3  Nev.  &,  P.  (q,.  b.) 
623. 

16.  Plea  in  assumpsit,  that  the  plaintiff  had 
been  twice  bankrupt,  and  had  not  paid  los.  in  the 
pound  under  the  second  commission,  held,  on 
special  demurrer,  a  good  bar  to  the  action,  the  6 
Geo.  4,  c.  16,  s.  127,  acting  retrospectively,  and 
vesting  all    the  afler-acquired  property   of  the 

<  bankrupt  in  his  assignees.     Young  v.  Kishworth, 
3  Nev.  &  P.  (q.  b.)  5«5. 

And  su  AcTioif  oir  the  Cise  ;  Assompsit^ 
Attorsey  ;   Bamkrupt;   Bills;  Bono;   Car* 

RIER  ;     CoNTRIBCTIO.f  ;     CoRPORATIOlV  ;     CoVX* 

hast;  Debt;  Discovert;  Ejectmeht;  Kze- 
cctor;  Gcarartee  ;  Justices;  Limit atioss. 
Statute  op;  Master;  Partker;  Pate.^t; 
Railwat;  Sheripf;  Trade;  Trespass;  Tro- 
.  ver;  Use  abd  Occupatioh  ;  Wager. 


I  [B]  Parties  to. 

1.  Where  the  plaintiff's  broker  arreed   with 
the  defendants  (being  share  brokers;  for  the  pur- 
chase of  shares,  notes  of  which  were  made  and 
sent  in  their  own  names,  but  imnjcdialely  after- 
I  wards  the  entry  in  the  books  was  altered  to  the 
'  name  of  the  real  seller,  and  a  second  contract 
'  note  sent  to  the  plaintiff,  bnt  the  foroier  nole  wm 


2656 


[ACTION] 


neither  demanded  nor  sent  back ;  held,  that  evi- 
dence of  a  custom  in  L.  to  send  in  brokers*  notes 
without  disclosing  the  principal's  name  was  prop- 
erly rejected,  and  that  the  defendants  having 
signed  the  contract  in  their  own  names,  were 
liable,  although  known  to  be  agents.  Magee  v. 
Atkmson,  2  Mees.  6l  W.  (xx.)  441. 

2.  Where  ^.  B.  and  C  having  separate  inter- 
ests in  lands,  by  arrangement  amongst  them- 
selves, employed  an  agent  to  put  them  up  to  sale, 
which  was  done  in  separate  lots,  and  the  aefendant 
became  the  purchaser,  subject  to  the  conditions 
of  sale,  by  one  of  which  the  vendors  were  to  de- 
liver an  abstract,  and  the  conveyance  be  executed, 
and  the  purchase-money  be  paid  on  a  certain 
day,  from  which  time  the  purchaser  was  to  have 
possession,  and  that  if  he  was  let  in  before  pay- 
ment he  was  to  be  deemed  tenant  at  will,  and  pay 
four  per  cent.  "  as  and  for  rent ;"  the  defendant 
knew  of  the  private  arrangement,  and  tras  let 
into  possession,  but  no  abstract  was  ever  deliver- 
ed or  interest  paid ;  held,  that  no  implied  contract 
to  waive  the  delivery  of  the  abstract  could  be 
raised  from  the  mere  circumstance  of  the  defen- 
dant being  let  into  possession,  and  secondly,  that 
no  joint  ownership  being  proved,  the  plaintiffs 
could  not  sapport  a  joint  action  for  use  and  oc- 
cupation. Seaton  v.  booth,  1  Nev.  dt  P.  (k.  b.) 
588. 

3.  Where  upon  a  mortgage  of  chattels  to  the 
wife  before  marriage,  it  appeared  that  upon  pay- 
ment of  the  principal  at  a  day  not  arrived,  or  at 
an  earlier  day,  upon  notice,  and  of  interest  in  the 
meantime,  the  goods  were  to  remain  in  the  hands 
of  the  mortgagor ;  held,  that  the  husband  might 
maintain  trover  for  the  inventory  in  his  own  name, 
or  might  join  the  wife,  inasmuch  as  in  case  of  his 
death  before  the  right  to  obtain  possession  might 
accrue,  the  title  would  survive  to  her.  Ayhng 
^.  Whicher,  1  Nev.  &  P.  (k.  b.)  416. 

4.  Where  upon  an  agreement  under  seal,  by 
three  persons,  for  the  purchase  of  a  foreign  mine, 
A  sum  was  deposited  conditionally,  to  be  repaid 
to  the  purchasers,  should  the  property,  upon  in- 
epection  by  an  agent  to  be  sent  out  by  them,  turn 
out  to  have  been  misrepresented ;  held,  that  the 
deed  giving  a  right  to  sue  for  the  money  in  cove- 
nant, one  or  them  could  not  maintain  an  action 
-for  money  had  and  received,  although  entitled  by 
Agreement,  not  under  seal,  between  themselves ; 
Jield  also,  that  the  agent  to  be  sent  out  by  the 
purchasers  must  be  a  person  independent  of  the 
purchasers,  and  not  one  of  themselves,  although 
•such  an  objection  might  be  waived  by  some  m- 
^trument  under  seal.  English  v.  filundell,  8  C. 
A  P.  (w.  p.)  332. 

5.  In  an  action  against  K.  and  5.  on  an  express 
contract  to  employ  the  plaintiff;  held,  that  con- 
taining no  intimation  that  they  were  carrying  on 
business  as  members  of  a  more  extensive  firm, 
he  could  not  sue  a  dormant  partner  who  was  no 
party  to  the  agreement.  Beckham  v.  Knight,  4 
Bing.  N.  S.  (c.  r.)  243. 

6.  Where  the  defendants  hired  a  master  porter 
to  remove  a  barrel  of  flour  from  their  warehouse, 
and  the  latter  hired  a  carman,  and  both  their  men 
were  engaged  in  loading  it ;  in  doing  which  it 
fell  upon  and  injured  the  plaintiff,  through  the 


defectiveness  of  the  rope  furnished  by  the  porter ; 
held,  that  the  defendants  were  liable,*it  being  im- 
material whether  they  employed  their  own  ser- 
vants or  engaged  others  more  expert,  and  left 
the  removal  to  their  superintendence.  Randelson 
V.  Murray,  3  Nev.  &  P.  (q.  b.)  239. 

7.  Where  a  legatee  assigned  his  interest  in  the 
share  of  premises  devised  to  be  sold,  and  the  as- 
signee gave  a  guaranty  to  the  plaintiffs,  ihs  exe- 
cutors, and  also  to  their  attorney  who  managed 
the  sale  and  paid  over  the  money :  the  legatee 
being  bankrupt,  and  the  share  claimed  by  his  as- 
signees, held,  that  the  action  upon  the  guarantj 
might  be  properly  brought  by  the  executors  with- 
out joining  the  attorney,  they  having  a  separate 
interest.  Place  v.  Delegal,  4  Bing.  N.  S.  (c.  p.) 
426. 

8.  In  an  action  for  a  reward,  offered  to  "  whom- 
soever should  give  information  whereby  the  pro- 
perty taken  on  a  robbery  might  be  traced,  on  con- 
viction of  the  parties ;"  held,  that  the  party  enti- 
tled was  he  who  first  gave  such  information,  al- 
though not  communicated  immediately  to  the 
party  robbed,  but  to  a  party  authorized  to  receive 
it  and  act  in  the  apprehension,  as  a  constable. 
Lancaster  v.  Walsh,  4  Mees.  d^  W.  (ex.)  16. 

9.  Where  the  Act  constituting  a  joint-stock 
company  expressly  directed  that  tne  money  to  be 
raised  should  be  applied  in  the  first  instance  in 
discharging  the  costs  of  obtaining  the  Act;  held, 
that  as  soon  as  the  sums  subscribed  came  to  the 
possession  of  the  company,  they  became  liable  to 
pay  those  costs,  and  that  the  plaintiff,  although  a 
member  of  the  company,  migot  sue  them  in  debt 
for  the  amount.  Garden  v.  General  Cemetery 
Company,  5  Bing.  N.  S.  (c.  p.)  253;  and  7  Dowl. 
(p.  c.)  275. 

10.  Upon  a  lease  granted  to  the  plaintiff  and 
his  wife,  and  the  premises  underlet  to  defendant, 
and  by  him  underlet  for  a  part  of  the  term ;  held, 
that  an  action  for  an  injunr  to  the  reversion  was 
properly  brought  by  the  plaintiff  alone ;  but,  that  if 
the  objection  were  valid,  the  objection  could  only 
have  been  taken  advantage  of  by  plea  in  abate- 
ment.   Wallis  V.  Harrison,  7  Dowl.  (p.  c.)  395. 

11.  Where,  on  a  treaty  for  the  sale  of  a  public- 
house  between  the  defendant  and  £.,  the  defen- 
dant made  a  false  representation  as  to  the  profits, 
which  B.  afterwards,  with  the  defendant's  knowl- 
edge, communicated  to  the  plaintiff,  who  became 
the  purchaser  in  his  stead ;  held,  that  the  con- 
tract was  as  much  vitiated  by  the  fraud,  as  if  ac- 
tually repeated  by  the  defendant  to  the  plainti^ 
and  that  the  action  was  maintainable.  Pilmore 
9.  Hood,  5  Bing.  N.  S.  (c.  p.)  97;  6  Sc.  827;  and 
7  Dowl.  (p.  c.)  136. 

And  see  Langridge  v.  Levy,  1  Mees.  &  W. 
532 ;  and  Hill  v.  Gray,  1  Stark,  (ir.  p.  c.>434. 

And  see  Dkxd  ;  Plxadi5o,  (c.  l.) 


[C]  Form  op. 

1.  In  case  against  the  clerk  to  paving  commis- 
sioners for  non-payment  of  an  annuity  granted 
to  the  plaintiff  out  of  tbe  rates  under  the  Local 
Act,  for  the  purposes  of  the  Act ;  held,  first,  that 
a  plea  that  it  was  not  the  duty  of  the  commission- 


[ACTION— ACTION  ON  THE  CASE], 


2657 


era  to  pay,  &c.  was  bad,  as  putting  matter  of  law 
in  issue ;  secondly,  that  the  charge  being  made 
on  the  rates  by  virtue  of  the  Act,  the  non-pay- 
ment of  it  concerned  an  act  done  in  pursuance  of 
the  Act,  and  the  clerk  therefore  liable  to  be  sued ; 
and  lastly,  that  the  commissioners  having  neglect- 
ed a  duty  in  not  disposing  of  the  funds  raised  in 
the  mode  prescribed  by  Uie  Act,  and  not  being 
personally  liable  orcontracting  parties,  the  action 
was  properly  framed  in  east.  Cane  v.  Chapman, 
1  Ney.  &  P.  (X.  B.)  104. 

And  see  Wormwell  v.  Hailstone,  6  Bing.  668. 

2.  TreMNUM  held  maintainable  against  husband 
and  wife  lor  their  joint  act.  Vine  v.  Saunders,  4 
Bing.  N.  S.  (c.  r.)  96)  3  Sc.  359;  and  6  Dowl. 
(p.  c.)  233. 

3.  Where  an  intestate,  lessee  of  coal  mines, 
had  improperly  worked  parts  expressly  excepted, 
and  sold  with  the  proceeds  or  his  own ;  neld, 
that  the  lessor  might  waive  the  tort,  and  sue  his 
representative  for  the  value  of  the  coals  taken 
from  such  excepted  places.  Powell  v.  Rees,  7 
Ad.  &  £11.  («.  B.) ;  and  2  Nev.  &  P.  571. 

And  see  Hambly  v.  Trott,  1  Cowp.  371. 

And  see  Assumpsit ;  Dtbt, 


[D]  Notice  of. 

Where  a  gamekeeper  was  appointed  and  ^gis- 
tered  before  the  passing  of  1  ^  2  Will.  4,  c.^, 
held  not  entitled  to  notice  of  action  under  s.  47. 
Lidster  v.  Borrow,  1  Perr.  &,  Dav.  (^.  b.)  447. 

And  see  Distress, 


ACTION  ON  THE  CASE. 

[A]  For  iitjckixs  to  the  rsRsoir. 

(a)  By  negligence. 

(b)  Malicious  arrest — frosecuiion, 

(c)  Deceit-^false  representation, 

(d)  Seduction — crim.  con, 

(e)  By  noxious  animals, 

(f)  Kuisancse. 

[B]   To   REAL.  PROPERTY. 

(d)  By  disturbances — obstructions, 

(b)  J{uisances. 

(c)  To  reversion, 

[A]  For  injuries  to  the  person. 

(a)  By  negligence. 

1.  The  action  held  maintainable  against  a  party 
making  a  rick  so  negligentiv,  that,  by  heating,  it 
caught  fire,  and  also  ignited  the  plaintiff's  house 
adjoming  thereto ;  and  it  is  for  the  jury  to  say,  in 
such  cases,  whether  such  caution  has  been  used 
as  would  have  been  observed  by  a  man  of  ordina- 
nr  prudence.  Vaughan  v.  Menlove,  3  Bing.  N. 
S.  (c.  p.)  468;  4  Sc.  244 ;  and  7  C.  d&  P.  (m.  p.) 
525. 

And  see  Tubervill  v.  Stomp,  1  Salk.  13. 

3.  Where  the  plaintiff's  vault  was  in  part 
supported  bv  the  defendant's  adjoining  wall,  held, 
that  the  action  might  be  maintoined  for  so  negli- 
gentiv and  carelessly  pulling  down  the  wall,  as 
uiereoy,  bv  the  fall  of  materials,  to  injure  the 
vault ;  ana  that  a  plea,  alleging  that  the  defen- 


dant was  not  bound  to  use  such  precautions,  as 
an  issue  of  law  and  traverse  of  a  duty  not  allec|ed 
by  the  plaintiff,  was  bad ;  so  a  plea,  that  the  fall 
oi  materials  was  not  occasioned  by  any  default 
of  defendant,  or  neglect  of  any  duty  cast  upon 
him  by  law.  Trower  v.  Chadwick,  3  Bing.  N. 
S.  (c.  p.)  334 ;  and  3  Sc.  699. 

3.  In  case  against  commissioners  of  sewers  for 
injury  to  the  plaintiff's  premises,  by  making  a 
sewer,  by  tunnelling,  which  it  was  found  waa 
proper  to  be  made,  and  was  skilfully  and  properly 
made,  but  that  by  proceeding  with  the  work  by 
open  cutting  woufd  have  afforded  a  greater  chance 
of  escape  from  injury ;  held,  that  the  Court  could 
not  Iwlance  possibilities,  and  that  to  fix  the  com- 
missioners, it  should  have  been  shown  that  the 
injury  would  not  have  happened  if  the  sewer  had 
been  constructed  by  the  latter  mode  of  working. 
Grocers'  Company  v.  Donne,  3  Bing.  N.  S.  (c.  p.) 
34;  and  3  Sc.  356. 

4.  In  case  for  injury  by  negligent  driving  a 
carriage  let  on  hire,  it  is  a  question  for  the  jury 
whether  the  party  driving  is  the  servant  of'^  the 
owner  or  of  tne  hirer  of  ue  carriage.  Brady  v. 
Giles,  1  M.  &;  Rob.  (n.  p.)  494;  questioning- 
Laugher  V.  Pointer,  5  B.  db  Cr.  547. 

5.  Where  to  the  declaration  for  injury  by  neg- 
ligent driving  by  the  defendant,  the  genenu  issue 
was  pleaded ;  held,  that  the  issue  of  negligent 
driving  by  the  defendant  was  sufficiently  made  out 
by  proof  of  his  having  permitted  another  to  drive,, 
by  whose  mismanagement  the  injury  was  occa- 
sioned. Wheatley  v.  Patrick,  2  Mees.  &,  W.  (ex.) 
650. 

6.  In  an  action  for  damages  to  the  plaintiff 'a 
vessel,  by  collision  with  the  defbndanto  ,  through 
negligence  of  the  defendanto*  servanto;  held, 
that  the  defendants  were  not  entitled  to  deduct 
the  amount  of  damage  received  by  the  plaintiff*' 
from  insurers.  Yates  v.  Whyte,  4  Bing.  N.  S^ 
(c.  p.)  272. 

And  see  Mason  v.  Sainsbury,  3  Doug.  60. 

7.  In  case  for  damage  hy  the  defendants'  barge> 
running  down  the  plaintifi'^'B  boat,  the  barge  being 
shown  to  be  the  defendants',  it  was  pimA  faa» 
evidence  that  the  bargemen  navigating  it  were 
their  servants,  until  they  explained  it.  Joyce  v^ 
Chapel,  8  C.  &  P.  (n.  p.)  370. 

8.  In  case  for  injury  by  the  negligent  driving- 
of  the  defendant's  servant ;  held,  that  the  plain«<- 
tiff  could  not  recover,  where  it  appeared  that  th» 
accident  was  partly  occasioned  by  the  plaintiff 'a 
own  want  of  care,  and  negligence.  Woolf  v. 
Beard,  8  C.  &  P.  (n.  p.)  373. 

9.  The  law  of  keeping  on  the  right  side  of  the- 
road  applies  to  horses  as  well  as  carriages ;  al- 
though if  a  party  were  coming  furiously  towarda 
another,  bein^  on  his  right  side,  if  the  road  were 
sufiiciently  wide,  he  would  be  bound  to  five  way. 
Turley  v.  Thomas,  8  C.  &  P.  (m.  p.)  103. 

10.  In  case  for  so  negligently  working  mines, 
without  duly  propping,  Slc  ,  so  near  to  tne  plain- 
tiff's houses  that  they  thereby  became  weakened 
and  shook,  &c.,  it  appearing  that  the  land  under 
part  of  the  plaintiff's  premises  had  been  formerly 
excavated,  but  it  was  unknown  to  either  party ; 
held,  that  the  plaintiff  had  not  ac<][uiied  any  riglit 


52658 


[ACTION  ON  THE  CASE] 


to  have  the  land  supported  uniil  afler  the  lapse 
of  twenty  years  since  the  owner  of  the  adioinin(^ 
land  knew  or  had  the  means  of  knowing  that  the 
land  had  been  so  excavated.  Partridge  v.  Scott, 
3  Mees.  &  W.  (zx.)  220. 

11.  In  an  action  on  the  case  for  an  injury  occa- 
sioned  by  the  negligence  of  the  defendant's  ser- 
vant in  driving,  hela  that  if  the  injury  were  attri- 
butable in  any  degree  to  the  incautious  conduct 
of  the  plaintiff  herself  in  crossing  the  road,  the  de- 
fendant would  not  be  liable.  Hawkins  v.  Cooper, 
«  C.  &.  P.  (N.  p.)  473. 

12.  In  case  for  injury  to  the  plaintiff's  horse  by 
negligent  driving,  and  afler  remaining  six  weeks 
at  a  farrier's  it  was  found  to  be  permanently  injur- 
ed to  the  amount  of  20Z. ;  held,  that  the  proper 
measure  of  damage  was  the  amount  of  the  far- 
rier's charts  for  keep  and  attendance,  and  the 
difference  m  the  value  at  tliB  time  of  the  injury 
and  at  the  end  of  the  six  weeks ;  but  that  the 
plaintiff  could  not  claim  the  hire  of  another  in  the 
interval.  Hughes  v,  Quintin,  8  C.  ^  P.  (v.  p.) 
703. 

13.  In  an  action  by  a  patient  against  his  medical 
man,  for  an  injury  by  improper  treatment;  held, 
that  the  latter  being  bound  to  bring  a  reasonable 
and  competent  degree  of  art  and  skill,  the  question 
for  the  jury  is  whether  the  injury  is  to  be  attribu- 
ted to  the  want  of  that  degree  of  skill  or  not. 
Lanphier  v.  Phipos,  8  C.  &  P.  (ir.  p.)  475. 

14.  Where  the  plaintiff  was  on  the  step  of  an 
omnibus,  in  the  act  of  getting  in,  and  sustained 
injury  by  the  sudden  goin^  on  by  the  driver,  held, 
that  there  was  sufficient  to  imply  a  consent  to  take 
the  plaintiff  as  a  passenger.  Brien  v.  Bennett,  8 
C.  &  P.  (H.  p.)  724. 

And  see  Action;  Pleading ,  (C.  L.) 

(b)  Malicious  arrest— prosecution. 

1.  In  case  for  maliciously  charging  plaintiff 
before  a  magistrate  without  reasonable  or  probable 
cause ;  plea  alleging  the  several  facts  out  of 
which  the  charge  arose,  but  no  allegation  that 
the  defendant  at  the  time  of  making  the  charge 
knew  or  had  been  informed  of  or  acted  in  any 
manner  on  them,  held  bad  on  demurrer,  held  also, 
that  the  publishing  observations  made  before  the 
magistrate  by  any  other  than  him  could  not  be 
justified ;  and  lastly,  pleading  that  the  proceed- 
ings in  fact  took  place  are  not  sufficient,  unless 
the  plea  go  on  to  allege  that  the  charges  made 
were  true,  or  that  the  publication  is  a  true  and 
accurate  report,  containing  the  whole  of  what 
passed  on  the  occasion ;  and  the  terms  of  the  ac- 
cusation must  be  stated,  not  merely  the  result  of 
it.    Delegal  v.  Highley,  3  Bing.  N.  S'.  (c.  p.)  950. 

2.  Where  it  appeared  from  the  facts  that  the 
defendant  had  reasonable  and  probable  cause  for 
giving  the  plaintiff  in  charjpre,  but  persisted  in  it 
after  an  explanation  given  by  the  omcer,  and  the 
Judge  had  directed  3ie  jury  that  on  such  expla- 
nation the  probable  cause  ceased,  and  that  the 
only  question  was  whether  his  sabsequent  con- 
duct amounted  to  malice ;  held  that  such  direc- 
tion was  wrong;  tlie  original  facta  remaining 
unaltered,  the    reasonable    and  probable  cause 


could  not  be  taken  away  by  such  explanation, 
and  a  new  trial  granted.  Musgrove  v,  lie  well,  I 
Mees.  &  W.  (xx.)  582;  and  1  Tyr.  &  Gr.  957. 

And  see  the  principles  of  these  cases  laid  down 
in  Sutlon  v.  Johnstone,  J  T.  R.  544. 

3.  In  case  for  a  malicious  prosecution  before  a 
magistrate,  of  a  charge  of  &lony,  it  is  not  necessa- 
ry to  show  an  information,  the  gist  of  the  action 
beinff  the  8<>tting  the  magistrate  in  motion ;  but  if 
the  declaration  allege  an  information,  and  the  war- 
rant granted  thereupon,  it  must  be  proved,  and 
the  recital  in  the  warrant  is  not  sufficient.  Greg- 
ory V.  Derby,  8  C.  &  P.  (k.  p.)  749. 

4.  Where  the  defendant  had,  without  a  previous 
application  to  a  magistrate,  given  the  plaintiff  into 
custody  on  a  charge  of  felony,  whicn  was  after- 
wards dismissed  on  the  hearing ;  held,  in  an  ac- 
tion for  the  imprisonment,  that  the  defendant  was 
bound  to  show  clearly  that  a  felony  had  been  com- 
mitted, and  that  the  circumstances  were  such  as 
would  induce  a  reasonable  and  dispassionate  per^ 
son  to  suspect  the  plaintiff  guilty  thereof.  Allen 
V.  Wright,  8  C.  &.  P.  (N.  p.)  55S. 

And  see  Arrest, 

(c)  Dueit— false  representation. 

1 .  In  case  for  deceit  in  the  warranty  of  a  horse, 
held  that  under  the  new  rules,  the  plea  of  the 
general  issue  put  in  issue  both  the  warranty  and 
unsoundness,  and  every  thing  but  the  bargain  and 
sale.  Spencer  v.  Dawson,  I  M.  &  Rob.  (ir.  p.) 
552. 

2.  In  an  action  on  the  case  for  publishing  in  a 
newspaper  a  paragraph,  alleging  simply  that  the 
petition  in  a  bill  filed  in  Chancery  against  the 
plaintiff  and  others,  as  shareowners  of  a  mine,  for 
an  account  and  injunction,  had  been  granted, 
and  that  persons  duly  authorized  had  arrived  ia 
the  workings ;  held,  that  the  declaration  showing 
no  special  damage,  the  action  could  not  be  main- 
tained, and  the  juogment  therefore  arrested.  Ma- 
lachy  V.  Soper,  3  Bing.  N.  S.  (c.  p.)  371 ;  and  3 
Sc.  723. 

And  see  Lowe  v.  Harewood,  Sir  W.  Jones  R. 
196 ;  Tasborough  v.  Day,  Cro.  Jac.  484 ;  Man- 
ning V.  Avery,  Keb.  153 ;  and  Cane  v.  Goulding, 
Styl.  169. 176. 

3.  Where  the  defendant  authorized  his  shop- 
man to  give  the  same  representation  of  the  char- 
acter of  a  customer  as  he  had  himself  received^ 
held  to  be  a  representation  within  the  9  Geo.  4,  c. 
14,  s.  6,  and  not  being  in  writing,  was  not  admissi- 
ble in  evidence  in  an  action  for  a  false  representa- 
tion of  solvency.  Haslock  v.  Ferguson,  2  Nev. 
&P.  (K.  B.)2e9. 

4.  Where  the  representation  made  to  the  plain- 
tiff, about  to  advance  to  J.,  was,  "  you  may  safely 
lend,  1  know  he  has  property,  the  title-deeds  are 
in  my  possession,  and  he  cannot  deal  with  them 
without  my  knowledge ;"  held  to  amount  to  a  re- 
presentation of  ability,  within  the  9  Geo.  4,  c.  14, 
s.  16,  and  to  be  made  in  writing.  Swan  e.  Phil- 
lips, 3  Nev.  dD  P.  (<i.  B.)  447. 

And  see  Action;  Agent;  Sker^. 


r 


[ACTION  ON  THE  CASE— ADMINISTRATION] 


265§ 


(d)  Sedttction—crim.  eon. 

1.  Where  the  plaintiff's  daughter  had  been  ap- 
prenticed as  a  milliner  to  the  defendant's  wi^, 
and  been  durinir  the  term  seduced  by  the  defen- 
dant ;  held  on  demurrer,  that  not  being  construc- 
tively in  the  service  of  the  father,  the  action 
could  not  be  maintained,  the  declaration  contain- 
ing no  averment  on  which  a  contract  to  take  care 
of  the  morals  of  the  child  could  be  implied.  Har- 
ris V.  Butler,  2  Mees.  &,  W.  (ex.)  539. 

3.  The  plaintiff's  daughter,  residing  at  an  ad- 
joining farm  of  his,  and  with  her  brother,  super- 
intending the  farm,  held  a  sufficient  service,  al- 
though not  immediately  under  the  plaintiff's  con- 
trol ;  and  being  the  rist  of  the  action,  the  denial 
of  service  need  not  be  specially  pleaded.  Hollo- 
way  V.  Abell,  7  C.  &  F.  (n.  p.)  528. 

3.  Whem  under  extraordinary  circumstances 
the  verdict  in  an  action  of  erim,  eon.  found  for 
the  defendant  appeared  to  the  Court  very  greatly 

T'inst  the  weight  of  evidence,  a  new  trial  grant- 
on  payment  of  coats.     "Mellin  v.  Taylor,  3 
B'mg.  N.  S.  (c.  p.)  109 ;  and  3  Sc.  513. 

4.  In  an  action  bv  a  mother  for  the  seduction 
of  her  daughter;  held,  that  anxiety  and  distress 
of  mind  might  be  taken  into  consideration  in  the 
amount  of  damages;  and  that  the  party  could 
not  be  contradicted  by  evidence  of  statements  as 
to  intercourse  with  others,  to  which  she  had  not 
been  cross-examined ;  but  that  she  might  be  re- 
called and  asked  as  to  such  statements,  although 
tending  to  show  intercourse  with  others.  An- 
drews r.  Askey,  8  C.  &  P.  (n.  p.)  7. 

(e)  By  noodous  animals. 

In  case  for  keeping  a  ferocious  dog  which  bit 
the  plaintiff,  held  that  the  defendant  might  under 
the  general  issue  avail  himself  of  the  want  of 
proof  that  he  ever  knew  that  the  dog  was  accus- 
tomed to  bite.  Hogan  v.  Sharpe,  7  C.  &  P.  (n.  p.) 
755. 

(f )  Jfuisanees, 

In  case  against  A.  and  B.  for  burning  sulphur, 
&e.  in  a  place  where  the  plaintiff  was,  thereby 
choking  and  injuring  him,  plea  that  the  plaintiffs 
was  wrongfully  in  tne  said  place,  and  after  being 
requested  by  A.  to  depart,  B.,  by  command  of  ^., 
placed  and  lighted,  A.e.  to  cause  him  to  depart ; 
held,  first,  that  to  sustain  the  plea  the  reqdest  to 
depart,  and  jS.*b  authority  to  the  defendant,  must 
be  proved ;  but  that  to  entitle  the  plaintiff  to  a 
veraict  on  the  general  issue,  the  plaintiff  must 
■how  that  he  had  sustained  some  substantial  da- 
mage.   Evans  v.  Lisle,  7  C.  &  P.  (n.  p.)  562. 


[B]  Injorizs  to  reai.  property. 

(a)  By  disturbances — obstructions. 

1.  In  caae  for  obstructing  plaintiff  in  the  use 
of  a  right  to  water,  claimed  for  the  purpose  of 
watering  cattle,  and  also  for  the  more  convenient 
use  and  enjoyment  of  a  messuage ;  semble^  not  a 
profit  d  prendre  from  the  soil  of  another,  but  a 
mere  easement,  and  claimable  by  custom.  Man- 
Bing  V.  Waadale,  1  Nev.  A  P,  (k.  b.)  172. 

Vol.  IV.  49 


2.  In  case  for  obstructing  the  plaintiff's  right 
to  use  a  cistern  and  dust-hole,  by  stopping  up  a 
door  leading  thereto,  issue  being  taken  on  the 
right  to  the  water,  which  was  found  by  the  ver- 
dict; held,  that  as  the  allegation  that  the  defen- 
dant locked  t)p  the  door,  and  thereby  prevented 
the  plaintiff's  access  to  the  cistern,  did  not  ne 
cessarily  import  that  the  plaintiff  had  a  right  to 
go  through  that  door,  tlie  judgment  should  be 
arrested ;  in  such  cases  tlie  obstruction  must  be 
charged  on  the  pleadings  in  the  thing  itself  to 
which  the  party  claims  the  right.  Tebbutt  v. 
Selby,  1  Nev.  &  P.  (k.  b.)  710. 

And  see  Action;  Pleadings  (C.  L.) ;  Water- 
course;  Way;  Witness. 

(b)  Nuisances, 

In  case  for  carrying  on  the  business  of  a  tallow- 
chandler  in  premises  adjoining  the  plaintiff's 
house ;  held,  on  demurrer,  that  a  plea  alleging 
such  business  to  have  been  carried  on  for  three 
years  next  before  the  plaintiff's  becoming  pos- 
sessed, was  bad.  Bliss  v.  Hall,  4  Bing.  N.  S.  (c. 
p)  183. 

And  see  Common. 


(c)  To  reversions. 

1.  A  reversioner  cannot  maintain  an  action  on 
the  case  for  non-repair  of  a  road,  which  might 
easily  be  repaired,  although  the  value  of  the  pre- 
mises may  be  thereby  deteriorated  for  the  time, 
the  injury  not  being  of  a  permanent  nature. 
Hopwood  V.  Schofielc,  2  M.  Jt   Rob.  (n.  p.)  34. 

2.  Where  the  plaintiff  had  demised  cottages, 
without  any  exception  of  mines,  and  the  defend- 
ant, by  excavating  mines  under  the  premises,  had 
injured  the  walls ;  held,  that  the  plaintiff  was  en- 
titled to  maintain  case  for  the  injury  to  his  rever- 
sionary interest.  Raine  e.  Alderson,  4  Bing.  N. 
S.  (c.  p.)702;  and  6  Sc.  691. 

And  see  Wells  v.  Ody,  1  Mees.  &  W.  452. 

3.  Where  the  declaration,  in  case  against  a- ten- 
ant from  year  to  year,  charged  a  voluntary  waste, 
and  the  evidence  was  of  permissive  waste  only, 
the  Court  made  a  rule  for  a  nonsuit  absolute. 
Martin  e.  Gilhain,  2  Nev.  dk  P.  (q.  b.)  568;  and 
7  Ad.  dk  £11.  540. 

And  see  Action  ;  Baron  and  Feme. 

ADMINISTRATION. 

1.  Where  in  a  suit  for  distribution,  persons  not 
parties  appeared,  and  proved  themselves  next  of 
kin ;  hela  that  the  ascertaining  them  beii&g  a  aues- 
tion  raised  by  the  intestate,  nis  estate  ougnt  to 
pay  their  costs.    Bennett  v.  Wood,  7  Sim.  (ch.) 


2.  Where  the  testator  dying  in  India,  one  of  his 
executors  proved  his  will  there,  and  died,  and  his 
executor  proved  his  will  in  England ;  held,  that 
he  was  not  the  representative  of^the  first  testator. 
Twyford  v.  Trail,  7  Sim.  (ch.)  92. 

3.  Where  the  claim  as  next  of  kin  was  not  made 
until  two  years  afler  the  distribution  of  an  intes- 
tate's estate,  and  having  notice  of  the  proceed- 
ings ;  yet  held  upon  the  evidence  that  they  were 


3660 


[ADMINISTRATION] 


entitled  to  an  inquiry  whether  the  plaintifis  were 
■tich  next  of  kin,  and  whether  they  had  any 
notice  of  the  sait  in  which  the  fund  was  distrib- 
uted, with  liberty  to  the  Master  to  state  special 
circumstances.  Sawyer  v.  fiirchmore,  i  K.  (ch.) 
825;  reversing  the  decision  of  the  M.  R.,  lb.  39}. 

4.  Where  an  administratrix  became  lunatic,  an 
administration,  limited  during  her  lunacy,  grant- 
ed, the  former  letters  being  first  impounded, 
fiincke,  In  the  Goods  of,  1  Curt,  ^prkr.)  286. 

5.  So  where  one  of  two  executors  became  luna- 
tic, a  fresh  probate  granted,  with  power  of  making 
a  like  grant  when  the  other  should  become  of 
sound  mind.    Marshall,  In  the  goods  of,  lb.  2S>7. 

6.  Shares  in  the  Chelsea  Water  Works  Com- 
pany held  personal  estate  ;  and  so  wherever  real 
property  is  held  for  the  purposes  of  a  trading  com- 
P|<uiy,  although  a  corporation  ;  and  the  shares  as- 
signable, and  the  proprietors  not  answerable  for 
the  acts  of  one  another  as  to  acts  relating  to  the 
eonoeni.    Bligh  v.  Brent,  2  Younge  (bx.  xq.)  268. 

7.  Real  estate  held  for  partnerahip  purposes 
held  to  be  in  the  nature  of  personal  estate.  Mor- 
ris V.  Kearsley,  2  Tounge  (xx.  xq.)  141. 

8.  Where  part  of  the  residue  was  an  annnitj^ 
for  a  term,  wnich  the  executors  could  dispose  of, 
held  tliat  they  ought  to  invest  the  payments,  the 
interest  on  which  would  belong  to  a  tenant  for 
life  of  the  residue  ;  held  also,  that  the  interest  of 
sums  set  apart  to  answer  contingent  legacies, 
until  the  contingency  arrived,  would  form  part  of 
the  income  of  the  residue  ;  and  that  the  interest 
of  a  fund  directed  to  accumulate  beyond  the  legal 
period,  would  ailer  that  period  and  until  the  time 
of  payment  form  part  of  the  capital  of  the  resi- 
due.   Crawley  v.  Crawley,  7  Sim.  (cii.)  427. 

9.  Where  the  directors  of  an  insurance  compa- 1 
ny  executed  a  life  policy,  with  a  covenant  that 
they  would  pay  the  amount  if  the  funds  were  in- 
adequate ;  held,  that  as  a  personal  contract,  in 
the  nature  of  a  specialty  debt,  a  probate  of  the 
diocese  in  which  the  specialty  was  at  the  time  of 
the  death  was  sufficient,  although  the  stock  and 
funds  of  the  company  were  in  ix>ndon.  Gurney 
V.  Rawlins,  2  Mees.  &  W.  (xx.)  87. 

10.  Where  no  actual  assignment  of  the  bond 
bad  been  made,  and  oyer  had  been  craved  in  a 
suit  thereon  by  a  creditor  of  tlie  deceased,  the 
Court  held  that  it  had  no  authority  to  order  a  copy 
to  be  given  or  inspection  of  it  to  be  permitted  at 
the  Register-office,  and  an  order  for  staying  pro- 
ceediuffs  until  the  original  were  produced,  dis- 
charged. Canterburvi  Archbishop,  v.  Tubb,  3 
Ring.  N  S.  (c.  p.)  789 ;  and  5  Dowl.  (p.  c.)  627. 

11.  Where  a  British  subject  having  gone  abroad, 
with  the  view  of  permanently  domicirmg  himself 
and  becoming  naturalized  there,  came  over  to  this 
country  for  a  temporary  purpose,  and  whilst  here 
executed  a  will,  of  which  probate  was  afterwards 
granted  to  one  of  Uie  executors  named,  the  Court 
refused  to  declare  the  effect  as  to  the  property, 
and  held  that  it  had  no  operation  beyond  that  of 
appointing  the  executor.  Thornton  v.  Curling,  8 
Sim.  (cu.)  310. 

12.  Where  an  administrator  of  an  insolvent  intes- 
tate executed  a  deed  of  composition  with  the  credi- 
tonsincladtog  parties  next  of  kin,And  wborenounc* 


ed,  and  the  administrator  being  possessed  of  a  lease 
outstanding,  and  another  renewed  to  the  adminis- 
trator afler  the  intestate's  death,  under  an  agree- 
ment, both  of  which  were  conveyed  to  the  defend- 
ants by  way  of  mortgage  ;  held,  that  the  right  to 
redeem  was  in  the  representatives  of  the  original 
administrator,  and  not  in  the  administrator,  de 
bonis  Tum,  of  the  intestate.  Skeffington  v.  White- 
hurst,  3  Tounge  &.  C.  (xi.  xq  )  I  ;  supporting 
Butler  V.  Bernard,  Freem.  Ch.  C.  139. 

13.  And  the  husbands  of  some  of  the  next  of 
kin,  who  had  upon  the  arrangement  covenanted 
to  release  the  administrator  of  all  claims  on  the 
estate,  and  who  also  joined  in  the  conveyances 
for  raising  money,  reciting  the  transactions,  and 
for  above  thirty  years  au  parties  acquiesced 
in  the  dealing  with  the  property  by  the  adminis- 
trator absolutely )  held,  that  the  husband  must  be 
presumed  to  have  executed  the  release  of  the  resi- 
due in  right  of  his  wife ;  held  also,  that  the  hus- 
band of  another  of  the  next  kin  who  had  been  a 
partner  with  the  intestate,  having  accepted  a  bond 
m  satisfaction  of  a  debt  due  from  the  intestate, 
and  of  all  claims  on  the  estate  and  e£R>cts,  it 
amounted  to  a  release  of  the  wife's  share  in  the 
residue,  although  not  mentioned  in  the  deed.  lb, 

14.  Where  a  testator  died,  leaving  a  widow, 
but  no  next  of  kin  ;  held,  that  undisposed  ofaaseta 
did  not  ^  to  her,  but  to  her  and  the  Crown  in 
equal  moieties.  Cave  v.  Roberta,  6  Sim.  (en.) 
214. 

15.  Where  the  testator  had  agreed  for  the  por- 
chase  of  estates,  but  died,  leaving  the  greater  part 
of  the  purchase-money  unpaid ;  neld,  that  on  the 
ground  of  the  vendor  s  lien,  the  assets  of  the  pur- 
chaser were  subject  to  be  marshalled  on  behalf  of 
a  legatee.  Sproule  v.  Prior,  8  Sim.  (ch.)  189; 
overruling  Coppin  v.  Coppin,  2  P.  Wms.  291. 

16.  The  case  of  Sawyer  v.  Birchmore,  1  Keene, 
825,  confirmed  2  Myl.  dc  Cr.  611. 

17.  Where  a  testator  dying  in  this  covntry  was 
possessed  of  bonds  of  foreign  States,  which  came 
to  the  hands  of  his  executor  here,  and  being  seen* 
rities  saleable  and  transferable  by  delivery,  with- 
out any  act  to  be  done  out  of  this  country  to  ren- 
der the  transfer  valid ;  held,  that  they  were  sub- 
ject to  probate  duty.  Attorney -general  v.  Bon- 
wens,  4  Mees.   &\V.  (ex.)  171. 

18.  The  Court  will  not,  on  the  mere  non-deli- 
very of  an  inventory,  deliver  out  tlie  bond  to  be 
pot  in  suit  ;  and  the  application  refused  where 
proceedings  were  pending  in  Chancery,  and  the 
pnrty  had  not  been  cited  to  bring  in  an  mventory. 
Crowley  r.  Chipp,  1  Curt  (prkr.)  456. 

19.  So,  where  the  attorney  of  two  had  by  their 
appointment  taken  out  administration,  with  the 
will  annexed,  for  their  benefit,  and  entered  into 
the  usual  bond,  and  they  had  given  him  three 
years  to  pay  them  the  balance  due  to  them  under 
the  administration,  and  in  the  interval  he  had  died 
insolvent,  no  account  or  inventonr  having  ever 
been  called  for,  the  application  renised.  Murrar 
and  another  v.  M'Inkerheny,  1  Curt,  (prxr.)  57o. 

20.  The  Court  will  not  grant  administration  to 
a  third  party,  unless  the  partj^  entitled,  although 
having  no  interest,  has  be«n  cited.  Barker,  in  the 
Goods  of,  1  Curt,  (prer.)  582. 


[ADMINISTRATION— AGENT] 


2661 


31.  Where  the  eiecaior  and  aniveraal  legatee 
had  ani^oed  over  to  trustees  all  his  interest,  ad- 
mtaistration,  with  the  will  annexed,  granted  to  the 
trustees,  the  party  having  been  first  cited.  New- 
stead,  in  the  Goods  of,  1  Curt,  (prer.)  593. 

22.  Administration  granted  on  a  presumption 
oFthe  death  of  a  person  who  had  sailed  on  board 
a  yessel  in  July  1835,  for  Manilla,  which  had  ne- 
ver since  been  heard  of,  and  been  paid  for  under- 
writers as  on  a  total  loss.  Hutton,  in  the  Groods 
of,  1  Cart,  (prer.)  595. 

And  see  Baron  and  Frme;  Pletiding^fEq); 
WiU, 


ADVOWSON. 

When  four  co-parceners  agreed  to  present  in 
succession,  and  upon  the  third  turn  arriving  the 
co-parcener  who  would  have  been  entitled  had 
died,  leaving  A.  and  B.  two  co-heirs,  who 
each  claimed  the  right  to  present ;  A.  presented, 
and  on  the  next  avoidance  B.,  the  second  co-heir, 
presented ;  held,  that  both  were  usurpations  on 
the  rights  of  A.  and  of  the  fourth  co-parcener 
respectively,  and  that  on  the  seventh  avoidance, 
A.  would  be  again  entitled  to  present.  Richards 
V.  Earl  of  Macclesfield,  7  Sim.  (c.  h.)  257. 

And  see  Charity;  Church, 

AGENT. 

1.  Where  the  attorney  and  agent  of  the  trustee 
previous  to  winding  up  the  trust,  paid  the  trust 
fund  into  his  general  account  with  his  bankers, 
and  informed  the  cestui  qtu  trust  that  it  was  there, 
lying  idle,  who  took  no  notice  of  it,  and  shortly 
after  the  bankers  failed;  held,  that  not  having 
distinct  notice  from  the  agent  that  the  money  was 
so  placed  to  his  own  general  account,  the  a^nt 
Ana  trustee  were  liable  to  make  good  the  fund. 
Macdonnell  v.  Harding,  7  Sim.  (ch.)  178. 

2.  Where  by  reference  to  the  rules  of  a  club, 
it  appeared  that  the  intention  of  the  members 
was  to  provide  funds  to  be  administered  by  the 
committee,  and  to  provide  the  means  of  carrying 
it  on  without  the  necessity  of  dealing  on  credit ; 
held,  that  if  the  committee  chose  to  enter  into 
contracts  without  sufficient  funds,  they  could  not 
pledge  the  credit  of  the  individual  members,  to 
render  them  liable  for  goods  supplied  for  the  use 
of  the  club,  Flemyng  v.  Hector,  2  Mees.  6l  W. 
(EX.)  172. 

3.  Where  factors  sold  goods  to  the  defendant 
in  their  own  names  to  cover  advances,  and  after- 
wards  upon  other  sales  communicated  their  prin- 
cipals, and  made  out  the  invoices  as  fitctors,  and 
the  defendant  made  payments  to  them  without 
appropriating  to  one  or  other  of  the  sales ;  the 
jory  found  that  the  defendant  had  notice  that  the 
goods  were  the  plaintifis',  but  was  not  bound  to 
make  furUier  inquiry ;  held  that  he  was  entitled 
to  consider  the  payments  to  the  factor  as  made  on 
account  of  the  plaintiffs,  and  to  set  them  off  in 
an  action  by  the  owners  for  goods  sold  and  deliv- 
ered. Warner  v.  M'Kay,  1  Mees.  (Sl  W.  (ex.) 
591 ;  and  1  Tyr.  4&  Gr.  9G5. 

4.  Where  a  party  being  indebted  to  his  own 
■fent,  aathcraea  him  to  noeive  money  fiom  hia 


debtor,  intending  that  the  agent  should  thereout 
pay  himself  his  own  debt,  he  does  impliedly,  to 
the  extent  of  the  a^rent's  debt,  authoriie  him  to 
receive  payment  in  any  way  he  thinks  fit,  and  the 
agent  may  set  off  his  own  debt  due  to  the  debtor ; 
but  if  the  agent  be  not  a  creditor  of  his  principal, 
he  must  receive  the  debt  in  cash,  without  which 
he  is  not  in  a  situation  to  pay  it  over  and  perform 
his  duty  to  his  principal ;  and  the  debtor  not  pav- 
ing his  debt  in  money,  is  bound  to  prove  that  the 
agent  is  in  that  situation.  Barker  v.  Greenwood, 
2 Tounge  &  C.  (kx.  e<i.)  414. 

5.  An  aeent  to  let  and  receive  rents  has  au- 
thority to  determine  the  tenancy ;  and  held,  that 
a  party  defending  as  landlord  is  bound  by  the 
same  estoppel  as  the  tenant.  Doe  v.  Miiem,  2 
2  M.  &  Rob.  (H.  p.)  56. 

6.  Where  an  acting  manager  conducted  himself 
so  indifferently  and  inpropeny  as  to  make  his  con- 
tinuance in  the  duties  injurious  to  the  success  of 
the  concern,  held  that  he  might  be  lawfully  dis- 
missed ;  held  also,  that  the  representation  made 
by  the  stage  manager  to  the  audience,  as  to  the 
success  of  the  season,  was  admissible  as  to  that 
issue.    Lacy  v.  Osbaidiston,  8  C.  A  P.  (m.  p.)  80. 

7.  In  case  for  falselj^  representing  the  extent  of 
the  weekly  business,  in  an  advertisement  on  the 
sale  of  the  goodwill ;  held,  that  the  defendant 
having  made  nis  wife  bis  agent  in  the  management 
of  the  business,  he  was  bound  by  her  statement, 
although  he  made  no  representations  himself  as 
to  the  state  of  the  trade.  Taylor  ».  Green,  8  0. 
&  P.  (N.  p.)  316. 

8.  Where  a  distress,  damage  feasant^  was  made 
by  the  defendant's  servant,  which  was  wholly  il- 
legal ;  held,  that  to  make  the  defendant  liable,  an 
express  authority  to  distrain  must  be  shown,  and 
that  it  could  not  be  inferred  from  his  having  taken 
distresses  on  lawful  occasions.  Lyons  v.  Martin. 
3  Nev.  &  P.  (<i.  b.)  509. 

9.  Where  the  defendants,  upon  an  employment 
to  manage  the  sale  of  a  library,  in  their  proposal 
as  to  terms,  stated  that  they  would  be  responsible 
with  the  auctioneers  for  the  proceeds  of  the  sales ; 
and  in  a  subsequent  letter  stated,  the  plaintiff  had 
"  of  course  the  double  security  of  ourselves  and 
the  auctioneers ;"  held,  that  their  employment  of 
an  auctioneer  recommended  bv  the  plamtiff  did 
not  prevent  their  being  liable  for  him,  and  that 
the  plaintiff's  attorney  naving  received,  with  con- 
sent of  the  defendant,  notes  from  the  auctioneer 
for  part  of  the  proceeds,  was  not  an  acceptance  of 
them  as  payment,  nor  a  ffiving  time  so  as  to  vary 
the  liability  of  the  defendants.  Cholmondeley  v, 
Payne,  8  C.  &  P.  (n.  p.)  482. 

10.  Where  an  insurance  broker  or  mercantile 
agent  is  employed  to  receive  money  for  another 
in  the  general  course  of  his  business,  and  the 
known  general  usage  is  for  the  agent  to  keep  a 
running  account  wiUi  the  principal,  and  to  credit 
him  wiUi  sums  received  by  credits  in  accounts 
with  the  debtors,  with  whom  he  also  keeps  run- 
ning accounts,  and  an  account  is  honhfide  settled 
according  to  that  known  usage,  the  original  debt^ 
or  is  discharged,  and  the  agent  becomes  the  debtor 
according  to  the  intention  and  with  the  authority 
of  the  principal.  Stewart  v.  Aberdcin,  4  Maes. 
&  W.  (Bx)  211. 


2663 


[AGENT— AGREEMENT] 


11.  In  ft  declaration  against  the  defendants  as 
agents  employed  to  efiect  an  insurance  on  a  ves- 
sel ;  held,  that,  it  hems  a  part  of  their  duty  to 
^ive  notice  in  case  of  their  failure  in  efFecting  it, 
it  was  properly  alleged  as  a  promise  implied  by 
the  dealing  TCtween  the  parties.  Callander  v. 
Oelrichs,  5  Bing.  N.  S.  (c.  f.)  5b ;  and  6  Sc.  761. 

12.  Where,  in  a  suit  to  enforce  a  charge  against 
the  respondent's  estate,  which  had  been  bought 
up  by  bis  professional  sgent  in  the  transaction,  at 
a  less  sum,  the  respondent  by  his  answer  agreed 
to  pay  a  certain  sum,  and  by  the  decree  de- 
claring the  appellant  entitled  to  a  certain  sum, 
and  his  taxed  costs  up  to,  and  provided  he  should 
elect  to  accept  the  same,  otnerwise  his  bill  to 
stand  dismissed  with  costs;  held,  that  although 
the  parties  might  have  made  such  a  conditional  ar- 
rangement, it  could  not  properly  be  done  by  a  de- 
cretal order ;  the  equity  which  the  respondent 
might  have,  that  the  purchase  of  the  charge 
should  be  deemed  to  have  been  made  on  his  be- 
half, not  entitling  him  to  refuse  to  pay  anything 
in  respect  of  the  demand  against  nis  estate  so 
charged  ;  and  decree  reversed.  Carter  v.  Palmer, 
11  Bli.  N.  S.  (p.)  397. 

And  see  Account ;  Action  ;  Agreement ;  Assitmp- 
git ;  Attorney  ;  Bankrupt ;  Baron  and  Feme ; 
Bill;  Election  of  M.  P.;  Fraud;  Indicttnent ; 
Ship. 

AGREEMENT. 

1.  Where  upon  an  agreement  for  work  to  be 
done  at  a  specific  sum,  but  '*  H.'s  balance-rent  to 
be  deducted  from  that  sum,"  H.  being  a  weekly 
tenant  to  the  defendant,  and  the  agreement  bore 
date  in  the  middle  of  the  week,  at  which  time  2/. 
was  only  due,  but  before  the  work  was  completed 
another  week's  rent  accrued ;  the  Judge  having 
stated  to  the  jury  that  the  term  balance-rent  was 
to  be  taken  as  what  was  due  at  the  date  of  the 
agreement,  the  Court  refused  a  new  trial.  Ed- 
wards V.  Bagster,  2  Mees.  Ac  W.  (kx.)  Sfi21. 

2.  Where  a  tenant  having  given  notice  to  quit 
after  a  refusal  to  reduce  the  rent,  the  landlord 
proposed  to  acquiesce  in  tettins  for  a  year  upon 
the  reduced  terms,  if  before  tiie  given  day  he 
could  not  obtain  another  tenant ;  held  that  if  the 
tenant  intended  to  accept  the  agreement,  it  was 
an  implied  condition  that  he  should  permit  the 
farm  to  be  looked  over,  and  having  refused  to  do 
so,  the  parties  stood  upon  their  original  rights. 
Doe  d.  Marquis  of  Hertford  v  Hunt,  1  Mees.  & 
W.  (EX.)  690 ;  and  1  Tyr.  &  Gr.  1028. 

3.  On  an  agreement  by  the  defendant  to  retake 
a  public-house  which  the  plaintiff  had  previously 
taken  of  the  defendant,  and  pay  for  the  good-will, 
stock,  &c.,  if  the  landlord  would  accept  him  as 
tenant,  and  issue  taken  whether  the  defendant 
had  requested  or  used  anv  effort  to  cause  them  to 
do  so,  and  it  appeared  that  upon  application  by 
letter  the  landlord  would  not  let,  except  at  an  in- 
creased rent  I  held  that  the  plaintiff  was  rightly 
nonsuited.  Jeffries  v.  Clare,  2  Mees.  &  W.  (ex.) 
43. 

4.  Upon  an  agreement  for  the  sale  of  goods 
upon  a  valuation  bv  A.,  held  that  a  valuation  by 
^.'s  clerk  was  not  binding  unless  it  were  shown 


that  it  was  agreed  to  substitute  such  valaation ; 
and  proof  of  seeing  the  clerk  making  such  valua- 
tion, without  objecting,  was  not  evidence  to  sup- 
port such  agreement.  Ess  v.  Truscott,  2  Mees. 
&  W.  (EX  )  385. 

5.  Where  a  corporation  having  threatened  op- 
position to  a  projected  railway,  the  parties  entered 
into  an  agreement  with  the  corporation ;  held  that 
the  company  having  received  the  bene6t  of  such 
agreement,  were  ^und  by  it ;  and  that  such 
agreements  are  not  illegal.  Edwards  v.  Grand 
Junction  Railway  Company,  7  Sim.  (ch.)  337 ; 
affirmed,  1  Myl.  &  Cr.  226.  650. 

6.  Where  the  defendant,  a  peer  of  Parliament* 
stipulated  with  the  proprietors  of  an  intended 
railroad  to  withdraw  his  opposition  on  their  pay- 
ing certain  sums  as  compensation,  and  using 
their  best  endeavors  afler  the  passing  of  the  BiU 
to  obtain  in  the  next  session  another,  allowing  a 
deviation  from  the  original  line ;  held  that  such 
agreement  was  illegal,  and  against  public  policy. 
Simpson  V.  Lord  Howden,  1  K.  (ch.)  583. 

7.  Upon  an  agreement  for  a  certain  rent  for  a 
house  to  be  suitably  furnished  for  a  school ;  held, 
that  the  furnishing  was  a  condition  precedent  to 
the  right  to  demand  rent  or  to  distrain,  and  that 
the  due  compliance  was  a  question  for  a  Jory. 
Mechellin  v.  Wallace,  6  Nev.  &;  M.  (x.  b.)  316. 

8  Where  the  ground  of  illegality  appeared  upon 
tlie  face  of  the  instrument,  the  Court  would  not 
assume  jurisdiction  to  order  it  to  be  delivered  up 
to  be  cancelled,  and  demurrer  allowed.  Simpson 
V.  Lord  Howden,  3  Myl.  d&  Cr.  (ch.)  97;  S  C. 
1  Keene,  563. 

9.  An  agreement  to  pay  a  sum  in  consideration 
of  not  proceeding  on  a  petition  against  the  return 
of  a  sitting  Member,  on  the  ground  of  bribery, 
held  illegal;  and  that  the  memorandum,  altbongh 
unstamped,  was  admissible  to  prove  such  agree- 
ment ;  the  statute  applying  only  to  instruments 
used  as  evidence  of  a  binding  agreement.  Cop- 
pock  V.  Bower,  4  Mees.  A  W.  (ex.)  361. 

10.  Where  the  lessee  entered  into  an  agree- 
ment to  assign  a  l^ase  of  premises  to  B.  upon  pay- 
ment of 1,  bv  instalments,  to  indemnify  J^. 

from  liability  to  the  lessor,  with  a  proviso  for  re- 
entry on  nonpayment  of  any  of  the  instalments ; 
held  to  amount  to  an  agreement  only,  and  not  an 
actual  assignment ;  and  that  in  an  action  by  the 
lessor  against  the  first  lessee,  B.  was  not  incom- 
petent as  an  interested  witness ;  but  that  if  it  was 
equivocal,  the  objection  should  be  taken  on  the 
voire  dire,  to  give  the  witness  an  opportunity  of 
explanation.  Hartsborne  v.  Watson,  5  Bing.  N. 
S.  (c.  p.)  477. 

1 1 .  In  assumpsit  on  an  agreement  to  pay  to  the 
plaintiff  a  sum,  in  consideration  of  the  plaintiff 
using  his  influence  and  securing  an  appointment 
to  the  defendant ;  pleas,  alleging,  first,  that  the 
plaintiff  had  procured  the  agreement  through 
fraudulent  i%presentation ;  and,  secondly,  that 
the  appointment  was  not  in  fact  obtained  and  se- 
cured by  the  influence  of  the  plaintiff:  held,  that, 
upon  the  first  plea,  the  issue  was,  whether  the 
representation  was  false  to  the  knowledge  of  the 
plaintiff  at  the  time  ;  and  on  the  second,  iT  the  jury 
were  satisfied  upon  the  evidence  that  the  plaintiff 
had  used  such  influence  as  that  the  sitoatioa 


[AGREEMENT— ANNUITY] 


2663 


secured  by  it.  Neeley  v,  Locke,  8  C.  &  P.  (n.  p.) 
527. 

And   see   Bills;  Frauds^  stat.  of;   Landlord; 
Lease  ;  Partition  ;  Specific  Performance. 


ALIEN. 

Upon  a  deviie  of  lands,  in  trust  to  sell  and  in- 
vest in  the  funds,  in  trust  for  parties,  some  of 
whom  were  aliens  ;  held,  that  the  interest  of  the 
latter  beingr  invested  in  the  stock  and  not  in  the 
land,  the  Crown  was  not  entitled  by  its  preroga- 
tive to  come  into  equity  to  have  the  trust  executed 
and  secured  to  the  crown,  or  that  it  should  not  be 
executed  as  intended,  but  remain  unconverted, 
and  in  that  form  be  taken  by  the  Crown,  on  the 

f  round,  that  an  alien  could   not  so  hold  it.     Du 
[oarmelin  v.  Sheldon,  1  Beay.  (ch.)  79. 

See  Foreign  Siate. 

ALIMONT. 

1.  As  semb.  the  Ecclesiastical  Court  will  allow 
a  wife's  executors  to  enforce  arrears  of  alimony 
a^instthe  husband,  the  Vice  Chancellor  allowed 
a  demurrer  to  a  bill,  and  qtuere  if  such  bill  was 
sustainable.     Stones  v.  Cook,  7  Sim.  (ch.)  22. 

2.  Alimony  being  liable  to  be  varied  by  cir- 
cumstances, differs  from  separate  property :  where 
the  wife,  being  separted  with  an  allowance  of 
alimony,  accepted  a  bill  for  articles  supplied  to 
her,  payable  at  the  banker's  who  received  the  ali- 
mony, held,  that  it  did  not  create  a  charge  there- 
on. Vandergucht  v.  De  Blaquiere,  8  Sim.  (ch.) 
315. 

3.  Where  the  husband  suing  for  a  divorce  by 
reason  of  adultery,  had  been  discharged  under  the 
Insolvent  Act,  and  was  entitled  to  no  property 
but  in  reversion  afler  the  death  of  his  father ;  held, 
that  the  Court  coqld  make  no  order  for  alimony, 
but  under  the  circumstances  suspended  the  pro- 
ceedings until  some  small  sum  for  maintenance 
should  be  afforded.  Bruere  v.  Bruere,  1  Curt. 
(GOVS.)  588. 

And  see  Baron  and  Feme. 


ANNUITY. 

1.  Where  the  grantor,  in  consideration  of  the 
inarriage  and  of  the  portion,  covenanted  to  pay 
an  annuity  to  the  plaintiff  in  trust  for  the  intendf- 
ed  husband  and  wife ;  held  that  the  deed  did  not 
require  to  be  stamped,  as  upon  the  sale  of  an  an- 
nuity, with  an  ad  valorem  stamp.  Massey  v. 
Hanney,  3  Bing.  N.S.  (c.p.)  478;  and  4  Sc.258. 

2.  Where  by  the  deed  of  separation  the  hus- 
band covenanted  to  pay  the  wife  an  annuity,  and 
the  trustees  covenanted  to  indemnify  him  against 
debts,  d'c. ;  held  that  no  enrolment  was  necessary 
under  53  Geo.  3.  c.  141.  Carter  v.  Smith,  6  Nev. 
A  M.  (K.  B.)  480. 

3.  Where  an  annuity  was  given  by  will,  paya- 
ble quarterly  out  of  the  rents  and  profits  of  lands 
devised  to  trustees,  with  power  or  distress ;  held 
thst  since  the  2  dc,  3  W.  4,  c.  27,  the  right  to  the 
annuity  was  barred  by  the  lapse  of  twenty  years 
from  the  time  of  the  title  to  distrain  arising,  and 


that  the  avowant  was  limited  to  a  claim  for  the 
last  six  years.  James  v.  Salter,  3  Bing.  N  S. 
(c.  p.)  544 ;  4  Sc.  168;  and  5  Dowl.  (p.  c.)  496. 

4.  Where  on  annuity  was  charged  on  lands 
converted  into  F>alt  works,  and  a  canal  for  receiv- 
ing and  loading  in  boats  the  salt  manufactured 
and  sold  ;  held  {diss.  Parke,  B.)  that  ihe  boat  df  ^ 
a  purchaser  of  salt  was  not  privileged  from  dis- 
tress for  the  annuity.  Muspratt  v.  Gregory,  1 
Mees.  A  W.  (ex.)  633;  and  1  Tyr.  &  Gr.  J0ti6. 

5.  In  ejectment  against  the  grantee  of  an  an- 
nuity, to  recover  the  premises  on  wliich  it  was 
secured ;  held  that  a  covenant  that  the  premises 
were  of  greater  yearly  value  than  the  annuity, 
did  not  prevent  the  defendant  from  showing  the 
contrary,  in  order  to  take  the  deed  out  of  the  ex- 
emption of  the  Act  requiring  enrolment.  Doe  d. 
Chandler  v.  Ford,  3  Ad.  ^  £11.  (k.  b.)  649. 

6.  Where  in  1813  the  defendant  charged  his 
benefice,  a  rectory,  for  the  payment  of  an  annuity 
by  a  demise  for  a  term,  which,  in  1825,  with  other 
similar  charges,  were  transferred  to  the  plaintiff, 
and  by  the  same  deed  he  also  demised  the  rectory 
and  a  vicarage  for  a  term,  with  power  to  seques- 
ter, and  a  warrant  of  attorney  was  executed  as  a 
collateral  security,  but  no  power  to  sequester  was 
therein  siven,  either  expressly  or  by  reference  to 
the  deed  of  demise ;  the  plaintiff  afterwards 
brought  ejectment  and  obtained  possession  of  the 
rectory,  and  subsequently  entered  judgment  on 
the  warrant  of  attorney  and  sequestered  the  vic- 
arage ;  held  that  the  warrant  of  attorney  not  in 
terms  charging  tlie  benefice,  was  not  void,  and 
that  the  plamtiff  was  entitled  to  apply  the  sequf^s- 
tration  to  satisfy  the  accruing  annuities  and  keep 
alive  the  sequestration  until  the  old  arrears  werb 
paid.  Moore  v.  Ramsdeu,  3  Nev.  &  P.  (q.  b  ) 
180. 

And  see  S.  C,  3  B.  <&  Ad.  917. 

7.  Plea,  in  debt  on  an  annuity  bond,  no  suffi- 
cient memorial  under  53  Geo.  3,  c.  141,  enrolled, 
stating  the  omissions ;  replication,  that  there  was 
a  memorial  duly  enrolled,  containing  the  state- 
ments mentioned  in  the  plea;  rejoinder,  that  the 
memorial  contained  false  statements  material  to 
the  plea ;  inter  fdia^  that  the  consideration  was 
paid  in  Bank  of  England  notes,  whereas,  &c., 
negativing  it  modo  et  forma,  and  so  no  such  roe 
morial  as  the  Act  requires;  held,  on  demurrer^ 
that  the  rejoinder  was  not  a  departure  from  the 
plea.  Hickes  v.  Cracknejl,  3  Mees.  dc  W.  (ki.) 
72. 

8.  The  case  of  Muspratt  v.  Gregory,  (1  Mees. 
&  W.  633)  afiirmed  on  error,  3  M«es.  6l  W.  (kx.) 
677. 

9.  Upon  a  devise  in  trust  for  the  testator's  daugh- 
ter for  life,  and  afler  her  decease  for  all  and  every 
her  children  as  tenants  in  common  in  fee,  and  if 
any  should  die  without  leaving  issue,  then  for  the 
surviving  brothers  and  sisters;  and  the  daughter 
ailerwards,  in  pursuance  of  a  power  of  appoint- 
ment, granted  an  annuity,  being  of  less  jrearly 
value  than  the  devised  premises ;  held  within  the 
exception  of  53  Geo.  3,  c.  141,  s.  10,  and  did  not 
require  any  memorial.  Walford  v.  Marchant,  3 
Myl.  &  Cr.  (en.)  550. 

10.  In  covenant  on  an  annuity  deed,  breach  of 
nonpayment  of 1,  of  the  annuity  due  on  15 


3664 


[ANNUITY— APPRENTICE] 


June  1834 ;  plea,  jod^ment  recovered  for  2,000/. 
in  Easter  term,  I8:{2,  averring  the  causes  of  action 
lobe  identical;  held  bad  on  general  demurrer; 
held,  also,  that  a  nominal  consideration  of  105., 
paid  to  the  surety,  need  not  be  stated  in  the  me- 
morial, enrolled  under  13  Greo.  3,  c.  141 ,  s.  2.  Few 
V.  Backhouse,  1  Perr.  «&  D.  (q.  b.;  34. 

And  see  Bankrupt;  Incumbrance;  Interest; 
^g^^'f  Receiver. 

APOTHECARY. 

1.  The  new  rules  of  Hil.  4  Will.  4,  do  not 
affect  the  qualification  under  the  55  G«o.  3,  c. 
194,  6.  21,  which  forms  part  of  the  plaintiff's 
case  ;  in  an  action,  therefore,  for  medicines,  &.C., 
held  that  he  was  properly  nonsuited  in  failing  to 
prove  that  he  was  m  practice  before  5th  Au- 
gust, 1815,  although  the  defendant  had  only 
pleaded  the  general  issue.  Shearwood  v.  Hay,  5 
Ad.  &  Ell.  (K.  B.)  383. 

2.  And  that  a  plea  of  tender  as  to  part  and  non 
assumpsit  as  to  the  residue  was  not  an  admission 
that  the  plaintiff  was  entitled  under  the  Act  to 
recover  charges  in  that  character.  Wells  v.  Lang- 
ridge,  ib. 

3.  The  right  to  charge  for  visits  as  well  as  me- 
dicine, is  not  a  question  of  law,  but  for  a  jury  to 
Bay,  whether,  under  all  the  circumstances  a  con- 
tract for  reasonable  compensation  for  attendance 
can  be  implied.  Morgan  v.  Hallen,  3  Nev.  <&  P. 
(<l.  B.)  498. 

4.  Where  an  apothecary,  since  the  rules  of 
Hill.  4  Will.  4,  sues  for  medicine  and  attendance, 
he  is  bound  to  prove  his  certificate,  or  that  he  was 
in  practice  before  the  5th  August,  1815,  although 
the  plaintiff  merely  plead  nunq.  indeb.  Wag- 
Ataffe  V.  Sharpe,  3  Mees.  &  W.  (ex.)  521. 

And  aee  Bunkrupt. 

APPEAL. 

1.  Wher6  an  appeal  was  dismissed  without 
costs  on  either  side,  the  deposit,  being  considered 
in  the  nature  of  a  security  for  them,  ordered  to  be 
returned.  Dell  v.  Barlow,  2  Russ.  &  M.  (oh.) 
^686. 

2.  The  decree  below  is  not  the  less  the  final 
^decree  in  the  suit,  although  it  may  be  adjudicated 
4)n  by  the  House  of  Lords  ;  but  the  court  below 
has  no  jurisdiction  over  matters  arising  between 
decree  and  the  judgment  of  the  House,  though 
connected  with  the  suit,  but  not  embraced  by  tne 
decree.  Small  o.  Atwood,  3  Tounge  &  C.  (ex. 
S<1.)  105. 

3.  A  right  of  appeal  cannot  be  given  by  im- 
plication ;  where  an  Act  empowered  the  Commis- 
sioners to  do  certain  acts  upon  giving  notice  in 
the  form  prescribed  by  a  previous  Act,  which  ap- 
plied to  cases  of  appeal,  and  the  latter  Act  was 
subaeiiuently  repealed ;  held,  that  it  did  not  ex- 
tend to  repeal  the  procedure  so  referred  to  and 
directed  by  the  former,  but  that  there  being  no 
express  clause  giving  an  appeal,  the  Court  could 
not  supply  the  omission,  whatever  the  legislature 
might  have  intended.  R.  v.  Stock,  3  Nev.  &  P. 
(<l.  B.)  420. 


4.  Where  the  appellant  did  not  appear  on  the 
day  appointed  for  the  hearing,  as  to  its  compe- 
tency, and  the  respondent's  counsel  appearing  at 
the  bar  prayed  that  the  appefd  might  be  dismissed, 
the  House  required  him  to  open  a  prima  fada 
case  against  the  appeal  before  they  would  dismiss 
it.     Fraser  v.  Gordon,  3  CI.  &  Fi.  (p.)  718. 

5.  Where  the  respondent  not  appearing  to  sup- 
port the  judgment  below,  it  was  reversed,  but  no 
costs  given ;  semb.  if  the  respondent  wefe  guilty 
of  fraud,  the  House  would  relieve  against  it  and 
give  costs.  Hamilton  e.  Littlejohn,  4  CI.  &  Fi. 
(p.)  20. 

6.  Upon  a  mere  question  of  practice,  the  House 
is  not  competent ;  where,  therefore,  the  Court  be- 
low has  treated  a  proceeding  as  merely  interlocu- 
tory and  not  final,  it  is  decisive  of  the  nature  of 
the  proceeding.  If  the  Appeal  Committee  direct 
the  question  of  competency  to  be  argued  before 
the  House,  it  is  in  the  discretion  of  the  House  to 
permit  a  reply.  Farrier  v.  Howden,  4  CI.  &  F. 
(p.)  25. 

7.  Where  a  decree  on  the  equity  side  of  the  Ex- 
chequer was  pronounced  in  Hil.  1821,  but  not 
enrolled  until  Hil.  1836,  and  the  Appeal  Commit- 
tee received  the  petition  of  appeal ;  held,  that  the 
time  of  petitioning  was  from  the  enrolment,  and 
not  from  the  time  of  pronouncing  the  decree ;  the 
House  having  confirmed  the  order  allowing  the 
appeal,  held,  that  such  order  could  not  be  reheard 
without  notice ;  and  although,  for  convenience 
sake,  the  respondent  might  te  allowed  to  argue 
against  ttie  decision  of  the  Appeal  Committee 
without  such  notice,  it  must  be  only  on  the  under- 
standing that  he  is  to  present  a  petition  to  be 
heard  against  the  allowance  of  the  petition  of  ap- 
peal. Brooke  v.  Champernowna,  4  CI.  &.  Fi.  (p.) 
247. 

8.  Although  no  appeal  can  be  heard  against 
any  decree  oT  a  court  of  equity,  after  two  years 
from  the  date  of  enrolment,  yet  where  the  appeal 
extended  to  subsequent  orders  in  the  same  cause 
brought  within  that  period,  it  was  saved :  and 
where  the  appellant  was  absent  abroad  firom  ill- 
ness and  embarrassment,  for  five  vears  aAer  the 
enrolment,  although  the  appeal  haa  been  received 
and  appointed  for  hearing,  it  could  not  be  heard. 
De  Burgh  p.  Clarke,  4  CT.  Sl  Fi.  (p.)  562. 

9.  Where  afier  a  day  appointed  for  hearing  and 
extended  on  terms,  the  party  failed  to  comply 
with  the  terms  imposed,  the  House  dismissed  the 
appeal  with  costs.    Mahon  v.  Irwin,  4  CI.  &  Fi. 

fp.)  559. 

And  see  Attorney;  Bankrupt;  Borough  Rate; 
Costs;  Poor;  Practice;  Sessions. 


APPRENTICE. 

The  justices  at  sessions  have  not  power,  under 
5  EliE.  c.  4,  B.  35,  on  discharging  an  apprentice 
from  the  indentures  where  the  premium  is  aboTe 
%£.,  to  order  any  part  of  the  premium  to  be  re- 
funded, or  where  not  paid,  withheld  ;  and  semb. 
the  statute  only  applies  to  compulsory  bindings 
without  premium.  East  v.  Pell,  4  Mees.  &  W. 
(EX.)  665. 


[APPROPRIATION— ARREST] 


2665 


APPROPRIATION. 

1.  Where  a  party  domiciled  in  England  pur- 
chased real  estate  in  Scotland,  and  pending  the 
settlement  of  the  title  deposited  the  remainder  of 
the  purchase  money  at  a  banker's  there,  which 
was  treated  by  him  as  expressly  appropriate*d  and 
referred  to  as  sach  in  a  will,  and  also  in  a  deed  of 
trust  of  a  testamentary  nature,  executed  there  ; 
he  subsequently  made  a  will  as  to  the  residue  of 
his  property,  which  was  duly  admitted  to  probate 
in  the  English  Court ;  in  a  suit  instituted  by  the 
executor  in  Scotland,  claiming  the  fund  deposited, 
held,  that  the  Scotch  Court  had  a  right  to  look  to 
the  first  instrument,  in  order  to  discover  the  tes- 
tator's intention  as  to  such  deposit,  and  tliat  with- 
out looking  to  the  will  there  was  sufficient  evi- 
dence from  the  deed  of  trust,  of  intention  to  ap- 
propriate the  fund  to  the  payment  of  the  bond 

?'ven  for  the  remainder  of  the  purchase  money, 
ates  V.  Thompson,  3  CI.  &  Fi.  (p.)  545. 

2.  Where  the  defendants,  as  commission  agents 
to  foreign  houses,  in  which  they  were  partners, 
but  the  foreign  houses  were  not  partners  in  the 
commission  ousiness,  received  a  letter  from  H. 
and  /.,  authorizing  them  to  pay  a  sum  of  money 
toR.  ^  Co.,  but  which  being  unsatisfactory  was 
revoked,  and  a  second  letter  was  written,  which 
was  desired  to  be  acted  upon,  and  the  defendants 
thereupon  gave  an  undertaking  to  R.  &,  Co.  to 
comply  with  iton  being  guaranteed  by  R.  &,  Co., 
which  was  given;  held,  that  taken  altogether, 
it  amounted  to  an  appropriation  of  the  sum  to  i2. 
&  Co.,  or  else  to  an  equitable  assignment  of  it, 
and  was  not  in  either  case  revoked  by  the  bank- 
ruptcy of  H.  and  /.,  and  notice  given  by  the  as- 
signees before  the  proceeds  received,  out  of  which 
the  payment  was  to  be  made.  Uutchieson  v. 
Heyworth,  I  Perr.  &  Dav.  (^.  b.)  266. 

And  see  AccourU  ;  Bankrupt ;  Partner. 


! 


ARREST. 

A]  Wheit  legal. 

B]  Malicious. 

[A]  When  legal. 


1.  Where  the  officer,  in  making  the  arrest,  had 
broken  the  outer  door,  the  Court  discharged  the 
party  out  of  custody  on  a  summary  application. 
Hodgson  V.  Towning,  5  Dowl.  (p.  c.)  410. 

2.  Where  a  foreigner  was  arrested  for  the  resi- 
due of  a  debt  from  which  he  had  been  discharged 
in  his  own  country  upon  proceedings  analogous 
to  our  bankrupt  law,  the  Court  refused  to  inter- 
fere summarily,  leaving  hi9  defence  to  the  opin- 
ion of  a  jury.  Bretillot  v.  Sandos,  4  Sc.  (c.  f.) 
201. 

3.  It  is  only  in  extreme  cases,  and  where  the 
process  of  the  Court  has  been  clearly  abused, 
that  the  Court  will  interfere  to  set  aside  an  arrest 
apon  the  merits.  Mason  v.  Smith,  5  Dowl.  (f.  c.) 
179. 

4.  Where  a  party  attending  an  arbitration  staid 
to  wait  the  event  of  an  application  to  the  Court 
in  cofusequence  of  a  revocation  of  the  submission 
tnd  want  of  pecuniary  means  of  returning,  held 


an  unreasonable  delay,  and  not  to  privilege  hiih 
from  arreftt.  Spencer  r.  Newton,  5  Ad.  He  £11. 
(k.  b.)  fcjld. 

5.  The  Court  refused  to  discharge  the  defend- 
ant out  of  custody,  on  the  ground  that  the  writ 
of  ea.  »i.  was  not  indorsed  with  his  residence ; 
semb.  the  rule  is  for  the  benefit  of  the  sheriff 
only ;  at  all  events,  the  objectPon  must  be  prompt- 
ly taken.    Esdaile  v.  Davis,  6  Dowl.  (p.  c.)  465. 

6.  Where  the  date  was  omitted  in  the  copy  of 
the  writ  served  on  the  defendant,  held,  that  bei^g 
irregular,  the  arrest  was  bad.  Smart  v.  Johnson, 
6  Dowl.  (p.  c.)  90;  and  3  Mees.  &  W.  (ex.) 
69. 

7.  The  Court  refused  to  discharge  a  party  de- 
tained on  a  suit  in  one  Court,  although  the  ar- 
rest in  a  suit  in  another  Court  had  been  set  aside 
as  irregular.  Cogg,  ex  parte,.  6  Dowl.  (p.  c.> 
461. 

8.  Where  the  party  had  been  charged  in  eze* 
cution,  held,  that  it  was  too  late  to  enter  into  the 
question  as  to  the  irregularity  of  the  mesne  pro* 
cess  on  which  the  arrest  had  been  made.  Crosa 
V.  Marnh,  6  Dowl.  (p.  c.)  280. 

9.  The  court  will  always  discharge  a  married 
woman  from  arrest,  unless  at  the  entering  into 
the  contract  she  represented  herself  to  be  a  feme, 
sole.  Hollingdale  v.  Lloyd,  3  Mees.  &  W.  (ex.) 
416. 

10.  Arrest  upon  mesne  process,  except  in  cer- 
tain cases,  abolished,  and  remedies  of  creditora 
against  the  property  of  debtors  extended,  by  1  & 
2  Vict.  c.  110. 

11.  Where  a  solicitor  who  had  retired  from  prac- 
tice, while  attending  the  hearing  an  appeal  in  the 
House  of  Lords  as  agent  for  the  appellant,  was 
taken  on  an  attachment  for  nonpayment  of  costs 
in  chancery  ;  held  entitled  to  be  discharged,  and 
that  the  application  might  be  made  to  the  Court 
out  of  which  the  process  issued,  or  to  the  House 
of  Lords.  Attorney-general  v.  Skinner's  Com- 
pany, 8  Sim.  (CH.)  3?7 ;  and  1  Coop.  (c.  c.)  1. 

12.  Where  it  appeared  that  the  defendant  was 
in  the  army,  and  was  going  to  join  his  regiment 
stationed  in  Ireland,  held  that  it  was  not  such  a 
leaving  the  kingdom  for  a  temporary  purpose  as 
not  to  subject  the  party  to  arrest  in  the  discretion 
of  a  Judge.  Larcnin  v.  Willan,  4  Mees.  &  W. 
(EX.)  351 J  and  7  Dowl.  (p.  c.)  11. 

13.  A  page  of  the  presence,  of  the  second  class 
in  ordinary,  being  bound  to  attend  the  Queen  as 
an  ordinary  servant  with  fee,  held  entitled  to  the 
privilege  from  arrest.  Reynolds  r.  Pocock,  3 
Mees.  &  W.  (ex.)  371 ;  and  7  Dowl.  (p.  c.)  4. 

14.  Where  the  defendant  was  proceeding  to 
the  Court  to  receive  judgment  on  an* indictment 
for  conspiracy,  the  court  refused  to  discharge 
him  on  his  own  affidavit  merely  \  but  would 
grant  a  rule  ii»i,  and  upon  the  facts  being  admit- 
ted, would  make  it  absolute  only  as  to  that  case, 
and  not  as  to  other  detainers,  unless  notice  of  the 
motion  given.  Sharplin  v.  Hunter,  6  Dowl.  (p. 
c.)  632. 

15.  Where  the  plaintiff  was  arrested  whilst  re- 
turning from  the  Court  of  Chancery,  where  he 
had  been  engaged  as  a  barrister  in  a  cause,  and 
he  obtained  a  Judge's  order  for  hit  disehaife  ia 


2666 


[ARREST] 


that  suit  only ;  held,  that  the  sheriff  was  justi- 
fied in  detaining  him  on  otlier  writs  at  the  suit 
of  other  parties,  the  Judge's  order  having  refer- 
ence only  to  the  particular  application  :  semb., 
the  action  might  be  maintainable  against  the 
sheriff,  if  any  nppressive  conduct  were  shown. 
Watson  V.  Carroll,  4  Mees.  <&  W.  (kx.)  592;  and 
7  Dowl.  (p.  c.)  217. 

16.  Where  the  party,  having  been  arrested  by 
a  sheriff's  officer  without  any  warrant,  another 
officer  obtained  his  name  to  be  put  in  the  warrant, 
which  was  directed  ^  a  different  officer,  it  being 
in  accordance  with  the  practice  of  the  office,  nna 
done  without  any  collusion  with  the  sheriff;  held 
not  to  invalidate  the  arrest,  nor  entitle  the  party  to 
his  discharge  from  that  warrant  or  other  detainers. 
Robinson  v.  Ye  wens,  5  Mees.  <k,  W.  (ex.)  149; 
and  7  Dowl.  (p.  c.)  377. 

17.  But  where  the  defendant  was  arrested  on  a 
warrant  from  the  late  sheriff,  but  none  from  the 
present  one,  at  the  suit  of  M.,  by  his  officer  S., 
there  being  at  the  time  another  writ'  against  him 
at  the  suit  of  R.,  the  warrant  on  which  from  the 
present  sheriff  was  in  the  hands  of  N.,  who  de- 
livered it  to  S.,  and  whose  name  was  inserted  in 
it  by  the  under-sheriff,  .and  the  defendant  was 
detained  at  the  suit  of  the  plaintiff;  held,'  that 
the  original  caption  of  the  defendant  was  illegal, 
and  that  he  was  entitled  to  be  dischareed,  and 
was  not  precluded  from  showing  the  origmal  ille- 
gality of  the  caption  by  his  havmg  removed  him- 
self from  the  original  custody  by  suing  out  a 
habetu  corpus.  Pearson  v.  Yewens,  5  Bing.  N.  S. 
(c.  p.)  489;  and  7  Dowl.  (p.  c.)  451. 

18.  Where  the  defendant  had  been,  under  a 
Judge's  order,  on  the  28th  March,  taken  on  a 
capiasy  the  copy  of  which  irregularly  stated  the 
writ  to  be  returnable  in  four  instead  of  one  month, 
and  no  application  made  for  his  discharge  until 
the  17tli  April ;  held  too  late,  and  if  the  delay  be 
occasioned  by  a  previous  application  at  chambers, 
the  rule  must  be  drawn  up  on  reading  the  sum- 
mons or  be  shown  by  affidavit.  Sugars  v.  Con- 
<:anen,  5  Mees.  &  W.  (fcx.)  30;  and  7  Dowl.  (?. 
c.)  391. 

19.  In  such  cases  the  application  should  be  to 
set  aside  the  order,  as,  if  the  capias  were  set 
aside,  the  sheriff  mig^ht  be  made  a  trespasser. 
Hopkinson  v.  Salembier,  7  Dowl.  (p.  c.)  403. 

20.  Where,  afler  the  commencement  of  1  &  2 
Vict.  c.  110,  a  party  arrested  on  mesne  process 
was  out  on  bail ;  held,  that  the  bail  were  entitled 
to  an  exoneretur  without  being  compelled  to  the 
circuitous  course  of  a  render :  held  also,  that  in 
order  to  obtain  a  detention  under  the  proviso  of 
fleet.  7,  the  affidavit  must  show  the  belief  of  the 
deponent  that  the  defendant  is  about  to  quit  the 
country,  and  the  probable  causes  for  tliat  belief. 
Bateman  v.  Dunn,  5  Bing  N.  S.  (c.  p.)  49;  6  Sc. 
739;  and  7  Dowl.  (p.  c.)  105. 

21.  Where  the  defendant  was  taken  on  a  cap. 
vtlag.  whilst  in  custody  on  an  attachment  for  | 
contempt  in  Chancery,  which  was  afterwards  set 
aside  for  irregularity ;  held,  that  the  cap.  ut'ag. 
being  a  process  purely  for  the  benefit  of  the  party 
issuinff  it,  he  was  entitled  to  be  discharged  as  to 
it.  Halt  V.  Hawkins,  7  Dowl.  (p.  c.)  200;  and 
4Mees.  &W.  (Bx.).590. 


22.  Where  the  party,  whilst  in  mesne  custody, 
was  taken  afler  the  return  of  the  writ,  in  the 
vaoler's  custody,  to  a  distant  place  to  attend  be- 
fore a  revising  barrister,  and  returned  into  gaol 
the  same  day  ;  held  to  amount  to  an  escape  :  but 
tliat  tlie  action  was  not  maintainable  without 
proof  of  some  damage  in  fact  or  law.  Williams 
V.  Mostyn,  4  Mees.  &  W.  (ex.)  145 ;  and  7  Dowl. 
(p.  c.)  38;  questioning  Barker  v.  Green,  2  Bing. 

And  see  Plancke  v.  Anderson,  5  T.  R.  37. 

And  see  Bail;  Bankrupt;  Costs;  Debt;  Pris- 
oner; Sheriff. 


[B]  Malicious. 

1.  Where  the  declaration  in  case  for  a  mali- 
cious arrest  only  alleged  that  the  defendant  wrong- 
fully and  injuriously  procured  the  writ  to  issoe, 
without  the  word  "maliciously,"  which  is  the 
^ist  of  the  action,  held  bad  after  verdict  and 
judgment  arrested.  Saxon  r.  Browne,  1  Nev.  & 
P.  (K.  B.)  661. 

And  see  Scheibel  v.  Fairbain,  1  Bos.  6l  P.  388. 

2.  Where  the  plaintiff  was  given  in  charge  in 
the  evening  for  a  malicious  trespass  in  pulling 
down  a  chimney  on  premises  formerly  his  own 
and  exchanged  for  others  of  which  he  had  been 
dispossessed,  but  the  plaintiff  was  liberated  in  the 
morning,  a  summons  having  been  taken  out  for 
a  hearing  before  magistrates  ;  held  that  the  stat- 
ute allowing  the  apprehension  of  such  oSenders^ 
the  jury  were  to  say  if,  in  such  imprisonment, 
the  defendants  acted  ^ona  fide  and  believing  they 
had  the  power  of  taking  into  custody,  and  under 
color  of  right,  and  if  so,  there  being  no  notice  of 
action,  that  the  defendants  were  entitled  to  a 
verdict.  Reed  v.  Cowmeadow,  7  C.  &;  P.  (v.  p.) 
821. 

3.  In  case  for  maliciously  causing  the  defen- 
dant, an  attorney,  to  be  arrested,  knowing  him  to 
be  such,  notwithstanding  a  good  probabfe  canae 
of  action,  held  actionable;  and  knowledge  that 
he  was  privileged,  held  an  ingredient  of  malice. 
WhaUey  v.  Pepper,  7  C.  &  P.  (if.  p.)  506. 

4.  Where  a  party  had  been  discharged  on  the 
ground  of  the  officer  not  having  the  warrant  or 
the  writ  in  his  possession  at  the  time  of  the 
arrest,  held,  that  he  might  be  a^ain  taken  on  the 
same  writ  Polmer  v.  Ball,  5  Ad.  A.  £U.  (k.  b.) 
823. 

5.  In  case  for  maliciously  arresting  the  plaintiff, 
in  order  to  obtain  from  him  the  delivery  of  a 
ship's  register,  which  he  had  mortgaged,  and  by 
agreement*  was  to  retain  the  command  of  the 
vessel  for  his  own  profit,  the  sheriff's  officer  hav- 
ing gone  to  him  and  told  him,  that  unless  he  de- 
livered the  register  or  found  bail,  he  most  either 
take  him  or  leave  an  officer  with  him,  held  to 
amount  to  an  arrrest ;  held  also,  that  the  delivery 
of  the  registry  being  no  part  of  duty  enjoined  by 
the  writ,  it  was  an  abuse  of  process  of  law,  and 
immaterial  whether  the  suit  in  which  the  process 
issued  had  been  determined  or  not,  or  whether 
founded  on  reasonable  and  probable  cause  or  not ; 
held  also,  that  if  the  taking  of  the  register  was 
wrongfal,  the  taking  itself  was  a  conversion,  and 


[ARREST— ASSUMPSIT] 


9697 


no  demand  tad  refasal  necetsanr  to  maintain  the 
action  of  trover.  Grainger  v.  Hill,  4  Bin?.  N.  S. 
(G.  p.)  21Si. 

6.  In  caae  for  maliciously  arresting,  and  with- 
out reasonable  or  probable  cause,  the  plaintiff 
having  been  discharged  out  of  custody  o9  a  for- 
mer arrest,  without  leave  of  any  Judge,  by  rea- 
son of  the  defendant  not  having  declared  in  due 
time;  held,  that  the  action  was  maintainable, 
and  the  declaration  disclosing  a  sufficient  cause  of 
action,  although  the  allegation  of  malice  was  ge- 
neral; {dub.  Denman,  L.  C.  J )  Hey  wood  v. 
Collinge,  1  Perr.  &  Dav.  (q.  b.)  202. 

7.  It  is  a  sufficient  arrest  to  entitle  the' defen- 
dant to  the  relief  under  43  Geo.  3,  c.  46,  s.  3, 
where  the  officer  states  to  the  party  that  he  has  a 
warrant,  and  takes  him  to  his  own  house,  and  a 
bail-bond  is  executed  ;  and  the  execution  of  the 
bond  8tmb.  is  a  holding  to  bail  within  the  statute  ; 
sed  quoT.  if  the  capias  be  afterwards  set  aside  for 
irregularity  ?  Reynolds  v.  Matthews,  7  Dowl. 
(p.  c.)  580. 

8.  in  case  for  a  malicious  arrest,  held,  that  the 
wrongful  act  being  independent  of  the  subsequent 
oontiaoance  or  discontinuance  of  the  suit,  it  was 
not  neceasarj  to  produce  the  judgment  roll,  but 
that  the  rule  to  discontinue  on  payment  of  costs, 
and  proof  that  they  were  paid,  was  sufficient  to 
■Qpp4»rt  the  averment  of  the  discontinuance. 
Watkins  v.  Lee,  7  Dowl.  (p.  c.)  498. 

And  aee  Action;  Attorney;  Costs. 


ASSETS. 

MAaSHALLIKO. 

See  Administration;  Executor;  Legacy, 

ASSIGNMENT. 
See  Assumpsit. 


ASSUMPSIT. 

[A]   CoirSIDSKATION  TO   SUPPORT. 

~B]  For  vohijss — goods — works. 
C]  Pleadings  iir. 


t 


[A]    ComiDERATION  TO   SUPPORT. 


1.  Where  the  plaintiff*  agreed  to  •accept  the 
biUsof  a  party  entitled  to  deeds  intlie  defendant's 
possession,  in  order  to  enable  him  to  assign  them 
as  a  security  ;  held  a  sufficient  consideration  for 
the  defendant's  promise  to  deliver  them  over  to 
the  plaintiff*  on  tne  bills  being  paid.  Tipper  v. 
Biehnell,  3  Bing.  N.  S.  (c.  p.)  710. 

2.  In  assumpsit  for  breach  of  promise  of  mar- 
riage, pleas  alleging  that  the  plaintiff'  was  un- 
chaste, &c,  and  had  intercourse  with  H.  P. ;  and, 
■Bcondly,  with  persons  unknown  ;  held  sufficient 
on  demurrer.  loung  v.  Murphy,  3  Bing.  N.  S. 
(e.  r.)54;  aftd38c.379. 

Vol.  IV.  50 


3.  Declaration  that  the  plaintiff  being  about  to 
proceed  to  JV,  paid  in  to  the  defendants  (bankers) 
monev  to  be  paid  to  him  at  JV.  on  a  certain  day, 
and  that  in  consideration  the  defendants  promised 
to  cause  it  to  be  paid  to  the  plaintiff  at  JV.  on  that 
day ;  held  to  disclose  a  sufficient  consideration 
for  the  promise.  Shillibeer  v.  Glynn,  2  Mees.  &, 
W.  (EX.)  143. 

4.  Where  a  party  kept  an  account  with  the 
defendant,  and  afterwards  becoming  lunatic,  the 
account  was  continued  by  the  lamiTy,  and  a  bal- 
ance stated  in  the  pass-book  to  the  credit  of  the 
lunatic ;  in  an  action  by  his  representative  after 
his  death,  to  recover  such  balance,  held  that, 
there  being  no  evidence  of  an  accounting  with 
him  ,  nor  with  any  one  appointed  by  him,  or  com- 
petent to  stale  it  on  his  part,  the  action  was  not 
maintainable.  Tarbuck  v.  Bipsham,  2  Mees.  6b 
W.  (ex.)  2. 

5.  Where  a  party  remitted  money  to  the  defen- 
dant to  be  paid  to  the  plaintiff,  and  which  he 
promised  the  plaintiff  to  pay ;  held  that  there 
was  a  sufficient  consideration  moving  from  the 
plaintiff  to  maintain  the  action  for  money  had 
and  received.  Lilly  v.  Hays,  1  Nev.  6l  P.  (k.  b.) 
26. 

6.  In  assumpsit  on  a  building  agreement,  and 
for  extras,  averring  in  the  count  on  the  former 
that  the  defendant  had  discharged,  prevented, , 
and  hindered  the  completing  it,  on  which  issue 
was  joined,  and  the  particulars  were  for  the  mate- 
rials under  the  agreement ;  held,  that  the  denial 
by  the  defendant,  on  being  applied  to  in  the 
course  of  the  work  for  money,  that  he  would 
ever  pay  a  farthing,  was  not  evidence  of  the  con- 
tract being  abandoned  by  him,  but  that  the  plain- 
tiff was  entitled  to  recover  for  the  extras,  although 
not  upon  the  agreement,  which,  not  having  been 
completed,  he  was  not  then  liable  to  pay  any 
thing.    Rees  u.  Lines,  8  C.  &  P.  (ir.  p.)  IS6. 

7.  in  assumpsit  by  assignees  of  1.,  alleging 
that  before  the  bankruptoy,  &c.,  defendant  was 
indebted  to  L  in  200^,  and  that  in  consideration 
L  would  prove  that  sum  under  the  commission  ia- 
sued  against  defendant,  he  promised  to  pay  1.  2001. 
after  the  delay  of  a  few  months ;  held,  on  motion 
in  arrest  of  judgment  that  the  promise  could  not 
be  supported,  for  want  of  consideration.  Brealey 
V.  Andrew,  2  Nev.  &  P.  (x.  b.^  114. 

8.  In  assumpsit  for  money  lent ;  plea,  that  it 
was  lent  for  the  purpose  of  playing  at  an  illegal 
game,  viz.  hazard,  held  good,  and  tnat  the  money 
was  not  recoverable  back.  M*Kinncll  r.  Robinson, 
3  Mees.  &  W.  (ix.)  434. 

9.  Where  the  plaintiff,  at  the  defendant's  re- 

Siest,  entered  into  a  contract  for  the  purchase  of 
Danish  bonds,  and  afterwards  paid  the  price, 
which  the  defendant  promised  to  repay ;  held,  in 
assumpsit  for  money  paid,  that  the  defendant  could 
not  object  that  the  executory  contract,  on  which 
the  money  had  been  paid,  was  not  in  writing,  as 
required  by  the  Statute  of  Frauds.  Pawle  v, 
Gunn,4  Bing.  N.S.  (c.  p.)  445. 

10.  Where  horses  were  sold  for  8W.,  to  allow 
IW.  if  returned  within  a  month,  which  was  done; 
held,  that  the  purchaser  might  maintaim  for  the 
money  as  had  and  receivea  to  his  use,  it  bemg 


[ASSUMPSIT] 


hcMbir  the  defendant  on  the  iernw  of  giving  it  | 
beck  if  the  plaintifF  were  eventually  entitled  to 
leoeire  it.    Hunt  v.  Orbell,  3  Nev.  A  P.  (%.  b.) 
237. 

11.  Wheie  the  defendant,  an  attorney  for  A.,  I 
who  was  leally  entitled,  brought  an  action  in  the 
name  of  the  plaintiff,  and  recovered,  and  the  jury 
having  found  that  it  waa  received  by  him  for  A. ; 
held,  that  the  plaintiff  could  not  maintain  an 
action  against  the  attorney  for  the  money  received 
on  the  settlement  of  the  claim.  Clarke  t*.  Dig- 
nam,  3  Mees.  &  W.  (ix.)  476. 

13.  Where,  at  the  time  of  assignment  of  a  lease 
by  defendant  to  plaintiff,  rent  was  in  arrear,  which 
the  plaintiff  paid  under  a  distress ;  held,  that  the 
defendant  having  granted,  by  deed  of  assignment, 
tiie  premises,  wiUi  the  usual  covenant  for  quiet  en- 
joyment,  assumpsit  would  not  lie  on  the  implied 
contract  to  indemnify  the  plaintiff,  nor  on  an  ex- 
press contract  to  repay  without  some  new  consid- 
eration. Baber  v.  Harris,  1  Pcrr.  ^  Dav.  (q,.  b.) 
360. 

13.  Declaration  stating  that  in  consideration  the 
plaintiff  would  allow  defendant  to  wei^  certain 
botlera,  be  undertook  to  return  theni,  and  breach, 
the  non  re-delivery ;  held,  that  as  the  plaintiff 
might  have  aoatained  some  detriment  by  comply- 
iBg  with  the  request,  it  was  a  sufficient  considera- 
tion afler  verdict.  Bainbridge  v.  Firmaton,  1  Perr. 

Sl  D.  (<l.  B.)  1. 

14.  Where  the  plaintiff  ordered  specifically  a 
machine  of  which  the  plaintiff  was  patentee,  "  to 
be  pnt  up  in  his  brewhouse,"  which  the  plaintiff 
penormed,  but  it  was  found  not  to  answer  the  pur- 
pose of  a  brewhouse ;  held,  that  there  being  no 
fraud,  and  the  contract  containing  no  guarantee 
that  it  was  fit  for  such  purpose,  the  plaintiff  was 
entitled  to  recover  the  stipulated  price.  Chanter 
V.  Hopkins,  4  Mees.  &  W.  (ex.)  399.    , 

15.  In  assumpsit  on  the  breach  of  a  warranty  of 
seed,  to  produce  certain  crops,  with  the  common 
counts,  u\e  particulars  being  only  of  the  price  of 
the  seed  ;  held,  that  applying  only  to  the  common 
counts,  evidence  of  the  value  of  the  crops  was  ad- 
missible, as  applying  to  the  damage  stated  in  the 
first  count,     rage  v.  Pavey,  8  C.  &  P.  (n.  p.)  769. 

16.  Where,  by  a  memorandum  contained  in  a 
letter,  the  plaintiff  agreed  to  enter  into  the  defen- 
dants service  as  manager,  and  **  the  amount  of 
payment  I  am  to  receive  I  leave  entirely  to  you  to 
determine  -/'  held,  (diss.  Parke,  B.)  to  imply  that, 
at  all  events,  something  was  to  be  paid,  and,  on  a 
quantum  meruit^  it  was  for  Uie  jury  to  decide  the 
value  of  tlie  services  performed.  Bryant  ».  Flight, 
5  Mees.  &  W.  (ex.)  114. 

17.  In  assumpsit  for  work  and  labor,  and  mate- 
rials, the  defendants  having  employed  the  plaintiff 
to  survey  a  parish  and  furnish  a  map,  to  be  laid 
before  commissioners  of  enclosure  :  hold,  that  the 
jury  having  found  the  work  to  have  been  done, 
and  satisfactorily,  and  the  df^fendants  having  had 
reasonable  time  for  ascertaining  its  correctness,  in 
the  absence  of  any  conlrar-.t  for  a  specific  price  for 
the  work,  the  plaintiff  was  not  precluded  from  re- 
covering what  the  jury  mijrht  consider  a  reasona- 
ble remtineration,  on  the  ground  of  his  having  re- 
fuised  the  map,  4bc.  eicept  on  payment  of  his  own 


demand.    Hughea  v.  Lann^,  5  Meet.  &  W.  (ex.) 
183. 

18.  In  an  action  on  an  agreement  for  not  retain- 
ing tlie  plaintiff  in  the  de^ndant's  service,  with  a 
count  on  a  auantum  mendt  for  services,  to  the 
first  of  which,  aiuongst  others,  the  defendants 
pleaded  various  acts  oi  misconduct  on  the  part  of 
the  plaintiff  as  justifying  his  dismissal;  held,  that 
it  was  sufficient  to  establish  one  good  ground  of 
discharge,  and  that  the  jury  were  justified  in  as- 
cribing the  discharge  to  the  general  nature  of  the 
plaintiff's  conduct,  and  not  to  the  formal  reaaon 
assigned  at  the  time ;  as  to  the  second  count,  held 
that  the  defendant  might,  under  the  general  issoe, 
show  the  worth lessness  of  the  servicea,  and  the  ja* 
ry  take  his  conduct  in  such  service  into  consider- 
ation  in  estimating  the  value  of  the  service.  Bail- 
lie  9.  Kell,  4  Bing.  N.  S.  (c.  p.)  638;  and 6  Sc. 
379. 

And  see  Chappell  v.  Hicks,  8  Cr.  &  Mees.  214. 

19.  Where  money  paid  into  Court  in  lien  of  bail, 
was,  upon  default  in  depositing  the  further  sum  ss 
securitv  for  costs,  under  7  A,  8  Geo.  4,  c.  71,  s.  S, 
ordered  by  the  court  to  be  paid  out  to  the  plaintiffih 
and  a  fiat  afterwards  issued  upon  an  act  of  bank- 
ruptcy committed  by  the  dewndant  prior  to  the 
payment  of  the  money  into  court ;  held,  that  b«c1i 
payment  waa  within  the  exception  of  payments 
made  by  the  authority  of  a  court  of  competent  ja- 
risdiction,  and  that  the  assignees  could  not  reoo- 
ver.  Reynolds  v.  Wedd,  4  Bing.  N.  8.  (c.  p.) 
694 ;  6  Sc.  699;  and  6  Dowl.  (p.  c.)  728. 

And  see  Belcher  v.  Mills,  2  Cr.  Mees.  &  R.  150. 

And  see  Action;  Barem  and  Femt;  Contract; 
Costs;  Landlord;  Lunatic;  Parent;  Pleadings 
(C,  L)  Poor;  Stamp;  Wager. 


ffi]  For  monivs — goods — works. 

1.  Where  the  bailee  of  a  bill  not  due,  deposited 
it  with  his  bankers,  and  received  money  from 
them  on  the  credit  of  it ;  held  that  it  could  not 
be  considered  as  money  had  and  rece'rved  to  the 
bailor's  use  until  it  was  seen  whether  the  bill  waa 
paid  or  not.  Atkins  v.  Owen,  6  Nev.  &  M.  (k. 
B.)  309;  and  4  Ad.  <&  £11.  819. 

2.  In  assumpsit  for  money  had  and  received, 
alleged  in  the  particulars  to  be  sums  deposited 
with  the  defendant  as  stakeholder  of  a  wa^r 
which  the  plaintiff  had  won ;  held  that  the  plain- 
tiff failing  in  proof  of  this,  he  could  not  cvea 
recover  the  amount  of  his  own  deposit  upon  mere 
proof  of  having  demanded  back  his  stake  before 
paid  over,  as  upon  a  rescinding  the  wager,  being 
a  totally  different  issue.  Davenport  t>.  Davies,  1 
Mees.  &  W.  (ex.)  570 ;  and  1  Tyr-  *  ^  931. 

3.  Where  the  plaintiff  had  been  arrested  npoa 
a  claim  which  the  jury  found  that  he  knew  not 
to  be  well-founded,  aud  the  plaintiff  not  bein(g 
prepared  with  bail,  had  paid  a  sum  to  the  defen- 
dant, and  agreed  to  put  in  bail  to  the  actioe« 
which  was  not  aflerwards  proceeded  in;  held 
that  it  was  not  a  payment  in  lh«»  ordinary  aettae 
under  process  of  law,  and  might  be  recosreied 
back,  and  would  not  prevent  the  plaintiff  also 
maintaining  an  action  for  the  malicious  arrest. 
Duke  de  C^daval  «  Collins,  6  Nev.  db  M.  (k.  b.) 
324 ;  and  4  Ad.  &  EU.  856.  ^ 


[ASSUMPSIT] 


4.  Wheie  the  defendant,  a  certificated  bank- 
rapt^  was  arrested  for  a  debt  provable  under  the 
cominiasion,  which  he  paid  under  protest ;  held 
that  if  the  sheriff  were  not  entitled  to  take  it,  it 
might  be  recovered  back.  Payne  v.  Chapman,  4 
Ad.  &,  £11.  (K.  B.)  364. 

5.  Where  the  plaintiff,  being  present  at  an  or- 
der given  b^  the  defendant  for  goods,  said  he 
would  pay  if  the  latter  did  not,  and  which  he 
afterwards  did;  held  that  it  must  be  taken  to 
have  been  made  with  the  defendant's  authority, 
and  no  countermand  being  shown,  the  plaintiff 
was  entitled  to  recover  the  amount  as  for  money 
paid  to  the  defendant's  use.  Alexander  v.  Vane, 
1  Mees.  A  W.  (ex.)  511 ;  and  1  Tyr.  &  Gr.  865. 

6.  Where  the  plaintiff,  a  broker,  sold  for  the 
defendant  foreign  bonds,  which  turned  out,  for 
want  of  a  proper  stamp,  to  be  unmarketable,  and 
the  plaintiff,  according  to  the  usage  of  the  Stock 
£xcnange,  took  them  back;  held,  that  having 
paid  over  to  the  plaintiff  the  proceeds,  he  was 
entitled  to  recover  back  the  amount  as  ibr  money 
had  and  received ;  having  an  authority  to  sell, 
he  had  an  implied  one  to  sell  also  according  to 
the  usage,  and  to  rescind  the  sale  upon  the  bonds 
taming  out  not  to  be  what  they  were  represented 
to  he.    Toung  v.  Cole,  3  Bing.  N.  S.  (c.  r.)  724. 

7.  Where,  after  a  reftisal  by  the  Court  of  Chan- 
cery to  compel  performance  of  an  oral  agreement 
ibr  a  lease  by  testator  with  the  defendant,  part  of 
the  consideration  being  paid,  his  executors  con- 
sented to  grant  one  upon  the  same  terms,  and  a 
lease  was  accordingly  prepared  by  the  attorney 
of  the  plaintiff's  lessors,  and  his  bill  paid,  but 
the  lease  was  not  delivered  over,  the  remainder 
of  the  consideration  not  having  been  paid ;  held 
that  the  plaintiifii  were  entitled  to  recover  the 
amoant  or  charges  for  preparing  the  lease,  as  for 
monej^  paid  to  me  defendant's  nse,  and  to  sue  in 
their  personal  character.  Grissell  v.  Robinson,  3 
Bing.  N.  S.  (c.  p.)  10;  and  3  Sc.  329. 

8.  Where  a  party,  to  whom  a  bill  was  given  to 
get  dncounled,  received  and  misapplied  the  pro- 
ceeds, held  that  he  could  only  be  sued  for  the 
amoont  as  money  had  and  received,  and  not  in 
trover  for  the  bill.  Falmer  v.  Jarmain,  2  Mees. 
A  W.  (XX.)  582. 

9.  Where  a  bill  appeared  on  the  face  of  it  to 
have  been  dnwn  by  the  defendant,  the  captain 
of  the  pUintiff  's  ship,  or  his  agent ;  held  that, 
withoDt  evidence  of  the  money  coming  into  the 
defendant's  hands,  the  action  for  money  had  and 
xeoeived  could  not  be  maintained  against  him. 
Soott  e.  MiUer,  3  Bing.  N.  S.  (c.  p.)  811. 

10.  Upon  a  contract  entered  into  m  June  for 
work  to  be  paid  for  in  January,  1837,  on  condi- 
tion of  its  being  completed  in  a  proper  and  work- 
manlike manner  on  the  10th  of  October  previous, 
the  work  having  been  completed  by  the  15th  of 
October ;  held  that  the  plamtiff  was  not  bound 
to  declare  on  the  special  contract,  but  might  re- 
cover on  the  general  count  for  work,  labor  and 
materials,  liucas  v.  Godwin,  3  Bing.  N.  S. 
(c.F.)737;  and  4  Sc.  301. 

11.  Where  the  plaintiff  with  others  was  em- 
ployed as  land  agent  to  sell  the  defendant's  es- 
tates, and  a  party  inquiring  of  the  plaintiff  as  to 


one  estate,  was  told  that  it  was  out  of  the  market, 
but  mentioned  that  of  the  defendant^being  to  be 
sold,  and  gave  him  a  particular,  and  the  party  aA 
terwards  concluded  a  bar^in  for  it  with  another 
agent;  held,  tliat  the  plaintiff  might  be  said  to 
have  found  the  purchaser,  and  was  entitled  to 
such  commission  as  the  jury  should  think  proper. 
Murray  v.  Currie,  7  C.  &  f.  (n.  p.)  584. 

12.  Where  the  jury  found  the  usage  for  archi- 
tects employed  to  provide  plans  and  estimates,  to 
be  assisted  by  surveyors  to  make  out  the  quanti- 
ties, who  were  paid  by  the  successful  competitor ; 
held,  that  the  defendant's  employing  an  architect, 
and  making  no  objection  to  the  charge,  having, 
by  declining  to  go  on  with  the  work,  prevented 
competition,  were  Uable  for  the  surveyor's  char- 
ges on  the  implied  authority  of  their  architect  to 
employ  him.  Moon  v.  Witney  Guardians,  3 
Bing.N.  S.  (c.p.)814. 

13.  Where  the  defendant  removed  his  sons 
from  the  plaintiff's  school  on  tlie  ground  of  al- 
leged ill-treatment;  held,  that  questions  could 
not  be  asked  as  to  his  conduct  towards  other 
scholars;  held  also,  that  a  letter  containing  a  pro- 
spectus of  the  terms,  and  a  stipulation  added, 
that  in  consideration  of  sending  two,  certain  ex- 
tra charges  should  be  waived,  required  an  agree- 
ment-stamp ;  and  the  letter  having  been  produced 
on  notice,  held  to  be  in  the  custody  of  the  Court, 
and  an  officer  allowed  to  go  with  it  to  the  Stamp- 
office  to  get  it  stamped  whilst  the  trial  was  going 
on.    Clements  v.  May,  7  C.  &  P.  (n.  p.)  678. 

14.  Where  an  article  was  lent,  and  an  under- 
taking that  if  damaged  the  defendant  was  to  have 
it  and  pay  a  stated  sum ;  held,  to  be  a  contract 
for  a  conditional  sale,  and  upon  the  condition  bro- 
ken, the  plaintiff  entitled  to  recover  the  price  as 
for  goods  sold.  Bianchi  v.  Nash,  1  Mees.  &  W. 
(ex.)  545 ;  and  1  Tyr.  &  Gr.  916. 

15.  Where  evidence  was  only  offered  on  a 
count  for  work  and  labor;  held,  that  the  plaintiff 
could  not  recover  for  materials^  and  upon  a  plea 
of  nunq.  tni/e6.,  except  as  to  £r--- — ,  and  as  to  that 
judgment  by  default ;  and  the  junr  having  found 
that  less  than  that  sum  was  duo  for  work  and  la- 
bor, the  defendant  was  properly  nonsuited  on  the 
remaining  issue.  Heath  v.  Freeland,  1  Mees.  & 
W.  (ex.)  543 ;  1  Tyr.  &  Gr.  918 ;  and  5  Dowl. 
(p.  c.)  166. 

16.  Where  a  party  being  insolvent,  assigned 
over  his  stock  to  his  brother,  carrying  on  a  differ- 
ent trade,  in  consideration  of  his  securing  2$.  6d. 
in  the  pound  of  a  composition  of  5f.  made  with 
the  creditors ;  he  continued  to  manage  the  busi- 
ness for  the  brother,  whose  name  was  over  the 
door,  and  upon  an  application  by  a  creditor  for 
payment  of  the  composition,  offered  a  bill,  ex- 
ceeding the  amount,  with  his  brother's  name,  as 
indorser,  on  it,  but  put  without  authority,  and  an 
agreement  was  made  that  the  balance  should  be 
made  up  in  goods  to  be  supplied  for  the  shop ;  the 
brother's  wife,  who  occasionally  went  to  the  shop, 
being  a  consenting  •  party :  upon  the  dishonor  of 
the  bill,  and  an  action  against  the  brother  on  the 
bill  and  for  goods,  the  jury  finding  that  there  was 
a  general  authority  to  buy  goods  for  the  shop,  and 
that  the  goods  were  not  sold  on  the  credit  of  the 
bill  alone,  but  on  that  of  the  brother ;  held,  that 
the  value  of  the  goods  might  be  recorezed,  al- 


2670 


[ASSUMPSIT] 


thonffh  the  jni;  nentiTed  the  indonement  on 
the  hill  hein^  the  aefendant's,  and  that  he  had 
ever  had  notice  of  the  dishonor;  Rose  v.  Ed- 
wards, t  Mees.  &.  V/.  (ex.)  734;  and  1  Tyr.  &. 
Gr.  975. 

17.  A  schoolmaster  cannot  recover  for  wearing 
apparel  supplied  to  a  pupil  without  the  sanction, 
express  or  implied,  of  the  parents  or  guardian. 
Clements  v.  Williams,  8  C.  &  P.  (n.  p.)  58. 

18.  Where  a  father,  on  the  marria^^  of  his 
daughter,  executed  an  appointment  oT  a  sum 
which  was  settled  on  the  marriage,  the  expense 
of  the  settlement  was  paid  by  the  husband,  but 
he  refused  to  pay  for  the  expense  of  the  deed  of 
appointment ;  held,  not  a  matter  of  usage,  but 
for  the  jury  to  say  to  whose  credit  the  business 
was  done.  Hayward  v.  Fiott,  8  C.  &  P.  (n.  p.) 
59. 

19.  Where  stock,  the  trust  property  of  the  wife, 
was  improperly  sold  out  by  the  authority  of  the 
husband  and  wife ,  held  that  it  still  remained  a 
trust  fund  in  the  hands  of  the  agent  receiving  it, 
and  that  the  husband  could  not  maintain  an  action 
for  money  had  and  received,  it  never  havincr  been 
his  money.  Milebam  v.  Eycke,  3  Mees.  &,  W. 
(«x.)  407. 

20.  A  real  assignment,  putting  an  end  to  the 
liability  of  the  assignee,  which  continues  only 
80  long  as  the  privity  of  estate,  the  motive  of  as- 
signing or  receiving  it  does  not  make  it  fraudu- 
lent, if  it  really  operates  as  intended,  although 
made  to  a  beggar ;  but  although  the  legal  remedy 
may  be  gone,  yet  eouity  will  give  relief  as  to 
antecedent  breaches  or  covenant  committed  at  the 
time  the  party  was  liable  for  them.  Fagg  v. 
Dobie,  3  Younge  &  C.  (ex.  iq.)  96. 

21.  Where  the  defendant  obtained  payment  of 
an  entire  demand  on  a  false  representation  of  de- 
fault in  the  plaintiff's  agent  honoring  a  bill  given 
for  the  amount ;  held,  that  it  was  not  necessarv 
for  the  plaintiff  previously  to  tender  back  the  bill, 
the  right  of  action  accruing  on  the  payment  of  the 
money  upon  the  misrepresentation  of  the  facts. 
Pope  V.  Wray,  4  Mees.  &  W.  (xx.)  451. 

22.  Where  the  agents  of  the  plaintiff  in  Eng- 
land were  diiected  by  him  to  pav,  through  the  de- 
fendants, money  to  be  placed  to  his  credit  in  India, 
which  was  done,  and  an  entry  made  in  the  defen- 
dants* books  to  the  credit  of  their  correspondent, 
to  whom  they  sent  advice  to  account  for  it  to  the 
plaintiff;  before  the  letter  of  advice  reached  their 
correspondent,  the  latter  had  failed,  having  drawn 
on  the  defendants,  between  the  date  of  such  letter 
and  the  failure,  bills  which  the  defendants  had  ac- 
cepted to  an  amount  exceeding  tlie  amount  paid 
in  by  the  plaintiff;  held,  that  the  defendants  hav- 
ing only  acted  as  directed,  and  the  sitdation  in 
which  they  stood  towards  their  correspondents  al- 
tered, the  plaintiff  could  not  maintain  assumpsit 
against  them  for  the  money  so  paid  in.  M'Arthy 
V.  Colvin,  1  Perr.  d&  Dav.  (q.  b.)  429. 

23.  Where  a  party  carr3ring  on  the  wine  and 
spirit  business  assigned  his  premises  by  way  of 
mortgage,  with  all  licenses,  &c.,  to  the  plaintiff, 
whi^  was  shortly  afterwards  forfeited  on  account 
of  some  irregularities  by  the  occupier ;  the  plain* 
tiff  afterwards  sold  the  mortgaged  premises,  un- 


der a  power  in  the  mortgsipe  deed,  without  obtnn- 
ing  a  new  license,  and  which  the  defendant,  the 
assignee  of  the  mortgagor,  afterwards  obtained, 
which  he  sold  to  a  subsequent  occupier ;  held, 
that  the  license  so  obtained  by  the  defendant  was 
not  the  license  conveyed  to  the  plaintiff,  and  that 
the  interest  having  ceased  when  the  premises 
were  sold  in  discharge  of  the  mortgage,  the  sum 
received  by  the  defendant  on  the  safo  of  the  li- 
cense was  not  money  received  to  the  plaintiff's 
use.    Manifold  v.  Morris,  5  Bing.  N.  S.  (c.  p.)  420. 

24.  Where,  at  a  meeting  of  the  plaintiff  and 
defendant  to  settle  the  account,  the  clerk  of  the 
former  made  the  entries  into  one  book  which  the 
defendant  copied  in  another,  but  no  admission  was 
made  as  to  the  correctness  of  the  items,  but  the 
defendant  admitted  that  the  balance  against  him 
as  stated  by  the  clerk  was  correct,  but  aidded,  that 
as  he  had  done  many  things,  there  would  not  be 
much,  if  any  thing,  between  them ;  held,  that 
the  plaintiff's  book  would'  not  bind  the  defendant 
so  as  to  req'dire  its  production,  or  its  absence  to 
be  accounted  for :  held  also,  that  the  defendant's 
admission  was  evidence  of  something  due  on  the 
account  stated.  Rigby  v.  JeffrvS)  7  Dowl.  (p.c.) 
561. 


[C]   Pleadings  iif. 

1 .  Where  the  declaration  was  for  *'  money  lent, 
and  on  an  account  stated,"  and  the  particolars 
contained  only  one  item  for  money  lent,  and  it 
appeared  that  the  debt  arose  out  of  a  bet ;  held 
that,  on  the  plea  non  assumpsit^  the  question  of 
illegality  did  not  arise,  and  that  the  plaintiff  might 
consistently  recover  on  the  latter  count.  Ste- 
vens V.  Willingale,  7  C.  &  P.  (k.  p.)  702. 

2.  Pleas  in  assumpsit  of  part  payment  and  a 
set-off  which  the  plaintiff  consented  to  allow; 
held  that  he  was  entitled  to  a  verdict  on  the  count 
for  goods  sold,  but  that  the  amounts  allowed 
should  be  indorsed  on  the  posUa.  Butt  v.  Burke, 
7  C.  &  P.  (ir.  p.)  806. 

3.  Under  the  general  issue  in  assumpsit  for 
goods  sold,  the  defendant  may  be  allowed  to 
show  that  they  were  sold  on  a  credit  not  expired. 
Broomfieldv.  Smith,  1  Mees.  &.  W.  (ex.)  542; 
and  1  Tyrw.  &  Gr.  929. 

4.  A  defendant  can  only  be  made  chargeable 
for  a  breach  of  the  promise  laid,  and  the  Uourt 
will  not  pick  out  of  various  parts  of  the  record  a 
different  cause  of  action  from  that  for  which  the 
plaintiff  proceeds ;  where,  therefore,  the  promise 
laid  was  to  pay  a  debt  before  due,  and  also  the 
price  of  goods  to  be  delivered,  by  an  accept- 
ance for  the  whole  amount,  and  the  plea  showed 
a  failure  of  part  of  the  consideration  for  the 
promise ;  held,  on  demurrer,  to  be  an  answer  to 
the  declaration.  Head  v.  fialdrey,  2  Nev.  A  P. 
(k.  b.)  217 ;  and  6  Ad.  A  £11.  459. 

5.  So,  where  the  declaration  was  on  an  agree- 
ment for  a  demise  of  a  house,  to  be  furnished, 
&c. ;  held,  on  demurrer  to  a  plea  that  the 
promise  related  to  an  interest  in  land,  and  no 
note  in  writing,  that  the  action  was  not  maintsin- 
able.  MecheUen  v.  Wallace,  2  Mev.  dk  P.  (k.  b.) 
224. 


[ASSUMPSIT— ATTORNEY] 


2671 


6.  In  at$M!mpnt  on  an  a^rreement  to  Bjnign  the 
lease  of  premiies,  the  furniture  to  be  taken  at  a 
▼aluation,  the  declaration  averring  that  the  plain- 
tiff was  ready  and  willing  to  assig^n,  &c. ;  plea, 
traversing  that  the  plaintiff  was  ready,  &c. ;  the 
ooropletion  of  the  agreement  was  by  subsecjuent 
indorsement,  postponed  from  the  1st  to  the  6th  of 
January,  and  on  tne  evening  of  the  day  on  which 
it  was  signed,  the  premises  were  partly  destroyed 
by  fire ;  tne  plaintiff  was  the  widow  of  a  sublessee, 
and  had  not  then  taken  out  administration,  but  did 
so  before  the  Ist  of  January ;  held,  Ist,  that  the 
party  being  bound  to  complete  the  contract  in  the 
terms  stipulated,  which  it  was  out  of  her  power  to 
do,  the  contract  could  not  be  carried  into  effect  by 
the  parties :  2dl^,  that  the  postponement,  under 
the  change  of  circumstances,  was  a  new  contract, 
requiring  a  new  stamp,  (Farke,  B.,  dub.  whether 
the  Court  could  assume  it  to  be  a  subject  of  agree- 
ment of  the  value  of  20Z.);  and  stmb.,  the  con- 
tracting party  not  being  able  to  make  a  good  title  at 
the  time  the  contract  was  to  be  carried  into  effect, 
the  issue  whether  the  plaintiff  was  lawfully  pos- 
sessed of  the  interest  at  the  time  of  making  the 
contract,  was  an  immaterial  issue.  Bacon  v, 
Simpson,  3  Mees.  &  W.  (ex.)  78. 

7.  In  assumpsit  on  an  executory  consideration, 
which  in  the  declaration  was  alleged  to  have  been 
performed;  held,  that  it  could  not  come  into 
question  on  the  general  issue,  but  that  if  the  de- 
fendant meant  to  insist  that  any  part  of  the  con- 
aideration  was  unperformed,  the  point  should  have 
been  raised  on  the  pleadings.  Gibson  v.  Harris, 
8  C.  &  P.  (».  F.)  278. 

8.  Declaration  in  assumpsit,  stating  that  the 
plaintiff,  as  author,  &c.,  had  composed,  &c.,  and 
nad  right  to,  &c.,  and  would  sell  the  copyright 
to  the  defendant,  the  latter  promised  to  buy  of 
the  plaintiff  his  said  right ;  plea,  that  defendant 
did  not  promise  in  manner,  ^c. ;  held,  that  the 
defendant  must  be  taken,  as  renirded  the  jury,  to 
have  admitted  that  the  plaintiff  did  sell,  and  had 
the  right,  and  was  the  author,  which,  if  intended 
to  be  disputed,  should  have  been  put  in  issue  by 
specially  pleading.  Oe  Pinna  v.  PolhiU,  8  C.  & 
P.  (».  p.)  78. 

9.  In  assumpsit  for  work  and  labor  by  the  plain- 
tiff's testator,  as  an  attorney ;  plea,  denying  that 
the  defendant  had  had  the  lienefit  of  the  testator's 
skill,  but  that  the  business  was  done  by  another 
in  his  name, and  the  transaction  illegal;  held, 
that  not  consisting  of  mere  matter  of  excuse  for 
ncm-perfbrroance  of  the  contract  declared  on,  the 
general  replication  de  injuria,  was  bad,  but  that 
Uie  objection  could  only  be  taken  advantage  of  as 
a  cause  assigned  on  general  demurrer.  Parker  v. 
Riley,  3  Mees.  A,  W.  (ix.)  230 ;  and  6  Dowl.  (p. 
c.)375. 


ATTAINDER. 

Whers  the  plaintifis  were  equitable  mortgagees 
of  ]easeh<rfds,  the  legal  title  in  which  became 
vested  in  the  Crown  by  the  conviction  of  the 
mortgagor  of  felony ;  held,  that  the  only  decree 
whien  eoold  be  made,  was  to  declare  the  plaintiffii 
to  be  equitable  mortgagees  in  respect  of  tneir  lien, 
and  to  direct  an  aeeount  to  be  taken,  and  that 
they  might  hold  powMsion  until  their  Uen  sboold 


be   satisfied.      Hodges  v.  Attorney-General,   3 
Yoonge  &  C.  (xx.  zq,.)  342. 

ATTESTATION. 
See  Power. 


ATTORNEY. 
[A]    Examination — admission — rk-adhis- 

8I0N. 
[B]      LlABILITT — AUTHORITY     OF     CoURT 
OVKR. 

[C]    Bill — taxatiom  of. 

[D]     PrIVJLKOCS — LIKN. 


[A]   Examination — admission — rk- admis- 
sion. 

1.  Appointment  of  examiners,  1  Nev.  A  P.  (k. 
B.)  575 ;  and  5  Dowl.  (p.  c.)  1. 

2.  Where  the  omission  to  insert  the  name  in  the 
Master's  list  did  not  arise  from  the  party's  own 
neglect,  the  Court  allowed  it  to  be  introduced  on 
the  first  day  of  term,  although  the  three  days' 
notice  under  5  Reg.  Hil.  6  W.  4,  had  not  beien 
given.    Blunt,  ex  parte,  5  Dowl.  (p.  c.)  231. 

3.  The  Court  will  in  future  require  the  notice 
to  be  delivered  at  the  Master's  office  three  clear 
days  before  th<*  commencement  of  the  term  pre- 
ceding the  admission.  Pranglcy,  in  re,  6  Nev.  & 
M.  (K.  B.)  421;  and  4  Ad.  &  Ell.  781. 

4.  Sunday  is  to  be  reckoned  as  one  of  the  three 
clear  days  lor  delivery  of  the  notice  at  the  Mas- 
ter's office.  Bumps,  ex  parte,  5  Dowl.  (p.  c.) 
713. 

5.  The  Court  will  not  admit  of  the  excuse  of 
ignorance  for  not  complying  with  the  rules  laid 
down  by  the  examiners  for  transmitting  the  an- 
swers :  where  it  had  arisen  from  the  neglect  of 
the  agent,  permission  given  to  send  them  in  on 
payment  of  costs  of  application  bv  the  agent. 
Holland,  ex  parte,  5  Dowl.  (p.  c.)  681. 

6.  Where  shortly  before  applying  for  admission 
the  party  dulv  changed  his  name  and  the  notice 
had  been  in  the  new  name,  the  Court  allowed  the 
admission  on  the  terms  of  the  notice  being  up 
until  the  end  of  the  term  with  both  names.  Rid- 
ley, ex  parte,  6  Nev.  d&  M.  (k.  b.)  436 ;  and  4  Ad. 
&  Ell.  780. 

7.  Where  the  part^  having  paid  the  higher 
duty  on  the  articles  of  clerkship  had  been  aomit^ 
ted  in  the  Court  of  Great  Session  in  Wales  before 
11  Geo.  4,  and  1  W.  4,  c.  70,  held  entitled  to  be 
admitted  in  K.  B.  without  examination,  although 
he  had  never  taken  out  his  certificate  or  prac- 
ticed. Williams,  ex  parte,  5  Ad.  &  Ell.  (x.  b.) 
140 ;  and  5  Dowl.  (p.  c.)  236. 

8  Where  he  had  been  admitted  of  the  Court  of 
K.  B.  and  Court  of  C.  P.  Lancaster,  but  had 
ceased  practicing  and  became  a  superintendent  of 
collieries,  and  atterwards  been  re-admitted  of  the 
latter  court  upon  the  usual  notices  there  pre- 
viously to  the  6  rule  of  Hil.  4  W.  4,  held  enti- 
tled to  be  re-admitted  in  K.  B.  without  the  affi- 
davit required  by  that  rule.  Miller,  ex  parte,  4 
Ad.  A  Ell.  (K.  B.)  1006. 


3672 


[ATTORNEY] 


9.  Where  the  article  expired  onl^r  on  the  day 
afler  the  period  fixed  by  the  ezaminers  for  de- 
positing them  pursuant  to  the  Reg.  East.  6  W.  4, 
the  Court  ordered  them  to  be  received.  Cooper, 
ex  parte,  5  Dowl.  (p.  c.)  703. 

10.  A  party  about  to  sail  for  India  before  the 
regular  period  would  expire,  allowed  to  be  ad- 
mitted without  friving  a  full  term's  notice.  Han- 
cock, ex  parte,  4  Ad.  &  £11.  (x.  b.)  779. 

11.  Where  under  peculiar  circumstances  his 
name  had  only  been  off  the  roll  for  two  days,  al- 
lowed to  be  re-admitted  on  payment  of  QOs.  and 
arrears  of  duty.  Minchin,  ex  parte,  5  Dowl.  (p. 
c.)  253. 

12.  Where  an  attorney  who  had  been  duly  ad- 
mitted and  taken  out  certificates  for  several  years, 
but  omitted  to  take  them  out  during  three  years 
in  which  he  had  practiced  in  the  County  Court, 
held  not  to  be  liable  to  the  penalties  imposed  by 
12  Geo.  2,  c.  13,  s.  7.  Hodkinson  v.  Mayor,  1 
Nev.  &  P.  (K.  B.)  397. 

13.  Where  the  party  had  only  practiced  in  a 
borough  court,  and  served  process  for  other  attor- 
Dies,  allowed  to  be  re-admitted  without  fine  or 
arream.    Thomson,  ex  parte,  5  Dowl.  (p.  c.)  275. 

14.  Where  he  had  ceased  taking  out  his  cer- 
tificate, and  practiced  only  in  the  hundred  court, 
he  was  allowed  to  be  re-admitted  only  on  terms 
of  paying  all  arrears  of  duty.  Binns,  ex  parte, 
4  Ad.  &  £11.  (K.  B.)  1005. 

15.  Where  afler  obtaining  a  rule  for  re-admis- 
sion he  was  prevented  from  practicing  from  ill 
health,  the  court  allowed  his  re-admission  in  the 
subsequent  year  upon  the  usual  terms,  without 

Sving  the  usual  Doticet.    French,  ex  parte,  5 
owf  (p.  c  )  374. 

16.  Afler  thirty  years*  discontinuance  of  prac- 
tice, the  court  refused  to  allow  him  to  be  re-ad- 
mitted.   Billings,  ex  parte,  5  Dowl.  (p.  c.)  395. 

17.  The  Court  refused  to  allow  a  clerk  under 
^21  to  be  examined,  with  a  view  to  admission  ailer 
Attaining  full  age.  Cragg,  ex  parte,  6  Dowl.  (p. 
c.)2d6. 

18.  Notice  for  admission  allowed  to  be  amended 
hy  inserting  the  name  of  one  of  the  parties  with 
vhom  he  had  served,  which  had  been  accidentally 
omitted.    Collins,  ex  parte,  6  Dowl.  (p.  c.)  495. 

19.  Where  the  notice  in  Hil.  was  for  admission 
m  Trin.  Term,  but  the  application  was  not  made 
until  Mich.  Term,  the  Court  refused  to  admit 
him,  but,  under  the  circumstances,  allowed  the  pe- 
riod during  which  the  certificate  was  to  be  in 
force,  to  be  enlarged,  and  notice  to  be  given  for 
admission  on  the  last  day  of  Hilary  Term.  Sou- 
thern, ex  parte,  1  Dowl.  (p.  c.)  26. 

20.  A  certificate  omitted  by  accident  to  be  en- 
tered at  the  Master's  office,  allowed  to  be  entered 
nunc  pro  tunc,    Graddon,  ex  parte,  6  Dowl  (p.  c.) 

21.  Where  the  master  died  shortly  before  the 
expiration  of  the  articles,  and  the  clerk  subse- 
quently completed  the  term  with  the  agent  of  a 
party  to  whom  he  was  assigned,  the  Court  allow- 
ed him  to  be  examined  for  admission.  Tomkins, 
ex  parte,  6  Dowl.  (p.  c.)  3. 

22.  Where  the  plaintiff,  an  attorney,  (upon  mo- 
tion for  setting  aside  a  judgment  obtained  by  him 


for  business  done)  appeared  tobaTe  been  admitted, 
and  taken  out  his  certificate  until  1820,  when  he 
ceased  to  do  so,  and  in  1823  obtained  a  rule  for 
his  re-admission,  but  omitted  to  take  out  his  certi- 
ficate for  three  years,  although  in  that  time  it  was 
sworn  he  had  not  practiced  ;  held  that,  upon  the 
construction  of  ^  Geo.  3,  c.  90,  s.  31,  and  uni« 
form  practice  in  respect  of  it,  he  was  bound,  on 
such  re-admission,  to  have  taken  out  his  certificate 
forthwith  ;  and  that,  not  having  done  so,  his  re- 
admission  became  null  and  void,  and  that  he  could 
not  avail  himt^elf  of  the  judgment  and-  securities 
obtained  for  business  done  in  the  character  of  an 
attorney  during  that  period.  Wilton  v.  Chamben, 
2  Nev.  &  P.  (q.  B.)  303. 

23.  The  Court  refused  to  allow  the  name  of  an 
attorney  on  the  roll  to  be  altered  in  consequence 
of  his  having  assumed  an  additional  one.  Ware, 
ex  parte,  6  Dowl.  (p.  c.)  311  but  aflerwards  al- 
lowed it  to  be  addea  to  that  on  the  roll.    lb.  463. 

24.  Where  the  examiners  have  doubt  as  to  the 
validity  of  the  service  under  the  articles,  they 
ought  to  examine  the  party  de  bene  esse,  in  order 
to  raise  the  question  or  the  sufilciency.  Exami- 
ner's Case,  5  Bing.  N.  S.  (c.  p.)  70;  and  6  So. 
782.  S.  C.  Masterman,  ex  parte,  7  Dowl.  (p.  c.) 
156. 

25.  Where  the  delay  in  returning  the  answer 
pursuant  to  Reg.  Easter,  6  Will.  4,  had  been  oc- 
casioned by  the  unexpected  absence  of  the  attor- 
ney with  whom  the  articles  had  been  served,  the 
Court  allowed  them  to  be  sent  nunc  pro  tune. 
Lyons,  ex  parte,  6  Dowl.  (p.  c.)  517. 

26.  Where  the  first  day  of  Easter  Term,  as 
constituted  by  11  Geo.  4,  and  I  Will.  4,  c.  70,  s. 
6,  was  on  a  Sunday,  which  fell  on  the  15th  April, 
and  the  notices  required  by  5  Reg.  Gen.  Hii.,  6 
Will.  4,  were  delivered  on  the  18th  ;  held  suffi- 
cient.   Bayley,  ex  parte,  6  Dowl.  (p.  c.)  516. 


27.  Where,  after  notice,  the  party  having  , 

ed  one  examination,  had  failed  in  obtaining  his 
certificate  of  fitness ;  held,  that  he  must  give  a 
fresh  term's  notice  to  the  examiners  of  his  inten« 
tion  to  apply  to  be  again  examined.  Henry,  ex 
parte,  1  rerr.  ik.  D.  (q.  b.)  71. 

28.  Where  the  master  became  insane,  and  the 

clerk  been  articled  anew,  the  Conrt  allowed  the 

latter  articles  valid,  and  to  be  enrolled.    Darbell, 

ex  parte,  6  Dowl.  (p.  c.)  505. 

« 

29.  The  case  of  Fussell,  ex  parte,  reversed  by 
the  Lord  Chancellor  in  Prideaux,  ex  parte,  3 
Myl.  Sl  Cr.  (ch.)  327. 

30.  Fees  on  admissions,  distribution  of  amongst 
the  Judge's  clefks  and  ushers  by  Reg.  Mich.  2 
Vict.,  4Mees.  dt  W.  (ex.)  342;  and  5  Bing.  N. 
S.  (c.  p.)  160. 

31.  Where  an  attorney  omitted  to  take  out  his 
certificate  for  more  than  a  year  afler  admission ; 
held,  that  admission  denovcwta  not  neoessary, 
but  that  having  been  re-admitted  without  firand, 
he  was  restored  to  a  capacity  of  acting ;  but  the 
objection  to  an  order  for  taxation  of  nis  bill  on 
the  ground  of  his  being  incapable  of  acting,  is  a 
^ound  of  application  by  petUiony  and  not  ^  mO' 
tion.  Chambers,  ex  parte,  In  re  Wilton,  2  Keene 
(CB.)  497. 


[ATTORNEY] 


2673 


33.  The  Court  refused  to  allow  his  name  to  be  ^ 
altered  on  the  roll  by  adding  one  for  which  he 
had  obtained  the  royal   license.     Hayward,  ez 
parte,  5  Sc.  (c.  p.)  712. 

33.  Where  the  party  was  duly  admitted  in  1814, 
but  never  took  out  his  certificate  for  a  period  of 
24  years ;  held,  that  he  need  not  be  re-admitted, 
but  might  at  once  take  out  his  certificate.  Mar- 
shal, ex  parte,  6  Dowl.  (p.  c.)  526. 

34.  An  attorney  who  has  been  re-admitted  is 
thereby  within  the  1  &  2  Vict.  c.  45,  s.  3,  and 
entitled  to  practice  in  the  other  courts.  Thomp- 
son, ez  parte,  5  Bing.  N.  8.  (c.  p.)  360.  S.  P. 
Martin,  ez  parte,  7  Dowl.  (p.  c.)  334. 

And  see  Arrest;  Execution,  and  tn/ra,  (B)  4. 

[B.]  Liability — authority  of  Court  ovzr. 

i.  Where  the  defendant  being  employed  to 
nise  money  for  the  plain  tiffon  mortgage,  disclosed 
defects  of  title,  whereby  plaintiff  was  put  to  ex- 
pense by  actions  brought  by  the  proposed  lender, 
sjid  delayed  in  obtaining  the  loan,  and  obliged  to 
pay  higher  interest ;  held  to  be  an  injury  arising 
from  a  gross  breach  of  defendant's  duty,  and  sub- 
jecting him  to  an  action  at  law ;  and  it  was  im- 
material that  the  plaintiff  knew  him  to  be  en- 
gaged also  as  the  attorney  of  the  lender.  Taylor 
V.  Blacklow,  3  Bing.  N.  S.  (c.  p.)  235^  and  3'Sc. 
614. 

2.  In  iusumptU  on  an  attorney's  bill,  plea  that 
the  defendant  conducted  the  business  negligently 
and  unskilfully,  that  his  labor  was  useless,  and 
that  it  was  upon  an  undertaking  to  indemnify  the 
defendant  against  costs ;  held  Md  on  general  de- 
morrer,  as  amounting  to  the  general  issue.  Hill 
V.  Allen,  2  Mees.  d&  W.  (ex.)  2S3;  and  5  Dowl. 
(p.  c.)  471. 

3.  In  a  declaration  on  concessit  solvere  in  a  ma- 
nor court,  it  cannot  be  inferred  from  a  mere  pro- 
mise that  the  consid(*ration  for  it  arose  within  the 
jurisdiction,  and  held  gross  negligence  in  the  at- 
torney prosecuting  such  plaint,  without  other 
CYidence  than  such  bare  promise,  and  the  cause 
of  action  clearly  arising  out  of  the  jurisdiction 
for  which  he  was  liable.  Williams  v.  Gibbs,  5 
Ad.  &>  £U.  (K.  B.)  208. 

4.  An  articled  clerk  held  an  apprentice  within 
6  Geo.  4,  c  16,  s.  49,  and  upon  the  bankruptcy  of 
his  master  as  a  scrivener,  entitled  to  a  return  of 
part  of  the  premium.  (Erskinc,  C.  J.  diss.) 
Fussell,  ex  parte,  2  Deac.  (b.)  158 ;  and  3  M.  & 
Ayr.  67. 

5.  Where  an  aettoo  for  negfigenee  and  for  mo- 
ney had  and  reoeired  was  brought  against  an 
attorney,  who  pleaded  the  Staitate  of  Limitations 
as  to  the  former,  whcMi  a  iuror  was  withdrawn, 
and  the  cause  was  referred,  as  to  the  pecuniary 
accounts,  with  power  to  have  the  defendant's  bill 
taxed,  and  that  **  no  question  of  liability  was  to 
be  raised,"  the  arbitrator  having  awarded  a  um 
doe  to  the  plaintiff,  in  consequence  of  charges 
having  been  excluded  upon  evidence  that  tho  de- 
fendant was  not  sn  sitomey  of  the  superior 
eoorta,  the  Court  directed  the  award  to  be  sst 
aside,  unless  the  plaintiff  would  consent  to  go 


before   the  arbitrator,  and  have  the  balance 
certained  upon  the  whole  account.    Harries  v, 
Thomas,  2  Mees.  «fc  W.  (ex.)  32. 

6.  The  Court  will  not  in  the  first  instance 
grant  a  rule  nisi  for  an  attachment  against  him 
for  not  delivering  up  papers,  but  only  afler  a  pre- 
vious rule  for  such  delivery.  Roscoe  v.  Hard- 
man,  5  Dowl.  (p.  c.)  157. 

7.  So,  for  payment  over  of  money.  Twiss  v. 
Fry,  lb.  157. 

8.  And  where  he  was  specially  retained  as  at* 
torney  to  prepare  deeds,  and  received  the  money 
raised  by  the  mortgage,  the  Court  would  compel 
him  summarily  to  account  for  it.  Crip  well,  ez 
parte,  5  Dowl.  (p.  c.)  689. 

9.  The  Court  made  an  order  for  his  accounting 
fur  money  received  on  behalf  of  his  client,  plain- 
tiff  in  a  suit,  notwithstanding  the  lapse  of  nine 
years.    Sharpe,  ez  partej  5  Dowl.  (p.  c.)  717. 

10.  Under  circumstances,  service  of  a  rule, 
calling  on  an  attorney  to  pay  money,  allowed  to 
be  made  on  his  agent.  Burrell  v,  Seaton,5  Dowl. 
(p.  c.)  601. 

11.  Afler  payment  of  the  debt  to  the  attorney's 
clerk  ailer  the  issuing  of  the  writ,  held  that  he 
ought  to  have  proceeded  no  further,  and  proceed* 
ings  stayed  on  payment  of  the  costs  of  the  writ. 
Wyllie  V.  Phillips,  5  Dowl.  (p.  c.)  644. 

12.  The  Court  has  no  authority  to  compel  an 
attorney  not  admitted  in  that  court  to  pay  over 
money  received  in  a  cause  conducted  by  him  in 
another  Court.  Sharp  v.  Hawker,  3  Bing.  N.  S. 
(c.  p.)  66 ;  3  Sc.  396;  and  5  Dowl.  (p.  c.)  186. 

13.  Where  the  miscondnet  arose  at  the  time  of 
the  party  acting  onlv  in  the  court  of  Great  Ses- 
sions, although  he  had,  after  the  11  Geo.  4,  and 
1  Will.  4,  c.  70,  become  an  attorney  of  K.  B. ; 
held  that  the  court  had  no  jurisdiction  over  the* 
matter.     Williams,  in  re,  5  Dowl.  (p.  c.)  236. 

14.  The  court  refused  summarily  to  compel  the 
attorney  to  fulfil  an  undertaking  to  indemniftr 
against  costs  a  partv  whose  name  he  had  usea,, 
the  proper  remedy  being  by  action  on  his  con- 
tract to  indemnify.  Clifton,  ez  parte,  5  Dowl. 
(p.  0.)  218. 

15.  Nor  to  require  him  to  answer  the  matters? 
in  the  affidavit  on  the  ground  of  his  having  hire<£ 
insufficient  bail.  Clifford  v.  Parker,  5  Dowl.  (p^ 
c.)  236. 

16  Where  a  defendant  is  made  party  by  ai» 
attorney  without  authority,  the  Court  will  not  in> 
terfere,  unless  it  appears  that  the  attorney  is  in- 
solvent. Stanhope  v.  Firmin,  &c.,  3  Bing.  N.  S. 
(c.  p.)  301. 

17.  But  where  ezecution  had  issued  against  a 
party  made  a  co-defendant,  and  the  defence  con- 
ducted without  his  authority  or  knowledge,  the 
Court,  upon  being  satisfied  of  the  insolvency  oT 
the  attorney,  made  absolute  a  rule  for  restoring 
the  amount  levied.    8.  C.  4  Sc.  (c.  p.)  39. 

18  Where  a  rule  for  answering  matters  is  to 
be  made  absolute,  he  vnnfi  be  called  in  Court. 
Whicher,  ex  parte,  5  Dowl   (p.  c .)  715. 

10.  There  is  no  implieri  contract  on  the  part  of 
the  attorney,  on  subpoenaing  witnesses,  to  pay 
tlieir  expenses ;  held,  therefore,  not  liable  to  an- 
aeliott  «t  tiie  sait  of  a  witness  for  such,  expenses.. 


2674 


[ATTORNEY] 


Robins  v.   Bridge,  6  Dowl.   (p.  c.)  140;  and  3 
Mees.  4&W.  (ex.)  114. 

20.  Where  the  jury  are  satisfied  that  no  debt 
was  due,  and  that  the  attorney  arresting  the 
plaintiff  had  the  means  of  knowing  that  the  debt 
was  not  due,  but  put  the  law  in  force  from  some 
improper  motive;  held,  that  the  action  for  a  mali- 
cious arrest  was  maintainable  against  the  attor- 
ney ;  and  any  improper  or  sinister  motive  would 
be  sufficient  eviaence  of  malice.  Stockley  v. 
Hornidge,  8  C.  &.  F.  (if.  p.)  11. 

21.  Where  the  attornies  merely  gave  the  pre- 
cept to  the  bailiff,  without  directing  or  authorizing 
it  to  be  executed  in  any  particular  place,  and 
the  bailiff  executed  it  without  his  jurisdiction  ; 
held  that,  although  the  defendants  might  not  be 
entitled,  at  the  eloiie  of  the  plaintiff's  case,  to  an 
acquittal,  yet  that  the  Judge  was  bound  to  have 
directed  the  jury  that  there  was  no  evidence  im- 
plicating them,  although  they  might  have  had 
reason  to  know  where  the  bailiff  would  levy,  and 
that  the  co-operation  of  tlie  defendants  in  the  un- 
lawful entry,  was  not  to  be  assumed  from  their 
having  alleged  the  lawfulness  of  the  Act  as  done 
within  the  jurisdiction,  in  their  special  pleas.  So- 
well  V.  Champion,  6  Ad.  &,  £U.  {(^.  b.)  412. 

22.  The  affidavits  on  a  motion  requiring  an  at- 
iomey  to  deliver  up  a  bill,  the  subject  of  claim  in 
an  action,  held,  properly  entitled  m  such  action, 
and  that  be  could  not  be  allowed  to  object  that  he 
had  ceased  to  be  an  attorney  of  the  Court.  Simes 
9.  Gibbs,  6  Dowl.  (p.  c.)  310. 

23.  An  affidavit  in  support  of  a  motion  for  an 
attachment  against  an  attorney  for  a  contempt, 
held  sufficient,  although  not  in  terms  describing 
him  as  such.  Downton  v.  Stiles,  4  Bing.  N.  S. 
<c.  p.)  122;  and  6  Oowl.  (p.  c.)  189. 

24.  The  Court  enforced  a  Judge's  order  for  an 
attorney  (one  of  the  trustees)  to  deliver  to  the 
cestui  que  trust  the  draft  of  the  trust  deed  for  which 
he  had  paid.  Holdsworth,  ex  parte,  4  Bing.  N. 
S.  (c.  p.)  386. 

25.  Where  the  plaintiff  was  arrested  on  a  ca.  sa. 
which  was  set  aside  for  irregularity,  held  that  the 
attorney  issuing  it  was  liable  in  trespass.  Cod- 
jrington  v.  Lloyd,  3  Nev.  &  P.  (q.  b.)  442. 

26.  The  Court  refused  to  interfere  against  an 
.attorney,  on  the  ground  of  perjury  in  the  affida- 
vit for  increased  costs,  where  there  was  nothing 
amounting  to  an  admission  by  him,  rendering  the 
interposition  of  a  jury  unnecessary.  In  re,  3  r^ev. 
Sl  p.  (q.  B.)  389. 

27.  Although  an  authority  may  be  given  to  file 
a  bill  by  parolj  yet  the  solicitor  must  aoide  by  the 
consequence,  it  he  omit  to  take  a  written  author- 
ity ;  where  there  was  assertion  against  assertion, 
order  made  to  take  the  bill  off  the  file.  Martin- 
dale  V.  Lawson,  1  Coop.  (ch.  c.)  83. 

28.  Where  a  bill  was  filed  without  the  author- 
ity of  one  of  the  co-plaintiffs,  his  name  ordered 
to  be  struck  out,  after  replication,  and  the  costs 
of  suit  and  of  the  application  to  be  paid  by  the 
^icitor  filing  the  bill.  Tabbemor  v.  Tabbernor, 
2  Keene  (ch.)  679. 

29.  Where  the  attorney  refused  to  proceed  in 
the  suit  luUesf  he  were  paid  the  costs  then  in- 


curred, and  also  the  costs  of  an  action  at  law, 
held  that  he  was  not  justified  in  the  demand  of 
both,  and  that  it  amounted  to  a  discharging  him- 
self :  he  was  therefore  ordered  to  deliver  over  the 
papers  to  another  solicitor,  but  subject  to  his  lien, 
and  to  be  returned  after  the  hearing.  Heslop  v. 
Metcalf,  8  Sim.  (ch.)  622. 

30.  Where  an  undertaking  was  given  by  a  so- 
licitor in  a  suit  pending  in  Chancery,  the  Court 
refused  summarily  to  interfere  to  enforce  it  Gar- 
land, in  re,  6  Dowl.  (p.  c.)  512. 

31.  So,  where  the  attorney  gave  an  undertak- 
ing to  enter  an  appearance  for  the  defendant,  the 
Court  refused  to  compel  him  to  give  security  for 
the  debt  and  costs.  Morris  v.  James,  6  Dowl. 
(p.  c.)  514. 

32.  The  Court  refused  to  make  the  attorney 
pay  the  costs  of  an  application  for  a  criminal  in- 
formation against  magistrates  for  having  corrupt- 
Iv  refused  to  examine  witnesses  for  the  defen- 
dants on  a  charge  of  perjury,  he  not  appearing  to 
be  a  party  to  the  act,  nor  actually  shown  to  have 
signed  the  notice  of  the  application.  R.  v,  Thi^ 
mas,  7  Ad.  &  £U.  (q.  b.)  m 

33.  An  attorney  receiving  an  offer  of  compro- 
mise, if  not  communicated  to  his  client,  goes  on 
at  his  own  risk,  and  cannot  charge  his  client  with 
subsequent  costs ;  but  as  it  is  his  duty  to  comma- 
nicate  such  offer,  it  will  be  presumed  be  did  so, 
unless  the  negative  be  shown.  Sill  v.  Thomas,  6 
C.  &P.(H.  p.)  762. 

34.  Where  there  was  no  attorney  for  the  defen- 
dant on  the  record,  but  after  an  appearance  had 
been  >entpred  by  the  plaintiff  for  him,  according 
to  the  statute,  an  attorney  accepted  the  declara- 
tion for  him,  and  took  out  a  summons  to  plead 
several  matters ;  held  that  another  attorney  coold 
not  act  without  a  rule  for  changing  the  rorraer. 
Hay  V.  Pike,  4  Mees.  (Sl  W.  (ex.)  197;  and  6 
Dowl.  (p.  c.)  667. 

And  see  Bankrupt ;  Fraud  ;  Trustee. 


[C]  Bill — ^taxation  of. 

1.  Where  the  attorney  was  employed  on  the 
joint  retainer  of  two  plaintifis,  one  of  whom  ob- 
tained an  order  for  taxing  the  bill  upon  the  usual 
affidavit  and  on  his  own  undertaking  alone,  held 
irregular,  and  the  order  set  aside,  fitter  if  the 
application  had  been  made  on  special  groonds,  to 
give  an  opportunity  of  answering  them.  Hobby 
V.  Pritchard,  2  Mees.  <k  W.  (ex.)  125. 

2.  Charges  for  attending  to  advise  as  to  pro- 
ceedings subsequent  to  the  conclusion  of  an  ac- 
tion ;  held  not  to  be  items  rendering  it  necessary 
to  deliver  the  bill,  pursuant  to  the  statute.  Pep- 
per V.  Teatman,  5  Dowl.  (p.  c.)  155. 

3.  Charges  for  taking  the  acknowledgments  of 
married  women  since  3  &  4  W.  4,  c.  74,  being 
now  only  statutorv  conveyances ;  held  not  taxa- 
ble items  within  the  statute  for  taxing  attorney's 
bills.  Brandon,  in  re,  3  Bing.  N.  S.  (c.  p.)  783; 
and  5  Dowl.  (p.  c.)  623. 

4.  The  Court  will  allow  the  costs  of  one  letter 
only  before  commencing  the  suit.  Gapel  o. 
Staines,  5  Dowl.  (p.  c.)  770. 


[ATTORNEY] 


2675 


5.  In  assumptU  on  an  attorney's  bi|l,  the  non- 
delivery of  it  must  be  now  pleaded.  Moore  v. 
Dent,  1  M.  &  Rob.  (n.  p.)  462;  and  see  Beck  v. 
Mordant,  2  Bing.  N  S.  140. 

6.  The  10th  rule  of  Mich.  1  W.  4,  is  express 
that  a  copy  of  the  bill  of  costs  and  affidavit  of 
increase  shall  be  delivered  with  the  notice  of  taxa- 
tion, and  unless  the  objection  is  expressly  waived 
by  attendance,  the  Court  will  set  aside  the  taxa- 
tion. Wilkins  v.  Perkins,  2  Mees.  &  W.  (ex.) 
315. 

7.  The  Court  has  no  jurisdiction  to  order 
agents*  bills  with  their  attorney  to  be  taxed,  al- 
though an  actual  suit  pending.  The  12  Greo.  3, 
e.  13,  B.  6,  expressly  exempting  such  from  the 
operation  of  2  Geo.  2,  c.  23,  s.  23.  Weymouth 
V.  Knipe,  3  fiing.  N.  S.  (c.  p.)  387;  3  Sc.  764; 
•nd  5  Dowl,  (p.  c.)  496. 

6.  Where  the  London  agent's  name  is  indorsed 
on  the  proceedings,  and  the  plaintiff  has  reco- 1 
▼ered  a  verdict,  it  is  no  ground  for  disallowing 
bis  costs  that  the  country  attorney's  name  is  not 
on  the  roll.  Semble,  the  2  Geo.  2,  c.  23,  does  not 
apply  to  the  case  of  a  country  attorney  employ- 
ing an  agent  in  London  to  conduct  the  business 
or  the  suit  there.  Jones  v.  Jones,  2  Mees.  &> 
Vf.  (XX.)  323;  and  5  Dowl.  (p.  c.)  474. 

9.  An  order  to  refer  the  plaintiff's  bill  for 
taxation,  upon  the  application  and  undertakinff 
of  one  only  of  two  defendants,  discharged,  al- 
thongh,  upon  special  application,  the  Court  might 
have  granted  it  Hoby  v,  Pritchard,  5  Dowl.  (p. 
c.)  301. 

10.  Where  the  business  was  done  in  a  Court  of 
which  the  attorney  was  not  admitted ;  held,  that 
he  could  not  recover  such  part  as  was  prior  to  the 
passing  of  1  Vict.  c.  56.  Newton  v.  Spencer,  4 
bing.  N.  S.  (c.  p.)  174  ;  and  6  Dowl.  (p.  o.)  431. 

11.  Where  an  attorney  became  a  prisoner  after 
a  suit  commenced,  but  the  client  had  the  means 
of  constant  communication  with  him;  held,  that 
the  attmmev  was  not  precluded  from  recovering 
his  bill.  Tne  original  suit  against  a  sheriff  having 
ftiled,  the  execution  creditor  moved  for  a  new 
trial,  which  was  obtained  and  succeeded ;  held, 
that  if  the  jury  were  satisfied  that  the  defendant 
was  the  party  who  originally  employed  the  plain- 
tiff in  the  latter  business,  he  was  entitled  to  reco- 
ver, although  no  authority  or  guarantee  in  writing 

given.    Noel  v.  Hart,  8  C.  &  P.  (n.  p.)  230. 


12.  Where  on  a  reference  of  the  bill,  the  parties 
waived  the  delivery  of  a  signed  bill ;  held,  that 
they  also  waived  the  operation  of  the  2  (xeo.  2,  c. 
23,  so  far  as  it  gives  authority  to  order  the  attor- 
ney to  pay  the  costs.  Gerrara  v.  Arnold,  6  Dowl. 
(p.  c.)  336. 

13.  Where  in  an  action  on  an  attorney's  bill, 
the  general  issue  only  was  pleaded ;  held,  that 
the  objection  that  no  proper  bill  duly  signed  had 
been  delivered,  could  not  be  taken  advantage  of, 
such  defence  being  matter  of  special  plea ;  neld, 
also,  that  the  term  "  impleadea,"  in  the  writ  of 
trial,  is  to  be  taken  to  mean  that  the  action  was 
commenced  on  the  day  in  which  the  defendant  is 
said  to  have  been  impleaded.  Robinson  v,  JElo- 
land,  6  Dowl.  (p.  c.)  1^1. 

14.  The  objection  to  an  action  on  an  attorney's 
Vol.  IV.  51 


bill,  that  no  bill  duly  signed  had  been  delivered, 
must  be  specially  pleaded.  Lane  v.  Glenny,  2 
Nev.  &  P.  (K.  b.)  258. 

15.  Where  upon  the  client  retjoiring  the  attor- 
ney's bill  to  be  taxed,  the  latter  mtimated  that  he 
should  make  out  a  fresh  account,  and  charge  full 
fees,  which  he  did,  and  the  new  accounts  contain- 
ed fictitious  charges,  but  which  before  the  audi- 
tor were  abandoned,  the  Court  having  required 
the  auditor  to  report  specially  as  to  the  attorney's 
knowledge  of  the  insertion,  and  one-fourth  of  the 
bill  having  been  taxed  off,  it  was  without  objec- 
tion confirmed  with  costs ;  held,  that  the  client 
not  having  lodged  objections  in  writing  against 
the  report,  it  could  not  be  made  the  subject  of  ap- 
peal to  the  House  of  Lords ;  although  an  appeal 
upon  mere  costs  does  not  lie,  yet,  if  there  is  an 
appeal  brought  upou  a  substantial  question,  not 
colorable,  the  House  will  deal  with  the  costs. 
M'AoUy  V.  Adam,  3  CI.  A  Fi.  (p.)  385. 

16.  Where  a  solicitor  refused  to  deliver  up  pa* 
pers,  &c.  until  payment  of  his  bill,  the  Court  or- 
dered taxation  of  it,  and  the  delivery  of  the  pa- 
pers, upon  payment  of  the  taxed  amount,  not- 
withstanding the  business  was  for  conveyancing, 
and  other  matters  not  relating  to  any  suit  or  ac- 
tion.   Rice,  in  re,  2  Keene  (cu.)  181. 

17.  So,  where  in  an  action  against  him  for  neg- 
ligence, and  plea  of  the  Statute  of  Limitations 
and  a  set  off,  the  action  was  referred,  with  power 
to  tax  the  defendant's  bills,  but  the  award  was  af- 
terwards set  aside ;  held,  that  the  plaintiff  was  not 
deprived  of  his  right  to  obtain  his  deeds  and  pa- 
pers on  payment  of  what  was  due  to  the  defendant, 
or  to  have  the  amount  ascertained  by  taxation. 
Jones  9.  James,  5  Keene  (ch.)  184. 

18.  An  item  for  searching  for  a  judgment,  and 
advising  as  to  its  revival,  held  not  tasaole.  Rice, 
in  re,  4  Sc.  (c.  p.)  416. 

19.  Where,  although  leas  than  one-sixth  had 
been  taken  off  on  taxation,  but  the  bill  contained 
items  which  the  attorney  must  have  known  ought 
not  to  have  been  charged,  the  costs  of  taxation  re- 
fused. Holdemess  v.  Bark  worth,  3  Mees.  &,  W. 
(XX.)  341 ;  and  6  Dowl.  392. 

20.  Where  a  balance  is  found  on  taxation  due 
from  the  client,  payment  must  be  first  demanded 
before  applying  for  the  four-day  order,  which 
when  servea  and  payment  refused,  the  order  for 
commitment  is  gnnXed  without  notice,  but  on 
affidavit  of  the  service  of  the  order,  and  demand 
and  refusal.  Stocken  v,  Dawson,  7  Sim.  (ch.) 
547. 

21.  Where  after  a  new  solicitor  emploved,  the 
bill  of  the  former  had  been  examined  and  paid  by 
the  latter,  although  the  whole  of  the  papers  were 
not  delivered  over,  the  Court  after  a  lapse  of  15 
months,  and  no  case  of  errors  amounting  to  evi- 
dence of  fraud  established,  nor  any  notice  of  in- 
tention to  dispute  the  charges,  discharged  an  or- 
der for  taxation ;  upon  such  an  application  on  the 
ground  of  errors,  they  must  be  distinctly  stated 
and  proved  in  the  petition.  Horlock  v.  Smith,  2 
Myl.  &  Cr.  (cH.)  495. 

22.  So,  where  the  business  was  commenced  28 
years,  and  concluded  18  years  ago,  and  various 
bills  had  been  delivered,  and  in  1817  a  lecnritj 


2676 


[ATTORNEY] 


given,  which  was  aAerwarda  ^veD  up,  and  a  new 
one  taken  on  other  property,  and  all  papen  delir- 
ered  orer,  and  no  enon  or  improper  charges 
amounting  to  firand  were  allowed  or  proved,  but 
the  application  was  made  by  an  assignee  of  the 
client,  the  Chancellor  dismissed  it  with  costs. 
Waters  V.  Taylor,  2  Myl.  &  Cr.  (cb.)  526. 

23.  Where  payment  is  soo^ht  oat  of  a  fund  in 
Court,  it  will  direct  the  taxation  as  between  the 
party  claiming,  and  the  party  representing  the 
liind.    lb. 

24.  The  statute  does  not  apply  to  the  case 
where  an  attorney  does  not  act  as  such  for  fee  or 
reward,  and  his  bill  is  not  therefore  taxable. 
Qvar.  If  a  sum  paid  by  him  on  taking  out  a  rule 
to  discontinue  is  a  taxable  item.'  Sparrow  v. 
Jackson,  3  Mees.  &  W.  (kx.)  600. 

25.  A  bill  of  charges  for  business  in  the  Cen- 
tral Criminal  Court  held  taxable  by  order  of  a 
Judge  of  one  of  the  superior  courts.  Curling  v. 
Sedger,  4  Bing.  N.  S.  (c.  p.)  743;  6  Sc.  678; 
and  6  Oowl.  (p.  c.)  759. 

26.  In  assumpsit  by  the  plaintiff,  as  attorney 
and  agent  for  the  defendant  (a  country  client  of 
the  plaintiff),  for  work  and  materials,  and  for 
fees,  &c. ;  held,  that  the  plaintiff  was  not  the 
attorney  of  the  defendant  within  the  statute  le- 
qniring  the  delivery  of  the  bill  a  month  before 
action  ;  but  the  Court  would  not  limit  the  term 
**"  monies  in  the  first  count  mentioned"  to  the  fees. 
Hill  V.  Weight,  5  Sc.  (c.  p.)  662. 

27.  An  attorney  cannot  file  a  bill  in  equity  for 
his  costs ;  but  when,  having  commenced  proceed- 
ings at  law,  he  had  been  restrained  by  injunction, 
and  it  was  afterwards,  by  arrangement,  ordered 
that  his  bill  should  be  taxed  at  law ;  held,  that 
he  might  maintain  a  bill  in  equity  to  rectify  the 
order  of  the  Court,  alleged  to  have  proceeded  on 
mistake;  and  the  delay,  by  the  proceedings,  of 
the  plaintiff's  legal  remedy  would  not  bar  the 
remedy  in  equity,  and  demurrer  overruled.  Fy- 
Bon  r.  Pole,  3  Vounge  &.  C.  (ex.  e^.)  266. 

28.  Where  a  charge  was  made  in  the  bill  for 
entering  satisfaction  of  a  judgment  on  the  roll, 
which  he  had  omitted  to  do,  the  Court  ordered 
him  to  do  it  at  his  own  expense ;  but  as  such  a 
motion  should  have  been  made  at  chambers,  no 
costs  given.    Oram  v.  Parker,  6  Sc.  (c.  p.)  245. 

29.  The  Court  has  iurisdiction  to  direct  the 
taxation  of  an  agent's  bill  on  the  application  of 
the  solicitor  employing  him,  on  payment  of  the 
amount  into  Court.  Jones  v.  Roberts,  8  Sim. 
(CH.)  397. 

30.  The  Court  has  power,  independently  of  2 
C^eo.  3,  c.  23,  to  order  the  bill  to  be  delivered  and 
taxed;  and  the  a^signeos,  where  the  client  be- 
comes bankrupt,  Imve  the  same  right.  Clarkson 
V.  Parker,  7  Dowl.  (p.  c.)  87;  and  4  Mees.  &,  W. 
(■x.)5:)2. 

31.  The  Court  has  no  authority  under  2  Geo. 
2,  c.  23,  to  make  an  order  for  taxing  the  bill 
against  bis  personal  representatives.  Maddeford 
t>.  Austwick,  3  Myl.  &  Cr.  (en.)  423. 

32.  Afler  a  settlement  between  attorney  and 
client,  it  cannot  be  got  rid  of  by  the  common  or- 
der for  the  taxation  of  costs  ;  and  the  Court  will 
not  go  into  the  merits  on  the  discussion  of  llie 


regularity  of  Mich  an  order  af  coone,  bat  <mly 
a  sepaimte  applieatioa  of  the  client  for  the  pur* 
pose  of  a  specwl  order.  Gregg  v.  Taylor,  1  BenT. 
(CH.)  123. 

33.  Whether  a  country  attorney  attending  a 
reference  in  town  shall  be  allowed  his  expenaee, 
besides  his  town  agent,  is  entirely  in  the  dieeve- 
tion  of  the  Master,  and  the  Court  will  not  inter- 
fere.   Archer  v.  Marsh,  7  Dowl.  (p.  c.)  541. 

34.  Where  one-sixth  of  the  bill  had  been  taken 
off  on  taxation,  the  Court  refused,  on  a  inotion 
for  the  costs  of  taxation,  to  open  the  question  an 
to  the  mode  in  which  the  aUocahar  was  obtained, 
or  fresh  items  to  be  brought  forward.  Swinbnm 
r.  Hewitt,  7  Dowl.  (p.  g.)  315. 

35.  Where  the  par^  applvin^  to  have  the  hill 
taxed  was  not  amenable  to  tne  jurisdiction  of  the 
Court ;  held,  that  unless  the  solicitor  held  suffi- 
cient security  in  his  hands,  the  client  must  give 
security  for  costs.  Passmore,  in  re,  1  Beav.  (ch.) 
94. 

36.  The  month  to  elapse  before>actioii  brought 
on  the  bill  most  consist  <^  28  days,  exduMve 
both  of  the  day  of  deUvery  and  of  commencing 
the  action.  Blunt  v.  Heslop,  3  Not.  dt  P.  (^  b.) 
553. 

And  see  dfrrest ;  BoMkn^;  Casts; 
Interpltader ;  Wihuss. 


[D]   PrIVILKGKS— LIXR. 

1.  The  object  of  the  Uniformity  of  Process 
Act  being  merely  to  g^ive  a  new  mode  of  proceed- 
ing by  snnunons ;  held,  that  the  privilege  of  an 
attorney  to  be  sued  only  in  his  own  court,  is  not 
taken  away.  Lewis  v.Kerr,  2  Mees.  &  W.  (kx.) 
296;  and  o  Dowl.  (p.  c.)  327.  447. 

2.  The  time  of  pleading  in  actions  by  attomies 
seems  not  to  be  affectea  by  the  Uniformity  of 
Process  Act,  which  applies  only  to  the  form  of 
commencing  the  action ;  and  a  London  attorney 
has  therefore  only  four  days  for  pleading.  Bren- 
ton  r.  Lawrence,  5  Dowl.  (p.  c.)  606;  Lowder 
V.  Lander,  Ib^  684. 

3.  Where  the  defendant,  an  attorney,  appeared 
in  reality  in  person,  but  in  his  own  name  as  at^ 
torney ;  held,  Uiat  the  plaintiff  could  not  treat 
the  plea  as  a  nullity,  on  the  ground  of  no  order 
for  change  of  attorney  having  been  given.  Ker- 
rison  v.  Wallingborough,  5  Dowl.  (p.  c.)  565^ 

4.  A  writ  of  priyilege  merely  amounts  to  no- 
tice that  the  party  is  entitled  to  the  privi]e||e  of 
the  Court,  and  does  not  operate  as  an  mjunction; 
held  therefore  irregular  to  move  to  set  it  aside, 
although  the  party  may  not  be  entitled  to  it  la 
re  Thompson,  2  Mees.  6l  W.  (kz.)  644 ;  and  5 
Dowl.  (p.  c.)  745. 

5.  Appearing  for  a  prisoner  before  a  jnd^  on 
summons  does  not  constitute  him  attorney  m  the 
suit.^  Spencer  v.  Newton,  5  Ad.  (k.  £11.  (k.  b.) 
823. 

6.  Where,  by  the  terms  of  a  memorandum  for 
a  lease  for  a  term,  if  lessor  should  so  long  live, 
made  by  the  lessor's  attorney,  the  plaintiff,  it  was 
sti|)ulated  that  the  lease  was  to  be  prepared  by 
the  plaintiff  at  the  expenie  of  the  lessee ;  the  let- 


[ATTORNEY] 


2677 


■or  ^\ng  before  the  lease  was  signed,  held  that 
the  jury  were  justified  io  finding  a  retainer  by 
the  defendant  for  the  plaintiff  to  perform  the 
work.  Webb  v.  Rhodes,  3  Bing.  N.  S.  (c.  p.) 
73a. 

7.  In  trover,  by  assignees,  to  recover  a  lease, 
alleged  to  have  been  brought  to  the  witness,  an 
attorney,  for  the  purpose  of  raising  money  ;  held, 
that  Uie  employment  being  so  connected  with  the 
character  of  an  attorney  as  to  raise  a  presump- 
tion that  it  formed  the  ground  of  the  communi- 
cation,  it  was  privileged.  Turqoand  v.  Knight, 
2  Mees.  &  W.  (ex.)  Si. 

And  see  Greenough  v.  Gaskell,  I  Myl.  &  K. 
96;  and  ez  parte  Aitken,  4  B.  &  Aid.  49. 

8.  Where  an  attorney,  examined  as  a  witness, 
demurred  on  the  ground  of  his  having  been  the 
solicitor  of  one  of  the  defendants,  and  that  the 
interrogatory  required  the  disclosure  of  confiden- 
tial communioatious ;  held  that,  being  the  subject 
of  letters  from  collateral  quarters,  they  were  not 
protected,  and  the  demurrer  being  over-ruled, 
fceld  that  the  witness  was  liable  to  pay  the  taxed 
costs  occasioned  by  the  demurrer,  under  the  32 
New  Ord.  1888.  Sawyer  v.  Birchmore,  3  Myl. 
6c  K.  (CH.)  572. 

9.  Where  the  attorney  acted  on  the  part  of  the 
lender  and  borrower ;  held  that  he  could  not  be 
allowed  to  disclose  communications  made  to  him 
in  the  capacity  of  attorney  for  the  latter.  Doe 
d.  Peter  v.  Watkins,  3  Bing.  N.  S.  (c.  f.)  421 ; 
and  4  Sc.  155. 

And  see  Taylor  9.  Blacklow,  3  New  Cas.  35. 

10.  Where  the  knowledge  acquired  was  by  the 
document  being  shown  to  the  witness  as  attorney 
for  the  party ;  neld,  that  he  could  not  be  admi^ 
ted  to  prove  that  it  was  at  the  time  unstamped. 
Whealky  v.  Williams,  1  Mees.  &  W.  (ex.)  533; 
and  1  TjT.  6l  Gr.  1043. 

11.  Where  an  attorney,  being  town-clerk,  does 
the  business  as  attorney  for  the  corporation,  he 
has  a  lien  on  the  muniments  in  his  custody  with 
respect  to  which  he  has  performed  such  service. 
Rex  V.  Sankey,  5  Ad.  &,  £11.  (k.  b.)  423. 

12.  An  attorney  has  a  lien  for  the  fees  upon 
deeds  coming  into  his  possession  whilst  acting  as 
commissioner  for  taking  acknowledgments  under 
3  &  4  Will.  4,  c.  74 ;  but  not  for  the  fees  of  his 
co-commissioner,  unless  he  can  show  a  joint  au- 
thority.   Grove,  ex  parte,  5  Dowl.  (f.  c.)  355. 

13.  Where  the  client  was  ftonA  fide  indebted  in 
a  som  for  business  done,  and  with  the  assistance 
of  other  attomies  afterwards  executed  a  mort^ 
gage  upon  a  further  loan  by  the  former  attorney, 
which  was  also  agreed  to  be  a  security  for  the 
debt,  the  Court  refused  to  set  aside  the  lien  on 
payment  of  a  specific  sum.  Cheslyn  v.  Darby, 
3  lounge  (ax.  x«.)  170. 

14.  Where  esUtes  were  devised  in  trust  for 
life  for  the  widow  and  son's  maintenance,  and 
after  her  death  to  the  son  in  fee,  the  trustees  hav- 
ing been  obliged  to  raise  suits  in  carrying  the 
trusts  into  STOct,  and  deposited  the  title-deeds 
with  the  attorney ;  held  that,  being  the  personal 
debt  of  the  trustees,  the  attorney  acquired  no  right 
of  Ken  upon  themas  against  tne  son  on  the  death 


of  the  widow.    Lightfoot  v.  Keene,  1  Mees.  & 
W.  (EX.)  745;  and  1  Tyr.  &  Gr.  1004. 

15.  The  town  agent  of  an  attorney  has  only  a 
lien  upon  tlie  sum  recovered,  and  upon  the  pa- 
pers in  his  hands,  in  the  particular  cause,  for  the 
amount  due  to  him  by  the  attorney  in  that  cause 
only ;  and  if  he  parts  with  them,  although  by 
mistake,  he  loses  his  lien ;  but,  if  tlipy  are  ol>- 
tained  from  him  improperly  and  wrongfully,  his 
lien  remains,  and  ne  may  maintain  trover  for 
them.      Dicas  v.  Stockley,  7  C  ^  P.  (n.  p.)  587. 

16.  Where  a  solicitor  had  been  retained  by  A., 
in  the  negotiation  of  an  agreement  with  B.,  and 
his  bill  taxed  and  reduced,  and  with  his  partner 
be  afterwards  became  the  solicitor  to  set  aside  the 
very  transaction  so  conducted  to  maturity  whilst 
he  was  acting  for  A. ;  the  Court  held  that  it  had 
power  to  interfere  and  restrain  him  and  his  part- 
ner from  acting  in  the  latter  suit,  and  from  com- 
municating any  information  relating  to  the  agree- 
ment which  had  come  to  his  knowledge  confiden- 
tially as  the  attorney  of  A.,  and  ordered  the  plain- 
tiff to  pay  the  costs  of  the  motion.  Davies  v. 
Clough,  8  Sim.  (ch.)  262;  and  affirmed  by  the 
Lord  Chancellor. 

17.  In  an  action  for  work  and  labor  for  agency 
business  in  the  Court  of  Chancery  by  the  two 
plaintiffs,  partners ;  held,  that  the  objection  that 
one  had  not  been  admitted  a  solicitor  of  that 
Court  could  only  be  taken  advantage  of  on  being 
specially  pleaded.  Hill  v.  Sydney,  3  Nev.  &  P. 
(<i.  B.)  161. 

18.  The  effect  of  1  Vict.  c.  56,  s.  4,  held  not  to 
extend  to  deprive  an  attorney  of  the  privilege  of 
being  sued  in  the  Court  of  which  he  is  admitted, 
but  only  to  subject  him  to  the  jurisdiction  of  ano- 
ther Court  in  which  he  has  acted  )  and  a  plea  of 
privilege  cannot  be  treated  as  a  nullity :  if  by  any 
act  be  nas  waived  the  privilege,  it  must  be  mac(e 
matter  of  reply.  Prior  v.  Smith,  6  DowL  (p.  c.) 
299. 

19.  Where  a  solicitor  withdrew  from  the  cause, 
the  Court  ordered  him  to  deliver  to  the  new  soli- 
citor the  briefs,  opinions,  office  copies  of  answers 
and  documents  connected  with  the  cause,  as  upon 
inspection  he  might  deem  necessary  for  the  hear- 
ing, without  prejudice  to  the  lien  of  the  former, 
and  undert^ing  to  return  them  unde&ced  within 
10  days  after  the  hearing.  Heslop  o.  Metcalfe,  3 
Myl.  &^  Cr.  (ch.)  183. 

And  see  Costs. 

20.  Where  the  attorney  was  shown  to  be  the 
real  party  in  the  cause,  the  plaintiff  having  suc- 
ceeded against  one  defendant  and  &iled  against 
the  other ;  held,  that  the  successful  defendant's 
costs  might  be  set  off  against  the  costs  of  the  plain- 
tiff without  regard  to  the  lien  of  the  attorney. 
Pocock  V.  Shaugnessy,6  £d.  db  £11.  (k.  b.)  807. 

21.  Attornies  admitted  of  one  Court  allowed  to 
practice  in  any  other  one,  on  merely  entering  their 
names  on  the  roU  of  such  Court.  1  dt  2  Vict.  c. 
45,  s.  3. 

22.  The  lien  of  the  solicitor  on  a  fund  in  Court 
for  his  costs,  is  not  a^cted  by  the  bankruptcy  of 
his  client  pending  the  suit,  and  he  is  entitled  to 
the  immediate  benefit  of  such  lien  without  waii- 

^  ing  the  lesult  of  process  to  compel  the  payment 


3078 


[ATTORNEY— AWARD] 


of  costs  ordered  to  bepftid  to  the  client.    Poon- 
■ey  V.  Humphreys,  1  Coop.  (ch.  c.)  142. 

23.  The  Court  will  not  allow  the  lien  of  the 
solicitor  to  interfere  with  the  equities  between  the 
parties ;  and  held,  also,  that  a  party  having  a  lien 
or  ri^ht  of  set-off  for  costs,  was  not  deprived  of 
it  by  issuing  a  writ  of  attachment  for  such  costs. 
Bawtree  v,  Watson,  2  Keene  (ch.)  713. 

24.  The  privilege  of  being  sued  only  in  the 
court  in  which  he  is  admitted  is  not  taken  away 
by  1  &  2  Vict.  c.  45,  s.  3,  and  he  is  not,  for  any 
purpose,  considered  an  attorney  of  the  Court  in 
which  he  is  not  admitted,  until  he  has  signed  the 
roll :  but  that  is  a  fact  which  must  come  by  way 
of  replication  to  the  plea  of  privilege  on  the  other 
side.    Percival  v.  Cook,  7  Dowl.  (c.  p.)  501. 

25.  Where  the  party's  solicitor  became  a  trus- 
tee under  a  deed  for  the  benefit  of  the  client's 
creditors,  held,  that  communications  subsequent 
thereto  were  privileged.  Pritchard  v.  Foulkes,  1 
Coop.  (CB.  c.)  14. 

26.  On  a  bill  by  the  A.  Insurance  Company, 
against  the  directors,  actuary  and  solicitor  of  the 
£.  Insurance  Company,  to  have  a  policy  on  the 
life  of  C.  cancelled,  the  solicitor  having  been 
present  when  an  agent  of  the  £.  Company  com- 
municated an  unnvorable  medical  report  upon 
the  life;  held  not  a  privileged  communication, 
and  being  made,  defendants  were  not  protected 
from  discovery.  Desborough  v.  Rawlins,  3  Myl. 
&.  Cr.  (ch.)  515. 

27.  Where  one  of  two  solicitors  in  partnership 
obtained  an  order  in  the  name  of  a  client,  and 
after  the  dissolution  of  the  partnership  the  other 

Sartner  and  the  client  came  to  discharge  the  or- 
er  and  for  other  relief;  held  a  misjoinder,  for 
the  uniting  such  partner  with  the  client  in  such 
a  petition,  and  that  such  partner  was  only  enti- 
tled to  the  usual  stop-order  to  prevent  the  pay- 
ment of  costs  ad  interim^  and  that  for  ulterior  re- 
lief he  must  have  recourse  to  an  original  bill. 
Sangar  v.  Gardiner,  1  Coop.  (ch.  c.)  119. 

And  see  Bankrupt. 


ATTORNMENT. 
See  Stamp. 


AUCTION. 

1.  In  assumpak  for  goods  bought  at  an  auction, 
held  that  the  defendant  might  prove  that,  by  a 
special  contract  with  the  plaintiff,  the  sum  at 
which  the  goods  were  knocked  down  by  the  de- 
fendant might  be  set  off  against  a  legacy  payable 
to  him  by  the  plaintiff,  and  that  there  was,  in  fact, 
no  sale  between  the  parties  Bartlett  v,  Pamell, 
6  Nev.  &.  M.  (k.  b.)  21)9 ;  and  4  Ad.  &  £11.  792. 

2.  Where  one  of  the  conditions  of  sale  of  a 
leasehold  shop  and  good  will  was,  that,  on  failure 
to  comply  with  any  of  tlie  previous  conditions, 
the  deposit  should  be  forfeited  as  liquidated  dam- 
ages, to  be  retained  by  the  vendor,  who  was  to  be 
at  liberty  to  rescind  the  contract  or  re-sell;  held, 
that  it  was  to  be  regarded  as  liquidated  damages 
only,  in  caae  of  breach  of  any  of  the  particiSar 


conditions;  and  that,  where  the  defendant  re- 
nounced the  contract  altogether,  the  plaintiff 
might  sue  for  general  damages.  Icely  r.  Grew, 
6  Nev.  &  M.  (k.  b.)  467. 

3.  In  an  action  by  the  assignees  of  a  bankrupt 
for  goods  sold  by  the  defendant ;  held,  that  the 
auctioneer  was  entitled  to  deduct  rent  paid,  and 
the  expenses  of  sale,  but  not  of  removing  the 
goods,  nor  commission  on  the  sale.  Grimshaw 
r.  Atterwell,  8  C.  &  P.  (w .  p.)  6. 

And  see  Specific  Performance  ;  Vendor  and  Pur* 
chaser. 


AWARD. 

EAl  Construction — validity  op. 
Bj    How   KNPOaCED. 

[A]    CONSTROCTION — VALIDITY   OP. 

1 .  Where,  before  declaration,  the  cause  and  all 
matters  in  dispute  were  referred,  and  the  arbitrator, 
by  award,  averring  that  he  had  heard  the  allega- 
tions and  proof  of  the  parties  touching  the  matters 
in  difference  between  them,  awarded  concerning 
the  same  that  the  defendant  should  pay  — I.  to  the 
plaintiff  in  full  of  all  demands  in  the  cause  ;  held 
sufficiently  final,  although  not  expressly  nega- 
tiving that  there  were  other  matters  in  diferenoe. 
Day  V.  Bonnin,  3  Ring.  N.  S.  (c.  p.)  219 ;  and  3 
Sc.  597.  * 

2.  Upon  a  verdict  and  reference  of  all  matters, 
with  power  to  reduce  or  vacate  the  verdict ;  the 
arbitrator  having  awarded  a  sum  due  to  the  plain- 
tiff in  respect  of  the  causes  of  action,  and  of  a 
sum  due  to  the  defendant  in  respect  of  the  mai- 
ters  in  his  plea  of  set-off,  and  that  he  should  de- 
liver up  certain  securities  to  the  plaintiff;  held, 
that  the  award  was  sufficientlv  certain;  held 
also,  that  the  affidavit,  verifying  the  paper  writiug 
to  be  a  copy  of  the  award,  the  rule  for  entering 
the  verdict  pursuant  to  the  award  being  drawn  up 
on  reading  the  affidavit  and  the  paper  writing 
thereunto  annexed,  was  sufficient  Piatt  v.  Hall, 
2  Mees.  &  W.  (ex.)  391 ;  and  5  Dowl.  (p.  c.) 
582. 

3.  Plea  as  to  302.  parcel,  &c.,  payment  in  ntis- 
faction ;  replication,  that  the  sum  was  paid  for 
another  cause  of  action,  and  traversing  the  accep- 
tance of  it  in  satisfaction  of  the  sum  mentioned 
in  the  declaration  :  the  cause  being  referred,  the 
arbitrator  having  found  as  to.  21.,  parcel  of  the  sum 
in  the  plea  mentioned,  for  the  defendant  as  to 
part,  and  for  the  plaintiff  as  to  the  residue ;  held 
to  be  in  substance  assessing  the  amount  of  dam- 
age on  that  issue  to27Z.,and  the  award  sufficiently 
certain.  King  v.  Earl  of  Dundonald,  5  Dowl.  (p. 
c.)  689. 

4.  Where  a  cause  and  all  matters  in  diffisrence 
were  referred,  and  by  the  order  the  arbitrator  was 
to  ascertain  the  true  amount  of  damages,  if  any, 
in  the  cause,  the  costs  to  abide  the  event,  and 
there  being  other  matters  claimed,  he  awarded  an 
entire  sum  to  be  paid  to  the  plaintiff;  held  bad. 
Gyde  v.  Boucher,  5  Dowl.  (p.  c.)  127. 

5.  And  where  he  had  made  a  aepaxale  adjudica- 
tion, held  that  the  defendant  was  not  precluded 


[AWARD] 


2679 


by  the  refi*reiice  of  other  mattera  from  moTtng 
for  his  cosU  under  43  Greo.  3,  c.  46,  b.  3.  Jones 
r.  Jehu,  5  Oowl.  (f.  c.)  130. 

6.  Where  three  causes  were  referred,  and  the 
arbitrator  awarded  specific  sums  in  euch  and  a 
siet  processus;  held,  that  he  had  exceeded  his 
authority  in  ihe  latter  respect,  as  he  can  only  or- 
der a  stet  processus  when  he  has  power  over  the 
costs ;  held  also,  that  where  his  intention  is  clear, 
he  need  not  adjudicate  specifically  on  the  issues, 
jet,  if  it  be  uncertain,  it  is  a  ground  for  setting 
the  award  aside.  Hunt  v.  Hunt,  5  Dowl.  (p.  c.) 
442. 

7.  Where  arbitrators  had,  in  the  absence  of  one 
of  the  parties,  asked  of  the  other  whether  such  and 
■ach  items  were  admitted  or  disputed,  and  hav- 
ing expressly  received  an  authority  to  call  in  a 
▼luuer  as  to  shares  of  the  partnership ;  held,  that 
neither  obiections  were  grounds  for  impeaching 
the  award :  arbitrators,  by  adopting  the  opinion 
of  competent  judges,  do  not  thereby  constitute 
them  umpires,  but  merely  make  such  opinions 
their  own.  (Affirming  tiie  judgment  below.) 
Anderson  v.  Wallace,  3  CI.  <&  Fi.  (p.)  26. 

8.  Where  arbitrators  directed  an  undertaking 
to  be  ffiven  by  the  defendant  not  to  pirate  certain 
inyentions  of  the  plaintiff  (the  subject  of  the  re- 
ference), and  which  was  accordingly  signed  by 
him ;  held  to  be  a  sufficient  recognition  of  the 
arbitrators'  authority  and  of  the  submission. 
Stuart  V.  Nicholson,  3  Bing.  N.  8.  (c.  p.)  113; 
and  3  Sc.  536. 

9.  Where  disputes  as  to  the  amount  of  com- 
pensation  for  the  surrender  of  a  lease  were  re- 
ferred, and  with  the  knowledge  of  a  party  hav- 
ing a  claim  of  lien  on  the  lease ;  held,  that  he 
was  bound  by  the  award.  Grovett  v.  Richmond, 
7  Sim.  (ch.)  1. 

10.  Where  in  an  action  for  work,  drc,  the 
amount  of  a  builder's  bill  claimed,  by  the  partica- 
'ars,  was  104/.  1S29.,  to  which  the  defendant  plead- 
sd  payment  as  to  50Z.,  and  brought  into  Court 
451. ;  the  cause  being  referred  to  a  party  to  cer- 
tify for  what  amount  the  yerdict  was  to  be  enter- 
ed, and  who  certified  that  74/.  7s.  was  a  fair  and 
proper  sum  to  be  paid  by  the  plaintiffs;  held  to 
amount  to  a  yerdict  for  the  defendant,  and  the 
Court  would  not  set  aside  the  certificate,  on  the 
frround  that  it  was  not  made  until  afler  the  jury 
process  was  returnable,  the  plaintiff  not  havinv 
withdrawn  from  the  reference  on  that  ground. 
Salter  r.  Yates,  2  Mees.  &,  W.  (£z.)  67 ;  and  5 
Dowl.  (p.  c.)  291. 

11.  It  is  no  objection  that  one  party  to  the  refer- 
ence is  bound  by  deed,  and  the  other  not.  Tom- 
lin  V.  Fordwich,  6  Ney.  &.  M.  (x.  b.)  594. 

12.  Where  an  action  of  trespass,  in  which  is- 
sues were  joined  on  three  pleas,  was  referred,  and 
the  arbitrator  decided  two  of  the  issues  in  fayor 
of  the  plaintiff,  and  one  in  fayor  of  the  defendant, 
adding,  that  if  there  had  not  been  such  issue,  he 
should  have  awarded  1^.  damages  to  the  plaintiff 
on  the  other  issues  ;  held,  that  the  plaintiff  could 
not  apply  to  the  Court  for  judgment  mm  obst. 
vered.  on  the  third  issue.  Steeple  v.  Bonsall,  4 
Ad.  A  £11.  (K.  B  )  950. 

13.  In  debt  on  an  award,  the  declaration  al- 
leging ft  prariousand  last  settlement  of  aocoonts, 


and  that  the  arbitrator  had  awarded  a  sum  with 
interest  from  the  said  last  settlement ;  it  appear- 
ing that  the  date  of  such  settlement  was  not  dis- 
puted, held,  that  the  award  was  sufficiently  cer- 
tain Flummer  r.  Lee,  2  Mees.  &  W.  (ex.)  495 ; 
and  5  Dowl.  (p.  c.)  755. 

14.  And  upon  one  plea,  that  the  day  mention- 
ed was  not  the  day  of  the  last-mentioned  settle- 
ment next  before  the  making  of  the  award,  held 
an  immaterial  issue,     lb. 

15.  Where  accounts  of  long  standing  between 
parties  were  referred,  but  the  arbitration  failed 
oy  the  death  of  the  arbitrator ;  held,  that  upon 
an  application  to  the  Court  of  Equity  to  compel 
a  reference  to  the  Master  upon  the  same  terras, 
(a  conditional  waiver  of  the  Statute  of  Limita- 
tions), the  Court  could  not,  in  referring  the  case 
to  judges  not  of  the  party's  appointment,  deprive 
him  of  the  defence  he  otherwise  would  have  had. 
Cheslyn  v.  Dalby,  2  Tounge  (xx.  xq.)  170. 

16.  Where  the  arbitrators  directed  premises  to 
be  put  into  repair  to  the  satisfaction  of  a  surveyor, 
no  party  to  the  reference ;  held  to  vitiate  the 
whole,  being  inseparable  firom  the  rest  of  the 
award.  Tomlin  v.  Mayor,  &c.  of  Fordwich,  6 
Nev.  &  M.  (X.  B.)  594;  and  5  Ad.  &  £11.  147. 

17.  Where  a  verdict  was  taken  for  the  damages 
in  the  declaration,  subject  to  be  reduced  upon  a 
reference  of  all  matters  in  difference  between  the 
parties,  and  the  arbitrator  awarded  that  a  verdict 
should  be  entered  for  the  plaintiff,  and  that  the 
defendant  should  pay  a  certain  sum  to  the  plain- 
tiff; held  bad,  for  uncertainty  as  to  the  sum  ap- 
plying to  the  yerdict  in  the  action,  or  the  other 
matters  in  difference.  Martin  v.  Burge,  6  Ney. 
&  M.  (K.  B.)  201 ;  and  4  Ad.  &,  £11.  973. 

18.  Where  disputes  on  a  building  contract,  as 
to  defects  and  extra  works  and  omissions,  were 
referred  to  an  arbitrator,  who  was  to  award  and 
determine  **  of  all  such  alleged  defects  and  imper- 
fections," and  he  simply  awarded  the  payment  of 
a  gross  sum  to  the  buuder,  without  any  decision 
as  to  such  defects,  or  how  much  he  awarded  in 
respect  thereof,  held  bad.  In  re  Rider  and  Fish- 
er, 3  Bing.  N.  S.  (c.  p.)  874. 

19.  Where  the  umpire  had  l)een  personally  ob- 
jected to  by  the  arbitrators,  who  afterwards  con- 
sented to  decide  the  choice  by  tossing  np ;  held, 
an  invalid  appointment,  although  tjie  attorney, 
not  knowing  of  such  objection,  proceeded  in  the 
reference  before  him.  In  re  Jamieson  and  Binns, 
4  Ad.  &  £U.  (K.  B.)  945. 

20.  Where  a  cause  had  been  referred  at  nisi 
prius  upon  a  yerdict  taken  by  consent ;  held,  that 
the  court  had  no  power  to  amend  the  record,  be- 
ing in  effect  the  substitution  of  a  totally  different 
issue  agreed  to  be  referred.  Cross  v,  Metcalf,  1 
Nev.  &  P.  (K.  B.)  232. 

21.  Upon  a  reference  of  an  ejectment  cause, 
and  all  matters  in  difference  between  the  parties, 
the  arbitrator  having  directed  the  yerdict  to  be 
entered  for  the  lessor  of  plaintiff,  but  awarded 
two  sums  to  be  paid  by  the  plaintiff  to  defendant, 
as  compensation  for  buildings  erected  on  the 
premises ;  held  that,  subject  to  the  lien  of  the  de« 
fendant's  attorney,  the  sums  awarded  might  be 


^680 


[AWARD] 


«et  off  affainit  the  claim  of  the  plaintiff  for  eoets. 
Doe  V.  Sinclair,  3  Sc.  (c.  p.)  42;  and  5  Dowl. 
(p.  c.)  26. 

SK.  Upon  a  reference  by  the  parties  in  a  cause 
of  all  matters  in  difference,  with  power  to  direct 
how  the  verdict  should  be  entered,  and  although 
he  should  direct  a  nonsuit,  or  verdict  to  be  enter- 
ed for  the  defendant,  to  order  him  to  pay  any 
sum  which  should  be  just  and  equitable,  costs  to 
abide  the  event;  and  the  arbitrator  directed  a 
nonsuit,  but  ordered  the  defendant  to  pay  a  cer- 
tain sum  to  the  plaintiff;  held,  that  the  latter  was 
entitled  to  the  costs  of  the  reference,  but  the  de- 
fendant to  the  costs  of  the  suit.  Chittenden  v. 
Walker,  3  Ad.  &.  £11.  (k.  b.)  691. 

93.  Where  the  costs  were  to  abide  the  event, 
•nd  the  arbitrator  directed  payment  of  a  sum 
found  to  be  due,  and  also  a  sum  for  the  costs ; 
held,  that  he  exceeded  his  jurisdiction  in  fixing 
the  amount,  hot  that  the  award  was  good  as  to 
the  former  direction,  which  was  within  the  scope 
of  his  authority.  Kendrick  v.  Davies,  5  Dowl. 
(p.  c.)  693. 

24.  The  3  d[.  4  Will.  4,  c.  42,  s.  39,  held  not  to 
extend  to  the  reference  of  criminal  but  of  civil 
matters  only ;  where,  therefore,  an  indictment  for 
a  conspiracy  had  been  referred,  held  that  the  sub- 
mission might  be  revoked.  Rex  v.  Bardell,  1 
Nev.  &  P.  (K.  B.)  74. 

25.  So  where  an  indictment  for  conspiracv  had 
been  referred,  and  the  authority  afterwards  re- 
voked, and  the  defendants  refused  to  proceed  to 
the  reference  ;  held  not  a  case  within  the  3  &  4 
Will.  4,  c.  42,  s.  39,  requiring  the  leave  of  the 
Court  or  a  Judge  to  revoke.  Rex  r.  Shillibeer 
and  others,  5  Dowl.  (p.  c.)  238. 

26.  Where,  in  covenant,  the  first  plea  alleged 
that  the  works  had  not  been  done ;  and  the  sec- 
ond, that  the  instalment  had  been  paid  when  due ; 
on  which  issues  having  been  joined  and  the  cause 
referred,  the  arbitrator  found  for  the  plaintiff  on 
the  first,  with  damara  Is. ;  and  also  on  the  sec- 
ond, damages  13s.  id. ;  held  sufficiently  certain, 
•ad  that  he  was  not  bound  to  award  a  single  sum 
on  the  entire  breach.  Smith  v.  Festiniog  Rail- 
way Company,  4  Bing.  N.  S.  (c.  p.)  23;  3  Sc. 
5255 ;  and  4  Dowl.  (p.  c.)  190. 

27.  Where  the  arbitntor  recited  the  power,  and 
ihat  he  had  enlarged  the  time,  and  the  Court 
would  presume  the  role  for  the  attachment  to  have 
been  drawn  op  on  proper  affidavits,  held,  that  no 
affidavit  of  the  due  enlargement  was  necessary ; 
the  arbitrator  having  stated  the  facts  found  by  him, 
and  his  opinion  thereon ;  held,  that  the  award  was 
sofficientlv  final,  although  he  went  on  to  refer 
that  eonclusion  to  the  opinion  of  the  Court,  the 
latter  part  might  be  rejected.  Barton  v.  Ransom, 
3  Mees.  dt  W.  (xx.)  322 ;  and  6  Dowl.  (p.  c.)  384. 

28.  Where  an  action  of  trespass,  and  all  mat- 
ters in  dispute  at  law  or  in  equity  were  referred, 
so  that  the  arbitrator  should  make  his  award  by  a 
certain  day,  with  power  of  enlar^ment,  and  of 
making  one  or  more  awards  at  his  discretion,  to 
be  delivered  to  the  parties,  or  if  dead,  to  their  rep- 
resentatives ;  there  were  equity  suits  pending,  m 
which  also  infiuits  were  concerned :  the  arbitrator 
awarded  the  verdict  to  be  entered  for  the  plaintiff, 
dimiges  I  and   also  that  the  defendant 


should  pay  him  l.  for  grievaaoes  not  ndo- 

ded  in  his  declaration  ;  held  sufficiently  final,  al« 
though  not  disposing  of  the  equity  suits,  and  not- 
withstanding infnnts  were  parties  thereto,  and  that 
the  authority  of  the  arbitrator  was  not  revoked  by 
the  death  of  one  of  the  parties.  Wrightson  f .  By- 
water,  6  Dowl.  (p.  c.)  359;  and  2  Mees.  dt  W. 
(EX.)  199. 

29.  Where  four  actions  between  distinct  parties 
were  referred,  and  all  matters  in  difference,  and 
there  was  also  pending  an  action  of  eiectment  as 
to  part  of  the  subject  in  dispute,  of  which  the  ar- 
bitrator had  notice,  but  omitted  anv  mention  of  it 
in  his  award  ;  held,  that  the  award  was  bad  in  to- 
to.  Stone  V.  Fhillipps,  4  Bing.  N-  S.  (c.  p.)  37; 
3  Sc.  275 ;  and  6  Dowl.  (p.  c.)  247. 

30.  An  arbitrator  to  whom  a  cause  is  referred 
to  certify  for  whom  and  what  amount  the  verdict 
is  to  be  taken,  may  find  the  verdict  as  the  jury 
might  have  done,  and  on  the  several  issues.  Woof 
V.  Hooper,  4  Bing.  N.  S.  (c.  p.)  449. 

31.  In  assumpsit  for  ffoods  sold,  with  counts  for 
work,  money  paid,  and  on  an  account  stated ; 
pleas  to  the  whole  declaration,  tst,  of  the  general 
issue,  and  2nd,  a  set-off,  to  which  latter  plea  the 
plaintiff  replied  nil  debet^  and  the  cause  and  all 
matters  in  difference  were  referred ;  the  arbitrator 
directed  a  verdict  to  be  entered  for  the  defendant 
on  both  pleas,  as  regarded  the  count  for  money 
paid,  and  as  far  as  Uiey  related  to  the  residue  oC 
tlie  declaration,  for  the  plaintiff,  with  I. 
damages ;  held,  on  motion  to  set  aside  the  award, 
that  the  issue  on  the  plea  of  setroff  was  not  divisi- 
ble, and  that  the  plaintiff  was  entitled  te  a  verdict 
on  it,  unless  the  defendant  proved  a  set-off  equal 
to,  or  exceeding  the  aggregate  of  the  plaintiff's 
demands ;  but  althougn  the  arbitrator  had  been 
mistaken  in  his  view  of  the  pleading,  the  defend- 
ant was  not  entitled  to  avail  himself  of  it  to  set 
aside  the  award,  and  the  Court  would  discharge 
the  rule  on  plaintiff 'spaying  the  costs  of  the  issue 
so  wrongly  found  for  the  defendant.  Moore  «. 
BuUin,  2  iNev.  ^  P.  (q.  b.)  436. 

32.  Where  one  action  for  two  calls  on  a  propri- 
etor of  shares  in  a  joint  stock  company,  and  an- 
other action  by  him  against  the  directors  for  the 
value  of  the  shares,  on  the  ground  of  their  having 
by  certain  acts  dissolved  the  companv,  were  re- 
ferred to  arbitration ;  it  appeared  that  the  two  calls 
had  been  made  on  the  same  day,  a^inst  the  ex- 
press provisions  of  the  charter  of  mcorporation, 
one  only  therefore  being  exigible,  and  the  arbitra- 
tor had  directed  the  payment  of  both,  and  that  the 
party  should  receive  from  the  company  a  compen- 
sation on  transferring  or  surrendering  his  shares 
as  the  company  should  appoint ;  but  there  was  no 
direction  bindmgthe  party  obligatorily  to  transfer 
or  surrender,  and  the  award  also  reserved  all  fu- 
ture claims  by  the  company  in  respect  of  future 
calls :  held,  that  the  award  was  not  condusiTe, 
and  could  not  be  supported.  Baillie  v.  Edinburgh 
Gas  Company,  3  CI.  &  Fi.  (p.)  640. 

33.  Where  on  an  agreement  of  purchase  the  ti- 
tle was  to  be  made  out  to  the  satisfaction  of  a  third 
person,  and  upon  a  dispute  as  to  the  validity  of  the 
title  it  was  referred  to  an  arbitrator,  who  by  his 
award  ordered  that  the  title  should  be  taken  with 
a  bond  of  indemnity ;  held  bad,  as  not  decidinsr 
the  point  referred,  and  for  excess,  as  such  bond 


[AWARD] 


2681 


qnlB  mMptfiBCiied  hw  the  mboinnoB,  md 
in  ftctwIluffODibotttie  means  of  AitnrelitH 
I V.  Bowrds,  3  NeT.  A  P.  (q.  b.)  382. 


34.  Where  in  an  action  of  ejectment  on  two  | 
demiaea,  **  all  matters  in  diflference  in  Ihe  cause,'* 
were  referred,  costs  of  suit  and  (^  the  reference  to 
abide  the  erent,  the  successful  party  to  sign  jud^ 
ment  and  proceed  for  the  costs  as  if  the  action  had 
been  tried ;  the  arbitrator  awarded  that  the  plain- 
tiff was  entitled  to  a  certain  part  of  the  lands, 
which  he  set  out  bv  metes,  £c.,  and  jud|rment 
was  entered  up,  wiuout  anj  attempt  to  set  aside 
the  award ;  held,  on  motion  to  set  aside  the  judj^- 
ment,  that  the  defendants  were  to  be  confined  to 
objections  on  the  face  of  the  award,  as  if  showing 
cause  aeainst  an  attachment,  bnt  that  the  award 
was  bad,  as  dealing  only  with  part  of  the  subject 
matter  in  dispute,  and  also  for  not  stating  on  which 
of  the  demises  the  plaintiff  had  succeeded  as  afiec- 
ting  the  coats.  Doe  v.  Homer,  3  Nct.  &>  F.  (<i. 
B.)344. 

35.  Where  the  award  finds  a  certain  sum  to  be 
dne,  but  no  express  order  to  pay  it,  there  being 
no  contempt,  the  payment  cannot  be  enforced  bv 
an  attachment,  but  only  by  action  on  the  award. 
Seaward  v.  Howey,  7  Dowl.  (p.  c.)  318. 

36.  Where  a  set-off  was  pleaded  of  a  sum  not 
doe  at  the  commencement  of  the  action,  and  the 
oauae  and  all  matters  in  difference  were  referred, 
**  including  the  claim  alleged  in  the  plea,"  and 
the  award  found  for  the  fuaintiff  in  tne  action, 
and  that  the  sum  claimed  in  the  plea  was  due, 
and  ordering  it  to  be  paid ;  held  sumcient.  Fetch 
V,  Conlan,  7  Dowl.  (p.  c.)  426. 

37.  So,  where  the  defendant  pleaded  by  way  of 
set-off,  a  claim  not  payable  until  a  future  day,  but 
the  consideration  of  which  bad  been  received  by 
the  plaintiff  before  commencement  of  tlie  action, 
and  all  matters  in  difference,  **  including  the 
claim  of  the  defendant  in  the  set-off,"  were  by  a 
Judge's  order  referred ;  held,  that  the  arbitrator 
properly  included  the  claim,  although  not  paya- 
ble until  after  the  date  of  the  action,  and  of  the 
order  of  reference.  Peteh  v.  Fountain,  5  fiing. 
N.  S.  (c.  p.)  442. 

38.  Where  on  a  claim  for  past  services  and 
sums  due  on  a  contract,  and  for  prospective  da- 
mages on  account  of  the  breach  of  contract,  all 
matters  in  difference  were  referred  to  arbitrators, 
who  found  that  there  was  justly  due  and  owing 
a  certain  sum,  which  was  awarded  to  be  paid; 
held,  that  such  finding  was  not  improper,  although 
the  several  claims  were  not  distmctly  arbitrated 
on,  or  that  the  award  was  not  expressea  to  be  made 
of  and  concerning  the  premises.  Croydon  Canal 
Company,  in  re,  1  Perr.  &  Dav.  (q.  b.)  391. 

39.  Where  an  action  of  debt,  to  which  the 
Mneral  issue  and  a  set-off  were  pleaded,  was  re- 
ferred, *'  the  costs  of  the  reference  and  of  the 
award  to  abide  the  event,"  and  the  arbitrator 
iband  that  the  plaintiff  had  no  cause  of  action, 
and  not  entitled  to  recover  in  the  action,  but  the 
award  was  silent  as  to  the  set-off;  held,  that  the 
award  was  final,  and  the  defendant  entitled  to 
recover  the  costs ;  the  event,  being  taken  to  mean 
the  event  as  to  the  action,  and  not  ai  to  the  de- 
termination of  particniar  issues,  which  the  arbi- 


tiator  was  not  distinctly  reqnired  to  do.  Dock* 
worth  9.  Harrison,  4  Mees.  <k  W.  (xx.)  439;  and 
7  Dowl.  (p.  c.)  71. 

40.  Where  on  reference  of  an  action  in  which 
several  issues  were  joined,  the  arbitrator  found 
for  the  defendant  on  some  issues,  but  not  foing 
to  the  whole  cause  of  action,  and  for  the  plamtin 
on  the  others,  but  omitted  to  award  damages; 
held,  that  the  award  was  insufficient,  as  it  was 
impossible  to  say  how  the  verdict  was  to  be  en* 
tered.    Howard  r.  Duncan,  7  Dowl.  (p.  c.)  91. 

41.  But  where  one  plea  covered  the  wholo 
cause  of  action,  which  the  arbitrator  found  in 
favor  of  the  defendant,  held,  that  he  had  dmw 
right  in  awarding  no  damages  on  those  issuea 
which  he  found  for  the  plaintiff.  Savage  v,  Aah* 
win,  4  Mees.  dt  W.  (ix.)  530. 

42.  Where  evidence  had  been  taken  at  a  meet- 
ing irregularly  convened,  and  at  which  the  par- 
ties did  not  attend,  but  it  was  afterwards  straek 
out,  and  the  arbitration  proceeded,  the  Court  re- 
fused to  set  the  award  aside.  Kingwell  «.  £lUott, 
7  Dowl.  (p.  c.)  423. 

43.  Where  the  arbitrator  having  power  to  en- 
large by  indorsement  on  the  order,  indorsed,  **  I 
direct  that  a  rule  of  Court  shall  be  applied  for  to 
enlarge,  &c."  aud  the  parties  proceeded  in  the 
reference,  but  no  order  was  ever  applied  for; 
held,  that  it  was  of  itself  sufficient,  but  if  not, 
that  the  irregularity  had  been  waived.  Hallett 
V.  Hallett,  5  Mees.  &  W.  (xx.)  25 ;  and  7  Dowl. 
(p.  c.)  389. 

44.  Where  the  order  of  reference  directed  th» 
parties  and  witnesses  to  be  examined,  if  the  arbi- 
trator should  think  fit,  upon  oath,  to  be  Bwon» 
before  a  Judge  or  Commissioner;  held,  that  it 
did  not  restrain  the  arbitrator,  under  3  &  4  Will. 
4,  c.  43,  s  41,  from  himself  administering  the- 
oath.  Hodson  v.  Wilde,  7  Dowl.  (p.  c.)  15 ;  and 
4  Mees.  &  W.  (ex.)  536. 

45.  Appointment  of  the  umpire  by  lot  consent^ 
ed  to  by  the  attornies'  clerks,  and  not  by  the  at* 
tornies  or  their  clients,  held  bad,  although  the 

Earties,  ignorant  of  the  fact,  attended  before  him., 
lodson  &  Drewry,  in  re,  7  Dowl.  (p.  c.)  569. 

46.  Where  the  arbitrators  having  each  name<i 
an  umpire,  one  of  the  two  was  chosen  Inr  ballot  > 
held,  that  the  approval  by  the  parties  of^  the  per* 
son  elected  did  not  make  the  election  good,  un- 
less they  did  so  with  the  full  knowledge  of  the* 
mode  in  which  he  had  been  elected.  Greenwood 
&,  another,  in  re,  1  Perr.  St  Dav.  (q.  b.)  461. 

47.  Where  a  verdict  was  taken  and  the  canst' 
referred,  and  the  arbitrator  found  a  reduced  sum 
to  be  entered  for  the  plaintiff,  subject  to  the  opin- 
ion of  the  Court  on  facts,  upon  which,  if  the- 
Court  should  be  of  that  opinion,  the  amount  wa» 
to  be  still  further  reduced,  and  a  rule  for  setting 
aside  the  award  as  not  final  was  ultimately  dis- 
charged ;  held  that  an  application  made  afVer  the 
second  term  afler  making  the  award,  to  have  the 
judgment  entered  for  the  lessor  sum,  was  in  fact 
an  application  to  set  aside  the  award,  and  too 
late.  Anderson  r.  Fuller,  4  Mees.  Sl  W.  (kx.) 
470;  and  7  Dowl.  (p.  c.)  6U 

48.  Althoogh  the  award  be  good  upon  the  Ao» 


AWAML 


^T'-wa^-ui*  irvuvi  3vr  •a*    sr-t  *  fia  je  Ja«   jp»-    "-v  ir-r^^  ^3- 

T  2»r 


2S^ 


■4  \r. 


'r  Ht-» 


Iff 


£2 


•    A  T\jt  f-r 


lltl*    CK 


r  Tl»   f^ri 


SLTI«C   J-« 


:r 


-^ 


p*»T  *vv»-^  /  sst.>:  I  rut  vc  '^.  -in-   3a; 
Mft/'iT,  Ait.  »-  F JMtk, 4  ^     r^r  .■£*', 

fidarit  M^^tywjf,  *A  Um  mtruc^  ftx?.-:;  rt  to  ^  c^ 
«T,  War4,  *  fiMt^ad  «/  •*T  HV^ii.  '  iztt  d  <«- 
■Mikt  MTT'd  ^mz  eom^ct  -.  aad  a^  ui^  iruf^rv 
WIM  Mr  aAitUirrt  <4  t/f«  <^^  <^  Lo«  leTera.  e;«Ur£e- 
mtuU  by  the  *rfMnt//n  \  k^r.-o;;  fe^ita  ^i^j.^yio- 
nfrd  m  the  niie  of  O^rt,  and  ma^  dt  a^nc- 
mmt  «f  tlie  p«tMr«,  Uk  O^rt  wocud  m>s4:  uut 
what  waa  iK<*awry  to  be  dcme  as  a  ifAizAkix-m. 
fift  yhn  rale  had  bees  Avoti.  Smith  r 
fA  re,  5  ilovL  f r,  c.>  513. 

4.  The  Oyoft  refoaed  to  rH^  back  to  the  arbi- 
Umtor  a«  award  madff  an  a  relerence  of  the  caoap 
mmI  aJJ  roattera  rn  diff-ienee,  oo  the  ^rimnd  of  bw 
hftTffiiljr  oflifUed  to  decide  aa  to  one  tabject,  where 

ikm  applfeation  waa  ooi  nude  withJD  the  fint  ibor 

dft/a  of  the  iMUm'tng  term.    Ljng  «.  Satton,  3    dantVaerrantaL  he 
Be.  (c,  r,)  187 ;  aod  5  i>owl.  (r.  c.)  39.  .  bimaelf  oaed  the  waj 

&.  Where,  before  the  caoae  had  been  entered, ;  ed  of  were  without  hia  knowied^ 
ftrtielea  of  a|;reenient  to  refer  were  executed,  and  \  Coort  refoaed  to  grant  it.    Riianll 
the  aubmiaaioD  waa  not  made  a  rule  of  Court   Se.  (c.  p.)  422. 
until  the  aeeond  term  after  the  publication  of  the 
Award ;  held  too  late  to  more  to  let  it  aside ;  on- 
Um  there  appear  clear  and  aofficient  ^ounda  for 
tlte  delay^  the  Coort  in  caaea  not  onder  the  statote 
will  not  interfere,    Rernolda  v.  Aakew,  5  Dowl. 


relating  to  anfhtof 
J  had  been  lefeiied,  and  tfaeaibitrator  directed 
that  the  deieiidant  shook!  undertake  not  to  oae  it, 
which  was  giren ;  on  an  applicatioo  lor  an  attach- 
ment lor  breach  of  the  nndeftakinr  br  the  delen- 

thatbelmd  neither 
the  acts  eoaipiain- 


the 
Tocke,4 


6^  Where  in  tn  action  of  corenant  bj  landlord 
sd^ainst  tenant,  assigning  several  breaches,  the 
cause  and  all  matters  were  referred,  and  by  the 
i»tA»*t  (ffniMi  ptiuM  the  jury  were  to  find  a  verdict 
^nd  damag(*s  on  the  first  breach,  subject,  &.C.,  but 
no  power  was  given  to  the  arbitrator  to  enter  a 
verdict  on  the  other  breaches ;  held,  that  he  could 
not  do  so.  as  an  indirect  mode  of  ordering  money 
to  bo  paid  by  the  defendant  to  the  plaintiff:  held 
alsf»,  that  an  application  might  be  made  to  set 
aside  the  award  at  any  time  within  the  next  term ) 
and  a  mere  application  by  the  defendant's  attor- 
ney for  time,  when  the  costs  were  taxed  and  exe- 
cution about  to  be  taken  out,  to  which  the  defendant 
was  no  party,  was  not  a  waiver  of  the  objection  to 
the  award.    Mayward  v.  Phillips,  1  Nev.  &  F. 

And  aee  Oonlan  v.  Brett,  5  Ad.  dt  Ell.  344. 
7.  Where  i  cauie  wu  nBftned  to  two  arbitn* 


13.  Where  an  action  had  been  br ought  on  a 
right  of  water,  aa  limited  by  an  award,  which  waa 
referred,  and  the  aecond  award  r^nlating  the  use 
was  moTed  to  be  set  aside,  aa  founded  on  a  mis- 
constroction  of  and  at  variance  with  the  for- 
mer one,  which  the  Coort  considered  it  not  to  be ; 
held,  that  the  defendant  waa  not  entitled  to  the 
costs  of  the  motion,  the  award  being  supported. 
Hocker  v.  Greenfe]l,4  Bing.  N.  S.  (c.  p.)  103;  2 
Sc.  391 ;  and  6  Dowl.  (r.  c.)  250. 

14.  The  affidavit  of  execution  of  a  power  of  at* 
tomey  demanding  performance  of  the  award,  held, 
to  be  entitled  in  the  cause.  Doe  v.  Stillwell,  6 
Oowl.  (p.  c.)  305. 

15.  Where  an  action  against  a  pawnbroker  for 
not  complying  with  the  requisites  of  the  39  db  40 
Geo.  3,  c.  99,  s.  6,  on  receiving  a  pledge,  waa  refer- 
red to  an  arbitrator,  who  was  to  state  a  case  for  the 
Court ;  and  who  having  stated  only  one  fact,  and 
on  reference  to  him  he  was  unable  to  state  wheth- 
er the  defendant  had  made  the  requisite  inquiries 
or  not,  the  Court  directed  a  new  trial,  unless  the 
parties  would  consent  to  its  going  back  to  him  to 
find  affirmatively  or  negative^  whether  the  proper 
inquiries  had  been  maae  by  the  defendant,    fcr- 


[AWARD— BAIL] 


2663 


goflOB  «.  Norrotii,  4  Bing.  N.  S.  (c.  p.)  52 ;  and  3 
Be.  304. 

16.  Where  the  award  upon  the  face  of  it  par- 
ported,  and  was  attested  to  have  been  made  in 
due  time,  the  Court  would  presume  it  to  have 
been  so  made :  held,  also,  that  the  award  being 
for  one  party  to  make  a  surrender  of  premises, 
and  the  costs  of  it  having  been  offered  on  making 
it,  it  lay  upon  the  party  who  was  to  make  the 
surrender  to  do  the  first  act ;  an  affidavit  more 
than  a  year  old  allowed  to  be  used  on  the  applica- 
tion for  an  attachment.  Doe  v.  Stillwell,  3  Nev. 
&r.  (q.  B.)701. 

17.  Where  the  parties  have  intentionally  al- 
lowed the  time  to  expire  without  enlargement, 
the  Court  has  no  power  under  3  &  4  Will.  4,  c. 
42,  to  compel  the  parties  to  proceed  with  the  re- 
ference. Doe  d.  Jones  v.  Powell,  7  Dowl.  (p.  c.) 
539. 

18.  Where  an  action  on  a  note,  and  on  an  ac- 
count stated,  was  referred,  and  the  award  found 
the  sum,  being  the  amount  of  the  note  mentioned 
in  the  declaration,  to  be  due  ;  held  bad,  as  not 
disposing  of  the  issue  on  the  account  stated ; 
held,  also,  in  an  action  on  the  award,  that  the 
production  of  the  rule  of  Court  and  award,  was 
sufficient  prim&  facie  evidence  to  sustain  the  issue 
on  the  fact  of  tlie  award.  Gisborne  v.  Hart,  5 
Mees.  &  W.  (ex.)  50  ;  and  7  Dowl.  (p.  c.)  402. 

19.  Where  the  agreement  for  an  arbitration 
stipulated  that  the  award,  and  not  the  submission^ 
should  be  made  a  rule  of  Court,  held  that  the 
Court  had,  notwithstanding,  jurisdiction  under  9 
A  10  Will.  3,  c.  15.  Storey,  ex  parte,  2  Nev.  & 
F.  (4.  B.)  G67 ;  supporting  redley  v.  Westmacott, 
3  East,  603;  Powell  v.  PhiUips,  2  Tidd,  Fr.  621, 
note  (A),  ed.  9 ;  and  7  Ad.  dt  £11.  602. 

90.  Where  an  attachment  was  obtained  for 
non-performance  of  an  award  which  was  ordered 
to  remain  suspended,  to  await  the  result  of  an 
inquiry,  and  to  be  discharged  on  certain  condi- 
tions which  were  not  complied  with ;  held,  that 
the  costs  of  such  inquirv  were  to  be  considered 
as  incidental  to,  and  to  be  considered  as  part  of, 
the  costs  of  the  attachment.  Tyler  v.  Campbell, 
5  Bing.  N.  S.  (c.  p.)  192. 

21.  Upon  reference  of  a  cause  at  nisi  prius, 
with  power  to  certify  whether  the  cause  was  a 
proper  one  to  be  tried  before  a  Judge  of  assize ; 
and  a  certificate  was  given  in  the  affirmative,  but 
the  learned  Judge  died  before  the  certificate  made 
known  to  him ;  held,  that  having  exercised  no 
opinion  thereon,  the  Court  had  no  authoritv  to 
direct  the  master  to  tax  full  costs.  Astley  v.  Joy, 
1  Perr.  &  Dav.  (q.  b.;  460. 

22.  Where,  after  a  cause  referred,  the  award 
was  set  aside,  and  the  cause  again  tried,  and  the 
plaintiff  obtained  a  verdict ;  held  that  the  master 
projperly  refused  the  costs  of  the  first  trial.  Wood 
9.  Duncan,  7  Dowl.  (p.  c.)344. 

23.  Where  an  action,  and  a  cross  bill  in  equity 
for  an  injunction  to  restrain  the  suit,  were  refer- 
red, the  costs  of  the  action  and  suit  "  to  abide  the 
event,"  and  of  the  reference,  to  be  in  the  discre- 
tion of  the  arbitrator ;  the  arbitrator  found  some 
«f  the  issues  for  the.  plaintiff,  with  5j.  damages, 

Vol.  IV.  52 


and  the  others  for  the  defendant,  but  that  tbe^, 
having  a  defence  in  law,  should  not  proceed  in 
the  suit  in  equity  as  regarded  them ;  held,  that 
the  arbitrator,  by  having  directed  that  the  plaintiff 
should  not  proceed  in  the  action  for  his  dam- 
ages or  costs,  although  he  had  thereby  indirectly 
exercised  a  jurisdiction  over  the  costs  of  the  ac- 
tion, had  not  exercised  such  a  discretion  as  the 
reference  meant  to  exclude,  but  that  the  costs 
were  still  leA  to  abide  the  event  as  the  parties 
intended.  Reeves  v.  MacGregor,  1  Perr.  &  Dav. 
(q.  B.)  372. 

24.  Where,  upon  a  cause  being  referred  before 
trial,  an  arbitration  bond  was  executed,  but  the 
reference  being  abortive,  the  cause  was  tried ; 
held  that  the  costs  of  the  reference  were  not  costs 
in  the  cause,  but  only  recoverable  under  the 
bond.     Doe  v.  Morgan,  4  Mees.  &  W.  (ex.)  171. 

25.  Where  the  language  of  the  award,  on  the 
reference  of  an  action  on  a  special  contract,  and 
for  goods  sold,  was  as  much  referable  to  the  spe- 
cial as  to  the  general  count,  and  the  award  was 
treated  as  valid,  the  Court  refused  to  direct  the 
taxation  of  the  master  of  the  general  costs  to  be 
reviewed.  Rennie  v.  Miles,  5  Bing.  N.  S.  (c.  p.) 
249;  and  7  Dowl,  (p.  c.)  295. 

26.  Where  the  reference  was  to  two  arbitrators 
and  an  umpire,  and  the  agreement  to  perform  the 
award  of  the  said  arbitrators  and  their  umpire, 
and  it  was  made  by  the  arbitrators  only,  the  Court 
refused  an  attachment.  Heatherington  v.  Robin- 
son, 7  Dowl.  (p.  c.)  19:  and  4  Mees.  &.  W  (ex.) 
608. 

And  see  Costs, 


BAIL. 

[A]  Affidavit  of. 

[B]  Deposit  in  lieu  of. 

[C]  Justification. 

(a)  WhenalUnoeeL 

(b)  Jfotiee  0/ 

(c)  Affidavit  cf-4n  person, 

(d)  TinUj  token  given — effecL 

[D]  Render. 

[E]       BaIL.BOND  —  'PROCEEDINGS 
stated — SET  ASIDE. 


ON  —  WHXir 


[A]  Affidavit  of. 

1 .  The  affidavit  merely  stating  the  debt,  **  on 
an  account  stated  between  them ;"  held  insuffi- 
cient, and  leave  to  arrest  a  second  time  refused. 
Hooper  v.  Vestris,  5  Dowl.  (p.  c.)  710. 

2.  Affidavit  by  a  party  describing  himself  mana- 

fer  to  the  R.  branch  of  the  T.  bank,  and  that  the 
efendant  was  justly,  &c.  to  J.  S.,  as  one  of  the 
registered  public  officers  of  the  T.  bank,  for 
£— —  for  money  lent  to  the  deponent  as  suck 
manager,  held  irregular,  as  not  showing  the  au- 
thority to  lend ;  but  not  a  nullity,  and  that  an  ap- 
plication to  be  discharged  made  thite  days  after 


9664 


[BAIL] 


term,  the  affidtTit  heing  made  fourteen  dajs 
before  the  end  of  term  was  too  late.  Speneer  v. 
Newton,  7  Nev.  &  P.  (k.  b.)  823. 

3.  Affidavit  for  the  a^^istment  of  cattle,  must 
alleffe  that  they  were  so  at  the  request  of  Uie  de- 
fendant.   Smith  V.  Heap,  5  Dowl.  (p.  c.)  11. 

4.  The  affidavit  of  bail  need  not  show  the  con- 
nexion between  the  plaintiff  and  defendant.  Hoi- 
liday  v.  Lawes,  3  Bing.  N.  S.  (c.  p.)  541 ;  4  Sc. 
354 ;  and  5  Dowl.  (p.)  485, 636. 

5.  An  affidavit  not  entitled  in  any  court,  but 
sworn  in  Scotland  before  a  party  stating  himself 
to  be  a  commissioner  by  viilue  of  a  commission 
from  the  Courts  of  C.  P.  and  Ex.,  held  sufficient 
White  V,  Irving,  2  Mees.  &  W.  (kx.)  127;  and  5 
Dowl.  (p.  c.)  ^. 

6.  Affidavit  that  the  defendant  was  indebted  in 
£  for  the  hire  of  s  berth  in  a  vessel  of  the 
plaintiff,  let  by  the  plaintiff  to  the  defendant  at  his 
request,  held  sufficient.  Shepherd  v.  O'Brien,  t 
Mees.  &  W.  (kx.)  601 ;  and  1  Tyr.  <&  Gr.  913; 
8.  C.  5  Dowl.  (p.  c.)  173. 

7.  Affidavit  of  debt  "  for  money  had  and  re- 
ceived by  defendant  for  and  on  account  of  the 
plaintiff,  but  not  going  on  to  say  to  the  plain- 
tiff's use,  held  insufficient.  Kelly  v.  Curzon,  1 
Nev.  &  P.  (K.  B.)  622. 

8.  Affidavit  for  £ ''for  principal  monies 

due  upon  a  bill  of  exchange,"  not  stating  the 
amount  of  the  bill,  held  bad;  but  where  the 
application  was  made  19  days  afler  the  arrest, 
held  an  unreasonable  delay,  and  the  application 
to  discharge  the  party  refused.  Fowell  v.  Petre, 
1  Nev.  &  P.  (k.  b.)  227;  and  5  Dowl.  (p.  c.) 
276. 

9.  Affidavit  for  money  ''  on  the  balance  of  an 
account  stated,'*  not  gomg  on  to  say,  "  and  set- 
tled between  plaintiff  and  defendant,"  held  suffi- 
cient. Tyler  v.  Campbell,  3  Bing.  N.  S.  (c.  p.) 
675;  4  Sc.  384  ;  and  5  Dowl.  (p.  c.)  632. 

10.  The  affidavit-  by  indorsee,  in  an  action 
a^nst  the  maker  of  a  note,  need  not  describe 
hunself  so,  if  he  traces  the  title  to  the  note  from 
the  maker  to  himself,  nor  need  he  allege  the  de- 
fault of  the  maker.  James  v.  Trevanion,  5  Dowl. 
(p.  c.)  275. 

11.  Affidavit  stating  the  defendant  to  be  indebt- 
ed on  a  bill,  drawn  and  accepted  by  him,  held  suf- 
ficient. Harrison  v.  Rigby,  6  Dowl.  (p.  c.)  93 ; 
and  3  Mees.  &  W.  (xx.)  66. 

12.  Where  it  stated  the  defendant  to  be  indebt- 
ed on  a  note  drawn  bv  him,  payable  to  F.,  and  by 
F.  indorsed  to  the  plaintiff,  and  the  declaration 
stated  an  intermediate  indorsement;  held,  not  a 
substantial  variance  as  to  the  cause  of  action. 
Luce  V.  Irvin,  6  Dowl.  (p.  c.)  92;  and  3  Mees. 
db  W.  (XX.)  27. 

13.  The  affidavit  for  money  due  on  an  account 
stated,  held  sufficient,  without  going  on  to  allege 
that  it  had  been  "  settled"  or  a  balance  struck. 
Balmanno  v.  May,  6  Dowl.  (r.  c.)  306. 

14.  Where  the  affidavit  in  an  action  by  holder 
against  the  drawer  of  a  bill  merely  stated' that  the 
acceptor  made  default  in  paymentjwhen  due,  held 


insufficient,  not  showing  a  refusal  to  pay  oa  pre- 
sentment; but  the  affidavit  being  gooa  as  to  an- 
other claim,  sufficient  to  hold  the  party  to  bail, 
and  indorsed  on  the  capias^  held  sufficient  as  to 
that  part.  Caunce  v.  Kigby,  3  Mees.  &  W.  (ex.) 
67. 

15.  In  case  for  injury  to  the  plaintiff's  rever- 
sionary interest  in  premises,  held  sufficient  that 
the  affidavit  to  hold  to  bail  was  by  the  plaintiff's 
attorney,  and  the  amount  of  damage  stated  ae- 
cording  to  his  information  and  belief.  Hodgson 
V.  Dowell,  6  Dowl.  (p.  c.)  344;  and  3  Mees.  dk. 
W.  (EX.)  284. 

16.  Where  no  bail  was  put  in  and  the  time  of 
putting  it  in  expired ;  hela,  that  the  subsequent 
payment  of  the  sum  deposited  with  the  sheriff  in 
lieu  of  bail,  and  of  a  further  sum  of  101,  for  costs, 
were  not  equivalent  to  putting  in  and  perfecting 
bail,  and  the  plaintiff  having  obtained  a  rule  for 
payment  over  of  the  money  to  him,  the  Court  re- 
fused, even  on  an  affidavit  of  merits,  to  interfere. 
Hannah  v.  Willis,  4  Bing.  N.  S.  (c.  p.)  310;  and 
6  Dowl.  (p.  c.)  417. 

17.  The  application  by  defendant  to  be  di»- 
eharged  on  putting  in  common  bail,  on  the  etound 
of  a  defect  in  the  affidavit  to  hold  to  bail,  must 
be  made  within  the  time  hmited  for  putting  in  an 
appearance  in  ordinary  cases ;  and  held,  that  per- 
sonal indisposition  was  not  an  excuse  to  take  the 
case  out  of  the  strict  rule.  Daly  v.  Mahon,  4 
Bing.  N.  S.  (c.  p.)  8;  6  Dowl.  (p.  c.)  193;  and  3 
Sc.299. 

18.  And  a  variance  in  the  copy  of  process  serv^ 
ed  on  the  defendant,  where  the  original  is  correct, 
held  merely  an  irregularity,  and  requiring  the  ap- 
plication to  be  made  withm  the  time  for  patting 
m  bail.  Brashour  v.  Russell,  4  Bing.  N.  S.  (c.  f.) 
31 ;  and  6  Dowl.  (p.  c.)  and  3  S.  C.  268. 

19.  But  where  the  affidavit  alleged  the  debt  to 
be  due  to  the  plaintiffs  and  their  late  co-partner,* 
and  an  affidavit  showed  that  he  was  still  alive, 
the  bond  ordered  to  be  cancelled.  Morreil  v. 
Parker,  6  Dowl.  (p.  c.)  123;  and  3  Mees.  <&  W. 
(ex.)  65. 

20.  Affidavit  by  a  party  describing  himself  as 

"  acting  as  managing  clerk  to  Messrs. ,  at- 

tornies,"  not  statmg  their  place  of  business,  held 
insufficient.  Graves  v.  Browning,  6  Ad.  &  £11. 
(k.  b.)  805. 

21.  The  chief  and  one  judge  of  any  court  em- 
powered to  authorice  commissioners,  not  being 
attornies,  to  take  bail  recognixances,  and  the  cog- 
nisors  or  bail  may  justify  before  such  commission- 
ers.   By  1  de  2  Vict.  c.  45,  s.  4. 

22.  Where  a  party  is  held  to  bail  upon  a  special 
affidavit,  the  Court  semb.  will  entertain  an  appli- 
cation for  discharff^ing  or  reducing  the  amount, 
upon  counter  affioavtts.  Hutt  v.  Capelin,  5  Sc. 
(c.  p.)  415. 

23.  Where  the  affidavit  stated  a  sum  to  be  due 
for  principal  and  interest  upon  a  bond  for  f., 
held,  that  the  amount  of  each  was  sufficiently 
alleged :  but  the  affidavit  stating  also  a  further 
sum  of 1,  for  the  balance  of  an  account  be- 
tween the  parties,  held  insufficient  for  not  aUeg- 


[BAIL] 


a68& 


hiff  that  it  was  a  stated  and  settled  account:  but  tand  the  defendant  cannot  treat  the  exception  as  a 
hdd,  that  the  causes  of  action  being  distinct  and  I  nullity.    Feltham  v.  King,  5  Dowl.  (p.  c.)  658, 
separate,  and  one  properly  sworn  to,  the  affidavit ' 
was  not  bad  in  toto,  but  that  the  defendant  must 
give  bail  for  the  amount  rightly  sworn  to.     Jones 
V.  Collins,  4  Dowl.  (p.  c.)  526. 


34.  In  an  action  by  indorsee  against  indorser  of 
a  bill ;  held,  that  the  affidavit  ought  to  state  ex- 
pressly the  default  of  the  acceptor,  and  that  the 
allegation  was  not  supplied  by  a  statement  that 
the  amount  *'  is  now  due  and  unpaid."  Jones  o. 
Collins,  6  Dowl.  (p.  o.)  520. 


[B]  Deposits  in  lixu  of. 

1.  The  rule  for  taking  money  out  of  Court 
deposited  in  lieu  of  bail,  under  7  &  8  Geo.  4,  c. 
71,  s.  2,  is  only  idsi  in  the  first  instance.  Lover 
V.  Tolmin,  5  6owl.  (p.  c.)  388. 

2.  Where  money  was  deposited  in  lieu  of  bail, 
and  an  order  for  better  particalars,  with  stay  of 
proceedings,  not  complied  with,  the  Court  refused 
an  application  allowing  the  defendant  to  take  the 
money  out  of  Court.  Harden  o.  Harbours,  7 
Dowl.  (p.  c.)  546. 

3.  And  where  money  had  been  deposited  in 
lieikof  bail,  as  he  could  not  be  considered  at  all 
in  custody,  held,  that  he  was  not  entitled,  on  an 
equitable  construction  of  the  statute,  to  have  the 
money  returned  to  him.  Harrison  v.  Dickenson, 
4  Mees.  ^  W.  (ax.)  355 ;  and  7  Dowl.  (p.  c.)  6. 

4.  The  Court  refused  a  rule  for  the  return  of 
money  deposited  in  lieu  of  bail,  on  the  ground  of 
an  omission  of  one  of  the  defendant's  christian 
names  in  the  writ  Roasett  v.  Hartley,  7  Ad.  ^ 
£11.  (q.  B.)  523  n. 


[C]    JuSTlFICATIOir. 

(a)  Wken  allowed. 

1 .  Where  the  defendant  had  inserted  the  debt 
in  his  schedule,  and  was  imprisoned  under  the 
order  of  the  Insolyent  Court,  the  Court  refused 
to  allow  him  to  justify  bail  in  respect  of  such  debt. 
Stone's  Bail,  5  Dowl.  (p.  c.)  667. 

2.  A  defendant  not  in  custody  cannot  justify  at 
chambers  in  yacation,  unless  required  to  do  so  by 
the  plaintifF.  SembU  the  11  Geo.  4  &.  1  WiU.  4, 
c.  70,  s.  12,  relates  to  the  plaee  where  bail  may  jus- 
tify under  all  circumstances ;  the  rule  1,  Hil.  2 
Will.  4,  s.  17,  to  the  t»fit«  in  particular  cases.  Bar- 
latt  V.  James,  5  Dowl.  (p.  c.)  123. 


one  bail  with- 
^bite's  Bailf  5  Dowl. 


3.  The  defendant  cannot 
oat  consent  of  the  plaintiff. 
(p.  G.)  133. 

4.  Where,  after  a  demurrer  (attempted  to  be  set 
aside  as  frivolous),  an  order  was  obtained  to  join 
in  the  demurrer ',  held,  that  the  bail  could  neither 
be  opposed  nor  allowed  to  justify.  Bolton  v.  John- 
son, 2  Mees.  &,  W.  (kz.)  42. 

5.  It  is  sufficient  for  the  plaintiff  to  except  to 
one  .of  the  b^l  to  compel  the  justification  of  both, 


(b)  J^oOce  of. 

1 .  The  notice  in  stating  the  residence  of  the 
bail,  must  state  "  resident  there  for  the  last  six 
months."    Hollings'  Bail,  5  Dowl.  (p.  c.)  229. 

2.  The  notice  of  justification  of  town  bail  need 
not  state  whether  they  will  justify  in  person  or  by 
affidavit ;  and  where  they  justified  as  to  the  prop- 
erty stated,  the  Court  renised  to  disallow  the  costs 
of  justification.  Norton's  Bail,  1  Mees.  dt  W. 
(Fx.)  632  ;  1  Tyr.  &  Gr.  847 ;  and  5  Dowl.  (p.  c.) 

3.  The  rule  of  Trin.  1  Will.  4,  s.  1,  requiring 
four  days'  notice  of  justification,  held  not  to  apply 
to  the  case  of  bail  added  by  leave  of  a  Judge.  Key 
V.  M'Intyre,  2  Mees.  dt  W.  (xx.)  347  j  and  6 
Dowl.  (p.  c.)  453.  463. 

4.  Where  the  same  bail  justify  at  chambers, 
one  day's  notice  is  sufficient.  Wilson  v.  Hawk- 
ins, 2  Dowl.  (p.  c.)  437. 

5.  Two  days'  notice  of  bail  in  the  case  of  a  pris- 
oner good,  notwithstanding  the  new  rule,  and  it 
need  not  appear  on  the  face  of  the  notice  that 
the  defendant  is  so.  Pierce's  Bail,  5  Dowl.  (p.  c.) 
257. 

6.  But  the  two  days'  notice  of  justification  must 
state  that  the  defendant  is  a  prisoner.  Foole's 
Bail,  2  Mees.  &W.  (xx.)312;  and  5  Dowl.' (p. 
c.)  449. 

7.  In  all  cases,  special  bail  may  be  justified  be- 
fore a  Judge  at  ohambers,  in  term  or  vacation,  an- 
nuUing  17  Reg.  Hill.,  2  WiU.  4.  Reg.  Gen.  4 
Bing.  N.  S.  (c.  p.)  366;  and  3  Mees.  &  w.  (xx.) 
154. 

8.  Notice  of  justification  at  chambers  must  in- 
sert the  hour ;  but  the  omission  does  not  entitle 
the  plaintiff  to  treat  it  as  a  nullity,  and  commence 
proceedings  on  the  bail-bond  before  the  time  for 
justifying  naa  expired  ;  and  held  that,  under  the 
circumstances,  the  defendant  was  not  too  late  in 
applying  to  set  aside  the  proceedings  by  the  lapse 
of  eight  days.  Smith  v.  Webb,  2  Mees.  A  Yf. 
(XX.)  879. 


(c)  Affidavit  of—in  person. 

1.  An  affidavit  must  comply  with  the  requisites 
of  Reg.  Hil.  2  Will.  4,  s.  19 ;  but  if  not  in  confor- 
mity therewith,  the  objection,  where  the  bail 
justify  in  person,  only  goes  to  deprive  the  defen- 
dant of  me  costs  of  justification.  Steyens  v. 
Miller,  2  Mees.  dt  W.  (xx.)  368 ;  and  5  Dowl. 
(p.  c.)  602. 

2.  The  omission  to  state  the  addition  of  bail  in 
the  affidavit  of  justification  held  fatal.  Benbow's 
Bail,  5  Dowl.  (p.  c.)  714. 

3.  The  rule  of  Hil.  2  Will.  4,  applies  to  affida- 
yits  made  by  bail,  and  if  the  addition  be  omitted 
will  be  bad ',  the  Judge  allowed  it  to  be  amended, 


2686 


[BAIL] 


but  refuBed  the  defendant  his  boets  of  justifica- 
tion.   Brown's  Bail,  5  Uowl.  (p.  c.)  220. 

4.  Where  bail,  not  being  able  at  the  time  to 
answer  as  to  his  debts  and  credits,  was  disal- 
lowed but  not  rejected,  he  was  allowed  to  justify 
on  coming  again  prepared  to  answer  sufficiently. 
Clarke  ».  Veslris,  4  Sc.  (c.  p.)  391. 

5.  It  is  no  objection  to  bail  in  an  action  against 
the  acceptor,  that  he  is  the  drawer  of  the  bill  on 
which  his  principal  is  sued.  Prime  v.  Beesley,  3 
Bing.  N.  S.  (c.  p.)  391 ;  4  Sc.  37 ;  and  5  Dowl. 
(p.  c.)  477. 

6.  Town  bail  allowed  to  justify  in  person 
where  the  affidavit  of  justification  is  insufficient ; 
bat  the  plaintiff  may  oppose  without  the  risk  of 
costs.    Shane  v.  Sponde,  2  Mees.  &  W.  (ex.)  42. 

7.  Where  bail,  of  whom  notice  has  been  ^iven, 
are  rejected,  new  bail  cannot  be  put  in  without 
leaTO  of  a  Judge  or  the  Court ;  but  they  are  not 
obliged  to  disclose  at  whose  request  they  justify. 
Jones  V.  Vestris,  3  Bing.  N.  S.  (c  f.)  677 ;  4  Sc. 
394;  and  5  Oowl.  622. 

8.  The  affidavit  of  justification,  stating  the  bail 

to  be  worth -/.,  "  over  and  above  all  their  just 

debts,**  omitting  the  words,  "  will  pay,"  held  in- 
sufficient £dmunds  v.  Keats,  6  Dowl.  (p.  c.) 
359. 

9.  Where  an  affidavit  of  sufficiency  of  country 
bail  attempted  to  describe  the  property ;  held, 
that  it  mast  strictly  pursue  the  form  prescribed  by 
Reg.  Trin.,  1  Will.  4.  Weller's  Bail,  6  Dowl. 
(p.  c.)  612. 

10.  Where  the  bail  are  sufficient,  but  the  pro- 
perty is  misdescribed  in  the  affidavit,  they  will 
be  admitted  without  payment  of  costs,  and  those 
of  opposition  will  be  costs  in  the  cause.  Brown 
Ahrenfeldt,  4  Mees.  &  W.  (ex.)  76 ;  and  7  Dowl. 
(p.  c.)  46. 

11.  Where  the  affidavit  stated  that  the  bail  were 
not  security  for  any  defendant  except  the  above 
defendant,  allowed  to  be  amended  by  adding, 
except  in  this  action.  Warren  v.  De  Burgh,  7 
Dowl.  (p.  c.)  96. 

12.  Where  the  affidavit  stated  the  amount  of  the 
debt  less  than  the  sum  indorsed  on  the  writ,  the 
bail-bond  ordered  to  be  cancelled,  and  a  common 
appearance  entered.  Cook  v.  Cooper,  2  Nev.  & 
P.  (Q.  B.)  607;  and  7  Add.  ^(&  £11.  605. 


(d)  TivUf  token  given — effect. 

1.  Where  it  appeared  that  the  plaintiff  could 
not  under  the  circumstances  possibly  have  in- 
quired into  the  sufficiency  of  the  bail,  time  al- 
lowed on  payment  of  costs,  and  putting  tlie  de- 
fendant in  the  same  situation  as  if  the  bail  bad 
justified.     Dicas  v.  Smith,  3  Sc.  (c.  p.)  601. 

2.  The  effect  of  a  Judge's  order  for  time  to  put 
in  bail,  is  that  within  that  time  the  bail  shall  be 
put  in,  transmitted,  and  filed,  notwithstanding 
the  rule  1,  Hil.  2  Will.  4,  s.  14.  Craig  v.  Evans, 
5  Dowl.(p.  c  )  664. 


3.  Where  after  tiose  given,  without  coiMent  of 
the  bail,  one  of  them  afterwards  requested  **  farther 
time;"  held  to  amount  to  a  waiver  of  the  origi- 
nal grouud  of  discbarge.  Spyer  v.  Carper,  5 
Dowl.  (P.O.)  448. 

4.  Where  bail  attempted  to  justify,  and  were 
rejected  on  a  preliminary  technical  objection,  the 
Court  refused  to  allow  fresh  bail  to  be  added. 
Elliott  V.  Gutteridge,  6  Dowl.  (p.  c.)  255. 

5.  Where  an  order  was  made  for  further  time 
to  justify,  "  withovit  prejudice  to  the  question  of 
the  sheriff  being  in  contempt;"  held  to  mean, 
his  being  so  at  the  time  of  the  order  being  made, 
and  having  the  whole  of  the  day  to  bring  in  the 
body,  the  attachment  was  irregular.  Reg.  t>.  Midd. 
Sh.,6  Dowl.  (p.  c.)  164;  3  Mees.  dt  W.  (ex.) 
64. 

6.  In  future,  special  bail  in  all  cases  may  be 
justified  in  term  or  vacation  before  tlie  Judge  at 
chambers,  annulling  Keg.  Hil.,  2  Will.  4,  art.  17. 
Reg.  Gen.  3  Nev.  <Sfc  P.  (t^.  b.)  1. 


[D]  Render. 

1.  The  Palace  Court  is  not  in  the  nature  of  a 
superior  court  of  record  within  11  Geo.  4  &  1 
Will.  4,  c.  70,  8.  21,  so  as  to  enable  the  defen- 
dant's bail  to  render  for  the  removal  of  the  cause. 
Scaith  v.  Brown,  5  Dowl.  (p.  c  )  412. 

2.  After  notice  of  render  served,  proceeding 
against  the  bail  held  irregular,  although  the  writ 

Ereviously  sued  out.      Lewis  r.   Grimstonc,  5 
>owl.  (p.  c;  711. 

3.  Rendec  is  no  stay  of  proceedings  under  Reg. 
Trin.  3  Will.  4,  unless  the  costs  of  the  writ  and 
service  be  paid.  Horn  o.  Whitcombe,  5  Dowi. 
(p.  c.)  328. 

4.  Where  bail  were  put  in  and  excepted  to,  bat 
did  not  justify,  and  the  defendant  afterwards  ren- 
dered ;  held,  that  so  long  as  the  names  of  the 
bail  remained  on  the  bail-piece,  they  were  entitled 
to  render  and  enter  an  exoneretur.  Roxburgh  «. 
Cresswell,  5  Ad.  &  Ell.  (k.  b.)  829. 

5.  By  the  rule  of  Hil.  2  Will.  4,  s.  81,  the  ap- 
plication to  a  judge  for  signing  judgment  for  non- 
appearance to  the  sH.  fa.  after  eight  days  from 
the  return  of  one  writ  is  substituted  for  the  old 
practice,  and  it  is  sufficient  if  the  render  of  the 
bail  be  made  within  that  time,  when  notice  on 
country  bail  is  served  before  the  return  da^r  of 
the  writ ;  but  since  the  rule,  notice,  or  something 
equivalent,  must  be  served  on  the  bail,  before 
leave  will  be  given  to  sign  judgment  against  them. 
Saundersott  v.  Brown,  2  Nev.  &  P.  (k.  b.)  84 ;  6 
Dowl.  (p.  c.)  9. 


[E]  Bail-bond — proceedings  on — when 

STAYED — SET   ASIDE. 

1.  The  plaintiff  in  the  action  cannot  be  a  wit- 
ness to  the  assignment  of  the  bail-bond,  the  sta> 
tute  implying  two  indifferent  persons.  Wright 
V.  Barrett,  5  Dowl.  (p.  c.)  64. 


[BAIL] 


2687 


2.  An  alteration  in  the  name,  with  the  initials 
of  the  officer  taking  it,  held  immaterial,  and  the 
bail  allowed  to  jastifj,  although  an  attachment 
obtained  against  the  sheriff  for  not  brinorinrr  in 
the  body.     Haywood's  Bail,  5  Dowl.  (r.  c.)  ^1). 

3.  Upon  an  application  to  set  aside  the  bail- 
bond  for  irregularity,  the  party  is  not  entitled  to 
take  objection  to  the  process,  as,  a  defect  in  the 
indorsement  of  the  writ.  Yeates  r.  Chapman,  3 
fiing.  N.  S.  (c.  p.)  262;  and  3  Sc.  648. 

4.  The  affidavit  for  staying  proceedings  on  the 
bail-bond  must  state  tliat  the  application  is  made 
at  the  expense  of  the  bail,  and  for  their  indem- 
nity only.     Key  v.  M'lntyre,  5  Dowl.  (p.  c.)  463. 

5.  It  is  no  ground  for  setting  aside  the  ca,  sa. 
in  the  original  action,  or  subsequent  proceedings 
against  the  bail,  that  the  damages  and  costs  re- 
corered  exceed  the  damans  laid  in  the  declara- 
tion. Kempeneers  v.  Holding,  5  Dowl.  (p.  c.) 
374. 

6.  Where  upon  the  defendant  having  justified 
bail,  and  takinj^  short  notice,  there  was  time  to  go 
to  trial  at  the  mst  sitting  in  term,  the  Court  stay- 
ed the  proceedings  on  the  bail-bond,  allowing  it 
to  stand  as  a  security.  Clarke  v.  Vestris,  4  Sc. 
(c.  p.)  391. 

7.  Where  a  second  arrest  was  made  without 
a  Judge's  order,  held  that  the  defendant's  under- 
taking to  put  in  bail  was  a  waiver  of  the  objec- 
tion. Holliday  v.  Lawes,  N.  S.  (c.  p.)  541 ;  4 
Sc.  354 ;  and  5  Dowl.  (p.  c.)  485.  636. 

8.  Where,  after  the  ca.  sa.  had  been  returned 
mm  inrent.,  the  defendant  obtained  a  rule  nm  for 
a  new  trial,  with  a  stay  of  proceedings;  held 
that,  on  the  discharge  of  the  rule,  Ihe  right  to 
issue  the  $ei.  fa.^  which  had  been  only  suspended, 
revived,  and  that  no  fresh  entry  of  judgment  or 
aliaa  ca,  sa.  was  necessary ;  held  also,  tnat  half- 
holidays  at  the  office  are  to  be  counted  as  search- 
ing days,  and  that  it  is  discretionary  in  the  Judge 
to  direct  notice  to  be  given  to  the  bail  before 
leave  granted  to  sign  judgment  against  them. 
Where  the  residence  was  unknown,  judgment 
signed  without  notice  held  regular.  Armitage 
1?.  Rigbye,  5  Ad.  &  Ell,  (k.  b.)  76.  - 

9.  Upon  motion  to  set  aside  a  regular  bail-bond 
or  attachment,  if  it  appear  that  bv  the  default  of 
the  defendant  the  plaintiff  has  been  prevented 
from  trying  his  cause,  the  attachment  will  be  al- 
lowed to  stand  as  a  security,  notwithstanding  the 
rule  to  set  it  aside  might  have  been  disposed  of 
in  time  to  have  enabled  the  plaintiff  to  have  en- 
tered and  tried  the  cause.  Casley  v.  Binns,  2 
Mees.  ds  W.  (ex.)  285. 

10.  Where  pending  the  cause,  by  an  arrange- 
ment,  time  was  given,  but  not  extending  it  be- 
yond the  period  at  which,  according  to  the  course 
of  the  Court,  judgment  and  execution  might 
have  been  obtained  ;  held,  that  the  bail  were  not 
discharged.  Whitfield  v.  Hodges,  1  Mees.  6l  W. 
(EX.)  era ;  and  1  Tyr.  &  Gr.  1061. 

11.  Where,  afler  bail  put  in,  the  declaration 
was  amended  by  adding  new  counts  on  other 
causes  of  action,  and  the  plaintiff  recovered  on 
all ;  held  that  the  bail  were  not  liable  to  the  costs 


on  the  added  counts,  and  that  the  onus  of  sepa- 
rating the  liability  on  taxation  lay  on  the  plaintiff. 
Taylor  v.  Wilkinson,  1  Nev.  6l  P.  (k.  b.)  629. 

12.  In  order  to  stay  the  proceedings,  it  is  not 
necessary  to  show  that  a  rule  has  been  obtained 
for  the  allowance  of  bail,  if  it  be  sworn  that  they 
have  been  put  in  and  justified;  and  held  also, 
that  an  affidavit  of  merits,  as  the  deponent  (the 
defendant)  ^'has  been  advised  and  believes,"  was 
sufficient ;  and  in  order  to  obtain  the  bail-bond  to 
stand  as  a  security,  it  must  appear  that  a  trial  has 
been  lost  at  the  time  of  moving  the  rule  to  stay 
the  proceedings.  Crossby  v.  Inncs,  5  Dowl.  (p. 
c.)  566. 

13.  The  rule  Hil.  2  Will.  4,  s.  14,  as  to  the 
time  for  transmitting  the  bail-piece  in  the  case  of 
country  bail  does  not  affect  the  time  allowed  for 
potting  in  bail,  where  the  assignment  of  the  bond 
has  been  taken,  and  proceedings  will  only  be 
stayed  on   payment  of  costs.     Day  v.  Greenway, 

5  Dowl.  (p.  c.)  243. 

14.  Where  the  defendant,  a  bankrupt,  had  ob- 
tained his  certificate  under  a  third  commission, 
not  having  paid  5dr.  in  the  pound  under  either  of 
the  former,  the  court  refused  to  cancel  tlie  bail- 
bond  given  upon  an  arrest  for  a  debt  provable 
under  the  last,  but  lefl  him  to  plead  his  certificate 
or  general  plea  of  bankruptcy.  Summers  v. 
Jones,  6  Dowl.  (p.  c.)  139. 

15.  In  an  action  by  the  assignee  of  the  bond,, 
held  sufficient  to  allege  the  assignment  to  have 
been  made  according  to  the  form  of  the  statute, 
under  which  averment  it  must  be  proved  to  have 
been  assigned  under  the  hand  of  the  sheriff,  and 
in  the  presence  of  witnesses.     Lewis  v.  Parker, 

6  Dowl.  (p.  c.)  93;  and  3  Mees.  &  W.  (ex.)  133. 

16.  Where  the  party  had  been  held  to  bail  on 
a  sufficient  affidavit  for  money  lent,  held  that  it 
was  no  ground  for  cancelling  the  bail-bond,  that 
in  an  affidavit,  on  a  subsequent  application,  the 

f>laintiff  stated  fiicts  inconsistent  with  the  claim 
or  money  lent.    Vaughan  v.  Goadby,  6  Dowl. 
(p.  c.)  96;  and  3  Mees.  &  W.  (ex.)  143. 

17.  To  entitle  the  plaintiff  to  have  the  bond 
stand  as  a  security,  a  trial  must  have  been  lost  at 
the  time  of  moving  for<  the  rule ;  and  held,  that 
where  the  application  to  stay  proceedings  on  the 
bond  is  at  the  instance  of  the  bail,  terms  will  not 
be  imposed  on  the  defendant.  Gaie  r.  Hay  worth,^ 
6  Dowl.  (p.  c.)  823. 

18.  Since  1  &  2  Vict.  c.  110,  the  Court  will  sta^ 
proceedings  on  the  bail-bond  without  any  am<« 
davit  of  merits,  or  driving  the  bail  to  the  expenses 
of  render.  Norris  v.  Bracken,  5  Bing.  N.  S.  (c.  p.) 
114 ;  6  Sc.  752 ;  and  7  Dowl.  (p.  c.)  144. 

19.  But  where  the  principal  was  out  of  the  conn- 
try,  and  the  bail  in  no  condition  to  render,  the 
rule  refused.  Dalton  v,  Gib,  5  Bing.  N.  S. 
(c.  p.)  143 ;  6  Sc.  751 ;  and  7  Dowl.  (p.  c.)  143. 

20.  So  where  at  the  time  of  the  Act  comin|r 
into  operation,  the  defendant  was  out  on  bail,  ana 
had  quitted  the  kingdom,  and  it  was  sworn  he 
intended  to  remain  abroad,  the  Court  refused  ta 
enter  an  exontretur,  Lewis  v.  Ford,  7  Dowl.  (p. 
c.)  85;  and  4  Mees.  &.  Yf.  (ix.)  361. 


2688 


[BAIL— BANKRUPT] 


21.  So  where,  after  arrest,  the  defendant  escaped 
before  the  Act  came  into  operation,  bat  afler  it 
did  so  he  was  re-taken  on  an  escape  warrant ;  held 
not  entitled  to  his  discharge,  as  being  either  in 
custody  at  the  time  of  the  act  coming  into  oper- 
ation, or  as  having  been  arrested  on  mesne  process 
after  that  period.  Nyas  v.  Milton,  4  Mees.  &  W. 
(ex.)  359;  and  7  Dowl.  (p.  c.)  90. 

22.  Where,  previous  to  1  &  2  Vict.  c.  110,  the 
defendant  had  been  arrested  on  mesne  process, 
and  given  a  bail-bond,  and  subsequently  to  the 
passing  the  Act  final  judgment  was  obtained,  and 
a  ca.  sa.  lodged  with  the  sheriff;  held  that  as  he 
was  liable  to  be  immediately  placed  in  custody  on 
final  process,  the  Court  could  not  consider  him 
within  the  equity  of'L  &  2  Vict.  c.  IJO,  so  as  to 
entitle  his  bail  to  be  exonerated.  Jackson  v. 
Cooper,  4  Mees.  &  V^.  (ex.)  358 ;  and  7  Dowl. 
(p.  c.)  5. 

23.  Where,  after  bail  given  to  the  sheriff,  an 
order  was  obtained  for  staying  proceedings  on 
payment  of  the  debt  and  costs  forthwith,  other- 
wise the  plaintiff  to  be  at  libertv  to  sign  Judg- 
ment ;  deniult  having  been  made,  tne  plaintiff  took 
an  assignment  of  the  bail-bond,  and  proceeded 
against  the  bail ;  held,  that  the  order  not  oblig- 
ing the  bail  to  justify  above,  and  the  plaintiff 
bemg  enabled  thereby  to  sign  judgment  upon 
entering  a  common  appearance,  and  so  no 
trial  lost,  the  bail  were,  upon  the  death  of  the 
defendant,  entitled  to  have  the  proceedings  stayed 
on  payment  of  costs  only.  Isaac  v.  Rickardo,  4 
Mees.  &  W.  (ex.)  382  ;  and  7  Dowl.  (p.  c.)  94. 

24.  A  party  brought  up  on  hah.  corp.  is  not  in 
custody  on  mesne  process,  bo  as  to  be  entitled  to 
his  discharge  upon  entering  a  common  appear- 
ance under  1  &  2  Vict.  c.  110,  b.  7.  Reynolds  v. 
Simmonds,  7  Dowl.  (p.  c.)  85. 

25.  Where  the  ea.  sa,  was  lodged  on  24th 
October,  and  proceedines  commenced  against  the 
bail  on  3d  November ;  neid,  that  'it  was  too  late 
to  move  to  set  aside  the  proceedings  for  irregular- 
ity on  the  13th  Nov. ;  held  also,  that  the  affidavit 
on  which  the  rule  was  moved  might  be  intituled 
in  the  original  action  or  in  that  against  the  bail. 
Pocock  V.  Uockerton,  7  Dowl.  (p.  c.)  21. 

And  see  Sheriff. 


BANK  OF  ENGLAND. 

1.  Upon  a  gift  of  stock  to  A.  and  £.  for  life, 
and  ^ter  the  death  of  the  survivor  to  their  chil- 
dren ;  and  upon  the  death  of  the  wife,  leaving 
one  child,  the  husband  and  executors,  by  collu- 
sion and  fraudulent  representation  that  there  was 
no  child,  obtained  a  transfer,  but  an  indemnity 
was  required  by  the  Bank,  and  given  ;  held,  that 
in  the  absence  of  notice  of  claimlhe  Bank  were 
not  liable  as  trustees,  the  notice  to  them  being 
only  of  the  trust  being  at  an  end.  Generally 
speaking,  the  Bank  is  in  the  character  of  a  pub- 
lic servant,  and  bound  to  transfer  to  the  party  in 
whom  the  fund  is  vested,  and  only  liaUe  after 
notice  of  the  claim  of  another.  Humberstone  v. 
Chase,  2  Tounge  (ex.  e<i.)  209. 


2.  A  co-partnership,  eonsisting  of  more  than 
six  persons,  carrying  on  the  trade  of  bankers 
within  sixty-five  miles  of  London,  under  tbe 
statutes  relating  to  the  Bank  of  England,  cannot 
by  law,  in  tbe  course  of  such  business,  accept  a 

bill  of  exchange  payable  at  less  than months 

from  the  time  of  giving  such  acceptance.  Bank 
of  England  v.  Anderson,  3  Bing.  N.  S.  (c.  p.) 
589 ;  and  4  Sc.  50. 

3.  Where  the  London  and  Westminster  Bank 
guaranteed  the  payment  of  all  bills  drawn  by  a 
colonial  bank,  to  a  given  extent,  and  their  bills, 
payable  at  60  days'  sight,  were  accepted  by  the 
managing  clerk,  not  a  partner  of  the  bank  ;  held 
to  be  a  violation  of  the  privileges  of  the  Bank  of 
England,  under  the  Acts  relating  thereto,  and  an 
injunction  granted  against  the  bankers  and  their 
agents.  Bank  of  England  v.  Booth,  2  Keene, 
(CH.)  466. 


BANKER. 

1.  Where  the  plaintiffs  (bankers)  at  first  re- 
fused to  discount  a  bill  for  the  holder  on  a  pro- 
posed loan,  which  they  did  afterwards,  amongst 
many  others,  to  a  part^  indorsing  them;  held, 
that  as  they  might  well  infer  that  he  had  fnll  au- 
thority to  do  so,  there  was  not  such  want  of  due 
caution  as  to  prevent  their  recovering  it  against 
a  prior  indorsee  who  had  received  no  considera- 
tion.    Cunliffe  v.  Booth,  3  Bing.  N.  S.  (c.  p.)  821. 

2.  Letters  by  a  customer  to  his  bankers  to  re- 
mit, written  beyond  the  distance  limited  bj  tbe 
Stamp  Act,  held  not  to  be  orders  for  payment  of 
money  within  the  13th  section.  Iwan,  ex  parte, 
1  Deac.  (B.)  746 ;  and  2  M.  dt  Ayr.  656. 

And  see  EccUsiagHcal  Persons  ;  Jndieiment. 


BANKRUPT. 

[AJ  Trading. 

[B]  Act  of  BAifSRUPTcr. 

[C]  PXTITIORINO   CREDITOR. 

[D]  FlAT^PEHIRO — ^AMBNDIVa — AllirULLIH«. 

[E]  COMMISSIONIRS  —  POWERS     OF  —  COIHIIT- 

MENTS  BT. 

[F]  Assignees. 

(a)  Choice — remomd. 

(b)  Duties  and  liabilities  of-^eiectian. 

(c)  Official  assignees. 

(d)  What  passes  under  the  assignmeiU 
what  within  bankrupt's  order^  4^. 

(e)  In  case  of  trusts. 

(f )  In  ease  of  mortgages. 
(ff)  In  cast  of  partners. 
(h)  Mutual  set-off . 
(i)  Actions  and  suits  by  and  against. 

[G]  Proof — dividends. 
[H]  Surrender. 
[I]  Certificate. 
[K]  Supersedeas. 


[BANKRUPT] 


2689 


f 

[L]  Bahkrupt,  rights  of— of  wife. 

[M]  Court  of  review — jurisdiction — ap- 
peals. 

[N]  Practice  ok  petitions — costs. 

[O]  Solicitor. 


[A]  Trading. 

1.  The  proof  of  one  single  act  of  tradinff,  with- 
oat  evidence  of  a  ^neral  intention  to  trade,  held 
insufficient,  and  the  petitioning  creditor  is  bound 
to  establish  the  affirmative.  Vv  ilkes,  ex  parte,  2 
Deac.  (b.)  1 ;  and  2  M.  &  Ayr.  667. 

9.  A  pnrchase  of  shares  in  a  banking  company, 
without  any  intention  of  following  the  business 
of  a  banker,  held  insafficient. .  Brundrett,  ez 
parte,  2  Deac.  (b.)  219 ;  and  3  M.  d^  Ayr.  50. 

3.  Where  a  party  exercising  the  profession  of 
a  proctor  was  made  bankrupt  as  a  bill-broker,  the 
evidence  bein^,  of  his  having  once  been  employ- 
ed to  get  a  bill  discounted,  not  naming  the  par- 
ties, or  the  particulars  of  any  one  bill,  held  insuf- 
ficient to  support  the  proof  of  trading.  Harvey, 
ex  parte,  1  Deac.  (b.)  571. 

4.  A  surgeon  and  apothecary  selling  drugs,  not 
merely  to  patients,  but  to  any  who  might 
applv,  held  a  trader  within  the  bankrupt  law. 
Daubney,  ex  parte,  2  Deac.  (b.)  72;  and  3  M.  «& 
Ayr.  16. 

5.  Letting  furnished  lodgings,  held  not  to  con- 
stitute a  trading,  although  the  furniture  is  pur- 
chased for  the  purpose  of  being  let  Bowers,  ex 
ptrlP,  2  Deac.  (b.)  99;  and  3  M.  &  Ayr.  33. 

^.  Where  an  auctioneer  was  shown  to  be 
continually  in  the  habit  of  buying  and  selling 
goods,  as  well  as  of  bidding  at  auctions ;  held  a 
trading  within  the  bankrupt  law :  sed  qtuare^  if 
all  auctioneers  are  traders  ?  Moore,  ex  parte,  3 
M.  &  Ayr.  (b.)  131. 

7.  A  mere  dealing  in  accommodation  bills,  with- 
out proof  of  any  place  of  business  or  capital,  and 
no  proof  of  any  specific  bill  discounted,  held  insuf- 
ficient to  establish  a  trading  as  a  bill  broker. 
Phipps,  ez  parte,  2  Deac.  (b.)  487. 

8.  The  mere  buying  of  hay  and  com  by  a  livery- 
stable  keeper,  to  be  used  merely  by  the  horses  of 

Crticular  persons  taken  in,  and  not  generally. 
Id,  not  a  trading  within  the  Act.    Lewis,  ex 
parte,  3  M.  &  Ayr.  (b.)  199 ;  and  2  Deac.  318. 

9.  Where  the  bankrupt  was  not  merely  a  share- 
holder, but  an  active  manager  of  the  business  of  a 
joint  stock  banking  company,  held  a  sufficient 
trading.    Hall,  ex  parte,  3  Deac.  (b.  c.)  405. 

10.  Where  a  farmer  was  in  the  habit  of  pur- 
chasing more  sheep  than  required  to  stock  his 
farm,  and  selling  immediately  the  ezcess  without 
shearing  or  any  pasturing  on  his  farm  ;  held  to 
amount  to  a  trading  as  a  sheep-salesman  within 
the  bankrupt  law.  Newall,  ez  parte,  3  Deac. 
(B.  c.)  339. 


[B]  Act  of  bankruptct. 

1.  An  act  of  bankruptcy  is  to  be  proved,  and 
not  presumed  ;  where  the  possession  of  the  stock 
was  shown  in  the  bankrupt  only  down  to  July, 
and  the  fiat  was  in  the  January  following,  and  no 
proof  of  any  assignment;  held,  that  there  was 
no  evidence  of  an  act  of  bankruptcy  to  go  to  the 
jury,  and  a  nonsuit  proper.  Ody  v.  Cockney,  1 
Tyr.  &  Or.  (ez.)  537. 

2.  Where  a  trader  assigns  all  his  property,  held 
that  it  is  an  act  of  bankruptcy,  and  not  a  question 
for  a  jury  whether  fraudulent  or  not.  Siebert  v, 
Spooner,  1  Mees.  &  W.  (ez.)  714 ;  and  1  Tyr.  St 
Gr.  1075. 

3.  Where  one  of  an  insolvent  banking  firm 
communicated  to  a  customer  (who  was  also  a  di- 
rector of  an  insurance  company,  having  also  aa 
account,)  the  state  of  affairs,  which  the  jury 
found  was  with  the  intention  of  inducing  the  in^ 
dividual  to  withdraw  his  balance,  and  not  of  in- 
forming the  company,  but  which  upon  the  sug- 
gestion of  the  director,  also  withdrew  its  balance  } 
held,  that  as  to  them,  it  was  not  a  case  of  fraudu- 
lent preference  to  enable  the  assignees  to  recover. 
Belcner  v.  Jones,  2  Mees.  &  W.  (ex.)  258. 

4.  Where  a  voluntary  payment  is  made  by  a 
party  to  a  creditor  at  the  time  his  circumstance* 
are  such  as  must  end  in  bankruptcy,  and  the  be- 
lief of  which  must  be  operating  on  his  mind  at 
the  time  of  payment,  it  is  void  as  a  fraudulent 
preference ;  o/tter,  if  he  has  a  reasonable  and  Ao- 
nA  fide  expectation  that  he  may  still  be  extricated 
from  the  impending  bankruptcy :  bein^  a  ques- 
tion peculiarly  for  the  jury,  tne  Court  will  reluc- 
tantly interfere  with  their  finding,  and  semb.  only 
where  the  preponderance  of  evidence  is  strongs 
and  it  is  clear  that  injustice  has  or  may  be  done. 
Gibson  v.  Boutts,  3  Sc.  (c.  p.)  229. 

5.  An  order  to  deny,  not  followed  by  a  shutting- 
up  the  house,  or  withdrawing  from  it,  semb.  woula 
not  amount  to  an  act  of  bankruptcy.  Hare  v. 
Waring,  3  Mees  &  W.  (ex.)  376. 

And  see  Fisher  v.  Boucher,  10  B.  &  Or.  705. 

6.  Where  under  no  circumstances  the  bankrupt 
could  have  brought  the  action,  semb.  the  deposi- 
tions will  not  be  evidence,    lb. 

7.  And  although  they  might  be  conclusive  of 
the  facts  recited,  yet  that  would  not  exclude  tho 
defendant  from  showing  that  although  true,  tb» 
plaintiff  could  not  avail  himself,  as  being  a  party 
to  a  concerted  act  of  bankruptcy,    lb. 

8.  Where  the  bankrupt  left  this  country  for  ft 
colony,  where  he  had  a  house  of  business,  and  gave- 
a  general  power  of  attorney  to  his  clerk  to  act  for 
him  in  his  absence,  but  without  making  provi- 
sion for  bills  falling  due,  held  an  act  of  bankrupt- 
cy.   Kilner,  ex  parte,  2  Deac.  (b.)  324. 

9.  A  party,  on  an  execution  put  in  on  hisgoods^ 
shutting  up  his  shop,  and  leaving  home  for  two 
days,  without  making  any  provision  or  direction* 
as  to  any  creditors  who  might  call  in  his  absence^ 
held  an  act  of  bankruptcy ;  and  scTtib.  would  be  so^ 
whether  any  creditor  were  delayed  or  not  An»- 
ten,  ex  parte,  2  Deac.  (b.)  533. 


2090 


[BANKRUPT] 


10.  Where  the  bankrupt,  on  goine  abroad,  lefl 
with  his  clerk  a  power  to  act,  but  without  makiiis; 
any  provision  for  bills  becoming  due,  and  the 
inevitable  consequences  must  be  to  delay  his  cred- 
itors ;  held  to  be  an  act  of  bankruptcy  :  senUf. 
also  a  creditor  cannot  petition  to  reverse  the  ad- 
judication.  Kilner,  ex  parte,  3  Mont.  &  Ayr. 
(B.  CO  722. 

11.  The  7  Geo.  4,  c.  46,  s.  9,  and  1  &  2  Vict. 
€.  96,  are  to  be  taken  together ;  and  held  that  tlic 

Eubiic  officer  thereby  authorized  to  sue  any  mem- 
er  of  a  joint  stock  banking  company  may  sue 
out  a  fiat  in  bankruptcy  against  such  member. 
Hall,  ex  parte,  3  Deac.  (b.  c.)  405. 

12.  And  the  affidavit  of  the  officer  that  he  was 
duly  nominated,  and  that  the  company  were  then 
actually  carrying  on  business,  was  sufficient, 
lb. 

13.  An  affidavit  to  support  an  act  of  bankruptcy 
under  1  &  2  Vict.  c.  110,  s.  8,  (Abolition  of  Arrest) 
may  be  sworn  before  a  Master  Extraordinary  in 
Chancery,  and  filed  in  the  register's  office  of  the 
Court  of  Bankruptcy.  lb. 

14.  A  creditor  assenting  to  an  act  of  bankrupt- 
cy, cannot  avail  himself  of  it  to  support  a  fiat. 
Upon  a  petition  impeaching  the  validity  of  such 
affidavit  and  notice,  and  praying  to  supersede, 
the  advertisement  of  adjudication  being  stayed ; 
held,  that  it  was  irregular  to  file  a  supplemen- 
tal petition  stating  new  facts,  but  that  the  appli- 
cation ought  to  be  to  amend  the  original  peti- 
tion, lb.  Qiuer.  if  the  affidavit  of  debt  under  the 
:Btatute  need  state  the  consideration,  or  if  it  be 
•defective  to  state  a  debt  larger  than  tlie  creditor 
»can  establish,  or  if  one  partner  can  avail  himself 
•of  the  statute  against  a  copartner,  unless  a  balance 
.has  been  struck,  and  a  debt  ascertained .' 

15.  Where  the  creditor,  making  an  affidavit 
•under  1  &.  2  Vict.  c.  110,  s.  b,  at  the  time  of 
giving  the  notice  to  the  debtor,  stated  that  it  was 
only  matter  of  form,  and  subsequently  an  agree- 
ment was  entered  into,  witliin  three  days  before 
the  expiration  of  the  21  days  from  the  date  on 
the  notice,  for  the  conveyance  by  him  of  all  his 

estate,  and  not  to  be  entitled  to  a  release  unless 

4ill  should  be  given  up,  and  the  parties  proceeded 

in  drawing  up  the  necessary   deeds ;    held,  to 

amount  to  a  waiver  of  tiic   default  which  would 

Jiave  constituted  the  act  of  bankruptcy,  and  that 

CO  valid  fiat  could  be  sustained  as  on  an  act  of 

t>ankruptoy  under  the  statute ;    and   superseded 

•with  costs :    and  where  thc.^  issued  upon  such 

idefault  under  the  statute,  held,  that  on  a  petition 

to  supersede,  and  showing  that  the  affidavit  and 

notice  had  been  made  and  given  as  required,  it 

was  for  the  petitioner,  upon  whom  the  onus  lay, 

to  impeach  the  effect  of  such  notice.     Brown,  ex 

parte,  1  Mont.  &  Ch.  (b.)  177. 

16.  Filing  an  affidavit  by  creditors,  and  person- 
al service  of  copy  on  the  debtor,  and  non-pay- 
ment within  21  days,  or  securing  same,  when  to 
be  deemed  an  act  of  bankruptcy  ;  by  1  &  2  Vict. 
c.  110;  3  Deac.  (b.)  Ap.  710. 

17.  Filing  petitions  by  parties  in  custody;  by 
B.  39. 

18.  Where  a  creditor  filed  an  affidavit  of  debt 


against  a  trader  under  the  1  &  2  Viet.  e.  110,  s. 
8,  but  the  notice  was  irregular,  the  Court  refused 
to  order  the  affidavit  to  be  taken  from  the  file,  as 
it  might  be  followed  up  by  another  creditor,  or  a 
more  regular  proceedmg,  Gibson,  ex  parte,  3 
Deac.  (b.  c.)  531. 

19.  Where  a  creditor  filed  an  affidavit  of  debt 
under  1  &  2  Vict.  c.  110,  s.  8,  (Arrest  Abolition 
Act),  and  afler wards  a  second,  increasing  the 
debt,  the  court,  refused  to  order  the  former  one  to 
be  taken  off  the  file.  Rose, ex  parte,  1  Mont.  di. 
Ch.  (B.)  149. 


[C]  Petitioning  crkditor. 

1.  Where  the  agent  of  the  petitioning  creditor 
afler,  but  on  the  same  day  the  fiat  issued,  in  pur- 
suance of  previous  engagements,  received  a  sum 
in  the  course  of  busmess  from  the  bankrupt, 
which  was  entered  in  the  pass-book  in  the  usual 
course,  which  was  delivered  to  the  assignees, 
showing  an  absence  of  all  fraud  ;  the  petition  by 
tbe  assignees,  under  s.  8,  for  forfeiture  of  the 
debt,  dismissed  with  costs.  Gardner,  ex  parte, 
2  Deac.  (b.)  142;  and  3  M.  &  Ayr.  46. 

2.  Where  the  petitioning  creditor  had  incurred 
law  charges  which  were  beneficial  to  the  credi- 
tors ;  held,  that  they  mi^ht  be  allowed  to  the  as- 
signees under  "just  allowances."  Hadfield,  ex 
parte,  2  Deac.  (b.)  115;  and  S.  C.  Christy,  ex 
parte,  3  M.  &  Ayr.  90. 

3.  Where  the  Court  directed  a  reference  as  to 
the  petitioning  creditor's  debt,  at  the  instance  of 
the  bankrupt,  upon  petition  to  annul  the  fiat; 
held,  that  he  was  liable  to  the  costs  of  the  inqui- 
ry.   Neirincks,  ex  parte,  12  M.  &  Ayr.  (b.)  542. 

4.  Personal  attendance  of  the  petitioning  cre- 
ditor at  the  opening  of  the  fiat  dispensed  with, 
he  living  at  a  distance  of  110  miles.  Freeman, 
in  re,  3  M.  &  Ayr.  (b.)  33. 

5.  S.  P.  where  he  resided  130  miles.  Marshall, 
ex  parte,  lb.  133. 

6.  The  petitioning  creditor's  solicitor  may  him- 
self petition  that  the  assignees  may  pay  the 
amount  of  the  petitioning  creditor's  costs.  {Diss. 
Cross,  J.)  Benson,  ex  parte,  2  M.  &  Ayr.  (b.) 
582. 

7.  An  I.  O.  U.,  bearing  date  before  the  bank- 
ruptcy, held  no  evidence  of  a  petitioning  credi- 
tor's debt,  unless  shown  to  have  been  in  existcnoe 
before  that  time.  Wright  v»  Lainson,  2  Meet.  d& 
W.  (Kx)  739. 

8.  Costs  of  substituting  a  new  petitioning  cred- 
itor's debt,  allowed  out  of  the  estate  in  a  caae  of 
mistake.  Whallcy,  ex  parte,  3  M.  &  Ayr.  (b.) 
206. 

9.  Where  an  action  had  proceeded  as  lar  as 

{»lea,  and  notice  been  given  of  disputing  the  va- 
idity  of  the  petitioning  creditor's  debt,  an  order 
to  substitute  another  made  without  prejudice  to 
the  defence  in  the  action.  WatBon,  ex  parte,  3 
Deac.  (B.)  310;  and  3  Mont.  &  Ayr.  609. 

10.  Where  the  petitioning  creditor  found  that  he 
could  not  aostain  the  debt,  held,  that  before  the 


[BANKRUPT] 


2691 


time  expired  for  opening  the  fiat,  he  might  peti- 
tion to  annul  it,  if  no  coSlosion  with  the  bankrupt 
shown.  Rogers,  ex  parte,  3  Mont.  d&  Ayr.  (b.  c.) 
606  • 

11.  Where  the  petitioning  creditor  was  party 
to  a  deed  of  assignment  for  the  benefit  of  credit- 
ors, held,  that  he  could  not  set  up  the  deed  as  an 
act  of  bankruptcy,  or  any  other.  Bunn,  ex  parte, 
3  Deac.  (b.  c.)  119. 

12.  A  solicitor  may  take  oat  a  fiat  on  his  bill 
before  taxation,  but  ii,  upon  taxation,  it  is  reduced 
below  100/.,  the  fiat  will  be  superseded.  Ford,  ex 
parte,  3  Deac.  (b.  c.)  4d4 ;  and  1  Mont.  &  Ch.  97. 


[D]  Fiat — opening — amskdiiiq — AirifULLiirG. 

1.  Where  the  time  for  opening  expired  in  con- 
sequence of  the  absence  of  the  quorum  commis- 
sioners, a  new  one  allowed  to  issue,  directed  to 
other  commissioners.  Bartrup,  in  re,  2  Deac.  (b.) 
97;  and  3  M.  <&  Ayr.  29. 

2.  The  Court  will  not  stay  the  issuinff  a,  fiat  on 
an  ez  parte  motion,  but  a  country  jEa<  allowed  to 
issue,  notwithstanding  the  docket  ror  a  town  fiat, 
on  giving  notice  to  the  creditor  striking  it.  Ings, 
ex  parte,  2  Deac.  (b.)  8 ;  and  2  M.  &  Ayr.  671. 

3.  Where  A.  and  B.,  father  and  son,  the  latter 
a  minor,  were  living  together,  and  the  son  taking 
an  active  part  in  the  father's  business,  his  name 
was  put  over  the  door;  the  father  aAerwards, 
without  any  eommanication  with  B.,  entered  into 
an  agreement  with  C.  for  becoming  partners  in  a 
separate  trade,  but  the  only  evidence  of  B.  being 
a  partner  was  the  agreement  signed  by  the  fa- 
ther, and  B.'s  name  bein^  over  A.'s  door,  but  not 
over  that  of  C. ;  held,  that  B.  miffht  petition  to 
annul  the  j£a<  issued  against  the  three,  after  his 
attaining  majority.  L^s,  ex  parte,  1  Deac.  (b.) 
705. 

4.  Fiat  allowed  to  be  altered  in  the  direction, 
where  all  the  creditors,  except  four,  resided  at 
another  place.  Johnston,  ex  parte,  3  M.  &  Ayr. 
(B.)132.  »      *~     »  J 

5.  New  docket  papers  allowed  to  be  filed  to 
Rectify  a  mistake  in  tiie  fiat.  Wing,  ex  parte,  3 
M.  &  Ayr.  (b.)  61. 

6.  The  Court  refused  to  amend  by  altering  the 
date  of  the  fiat,  so  as  to  let  in  the  petitioning  cre- 
ditor's debt.  Shaw,  ex  parte,  2  Deac.  (b.)  74 ; 
and  3  M.  &  Ayr.  17. 

7.  Where  two  of  the  commissioners  were  cre- 
ditors, but  consented  to  release,  the  Court  refused 
to  annul  the  fiat  on  the  petition  of  the  bankrupt ; 
the  ^neral  order  still  leaves  it  entirely  in  the  ais- 
cretion  of  the  Court  to  supersede  or  not.  Hill, 
ex  parte,  2  Deac.  ^b.)  236 ;  and  3  M.  &  Ayr.  56. 

8.  Where  the  commissioners  in  the  district 
>  where  the  fiat  was  intended  to  be  worked  being 

creditors,  the  number  could  not  be  completed; 
held,  that  it  must  be  directed  to  another  list  to 
which  the  objection  did  not  apply.    Bonnell,  ex 

Erte,  2  Deac.  (b.)  96 ;  and  S.  C.  Foster,  in  re,  3 
.  4l  Ayr.  32. 

Vol.  IV.  53 


9.  On  a  petition  to  annul  the  fiat,  held  a  soffi- 
cieot  primA  facie  ground  of  throwing  the  bur- 
then of  showing  a  petitioning  creditor's  debt, 
that  the  bankrupt  swore  he  did  not  owe  501. ;  bat 
that  on  proof  of  acknowledgment  by  the  bank- 
rupt of  the  existence  of  the  debt,  and  no  chal- 
lenge of  it  when  before  the  commissioner  on  his 
last  examination,  it  lay  on  him  to  show  payment 
of  any  part ;  at  any  rate,  the  Court  would  leave 
him  to  nis  action,  and  refused  to  annul  the  fiat, 
Mlntosh,  ex  parte,  2  Deac.  (b.)  35. 

10.  Where  A  fiat  was  annulled,  the  country 
commissioners  having  declined  to  act,  and  a  new 
one  taken  out  in  town ;  held,  that  it  was  not  a 
case  within  the  s.  17,  and  that  payment  of  the 
fees  as  on  a  renewed  fiat  could  not  be  dispensed 
with.    Smith,  ex  parte,  4  Deac.  (b.)  810. 

11.  A  creditor  applying  to  annul  a  fiat,  on  the 
ground  that  he  could  not  prove  an  act  of  bank- 
rnptcy,  most  show  that  the  fiat  was  issued  btmA 
fide,  and  that  the  application  is  without  any  com- 
promise with  the  bankrupt.  Catchpole,  in  re,  2  • 
Deac.  (B.)  98. 

12.  Assignees  having  been  chosen  after  a  peti 
tion  to  annul  by  the  bankrupt,  the  petition  order- 
ed to  stand  over  until  they  conld  be  served.  Semb. 
a  bankrupt  cannot  petition  for  such  purpose  be- 
fore adjudication.  Piatt,  ex  parte,  2  Deac.  (b.) 
227 ;  and  3  M.  &  Ayr.  62. 

13.  Where  tlie  bankrupt  was  described  as  of 
the  place  where  he  resided,  which  was  at  a  dis- 
tance from  the  place  where  he  carried  on  the 
business,  fiat  annulled  at  the  costs  of  the  peti- 
tioning creditor.  Morris,  ex  parte,  1  Deac.  (b.) 
498. 

14.  Where  the  bankrupt,  seeking  to  annol  it, 
does  not  apply  promptly,  terms  wifl  be  imposed, 
and  the  fact  of  his  having  ofiered  to  the  solicitor 
a  sum  to  obtain  his  certificate,  held  not  to  amount 
to  acquiescence.  Bowers,  ex  parte,  2  Deac.  (b.) 
99;  and3M.  &  Ayr.  33. 

15.  On  an  application  to  stay  adjudication,  the 
depositions  must  be  produced,  but  the  party  ap- 
plying has  no  right  to  inspect  them.  Bryant,  in 
re,  2  Deac.  (b.)  140. 

16.  So,  an  application  to  reverse  adjadication, 
there  being  no  affidavit  in  support  of  the  petition, 
the  court  refiised  inspection.  Whalley,  ex  parte, 
2M.  &  Ayr.  (B.)722. 

17.  Direction  of  the /a<  altered  to  another  place, 
where  the  great  majority  of  creditors  resided. 
Johnston,  in  re,  2  Deac.  290. 

18.  Where  the  petitioning  creditor's  debt  had 
been  reduced  by  set-off,  the  Court  refused  to  al- 
low him  to  issue  a  new  fiat  with  another  creditor 
before  the  time  for  opening  the  original  one  had 
expired.  Ward,  ex  parte,  3  Mont.  &  Ayr.  (b.) 
394. 

19.  The  Court  refiised  a  second  application  to 
extend  the  time  for  opening,  where  no  sufficient 
excuse  shown  for  the  delay ;  but  where  notice  was 
given  of  the  opening  of  the  fiat  on  the  twenty- 
ninth  day  after  application  made,  but  before  an 
order  to  annul  the  former  fiat  and  issue  anew  one 
was  delivered  out,  the  Court,  in  the  abflenoe  of 


2G92 


[BANKRUPT] 


mala  fides,  allowed  the  first  one  to  be  proceeded 
in,  on  payment  of  the  costs  of  the  second  jSol  and 
of  the  motion.  Saunders,  ex  parte,  3M.  &  Ayr. 
(B.)  206;  and  2  Deac.  216. 317. 

20.  Nor  will  the  time  beezteadedon  the  ground 
of  a  proposal  for  a  compromise  pending,  unless 
under  special  circumstaiicps.  Stirk,  ex  parte,  3 
M.  <&  Ayr.  (b.)  209 ;  and  2  Deac.  328. 

21.  Where  the  time  for  opening  havin?  ex- 
pired, an  order  was  obtained  on  the  nineteenth,  on 
the  ground  of  some  defect  in  the  affidavits,  for  a 
new  fiat,  but  which  order  was  not  acted  upon 
within  the  twenty-eight  days  under  Lord  Lough- 
borough's Order  of  1793,  after  the  issuing  of  the 
original  fiat;  held,  that  a  second  creditor,  who 
had  issued  a  fiat,  was  entitled  to  the  preference, 
and  the  first  petitioning  creditor,  occasioning  the 
application,  liable  to  the  costs.  Scott,  in  re,  3  M. 
/k  Ayr.  (b.)  239 ;  and  2  Deac.  406. 

22.  The  Court  will  order  the  third  meeting  to 
be  adjourned,  in  the  absence  of  the  quorum  com- 
missionen.    Williams,  ex  parte,  3M.  &  Ayr.  (b.) 

154. 

t 

23.  Fiat  transferred  to  London,  on  an  affidavit 
that  most  of  the  creditors  and  witnesses  lived 
there,  and  that  it  would  be  most  beneficial  for  the 
estate.     Snelling,  in  re,  2  Deac.  (b.)  557. 

24.  Upon  a  petition  by  the  bankrupt,  to  reverse 
the  adjudication,  the  Court  looks  at  the  proceed- 
ings, and,  if  the  depositions  are  insufficient,  and 
the  parties  have  no  other  evidence,  it  will  annul 
ihe.^  at  once ;  but  if  there  is  a  sufficient  act  on 
the  face  of  the  proceedings,  further  investigation 
will  be  required,  and  an  opportunity  given  to  the 
bankrupt  of  controverting  tne  depositions.  Field, 
ex  parte,  3  Mont.  A  Ayr.  (b.)  375. 

25.  After  two  meetings,  although  the  second 
held  before  the  forty-second  day,  Uie  Court,  with 
consent,  annulled  the  fiat.  Foulkes,  ex  parte,  3 
Mont  &  Ayr.  (b.)  366. 

26.  The  Court  will  not  interfere  to  annul  a  fiat 
concocted  in  fraud  between  the  bankrupt  and 
others,  although  within  three  days  befoK  it  issue 
the  bankrupt  abandons  it,  and  the  others  proceed 
to  issue  it  Nainby,  ex  parte,  3  Mont.  &  Ayr. 
(B.)452. 

27.  A  petition  to  annul  on  the  ground  of  fraud- 
dulent  concert  and  preference,  under  circumstan- 
ces inducing  strong  suspicion  that  it  was  the  bank- 
rupt's petition,  dismissed  with  costs.  Sayer,  ez 
parte,  2  Deac.  (b.)  491. 

26.  Fiat  annulled  on  the  petition  of  the  assign- 
ee, on  the  ground  of  the  petitioning  creditor's  debt 
being  fictitious,  and  by  collusion,  tne  commission- 
er not  having  admitted  proof  of  the  debt,  and  no 
appeal  from  his  decision.  Biggs,  ex  parte,  2  Deac. 
(B.)  549 ;  and  3  Moat.  <&  Ayr.  328. 

29.  Where  the  petitioner  in  July,  gave  notice 
of  a  petition  to  annul  the  fiat,  on  the  ground  of 
fraudulent  concert,  and  that  the  party  was  not  a 
trader,  and  in  September  opposed  the  sale  of  the 
estate,  but  did  not  present  his  petition  until  tlie 
following  February,  two  days  atter  the  certificate 
obtained,  and  after  sales  effected ;  held,  that  the 
delay  did  not  preclude  the  right  to  a  viva  voce 
examination,  on  an  issue  to  be  tried  by  a  jury. 
LewiS|  ex  parte,  3  M.  &  Ayr.  (b.)  li)9. 


30.  A  slight  diflbrence  in  the  spelling  the  naoie 
of  the  bankrupt's  place  of  residence,  held  not  to 
amount  to  such  misdescription  as  to  vitiate  the 
fiat ;  and  the  bankrupt  having  also  a  warehooae 
at  S  ,  for  the  sale  of  goods  manufactured  at  U., 
of  which  he  was  described,  held  an  immaterial 
omission,  it  not  appearing  that  any  creditor  was 
misled.     Magee,ez  parte,  2  Deac.  (b).  55S. 

31.  Where  the  petitioning  creditor  had  not  the 
bill  on  which  he  made  his  affidavit  of  debt  for  the 
docket  in  his  possession  at  the  time,  the  bill  being 
the  only  evidence  of  the  debt,  the  court  annullea 
the  fiat  on  his  petition,  and  at  his  costs  ;  but  the 
court  refused  to  impound  the  bill,  which  is  only 
done  where  there  is  a  criminal  charge  against  any 
of  the  parties  to  it.  Patzeker,  ez  parte,  2  Deac. 
(B.)  469;  and  3  M.  dt  Ayr.  329. 

32.  Petition  by  trustees  under  a  trust  deed, 
ezecuted  by  two  parties,  one  an  infant,  and 
against  whom  a  jomi  fiat  had  issued,  to  annul  the 
jSu,^  refused ;  the  petitioners  having  no  interest 
to  give  them  a  locus  standi  to  make  application, 
as  the  infancy  would  be  e<^ually  fatal  to  the  trust 
deed  as  to  the  fioL  Addison,  ez  parte,  3  Mont. 
&  Ayr.  (B.)  434. 

33.  After  a  verdict  in  an  action  against  assign- 
ees, to  which  the  petitioning  creditor  was  not  a 
party,  held  that  it  was  not  of  course  to  annul  the 
fiat  as  against  him.  Mackintosh,  ez  parte,  3 
Mont.  &  Ayr.  (b.)  365. 

34.  Affidavit  of  two  creditors'  (in  Ireland)  Bi|^ 
nature  of  consent  to  annul,  allowed,  although  not 
sworn  before  a  magistrate,  but  before  a  master 
extraordinary,  attested  by  a  notary  public.  Greer 
o.  Greer,  2  Deac.  (b.)  340 ;  and  3  M.  &  Ayr. 
216. 

35.  The  court  will  not  interfere  where  there 
are  competing  dockets,  unless  the  officer  refers 
the  party  to  it  by  refusing  to  issue  Sifiat.  Thorp, 
ez  parte,  3  Mont.  Sl  Ayr.  (b.)  395. 

36.  The  Chancellor  has  jurisdiction  to  hear  an 
original  petition,  to  supersede  or  annul  a  fiat ; 
but  he  is  not  bound  to  do  so,  and  will  not  unless 
special  grounds  shown.  Brittain,  ez  parte,  3  M. 
&  Ayr.  (D.)  325. 

37.  Where  a  renewed  fiat  is  sought  by  the 
bankrupt,  and  the  petitioning  creditor  does  not 
issue  it,  the  bankrupt  will  be  at  liberty  to  issue 
it  in  the  petitioning  creditor's  name.  Bristow, 
ez  parte,  3  M.  &  Ayr.  (b.)  213 ;  and  2  Deac.  334. 

38.  Where  the  fiat  had  been  directed  to  com- 
missioners of  W.  district,  upon  a  mistaken  sup- 
position that  the  commissioners  of  K.,  to  which  it 
would  otherwise  have  gone,  were  creditors,  the 
Lord  Chancellor  directed  a  renewed /a/  to  issue 
to  K  ,  taking  up  the  proceedings  in  the  state  thej 
then  were  at  W.     Evans,  in  re,  2  Deac.  (s.)  480. 

39  All  fiats  to  be  directed  to  the  Court  of 
Bankruptcy,  or  the  list  in  the  country,  nearest  to 
the  bankrupt's  place  of  residence,  unless  a  special 
order  be  obtained  on  affidavit,  directing  it  to  go  to 
any  other  list.  Gen.  Ord.  9  June  18.37 ;  3  Mont. 
&  Ayr.  (b.  c.)  714  ;  and  3  Deac.  (b.)  549. 

40.  £very  fiatp  without  special  reason  for  the 


[BANKRUPT] 


2683 


eontrary,  shoald  be  worked  near  the  place  where 
the  baokmpt  carried  on  his  business,  as  tending 
best  to  the  discoyery  of  the  property,  and  where 
are  the  best  witnesses  to  contraaict  him.  Brett, 
ex  parte,  1  Mont,  dt  Ch.  (b.)  70. 

41.  So  the  mere  allegation  of  the  act  of  bank- 
ruptcy being  fraudulent,  and  the  suggestion  of 
the  greater  facility  of  committing  fraud  in  the 
country  on  London  creditors,  held  not  sufficient 
grounds  for  issuing  it  in  London.  Meekiog,  ex 
parte,  1  Mont.  ^  Ch.  (b.)  71. 

42.  Pior  that  it  would  occasion  expense  and 
greater  delay.    Allen,  in  re,  lb.  146. 

43.  So,  although  the  majority  of  creditors  in 
number  and  value  resided  in  town.  Hugo,  ex 
parte,  and  Helyer,  ex  parte,  lb.  72. 

44.  So,  althou^rh  all  the  creditors  of  a  country 
trader  were  resident  in  town.  Anon.  lb.  142; 
Binks,  ex  parte,  lb.  144.  S.  P.  Anon.  lb.  146; 
Allen,  in  re,  lb. 

45.  Where  two  of  the  country  commissioners 
were  creditors,  two  residing  at  a  considerable  dis- 
tance, and  the  fidh  genenuly  declined  attending, 
and  only  four  creditors  out  of  60,000/.  resided  in 
the  neighborhood,  the  Lord  Chancellor  allowed 
the  application  after  refusal  by  the  Court.  Geach, 
ex  parte,  1  Mont.  &  Ch.  (b.)  145. 

46.  And  where  the  bankrupt  lived  120  miles 
distant,  and  petitioning  creditor,  witness  to  prove 
the  act  of  bankruptcy,  and  major  part  in  value 
of  the  creditors  resided  in  Liondon,  fiat  al- 
lowed to  issue  there.  Anon.  lb.  142.  But  re- 
fused in  Mansfield,  ex  parte,  lb.  145,  on  similar 
grounds. 

47.  Where  it  was  shown  that  the  business  was 
carried  on  in  different  places  distant  from  each 
other,  the  Court  reluctantly  allowed  it  to  be  work- 
ed at  a  place  central,  and  nearer  the  major  part 
of  the  creditors.  Haines,  ex  parte,  1  Mont-  Sl 
Ch.  (B.)  72. 

48.  Fiat  removed  from  the  country  to  London, 
where  the  majority  of  the  creditors  resided,  the 
costs  in  the  first  instance  to  be  paid  by  the  peti- 
tioning creditor,  and  afierwards  recouped  out  of 
the  estate.  Ellis,  ex  parte,  1  Mont.  &  Ch.  (b.) 
39. 

49.  But  refused  merely  on  the  ground  of  the 
petitioning  creditor  resicung  in  Xx>ndon,  and  a 
considerable  portion  of  the  creditors.  Rawlings, 
ex  parte,  1  Mont.&  Ch.  (b.}59. 

50.  Where  the  destination  of  the  Jiat  was  im- 
properly chan^d  on  a  false  statement,  as  of 
country  commissioners  being  creditors,  a  new  one 
ordered  to  be  issued  to  them.  Scott,  in  re,  3 
Mont.  &  Ayr.  (b.  c.)  724. 

51.  The  Court  refused  to  allow  the  fiat  to  be 
directed  to  a  place  where  the  bankrupt  had  re- 
sided two  years  ago,  and  had  since  no  permanent 
place  of  residence,  although  largely  indebted  to 
persons  there.    Hewitt,  in  re,  3  Deac.  (b.)  586. 

52.  The  Court  allowed,  but  reluctantly,  a  Lon- 
don fiat  to  issue  against  a  country  trader  where 
the  property  was  in  town,  and  about  to  be  carried 
out  of  the  country.  Booth,  ex  parte,  3  Mont  &, 
Ayr.  (b.  c.)  627. 

53.  So,  where  a  majority  of  the  creditors  re- 


sided in  London.    Grigg,  in  re,  lb.  684 ;  and  3 
Deac.  381. 

54.  Where  the  bankrupt  carried  on  his  trade 
at  Oxford,  a  fiat  issued  in  London,  where  the 
msjor  part  of  the  creditors  as  well  as  debtors  re- 
sided, the  petitioning  creditor  undertaking  to  pay 
the  expenses  of  the  onnkrupt  coming  to  London 
to  attend  the  fiat.  Trowers,  ex  parte,  3  Mont.  & 
Ayr.  (b.  c.)  484. 

55.  Docket  papers  describing  the  bankrupt  as 
of  the  place  where  he  was  then  actually  trading 
preferred  to  those  describing  him  only  as  of  his 
late  residence.  Allday,  ex  parte,  3  Mont.  &,  Ayr. 
(b.  c.)  485. 

56.  The  circumstance  of  a  majority  of  credi- 
tors residing  in  London  is  not  a  grouncf  for  order- 
ing the  fiat  to  be  directed  to  London  instead  of 
country  commissioners.  Rawlinson,  ex  parte,  3 
Deac.  (b.  c.)  535. 

57.  Where  a  joint  fiat  issued  against  two,  one 
of  whom  shortly  afierwards  died ;  held,  that  the 
petitioning  creditor  was  entitled  to  a  reasonable 
time  to  issue  another  fiat,  and  where  guilty  of 
no  unreasonable  delay,  to  be  preferred  to  one  who 
had  previously  lodgeo  docket  papers  for  a  separate 
fiat.  Norris,  ex  parte,  3  Deac.  (b.)  643 ;  and  1 
Mont.  &  Ch.  157. 

58.  The  court  refused  to  interfere  between  two 
parties  competing  for  the  fiat  on  the  mere  ground 
of  irregularity  in  the  description  of  the  party  in 
the  bond,  but  permitted  a  verbal  inaccuracy  to  be 
amended.    Lees,  in  re,  3  Deac.  (b.)  38. 

59.  A  commission  renewed  in  1816,  and  since 
which  two  of  the  commissioners  were  dead,  and 
two  others  removed,  held  a  sufficient  ground  for 
superseding  it ;  and  the  pendency  of  a  petition  to 
the  Lord  cfhancellor  to  annul  a  renewed  ^iat  was 


no 
ex 
94. 


objection-  to  the  hearing  of  the  petition.    Higgs , 
parte,  3  Deac.  (b.  c.)  474 ;  and  1  Mcmt.  &,  Ch. 


60.  Where  the  court  sees  clearly  that  the  sole 
object  of  suing  out  a  separate  fiat  is  to  dissolve  a 
partnership,  the  fiat  will  be  annulled  ;  but  not 
where  the  circumstances  amount  to  suspicion 
only.    Parkes,  ex  parte,  3  Deac.  (b.)  31. 

61.  Proceedings  under  separate  jioto  ordered  to 
be  incorporated  with  those  under  a  joint  fiat^ 
where  assignees  had  been  chosen  and  a  dividend 
declared  under  separate  fiats.  Lister,  ex  parte, 
3  Deac.  (b.)  516. 

62.  A  second  one  allowed  to  issue  by  the  same 
party  where  the  first  had  expired  by  inadvertence 
and  mistake  in  the  construction  of  the  new  In- 
solvent Act.  Partridge,  ex  parte,  1  Mont.  &  Ch. 
(B.)  165. 

63.  Where  the  bankrupt,  with  a  surety,  entered 
into  an  agreement  for  a  composition  for  20^.  in  the 
pound,  in  consideration  that  the  fiat  should  be 
annulled,  and  105.  having  been  paid,  the  assignees 
possessed  a  fund  sufiicientto  satisfy  the  remamder, 
but  were  proceeding  to  sell  the  bankrupt's  prop- 
er^, the  court  refused  to  interfere,  questioning  the 
randity  of  the  agreement  to  suspend  the  worxing 
of  the  j!at.    Nainby,  ex  parte,  3  Deac.  (b.  c.)  586. 


2094 


[BANKRUPT] 


64.  Where  no  proceeding  were  taken  for  near- 
]j  two  yeara  afler  issuing  the  fiat^  to  enable  the 
bankrupt  to  settle  disputes  with  his  partner  by 
arbitration,  which  failed,  the  court,  and  Lord 
Chancellor,  on  application,  refused  to  allow  a 
fresh  one  to  be  issued.  Foljambe,  ex  parte,  3 
Deac.  (B.)  G28. 

65.  The  court  refused  to  enlarge  the  time  for 
opening  a  town  fiat^  on  the  ground  of  the  non- 
attendance  of  the  witness  to  prove  the  act  of 
bankruptcy.  Hilsdon,  ex  parte,  1  Mont.  6l  Ch. 
(b.)  72. 

66.  Where  the  28  days  for  opening  a  fiat  ex- 
pired on  the  11th  of  January,  and  the  adjudication 
was  made  on  the  10th,  but  no  notice  thereof  hav- 
ing appeared,  another  docket  was  struck  by  a 
creditor  on  the  14th ;  held,  that  the  first  fiat  was 
valid,  and  a  motion  for  a  jEoX  to  issue  on  the  second 
docket  refused :  the  costs  would  depend  on  the 
question  of  good  faith  between  the  parties.  Wood, 
in  re,  3  Deac.  (b.  c.)  514 ;  and  1  Mont.  &,  Ch. 
69. 

67.  Several  creditors  may  join  in  one  power  of 
attorney  to  sign  a  consent  to  annul  a  fiiOt.  Anon. 
3  Deac.  (b.  c.)  377. 

68.  Where  a  joint  fiM  was  taken  out  against 
two,  one  an  infant,  the  court  allowed  it  to  be  an- 
nulled, either  as  to  him  only,  or  generally.  Wat- 
son, ex  parte,  3  Mont.  (Sl  Ayr.  (b.  c.)  682 ;  3 
Deac.  277. 

69.  Where  upon  an  insufficient  petitioning 
creditor's  debt,  one  assignee  petitioned  to  annul, 
but  the  other  was  desirous  of  prosecuting  the  fiat, 
alleging  that  a  good  petitioning  creditor's  debt 
mignt  be  substituted,  the  court  refused  the  petition 
to  annul,  bot  gave  the  party  leave  to  retire  at  bis 
own  costs,  fiooker,  ex  parte,  3  Deac.  (b.  c.)  232 ; 
and  3  Mont  &  Ayr.  643. 

70.  On  a  petition  to  annul  a  fiat^  the  court  will 
inspect  the  procedings,  and  if  not  satisfied,  will 
either  allow  affidavits  to  bo  made,  or  direct  a  rtra 
voce  examination ;  but  if  no  act  of  bankruptcy 
appears  on  the  face  of  the  proceedings,  it  will 
annul  the  fiat :  if  a  rtra  voce  examination  be  di- 
rected, notice  must  be  given  by  the  assignees  of 
the  act  the^  rely  on,  but  they  need  not  name  the 
witnesses  for  such  examination  ;  affidavits  cannot 
be  read :  if  the  petition  be  by  the  bankrupt,  bona 
fide^  the  court  will  allow  him  to  inspect  or  to  have 
copies  of  the  depositions,  but  not  where  it  is  by  a 
third  party.  Foster,  ex  parte,  3  Deac.  (b.  c.) 
175 ;  and  3  Mont.  &  Ayr.  492. 

71.  A  petition  by  a  creditor  to  annul  must  show 
that  he  was  a  crediitor  at  the  time  the  fiat  issued, 
and  is  still  so  ;  and  after  a  delav  of  three  years, 
the  court  would  not  interfere  in  iiis  behalf.  San- 
dall,  ex  parte,  3  Deac.  (b.  c.)  275. 

72.  On  petition  by  the  bankrupt  to  annul  for 
want  of  trading,  an  affidavit  stating  that  a  party 
when  examined  said  so  and  so,  cannot  be  read,  as 
the  examination  should  be  produced  {diss.  Rose, 
J.)  Newall,  ex  parte,  3  Mont.  &,  Ayr.  (b.  c.) 
G»5 ;  and  3  Deac.  333. 

73.  Where  it  appears  that  tifiat  has  been  sued 
OQt,  not  for  the  legitimate  purposes  of  a  fiat  in 
bankruptcy  but  of  enforcing  securities,  and  for  an 
acooant  pending  a  snit  in  equity,  the  court  is 
bound  in  the  exercise  of  its  equitable  jurisdietioB 


to  annul  it  (diss.  Erskine,  C.  J.)  Hall,  ex  parte,  3 
Deac.  (b.  c.)  405. 

74.  It  is  not  imperative  on  the  court  to  annul 
a  fiat  issued  by  a  party  who  has  come  in  under  a 
trust  deed,  as  where  be  afterwards  discovers  that 
the  deed  gives  a  fraudulent  preference  to  any 
creditor.  Hallowell,  ex  parte,  3  Mont  &  Ayr. 
(fl.  c.)  r)38 ;  and  3  Deac.  278. 

75.  Whcrre  the  fiat  appeared  to  have  been  soed 
out  only  for  the  purpose  of  giving  the  bankrupt 
his  certificate,  and  to  deprive  the  petitioners  of 
the  fruit  of  a  judgment,  held  to  be  an  abuse  of 
the  process  of  the  court,  and  annulled.  Gaits* 
kell,  ex  parte,  3  Deac.  (b.)  635 ;  and  1  Mont  A 
Ch.  160. 

76.  The  order  to  annul  for  want  of  proaeoution 
is  of  course,  unless  the  petitioning  creditor  pre- 
sents a  cross  petition  for  leave  to  open  ihefiat^ 
notwithstanding  the  time  for  the  opening  has 
elapsed.  Jones,  ex  parte,  3  Deac.  (b.  c.)  230; 
and  3  Mont  &  Ayr.  503. 

77.  Fiat  annulled  with  consent  of  creditors, 
the  meeting  for  the  choice  of  assignees  having 
been  advertised  and  adjourned,  but  none  attend- 
ed, and  the  bankrupt  having  surrendered.  Fookes, 
in  re,  3  Mont  &  Ayr.  (b.)  724. 

78.  On  a  petition  to  annul  a  fiat  and  stay  the 
adjudication,  the  court  Will  not  order  the  latter 
unless  probable  cause  be  shown  that  the  petitioner 
will  succeed  on  the  former  part  of  his  petition. 
Rhodes,  ex  parte,  3  Deac.  (b.)  696. 

79.  Where  a  party  had  acted  as  assignee  under 
a  fiat  for  above  two  months,  and  his  proof  been 
rejected  *,  held,  that  he  was  not  in  a  situation  to 
apply  to  annul  the  fiat,  for  want  of  a  good  peti- 
tioning creditor's  debt.  (Diss.  Cross,  J.)  Book- 
er, ex  parte,  3  Deac.  (b.  c.)  346. 

60.  On  a  petition  by  the  bankrupt  to  annul  for 
want  of  a  sufficient  act  of  bankruptcy,  the  obli- 
gation of  proving  the  affirmative  lies  on  the  re- 
spondent ;  and  upon  a  reference  back  to  review 
the  adjudication,  new  depositions  before  them  are 
admissible  in  support  of  the  fiat.  Welden,  ex 
parte,  3  Deac.  (b.  c.)  240 ;  and  3  Mont  A  Ayr. 
493. 


[E]    COMMISSIOHERS — POWEmS   OP — COMMIT- 

IfSllTS    BY. 

1.  Where  the  solicitor  wilfully  omits  to  sum- 
mon the  quorum  commissioners  m  a  country  ./Eat, 
the  court  will  order  him  to  indemnify  them  for 
fees  of  the  previous  meetings,  with  costs,  and  to 
be  summoned  at  all  future  meetings.  Williams, 
ex  parte,  1  Deac.  (b.)  596;  and  1  M.  Sl'Ajt.  616L 

2.  Where  a  tcountry  commissioner  being  rega- 
larly  summoned  does  not  attend  the  meeting,  be- 
ing absent  on  his  own  private  business,  he  is  lia- 
ble to  pay  the  costs  of  another  meeting  rendered 
necessary  by  his  default;  and  semb.  the  Court 
would  find  means  of  enforcing  the  payment. 
Hall,  ex  parte,  1  Deac.  (b.)  536;  and  2M.  fc  Ayr. 
677. 

3.  If  fees  are  improperly  taken  by  commtflnoa- 
ers,  they  shonld  be  served  with  ths  petition,  and 
brought  before  the  Court ;  they  may^if  neeeamy. 


[BANKRUPT] 


2603 


hold  lepaiBte  meetinfrs  on  the  Baoie  day,  and  re- 
ceive fees  for  each.  Hadfield,  ex  parte,  2  Deac. 
(a.)  lUi ;  and  S.  C.  Christy,  ex  parte,  3  M.  <& 
Ayr.  96. 

4.  Where  a  party,  whilst  detained  in  five  ac- 
tions in  custody  of  the  warden,  being  declared 
bankrupt,  a  warrant  issued  from  the  commiraion- 
ers,  directed  to  the  keeper  of  Newgate,  to  detain 
him  until  he  should  make  full  answers:  the 
Court  held,  that  not  being  in  the  custody  of  the 
warden  under  the  commissioners*  warrant,  the 
Court  had  no  authority  to  inquire  as  to  its  valid- 
ity. Garcia,  ex  parte,  3  Bing.  N.  S.  (c.  p.)  21K); 
3  Sc.  G@;  and  5  Dowl.  (p.  c.)  352. 

5.  Where  the  bankrupt,  whilst  committed  in 
executioii  to  the  marshaJ,  beini;  brought  up  for 
examination  before  the  aubdi vision  court,  was  by 
them  committed  to  Newgate  for  not  answering 
satisfactorily,  the  keeper  of  which  re-delivered 
him  to  the  messenger,  who  delivered  him  over  to 
the  marshal ;  the  court  refused  a  habeas  corpus  to 
bring  him  op  on  the  ground  of  the  answers  being 
satistactory.  Knigh^  ex  parte,  2  Mees.  (k,  W. 
(EX.)  106. 

6.  A  solicitor  cannot  refuse  to  summon  a  quo- 
rum commissioner,  because,  in  his  judgment,  he 
may  have  taken  an  illegal  fee  \  but  the  com- 
missioner cannot  take  two  travelling  fees  for  two 
meetings  held  on  the  same  day,  at  the  same  place, 
althou^  under  different  fiats,  Scott,  ex  parte, 
3  Mont  &,  Ayr.  (s.)  424. 

And  vid.  infr. 

7.  Where  the  commissioner  had  expunged  a 
proof,  on  the  ground  of  his  not  having  disclosed 
a  security  held,  and  the  court  subsequently  made 
an  order  for  him  to  inquire  into  the  truth  of  certain 
allegations  as  to  a  supposed  fraudulent  preference, 
which  the  commissioner  declined  doing,  seinb^ 
such  refusal  was  improper,  and  amountmg  to  a 
denial  of  justice ;  the  efect  of  1  &  2  WilL  4,  c. 
56,  does  not  affect  the  duties  of  the  eomissioners 
and  the  Court  of  Review  has  the  same  jurisdiction 
to  call  oo  them  to  fulfil  their  duties ;  there  is  no 
distinction  between  the  duties  of  the  London  and 
of  country  commissioners.  Rolfe,  ex  parte,  3  M. 
A  Ayr.  (b.)  421 ;  and  2  Deac.  305. 

8.  The  court  refused  an  ex  parte  application  to 
annul  a  commission,  although  issued  above  twenty 
yean,  and  20s.  in  the  pound  had  been  paid,  and 
the  creditors  could  not  be  found ;  out,  with 
consent,  a  renewed  )!a<  might  issue,  or  the  heirs 
of  the  assignees  might  be  traced,  or  the  debts  be 
expunged  on  the  ground  of  payment  in  full. 
Ward,  ez  parte,  3  Mont.  &  Ayr.  (e.)  399. 

9.  Semk,  a  commissioner  ought  not  to  adiudicata 
a  psrty  bamkrapt  from  evidence  on  record  of  the 
fiml  being  void  at  law.  Chambers  in  ze*  3  M.  A 
Ayr.  (b.)  294;  and 2  Deac  494. 

10.  The  6  Geo.  4,  c.  16,  a.  106,  is  merelr  direc- 
tory, and  the  commissioners  may  thereiore  ap- 
point a  meeting  for  auditing,  after  the  six  months, 
without  an  order  of  the  court  IJolyland,  ex 
parte,  3  M.  dt  Ayr.  (i.)  326. 

11.  The  commissioners  have  power  to  appoint 
an  audit  nieettn|^,  although  more  than  six  months 
baye  elapsed  since  the  bst  examination.  Holy- 
land,  ez  parte,  3  M.  &  Ayr.  (a.  o.)  684. 


12.  The  court  refused  to  interfere  to  direct 
commissioners  to  issue  a  warrant  for  the  appre- 
hension of  the  bankrupt,  he  not  having  surren- 
dered. Creed,  in  re,  3  Deac.  (a.)  38 :  and  3  M. 
&  Ayr.  725. 

13.  A  party  who  had  been  found  bankrupt,  and 
about  to  abscond  to  America,  having  been  appre- 
hended by  the  messenger  without  warrant,  and 
committed  by  tlie  commissioner  for  not  satisfac- 
torily answering,  the  court  TRose,  J.  dubitante^) 
ordered  the  commissioner  to  aischarge  him  forth- 
with. James,  ex  parte,  3  Deac.  (b.  c.)  518;  and 
1  Mont.  <&  Ch.  165. 

14.  Where  a  party  had  been  lying  under  a  com- 
mitment, for  not  answering  satisfactorily,  for  12 
months,  and  was  in  a  state  of  extreme  destitution, 
the  court,  under  circumstances,  ordered  him  to 
be  brought  up  again  at  the  expense  of  the  estate. 
Crosswell,  ex  parte,  3  Deac.  (b.  c.)  402;  and  1 
Mont  &  Ch.  40. 

15.  Where  the  bankrupt  was  under  commit- 
ment for  contempt,  for  not  paying  costs  awarded 
on  a  previous  order  made  by  the  Lord  Chancellor, 
on  application  to  be  discharged,  on  the  ground  dT 
the  commitment  being  invalid;  held,  1st,  that 
the  Court  of  Review  had  power  to  make  any 
order  for  enforcing  an  order  of  the  Xx>rd  Chan- 
cellor in  bankrul>tcy ;  2dly,  that  the  order  recit- 
ing it  to  have  been  made  upon  a  previous  petition, 
the  court  would  not  question  the  regularity  of 
the  order  upon  affidavits  alleging  formal  inaccu- 
racies, and  that  the  affidavits  in  support  of  the 

Snition  were  properly  entitled,  *^  In  the  Court  or 
ankruptcy,"  and  that  a  clerical  error  in  stating 
the  order  of  commitment  to  have  been  made  on 
the  intention,  instead  of  petition,  was  not  fatal. 
Green,  ex  parte,  3  Deac.  (a.)  700. 


[FJ  Assignees. 
(a)  Choice — removaL 

1.  The  commissionere  ought  not  to  adjourn  the* 
choice  to  enable  creditors,  wnose  proof  is  rejected^ 
to  petition  the  Court  for  liberty  to  vote  in  the- 
choice.  Bignold,  ex  parte,  1  Deac.  (b.)  712 ;  and 
2M.A  Ayr.  633. 

2.  Notice  of  meeting  for  the  choice,  adrertiseit 
only  three  days  before,  giving  insufficient  oppor- 
tunity for  creditors  residing  at  a  distance  of^  at- 
tending;  held  a  sufficient  ground  for  setting- 
aside  the  choice.  Morris,  ex  parte,  1  Deac  (b.) 
496. 

3.  Upon  the  removal  of  an  assignee  for  any 
cause,  the  Court  will  give  the  credrtors  the  op^ 
tion  of  choosing  another.  Rolls,  ez  parte,  1  Deac. 
(B.)  618. 

4.  Where  it  was  alleged  that  the  choice  had 
been  by  connivance  with  the  bankrupt,  and  that 
they  had  proved  fictitious  debfs,  the  Court  direct- 
ed an  inquiry,  although  there  was  reason  to  be- 
lieve the  allegations  untrue,  and  founded  in  mal- 
ice ;  upon  the  general  rule  of  protection  which* 
the  Court  is  bound  to  give  to  bankrupt's  estates. 
Molineuz,  ez  parte,  1  Deac  (b.)  603* 


S696 


[BANKRUPT] 


5.  Where  parties,  as  trustees,  mansjEed  tlie 
bankrupt's  business  for  the  general  benefit  of  the 
creditors,  and  issued  jEotv  to  prevent  others  doing 
00,  under  which  thej  also  acted  as  assignees ; 
held,  that  being  liable  to  account  in  both  charac- 
ters, the  court  could  not  avoid  removing  them, 
and  directing  a  new  choice.  Mendel,  ex  parte, 
4  Deac.  (b.)  725. 

6.  Where  one  is  elected  against  his  consent) 
and  refuses  to  accept  the  office,  there  must  be  a 
new  choice  of  all.  Stephenson,  ex  parte,  3  M. 
dt  Ayr.  (B.  c.)  663 ;  and  3  Deac.  021. 

7.  80  where  one  becomes  lunatic.  Rolls,  ex 
parte,  lb.  792. 

8.  As  the  assignees  must  be  removed  where 
the  choice  has  Men  influenced  by  the  interfer- 
ence of  the  bankrupt :  where  they  did  not  deny 
that  they  were  parties  to  some  arrangement  hav- 
ing for  its  object  their  being  chosen,  the  court 
directed  an  inquiry.  Molineaux,  ex  parte,  3 
M.  &Ayr.  (b.  c.)  703. 

9.  But  in  such  case,  if  the  petitioner  be  insol- 
vent, the  assignees  may  apply  for  security  for  the 
costs  of  such  mquiry.     lb. 

10.  A  party  elected  sole  assignee  in  his  ab- 
sence, and  contrary  to  his  intention,  in  executing 
the  power  to  vote  m  the  choice,  allowed  to  be  re- 
moved, paying  the  costs.  Hammond,  ex  parte,  1 
Mont.  dL  Ch.  (B.)  72. 


(b)  Duties — liabilities — protection. 

1.  Where  an  affidavit  is  made  by  an  assignee 
to  dispense  with  his  personal  attendance  at  the 
audit,  he  is  liable  to  the  costs  of  such  affidavit. 
Hadfield,  ex  parte,  2  Deac.  (b.)  227 ;  and  S.  C. 
Christy,  ex  parte,  3  M.  ^  Ayr.  88. 

2.  Semb.  under  s.  106,  an  audit,  passed  without 
the  personal  examination  of  the  assignees,  is  not 
valid,    lb. 

3.  Where  one  of  three  assignees  had  ^one 
abroad,  and  could  not  be  heard  of,  the  audit  al- 
lowed to  pass  on  the  oaths  of  the  other  two. 
Heatherley,  ex  parte,  2  Deac.  (b.)  93;  and  3  M. 
A,  Ayr.  28. 

4.  Assignees  held  to  have  been  properly  disal- 
lowed the  costs  of  a  meeting  of  creditors  to  con- 
sider measures  which  they  themselves  ought  to 
have  determined,  and  also  the  tavern  expenses  of 
the  bidders  at  a  sale.  Molineaux,  ex  parte,  2 
Deac.  (B.)  33. 

5.  Where  there  is  fair  doubt  in  the  minds  of 
the  assignees  how  to  act  in  a  case  of  difficulty, 
the  court  will  decree  a  reference,  as  whether  an 
arrangement  will  be  beneficial  or  not.  Marks, 
ex  parte,  2  Deac.  (b.)  86;  and  3  M.  &  Ayr.  35. 


6.  Where  the  sale  had  been  made  ten  years 
ago,  and  the  assignees  were  dead,  the  court  re- 
fused a  claim  made  by  the  executors  of  the  auc- 
tioneer ;  and  held,  that,  as  the  official  assignee  I 
ought  not  to  have  appeared  separatelv,  he  should 
pay  the  costs  of  his  appearance.  Hendrie,  ex 
parte,  2  Deac.  (b.)  76;  and  3  M.  &  R.20. 


before  conveyance  by  tlie  assignees,  retold  it  at  a 
profit,  the  court,  in  the  abience  of  any  unfairness, 
ordered  the  assignees  to  convey  to  such  second 
purchaser.    Aoderdon,  ex  parte,  1  Deac.  (b.)585. 

8.  Where  the  bankrupt  had  agreed  for  the  pur- 
chase of  a  freehold,  and  paid  a  deposit,  but  be- 
came bankrupt  before  the  conveyance,  the  court 
made  a  special  order  for  the  assignees,  within  a 
fortnight,  to  elect,  to  perform  or  rescind  the 
agreement  without  prejudice  to  the  question  of 
return  of  the  deposit.  Bridger,  ex  parte,  1  Deae. 
(B.)581. 

9.  Where  the  wife,  being  possessed  of  gas 
shares,  the  certificates  of  which  the  husband  de- 
posited  with  bankers  as  a  security  for  advances, 
but  no  notice  was  given  of  the  transfer  to  the  eas 
company  until  after  an  act  of  bankruptcy ;  held, 
that  the  bankers  could  not  retain  the  certificates 
as  against  creditors ;  and  the  wife  held  entitled  to 
be  served  with  the  petition.  Spencer,  ex  parte, 
1  Deac.  (B.)  468. 

10.  Afler  a  notice  by  a  creditor  to  assignees, 
to  dispute  the  bankruptcy  in  an  action  brought 
by  them ;  held,  that  he  could  not  be  pertnit- 
ted  to  petition  against  them  as  assignees  ;  held 
also,  that  where  they  carried  on  Uie  business 
by  the  authority  of  a  majority  of  creditors,  one 
dissenting  could  only  apply  for  an  order  for  their 
ceasing  to  do  so,  upon  proof  that  he  had  sustained 
damage  thereby.     HaJl,  ex  parte,  2  Deac.  (b.) 

ie63. 

11.  Where  an  assignee  refuses  to  concur  in  an 
arrangement,  there  must  be  a  reference  to  the 
commissioners,  and  if  they  affirm  it  to  be  beneficial, 
the  assignee  must  execute  the  deed  of  oonfiram* 
tion.  Taylor,  ex  parte,  3  M.  &  Ayr.  (b.)  2SS; 
and  2  Deac.  399. 

12.  Reference,  whether  the  sale  of  a  debt  bv 
the  assignee  would  be  beneficial  to  the  estate,  aU- 
owed.    Trimmer,  ex  parte,  3  M.  &»  Ayr.  (b.)  24&. 

13.  Assignees  are  bound  to  elect  whether  they 
will  take  or  reject  a  lease,  although  it  mav  he 
tainted  with  usury ;  and  if  they  reject  it,  the  lease 
will  be  ordered  to  be  delivered  up;  and  although 
the  petition  be  dismissed,  the  rejection  will  stand. 
Williams,  ex  parte,  3  M.  dk  Ayr.  (b.)  810 ;  and  2 
Deac.  330. 

14.  Where  a  party  struck  a  docket,  and  after- 
wards became  a  trustee  under  an  assignment  of 
all  the  bankrupt's  property  in  trust  for  creditors, 
and  after  he  had  incurred  some  expenses  in  exe- 
cuting the  trust,  another  creditor  issued  9,  fiat  and 
the  assi^ee  seized  the  property  in  the  hands  of 
the  petitioner ;  held,  that  the  assignment  being  of 
itself  notice  of  an  act  of  bankruptcy,  he  cooki 
acquire  no  lien  on  the  property  as  against  the  as- 
signees. Swinburne,  ex  parte,  3  Deac.  (a.  c.) 
3&;  and  1  Mont  &  Ch.  119. 


15.  Where  the  sole  assignee  of  a  party  who 
had  become  liable  as  a  surety  was  a  creditor  of 
the  principal,  and  petitioned  for  the  sale  of  the 
property  mortgaged  by  the  latter,  an  inquirjr  di- 
rected as  to  what  interest  the  surety  had  in  it, 
and  to  appoint  persons  in  the  nature  of  assigneea 
to  protect  such  mterest,  if  any  existed.  Haines, 
7.  Where  the  purchaser  of  a  bankrupt's  estate,  ex  parte,  1  Mont.  Ck  Ch.  (b.)  32. 


[BANKRUPT] 


2697 


16.  Where  an  assifi^nee  had  not  been  consulted 
w  to  the  sale,  nor  nad  in  any  way  consented 
theneto,  and  entertained  fears  that  he  might,  by 
executing  the  conveyance,  prejudice  the  rights 
of  the  creditors,  the  court  refused  to  order  him  to 
execute,  without  a  previous  reference  and  inquiry 
whether  the  sale  vrns  proper  and  one  in  which  he 
oaght  to  concur.  Underhill,  ex  parte,  3  Mont.  Sl 
Ayr.  (b.  c.)  660 ;  and  3  Deac.  326. 

17.  The  coort  refused  to  allow,  in  the  assig- 
nee's accounts,  charges  for  meetings  of  creditors 
to  resolve  whether  an  action  against  them  should 
be  defended  or  not,  nor  for  tavern  expenses  of 
bidders  at  an  auction  of  part  of  the  estate.  Mo- 
lineux,  ex  parte,  3  Mont.  &  Ayr.  (b.  c.)  721. 

18.  Where  the  purchaser  of  an  estate  from  the 
asignces  immediately  re-sold  it  at  an  advanced 
price,  in  the  absence  of  any  thing  alleged  against 
the  sale,  the  court  ordered  the  assignees  to  con- 
vey to  such  person  as  the  purchaser  should  direct. 
Anderdun,  ex  parte,  3  Mont.  &  Ayr.  (b.  c  )  698. 

19.  Where,  after  a  dividend  of  155.  declared,  the 
araiffnee,  in  expectation  of  the  estate  paying  20«., 
paid  a  creditor  at  that  rate,  and  became  bank- 
rapt,  and  the  creditor  was  appointed  his  as- 
signee ;  held,  that  the  court  could  compel  him 
to  repav  the  excess  so  received.  Grimwood,  ex 
parte,  3  Mont.  4k  Ayr.  (b.  c.)  685. 

20.  Where,  4>efore  the  election  of  assignees, 
the  petitioner  paid  a  sum  to  prevent  a  distress, 
and  with  the  bankrupt*s  consent  sold  goods  to 
part  of  the  amount,  the  court  restrained  the  as- 
signees firom  prosecuting  an  action  to  recover  that 
sum.  Elliott,  ex  parte,  3  Mont.  4&  Ayr.  (b.  c.) 
€64  ;  and  3  Deac.  343. 

21.  Where  the  bankrupt,  on  being  appointed 
treasurer  of  a  friendly  society,  was  by  the  rules, 
to  pay  interest  on  a  stated  sum  in  hand ,  held, 
that  it  did  not  constitute  a  loan,  but  within  the  4 
A  5  Will.  4,  o.  40,  8.  12,  as  within  his  hands  by 
virtue  of  his  office  as  treasurer,  and  the  assignees 
liable  to  pay  over  the  amount  to  the  society.  Kay 
ex  parte,  3  Deac.  A,  1  Mont.  &  Ch.  (b.  c.)  537. 

22.  Where  a  party  on  being  examined  produced 
a  book  before  the  commissioners,  of  which  he  was 
in  the  lawful  possession,  and  which  the  assignees 
retained,  the  court  ordered  it  to  be  restored,  with- 
out entering  into  the  question  of  the  legal  title  to 
it.     Gilbard,  ex  parte,  3  Deac.  (b.  c.)  488. 

23.  In  trover  by  an  assignee,  upon  the  issue 
that  the  plaintiff  was  not  possessed,  &c.  as  assig- 
nee, it  appearing  that  the  plaintiff,  being  assignee 
under  a  second  commission,  had  permitted  the 
bankrupt  to  continue  in  the  order  and  disposition 
of  the  goods,  the  defendant  succeeded  on  thai 
issue ;  held,  that  he  was  entitled  to  the  costs  of 
proving  the  third  fiat^  which  was  not  a  nullity, 
but  not  of  proving  the  estate  sufficient  for  pay- 
ment of  155.  in  the  pound  under  the  second  com- 
mission ]  the  6  Greo.  4,  c.  16,  s.  127,  extending  only 
to  the  cases  where  the  estate  and  efiects  existing 
at  the  date  of  the  certificate  were  sufficient  to 
produce  that  amount;  which,  unless  that  were 
the  case,  the  subsequently  acquired  estate  would 
vest  in  the  assignees.  Butler  v.  Hobson,  5  Bing. 
N.  S.  (c.  p.)  128  j  and  7  Dowl.  (p.  c  )  157. 


(c)  Official  as8ign$e5» 

1 .  The  official  assignee  is  not  an  officer  of  the 
court  within  the  6  Geo.  4,  c.  16,  s.  44,  so  as  to  be 
entitled  to  notice  of  an  action  by  the  bankrupt  for 
seizing  his  goods  under  the  fxit.  Knight  v.  Tur- 
quand,  2  Mees.  6l  W.  (ex.)  101. 

2.  The  court  refused  to  compel  the  official  as- 
signee to  execute  an  assignment  of  all  the  bank- 
rupt's effects  on  a  contract  by  the  assignees,  with- 
out a  reference  to  settle  the  form  of  the  deed,  and 
of  his  indemnity.  Toung,  ex  parte,  2  Deac.  (b.) 
240. 

3.  As  to  attaching  parties  appointed  to  partic- 
ular lists,  see  the  New  Ord.  1835.  I  Deac.  (b.) 
692;  and  2  M.  &-  Ayr.  xxxiv. 

4.  As  to  payment  of  monies  in  to  the  Account- 
ant in  bankruptcy,  see  the  New  Ord.  1836;  1 
Deac.  694 ;  and  2  M.  &  Ayr.  xxxiv. 

And  see  Witness;  and  it^a,  [O.]  1. 

5.  An  official  assignee  ought  never  to  present  a 
petition,  except  under  the  express  directions  of  a 
commissioner.  Groom,  ex  parte,  3  M.  &  Ayr. 
(B.)  161 ;  and  2  Deac.  265. 

6.  Dividends,  until  actually  paid  over  to  the 
creditors,  continue  to  form  part  of  the  bankrupt'a 
estate  ;  where,  therefore,  they  remained  in  the 
hands  of  a  deceased  assignee,  prior  to  6  Geo.  4,  c. 
16,  held  that  the  official  assignee  was  entitled  to 
file  a  bill  for  an  account,  &c.,  against  the  repre- 
sentatives of  the  deceased  assignee  ;  and  it  is  not 
necessary  that  creditors  not  claiming  should  be 
parties.  Green,  ex  parte,  3  Mont.  £  Ayr.  (b.) 
414. 

7.  The  official  assignee  has  such  a  title  in  un- 
paid dividends,  shown  to  have  been  remaining  in 
the  hands  of  a  former  assignee,  as  to  entitle  him 
to  support  a  suit  against  the  personal  representa- 
tive of  such  assignee,  and  to  a  decree  for  an  in- 
quiry as  to  the  manner  such  sums  have  been  dis- 
posed of.     Green  V.  Weston,  3  Myl.  &,  Cr.  (ch.) 

8.  An  official  assignee  retiring,  order  made  for 
his  discharge,  on  his  undertaking  to  pass  his  ac- 
counts from  time  to  time  as  the  several  estatea 
were  wound  up.  Goldsmid,ex  parte,  3  Mont.  &, 
Ayr.  (B.  c.)  623. 

9.  The  official  assignee's  title  to  remuneration 
is  for  services  performed ;  where  therefore  the 
proceeds  of  sale  of  mortgages  were  insufficient 
to  satisfy  the  mortgage  debt,  and  were  paid  over 
by  the  purchaser  to  liie  mortgagee ;  helo,  that  he 
was  not  entitled  to  commission.  Whisson,  ex 
parte,  3  Deac.  (b.)  646. 


[d]  What  misses  to^  under  the  assignment — whaJt 
toithin  the  order  and  disposition  of  the  ^nk- 
rupt, 

1.  Where  foreign  merchants  remitted  bills  to 
their  London  agents,  and  there  was  nothing  from 
the  correspondence  to  show  that  the  latter  were 
authorized  to  deal  with  them  as  their  own,  but 
that  the  only  obligation  of  the  foreign  house  was 
to  keep  the  agents  in  cash  to  meet  tne  bills  when 


a§96 


[BANKRUPT] 


due;  held,  that  the  bills  not  havini^  been  dis- 
counted nor  disposed  of,  there  was  nothing  to  dis- 
place the  title  of  the  remitters,  and  that  Uiey  did 
not  pass  to  the  assignees  of  the  agent.  Jombart 
17.  Woollett,  2  Myl.  &  Cr.  (ch.)  M). 

2.  Where  the  plaintiff  contracted  for  the  build- 
ing of  a  ship,  the  price  to  be  paid  by  instalments 
upon  the  completion  of  certain  portions,  the  work 
to  be  approved  of  by  the  plaintiff's  argent;  after 
certain  parts  completed,  and  the  mstalments 
paid,  the  builder  became  bankrupt,  and  the  as- 
■signees  finished  the  ship,  and  the  plaintiff  tender- 

^edthe  remaining  instalments;  held,  in  trover  for 
the  ship,  that  upon  payment  of  the  instalments 
the  property  in  the  portion  completed  vested  in 
the  plaintiff,  subject  to  the  right  of  detaining,  in 
order  to  earn  the  remaining  part  of  the  price,  and 
that  the  materials  subsequently  added  became  the 
property  of  the  general  owner,  and  that  the  ship 
did  not  pass  to  the  assignees  as  property  within 
the  order  and  disposition  of  the  bankrupt.  Clarke 
17.  Spencc,  4  Ad.  &  £11.  (k.  b.)  448 ;  and  6  Nev. 
&M.  399. 

3.  Where  A.,  B.  and  C.  being  partners,  on 
the  retiring  of  A.,  B.  and  C.  covenanted  to  pay 

him 2.,  by  annual  instalments,  and  that,  if 

any  instalment  should  become  in  arrear,  A.  miffht 
enter  and  take  possession  of  all  the  partnership 
property,  and  that  the  assignment  of  A.'s  interest 
to  B.  and  C.  should  become  void  ;  afterwards  B. 
retired,  and  assigned  all  his  share  to  C,  who  be- 
came bankrupt,  and  the  instalments  in  arrear,  but 
C.'s  assignees  paid  some  part,  and  also  received 
debts  due  to  the  original  firm ;  held  that  such 
debta  were  not  in  the  order,  ^c.  of  C.  at  the  time 
of  his  bankruptcy  withtlie  assent  of  A.,  and  that 
the  assignees  were  accountable  to  him  for  such. 
Pemberton,  ex  parte,  1  Deac.  (b.)  421 ;  and  2  M. 
&  Ayr.  549. 

4.  Where  bills  were  sent  to  the  bankrupt,  an 
agent,  before,  but  received  after  his  bankruptcy, 
with  instructions  to  apply  the  proceeds  to  a  pai^ 
ticular  creditor,  who  has  notice  thereof,  held,  that 
the  assignees  could  not  retain  them.  Cotterill,  ex 
parte,  3  Mont.  ^  Ayr.  (b.)  376. 

5.  Where  a  party,  by  lending  his  name  to  a  bill, 
by  which  a  debt  may  eventually  arise,  held,  that 
it  is  a  subject  of  mutual  credit,  within  6  Greo.  4, 
c.  16,  s.  50 ;  and  where  the  defendant  in  assump- 
sit^ by  assignees,  for  money  received  to  the  use  of 
the  bankrupt,  with  a  count  for  money  received  to 
the  use  of  the  assignees,  pleaded  the  circumstances 
constituting  a  mutual  credit;  held,  that  the  plain- 
tiffs could  not,  by  their  replication,  put  in  issue 
the  legality  of  the  debt.  Hulme  t?.  Mugleston,  6 
Dowl.  (p.  c.)  112;  and  3  Mees.  &.  W.  (sx.)  26. 

6.  Where  the  plaintiff  let  the  ffoods  to  a  hotel- 
keeper,  to  furnish  the  hotel,  which  the  defendants 
had  seized  as  assignees,  as  goods  within  the  order, 
dtc.,  of  the  bankrupt,  and  it  was  shown,  to  a  con- 
siderable extent,  to  be  the  custom  of  upholsterers 
to  let  out  furniture  to  such  persons ;  held,  tliatUie 
plaintiff,  being  the  undoubted  owner,  the  issue  lay 
on  the  defendants  to  show  tlieir  title  as  assignees; 
and  that  the  question  for  the  jury  was,  whether 
the  custom  was  so  general  that  persons  must  be 
supposed  to  have  known  that  the  goods,  although 
in  the  poMefsion,  were  not  the  property  of  the 


bankrupt.    The  jury  found  for  the  pkintiiF.    Mul- 
lett  V.  Green,  8  C.  &  P.  (v.  p.)  m 

7.  Where  the  broker  entered  into  a  contract  of 
freight  on  behalf  of  the  owner,  who  afterwards  as- 
signed the  freight  and  earnings  as  a  security  for 
a  debt  to  C,  who  gave  notice  thereof  to  the  bro- 
ker, but  not  to  the  charterer;  upon  the  bankrupt- 
cy of  the  owner,  held  that  the  amount  due  on  the 
chartcrparty  was  not  within  the  bankrupt's  order 
and  disposition.  Gardner  v.  Lachlan,  8  Sim. 
(cH.)  123. 

8.  Where  a  gas  company,  possessed  of  copy- 
holds, and  by  the  deed  the  shares  were  made  per- 
sonalty ;  held,  that  a  shareholder  having  deposited 
shares  as  a  security,  without  notice  to  toe  com- 
pany before  his  bankruptcy,  was  still  to  be  deem- 
ed the  apparent  owner,  and  that  they  passed  to 
his  assignee.  Vallance,  ex  parte,  3  M.  &  Ayr. 
(B.)224;  and  2  Deac.  354. 

9.  In  trover  by  assignees,  plea  that  the  plaintiff 
was  not  assignee,  held  to  put  in  issue  the  petition- 
ing creditor's  debt  and  the  act  of  bankruptcy ;  and 
held  also,  that  goods  in  possession  of  the  bankrupt, 
with  the  consent  of  his  assi^ee,  were  to  be  deem- 
ed in  his  order  and  disposition,  and  liable  to  be 
seized  by  his  assignee  on  a  subsequent  insolyenej. 
Butler  V.  Hobson,  4  Bing.  N.  S.  (c.  p.;  290;  and 
6  Dowl.  (P.  c.)  409. 

10.  Where  the  defendant,  the  bankrupt's  agent 
in  trade,  bona  fide  sold  goods  to  a  purchaser,  after 
an  act  of  bankruptcy  committed  by  his  principal, 
but  of  which  the  defendant  was  ignorant,  and  the 
sale  took  place  two  months  before  the  commission 
issued  ;  held,  in  trover,  that  having  sold  under  a 
general  authority  only,  it  was  a  sumcient  dealing 
with  the  goods  to  constitute  a  conversion,  unless 
justified  in  what  he  did  by  any  facts,  and  which 
should  have  been  specially  pleaded ;  and  that,  in 
the  absence  of  any  evidence  to  show  that  the  par- 
chaser  was  ignorant  of  the  bankruptcy,  on  a  mere 
traverse  of  the  assignee's  possession,  the  plain tiffii 
were  entitled  to  recover ;  the  6  Greo.  4,  c.  16,  as. 
81,  82,  protecting  only  the  transfer  where  the 
dealing  is  without  notice,  and  the  onus  of  estab- 
lishing that  lying  on  the  party  establishing  the 
sale.   Pearson  r.  Graham,  6  Ad.  &  £11.  (k.  b.)  809. 

1 1 .  The  assignees  being  only  entitled  derivatiye- 
\y  from  or  through  the  bankrupt,  held,  that  as  be 
could  not  have  maintained  an  action  a^rainst  the 
East  India  Company  for  the  arrears  of  his  pension, 
it  did  not  pass  to  his  assignees.  Gibson  v.  Eajt 
India  Company,  5  Bing.  JN.  S.  (c.  p.)  2&L 

12.  Where  a  sum  was  bequeathed,  subject  to 
forfeiture  if  the  legatee  should  "  mortgage,  charge, 
sell,  assign  or  incumber ;"  held,  that  bankruptcy 
being  an  act  of  law,  and  not  a  voluntary  assign- 
ment by  the  legatee,  which  was  alone  contem- 
plated by  the  will,  the  assignees  were  entitled. 
Whitfield  V.  Prickett,  2  Keene,  (cr.)  606. 

13.  Where  a  grantor  settled  estates  on  two  in 
succession  for  li^,  on  condition  that  the  party 
entitled  for  the  time  being  should  reside  in  tbiie 
mansion-house  and  bear  the  name  and  arms  of  the 
grantor,  the  Istter  becoming  bankrupt ;  held,  that 
having  a  vested  right  in  remainder  in  the  property 
at  the  time  of  his  bankruptcy,  it  passed,  under  the 
bargain  and  sale,  to  his  assignees,  although  liable 


[BANKRUPT] 


2699 


to  be  defeated  by  the  delkult  of  tbe  party  to  hilfil 
the  condition  ;  and  the  conrt  wonld  sanction  any 
arrangement  with  the  asaignees  whereby  the  for- 
feiture miffht  be  saved.  Groldney,  ex  parte,  3 
Deac.  (B.)  o70  ;  and  1  Mont.  6l  Cb.  75. 

14.  On  a  petition  by  one  assignee  against  his 
co-assignee  for  his  removal,  and  to  deliver  up  prop- 
erty of  the  bankrupt  which  he  had  taken  in  exe- 
cution before  the  bankruptcy,  but  allowed  the 
bankrupt  to  continue  in  the  possession,  the  court 
ordered  tbe  goods  to  be  sold,  and  the  proceeds  to 
be  paid  into  court,  and  an  issue,  or  that  the  com- 
missioner, with  the  assent  of  parties,  should 
decide  whether  they  were  in  the  order,  ^c.  Bish- 
op, ex  parte,  3  Deac.  (b.  c.)  132. 

15.  Where  on  a  joint  commission  against  G. 
and  li.  the  latter  obtained  his  certificate,  and  in 
consideration  of  undertaking  to  pay  his  creditors 
in  full  within  a  certain  time,  obtained  a  deed  poll 
to  enable  him  to  supersede,  and  they  also  executed 
a  power  of  attorney  to  enable  F.  to  receive  the 
dividends  for  the  use  of  L.,  and  do  what  was  req 
uisite  to  enable  L.  to  supersede.  The  consider- 
ation was  never  performed,  and  afterwards  a 
second  commission  issued  against  L.  j  held,  that 
the  creditors,  and  not  F.  were  entitled  to  receive 
the  dividends,  and  that  the  Deputed  ownership 
and  order  and  disposition  of  them  was  not  in  the 
bankrupt.  Smithers,  ex  parte,  3  Mont,  dt  Ayr. 
(B.  c.)  693. 

16.  Where  foreign  merchants  remitted  bills  to 
iactbrs,  who  sold  them  and  entered  the  amount  of 
the  price  in  their  books  to  the  credit  of  the  prin- 
cipals, who  had  tbe  right  of  drawing  on  them  to 
the  amount;  held  that  upon  the  bankruptcy  of  the 
factors  the  principals  were  entitled  to  the  pro- 
ceeds of  the  bills,  and  that  the  bankrupts  having 
indorsed  them  in  in  their  own  names,  were  not 
to  be  deemed  the  owners  of  them.  Pauli,  ex 
parte,  3  Deac.  (b.  c.)169. 

And  see  Scott  v.  Surman,  Willes,  406. 

17.  Where  foreign  merchants,  through  their 
agents,  procured  coDsignnaents  and  remitted  bills 
to  the  consignees  for  the  amount,  and  informed  the 
consignors  of  having  so  done,  but  before  payment 
the  agents  became  bankrupt ;  held,  that  the  latter 
were  to  be  deemed  agents  through  the  whole  trans- 
action, and  that,  notwithstanding  the  claim  of  the 
agents  or  the  consisnees,  the  consignors  were 
entitled  to  recover  the  bills  from  such  agents. 
Douglas,  in  re,  1  Mont.  6l  Ch.  (a.)  1. 

18.  Where  the  bankrupt  had  deposited  as  a 
aecurity  for  a  loan,  by  the  petitioner,  shares  in  a 
foreign  mining  company,  accompanied  with  an 
agreement  to  complete  the  transfer  when  required, 
and  he  communicated  such  deposit  to  one  of  the 
directors,  who  communicated  it  to  the  board 
before  the  act  of  bankruptcy  committed ;  the  peti- 
tioner afterwards  sealed  up  the  shares  and  en- 
trusted them  to  the  bankrupt  to  keep  in  his  iron 
ndfe  for  better  custodv,  where  they  remained  until 
three  weeks  before  tne  bankruptcy,  when  they 
were  delivered  back  ;  held,  not  to  be  within  the 
order  and  disposition  of  the  bankrupt  at  the  time 
itf  his  bankruptcy  ;  and,  senMe^  shares  of  a  com- 

VoL.  IV.  54 


pany  possessing  lands  abroad  for  the  pvrposes  of 
trade  are  not  to  be  deemed  real  property.  Rich- 
ardson, ex  parte,  3  Deac.  (b.  o.)  496;  and  1  Mont. 
&Ch.43. 

19.  Where  premises,  with  fixtures,  were  mort- 
gaged, but  the  mortgagor  continued  in  possession, 
and,  becoming  bankrupt,  his  assignees  removed 
the  fixtures ;  neld,  that  the  mortgagee,  as  against 
the  defendants  as  strangers,  was  entitled  to  consi- 
der the  mortgagor  as  his  tenant  at  will,  and  main* 
tain  an  action  for  the  iniur3r  to  his  reversionary 
interest ;  held,  also,  that  having  the  same  right  to 
the  fixtures  as  his  tenant,  he  might  maintain  trover 
for  the  fixtures  so  severed,  and  that  they  did  not 
pass  to  the  assignees  as  goods  within  the  bankrupt's 
order  and  disposition.  Hitchman  v.  Walton,  4 
Mees.  &.  W.  (xx.)  409. 

And  see  Partridge  «.  Beie,  5  B.  &  Aid.  604. 

20.  Where  the  wife  was  posseswd  of  gas  shares, 
of  which  the  bankrupt  pledged  the  certificates  as  a 
security  for  advances  ;  held,  that  no  notice  bavinff 
been  given  to  the  company  until  afler  the  ac^  <^ 
bankruptcy,  the  shares  were  to  be  deemed  within 
his  oroer  and  disposition.  Spencer,  ex  ptijbe,  3 
Mont.  &  Ayr.  (b.  c.)  697. 

21.  Where  railway  shares  were  deposited  by 
the  bankrupt's  partner  with  bankers,  as  security 
for  acceptances  by  a  third  party,  and  for  whom 
the  bankers  had  discounted  them,  and  who,  bein|r 
managing  director  of  the  company,  was  informed 
at  the  time  of  renewing  the  oill  that  the  eerti& 
cates  of  the  shares  had  lieen  so  deposited ;  held, 
that  as  the  bankrupt  had  parted  with  the  posses- 
sion of  them,  and  that,  as  transfer  could  be  made 
without  the  authority  of  the  party  for  whose  ose 
they  had  been  so  deposited,  the  bankrupt  was  not 
to  be  deemed  the  reputed  owner,  and  in  his  ordw 
and  disposition.  Harrison,  ex  parte,  3  Deao.  (■• 
c.)  185 ;  and  3  Mont.  &.  Ayr.  596. 

22.  Where  certificates  of  shares  of  a  foreign 
bank  were  transmitted  to  the  bankrupts  on  a  con- 
tract for  joint  purchase  of  them,  and  clothed  with 
a  trust  to  apply  the  proceeds,  when  disposed  of, 
to  retire  bills  drawn  tor  the  purchase ;  held,  that 
they  were  not  within  the  order  and  disposition  as 
the  property  of  the  bankrupt,  and  did  not  therefore 
pass  to  the  assignees.  Brown,  ex  parte,  2  Deao. 
(b.)  91 ;  and  3  Mont.  &  Ayr.  472. 

23.  Where  the  same  partv  was  secretary  to  two 
ofiices,  with  one  of  which  shares  were  deposited, 
held  not  sufilcient  notice  of  the  transfer  of  the 
bankrupt's  interest  to  prevent  the  claim  of  reputed 
ownersnip.  Bignold,  ex  parte,  3  Deac.  (b.  c.) 
151 ;  and  3  Mont.  6l  Ayr.  477. 


(e)  In  case  of  trusU, 

1.  Under  s.  79,  the  court  may  order,  if  it  think 
proper,  trust  property  to  be  conveyed  to  more 
than  one  trustee  in  the  place  of  a  bankrupt  trus- 
tee.   Wilkinson,  ex  parte,  2  Deac.  (b.)  151. 

2.  Where  lands  were  devised  to  the  bankrupt 
and  others,  in  trust  to  sell  and  divide  equally 
amongst  a  class  of  whom  the  bankrupt  was  one, 
and  in  consideration  of  sums  agreed  to  be  paid  to 


2682 


[AWARD] 


of  it,  yet,  if  the  arbitrator,  upon  being  told  that 
it  was  intended  to  have  his  judgment  appealed 
against,  in  furtherance  of  that  appeal  assigns  an 
erroneous  ground  for  the  decision  he  has  pro- 
nounced, the  Court  will  interfere.  Jones  v.  Cor-« 
ry,  5  Bing.  N.  S.  (c.  p.)  187 ;  and  7  Dowl.  (p.  c.) 
298. 


[B]    How    ENFORCED. 

1.  To  found  a  motion  for  an  attachment  for 
non-performance  of  an  award  under  an  order  of 
nisipriusy  the  order  or  submission  must  appear  to 
have  been  previously  made  a  rule  of  Court  Bath, 
Mayor,  &.c.  v.  Pinch,  4  Sc.  (c.  p.)  299. 

2.  Where  the  defendant  at  the  time  of  service 
refused  to  take  the  copy  of  the  award  and  rule ; 
held,  that  the  attachment  might  issue,  the  other 
requisites  being  complied  with.  Ellis  v.  Giles,  5 
Dowl.  (p.  c.)  SSS. 

3.  The  Court  overruled  an  objection  to  the  af- 
fidavit of  service  of  the  award,  stating  it  to  be  of 
"T.Ward,"  instead  of  "T.  Wood,'^the  docu- 
ment served  beinsr  correct ;  and  also  that  there 
was  no  affidavit  ofthe  fact  of  the  several  enlarge- 
ments by  the  arbitrators;  having  been  incorpo- 
rated in  the  rule  of  Court,  and  made  by  agree- 
ment of  the  parties,  the  Court  would  intend  that 
what  was  necessary  to  be  done  as  a  foundation 
for  the  rule  had  been  done.  Smith  v.  Reeves, 
in  re,  5  Dowl.  (p.  c.)  513. 

4.  The  Court  refused  to  refer  back  to  the  arbi- 
trator an  award  made  on  a  reference  of  the  cause 
and  all  matters  in  difference,  on  the  ground  of  his 
having  omitted  to  decide  as  to  one  subject,  where 
the  application  was  not  made  within  the  first  four 
days  of  the  following  term.  Lyng  v.  Sutton,  3 
Sc.  (c.  p.)  187;  and  5  Dowl.  (p.  c.)  39. 

5.  Where,  before  the  cause  had  been  entered, 
articles  of  agreement  to  refer  were  executed,  and 
the  submission  was  not  made  a  rule  of  Court 
until  the  second  term  after  the  publication  of  the 
award ;  held  too  late  to  move  to  set  it  aside :  un- 
less there  appear  clear  and  sufficient  grounds  for 
the  delay,  the  Court  in  cases  not  under  the  statute 
will  not  interfere.  Reynolds  v.  Askew,  5  Dowl. 
<p.  c.)  682. 

6.  Where  in  an  action  of  covenant  by  landlord 
Against  tenant,  assigning  several  breaches,  the 
cause  and  all  matters  were  referred,  and  by  the 
order  of  nisi  prius  the  jury  were  to  find  a  verdict 
and  damages  on  the  first  breach,  subject,  &c.,  but 
no  power  was  given  to  the  arbitrator  to  enter  a 
verdict  on  the  other  breaches ;  held,  that  he  could 
not  do  so,  as  an  indirect  mode  of  ordering  money 
to  be  paid  by  the  defendant  to  the  plaintiff:  held 
also,  that  an  application  might  be  made  to  set 
aside  the  award  at  any  time  within  the  next  term ; 
and  a  mere  application  by  the  defendant's  attor- 
ney for  time,  when  the  costs  were  taxed  and  exe- 
cution about  to  be  taken  out,  to  which  the  defendant 
was  no  party,  was  not  a  waiver  of  the  objection  to 
the  award.  Hayward  v.  Phillips,  1  Nev.  &  F. 
<K.  B.)  288. 

And  see  Donlan  v.  Brett,  5  Ad.  &  £11.  344. 

7.  Where  a  cause  was  ze&ned  to  two  arbitn* 


tors,  with  power  to  appoint  a  third,  the  award  to 
be  made  by  a  stated  day,  or  such  other  dav  as 
they  or  any  two  of  them  should  appoint,  ana  the 
two  original  referees  enlarged  the  time  before  the 
third  was  named;  held,  that  such  enlargement 
was  invalid,  and  that  an  award  subsequently 
made  by  all  could  not  be  enforced  by  attachment. 
Rcade  v.  Dutton,  2  Mees.  &,  W.  (ex.)  69. 

8.  A  rule  for  setting  aside  an  award  must  be 
drawn  up  on  reading  me  award,  or  it  will  be  dis- 
charged.   Barton  v.  Ransom,  5  Dowl.  (p.  c.)  597. 

9.  Where  the  award  directed  costs  to  be  paid  in 
equal  proportions  by  three  persons;  held,  that 
there  must  be  rules  U)r  separate  attachments.  Gul- 
liver V.  Summerfield,  5  Dowl.  (p.  c.)  401. 

10.  Where  by  the  order  of  reference  the  party 
succeeding  is  to  be  at  liberty  to  sign  final  judg- 
ment for  the  amount,  and  to  tax  his  costs ;  held, 
that  Uie  award  being  found  for  the  defendant,  he 
might  sign  judgment  for  his  costs.  Maggs  v.  Yor- 
ston,  6  Dowl.  (p.  c.)  481. 

11.  Upon  a  reference  of  several  actions,  costs  of 
the  several  actions,  matters,  d&c,  to  abide  the 
event,  and  the  arbitrator  in  each  case  awarded  coats 
to  the  successful  party  ;  held  good,  although  he 
did  not  succeed  in  all ;  held  uso,  that  after  the 
award  made,  no  objection  can  be  made  as  to  in- 
fants having  been  made  parties,  or  that  others  in- 
terested were  not.  Jones  v.  Powell,  6  Dowl.  (p. 
c.)483. 

12.  Where  two  actions  relating  to  a  right  of 
way  had  been  referred,  and  the  arbitrator  directed 
that  the  defendant  should  undertake  not  to  use  it, 
which  was  given  ;  on  an  application  for  an  attach- 
ment for  breach  of  the  undertaking  by  the  defen- 
dant's servants,  he  swearing  that  be  had  neither 
himself  used  the  way,  and  that  the  acts  complain- 
ed of  were  without  his  knowledge  or  consent,  the 
Court  refused  to  grant  it.  Russell  v.  Torke,  4 
Sc.  (c.  p.)  422. 

13.  Where  an  action  had  been  brought  on  a 
right  of  water,  as  limited  by  an  award,  which  was 
referred,  and  the  second  award  regulating  the  use 
was  moved  to  be  set  aside,  as  founded  on  a  mis- 
construction of  and  at  variance  with  the  for- 
mer one,  which  the  Court  considered  it  not  to  be ; 
held,  that  the  defendant  was  not  entitled  to  the 
costs  of  the  motion,  the  award  being  supported. 
Hocker  v.  Greenfell,  4  Bing.  N.  S.  (c.  p.)  103;  2 


.  c!) 


Sc.  391 ;  and  6  Dowl.  (p.  cO  250. 

14.  The  affidavit  of  execution  of  a  power  of  at- 
torney demanding  performance  of  the  award,  held, 
to  be  entitled  in  the  cause.  Doe  v.  SUllwell,  6 
Dowl.  (p.  c.)  305. 

15.  Where  an  action  against  a  pawnbroker  for 
not  complying  with  the  requisites  of  the  39  &  40 
Geo.  3,  c.  99,  s.  6,  on  receiving  a  pledge,  was  refer- 
red to  an  arbitrator,  who  was  to  state  a  case  for  the 
Court ;  and  who  having  stated  only  one  fiict,  and 
on  reference  to  him  he  was  unable  to  state  wheth- 
er the  defendant  had  made  the  requisite  inquiries 
or  not,  the  Court  directed  a  new  trial,  unless  the 
parties  would  consent  to  its  going  back  to  him  to 
find  affirmatively  or  negatively  whether  the  proper 
inquiries  had  been  made  by  the  defendant    Fer* 


[AWARD— BAIL] 


2683 


fawn  o.  Norman,  4  Bing.  N.  S.  (c.  p.)  52 ;  and  3 
k$.  304. 

16.  Where  the  award  upon  the  face  of  it  par- 
ported,  and  was  attested  to  have  been  made  in 
due  time,  the  Court  would  presume  it  to  have 
been  so  made :  held,  also,  that  the  award  being 
for  one  party  to  make  a  surrender  of  premises, 
and  the  costs  of  it  having  been  offered  on  making 
it,  it  lay  upon  the  party  who  was  to  make  the 
surrender  to  do  the  first  act ;  an  affidavit  more 
than  a  year  old  allowed  to  be  used  on  the  applica- 
tion for  an  attachment.  Doe  v.  Still  well,  3  Nev. 
&,  P.  (d.  B.)  701. 

17.  Where  the  parties  have  intentionally  al- 
lowed the  time  to  expire  without  enlargement, 
the  Court  has  no  power  under  3  &  4  Will.  4,  c. 
42,  to  compel  the  parties  to  proceed  with  the  re- 
ference. Doe  d.  Jones  v.  Powell,  7  Dowl.  (p.  c.) 
539. 

18.  Where  an  action  on  a  note,  and  on  an  ac- 
count stated,  was  referred,  and  the  award  found 
the  sum,  being  the  amount  of  the  note  mentioned 
in  the  declaration,  to  be  due  ;  held  bad,  as  not 
disposing  of  the  issue  on  the  account  stated ; 
held,  al^,  in  an  action  on  the  award,  that  the 
production  of  the  rule  of  Court  and  award,  was 
sufficient  "prim&facit  evidence  to  sustain  the  issue 
on  the  fact  of  the  award.  Gisborne  v.  Hart,  5 
Mees.  &  W.  (ex.)  50 ;  and  7  Dowl.  (p.  c.)  402. 

19.  Where  the  agreement  for  an  arbitration 
stipulated  that  the  aiAircZ,  and  not  the  submisaion^ 
should  be  made  a  rule  of  Court,  held  that  the 
Court  had,  notwithstanding,  jurisdiction  under  9 
&  10  Will.  3,  c.  15.  Storey,  ex  parte,  2  Nev.  & 
P.  (((.  B.)  G67 ;  supporting  Pedley  v.  Westmacott, 
3  East,  603;  Powell  v.  Phillips,  2  Tidd,  Pr.  821, 
note  (A),  ed.  9;  and  7  Ad.  &;  £11.  602. 

80.  Where  an  attachment  was  obtained  for 
non^performance  of  an  award  which  was  ordered 
to  remain  suspended,  to  await  the  result  of  an 
inquiry,  and  to  be  discharged  on  certain  condi- 
tions which  were  not  complied  with ;  held,  that 
the  costs  of  such  inquirv  were  to  be  considered 
as  incidental  to,  and  to  oe  considered  as  part  of, 
the  costs  of  the  attachment.  Tyler  v.  Campbell, 
5  Bing.  N.  S.  (c.  p.)  192. 

21.  Upon  reference  of  a  cause  at  nisi  prius, 
with  power  to  certify  whether  the  cause  was  a 
proper  one  to  be  tried  before  a  Judge  of  assize ; 
and  a  certificate  was  eiven  in  the  affirmative,  but 
the  learned  Judge  died  before  the  certificate  made 
known  to  him;  held,  that  having  exercised  no 
opinion  thereon,  the  Court  had  no  authority  to 
direct  the  master  to  tax  full  costs.  Astley  v.  Joy, 
1  Perr.  &  Dav.  (q.  B.j  460. 

22.  Where,  after  a  cause  referred,  the  award 
was  set  aside,  and  the  cause  again  tried,  and  the 
plaintiff  obtained  a  verdict ;  held  that  the  master 
properly  refused  the  costs  of  the  first  trial.  Wood 
V.  Duncan,  7  Dowl.  (p.  c.)  344. 

23.  Where  an  action,  and  a  cross  bill  in  equity 
for  an  injunction  to  restrain  the  suit,  were  refer- 
red, the  costs  of  the  action  and  suit  "  to  abide  the 
event,"  and  of  Ae  reference,  to  be  in  the  discre- 
tion of  the  arbitrator ;  the  arbitrator  found  some 
of  the  issues  for  the.  plaintiff,  with  5/.  damages, 

Vol.  IV.  52 


and  the  others  for  the  defendant,  but  that  tbe^, 
having  a  defence  in  law,  should  not  proceed  in 
the  suit  in  equitv  as  regarded  them ;  held,  that 
the  arbitrator,  by  having  directed  that  the  plaintiff 
should  not  proceed  in  the  action  for  his  dam- 
ages or  costs,  although  he  had  thereby  indirectly 
exercised  a  jurisdiction  over  the  costs  of  the  ac- 
tion, had  not  exercised  such  a  discretion  as  the 
reference  meant  to  exclude,  but  that  the  costs 
were  still  lefl  to  abide  the  event  as  the  parties 
intended.  Reeves  v.  MacGregor,  1  Perr.  &  Dav. 
(<l.  B.)  372. 

24.  Where,  upon  a  cause  being  referred  before 
trial,  an  arbitration  bond  was  executed,  but  the 
reference  being  abortive,  the  cause  was  tried ; 
held  that  the  costs  of  the  reference  were  not  costs 
in  the  cause,  but  only  recoverable  under  the 
bond.    Doe  v.  Morgan,  4  Mees.  &  W.  (ex.)  171. 

25.  Where  the  language  of  the  award,  on  the 
reference  of  an  action  on  a  special  contract,  and 
for  goods  sold,  was  as  much  referable  to  the  spe- 
cial as  to  the  general  count,  and  the  award  was 
treated  as  valid,  the  Court  refused  to  direct  the 
taxation  of  the  master  of  the  general  costs  to  be 
reviewed.  Rennie  v.  Miles,  5  Bing.  N.  S.  (c.  p.) 
249;  and  7  Dowl.  (p.  c.)  295. 

26.  Where  the  reference  was  to  two  arbitrators 
and  an  umpire,  and  the  agreement  to  perform  the 
award  of  the  said  arbitrators  and  their  umpire, 
and  it  was  made  by  the  arbitrators  only,  the  Court 
refused  an  attachment.  Heatherington  v.  Robin- 
son, 7  Dowl.  (p.  c.)  19;  and  4  Mees.  &  W  (ex.) 
608. 

And  see  Costs. 


BAIL. 

[A]  APFinAviT  OP. 

[B]  Deposit  iv  lieu  of. 

[C]  Justification. 

(a)  When  allowed^ 

(b)  J^oticeof. 

(c)  Affidavit  cf-^n  person. 

(d)  Time^  token  given — efeet. 

[D]  Render. 

[E]  Bail-bond — <proceeding8 

STAYED — SET  ASIDE. 


OH  —  WHESi 


[A]  Affidavit  of. 

1 .  The  affidavit  merely  stating  the  debt,  **  on 
an  account  stated  between  them ;"  held  insuffi- 
cient, and  leave  to  arrest  a  second  time  refused. 
Hooper  v.  Vestris,  5  Dowl.  (p.  c.)  710. 

2.  Affidavit  by  a  party  describing  himself  mana- 

fer  to  the  R.  branch  of  the  T.  baoi,  and  that  the 
efendant  was  justly,  &c.  to  J.  S.,  as  one  of  the 
registered  poblio  officers  of  the  T.    bank,    for 

iC-- for  money  lent  to  the  deponent  as   such 

manager,  held  irregular,  as  not  showing  the  au- 
thority to  lend ;  but  not  a  nullity,  and  that  an  ap- 
plication to  be  discharged  made  three  days  after 


[BANKRUPT] 


2707 


57.  Where  the  debt  arose  on  a  joint  note  made 
in  1825  with  a  party  who,  in  1£35,  executed  an 
assignment  for  tne  benefit  of  his  creditors,  under 
which  a  dividend  was  aflerwards  received  in  res- 
pect of  the  note  and  interest ;  held,  that  such  pay- 
ment by  a  co-contractor  did  not  revive  the  debt 
against  the  bankrupt  so  as  to  make  it  provable. 
Woodward,  ex  parte,  3  Mont.  &  Ayr.  (b.  c.)609  ; 
and  3  Deac.  290. 294  ;  supporting  Jackson  v.  Fair- 
bank,  2  H.  Bl.  340. 

58.  Where  the  bill  came  through  the  acceptor, 
held  that,  in  the  absence  of  fraud,  it  was  no  objec- 
tion to  the  proof.  Gill,  ex  parte,  3  Mont.  &  Ayr. 
(B.  c.)  590;  and  3  Deac.  2ti8. 

59.  Where  the  bankrupt  was  executor  in  trust, 
and  interested  in  a  share  of  the  bequest,  but  had 
B4yt  surrendered,  a  joint  legatee  allowed  to  prove ; 
costs  to  be  paid  out  of  the  trust  fund,  but  no  order 
made  as  to  the  bankrupt's  part.  Forrester,  ex  par- 
te, 1  Mont.  A,  Ch.  (B.)  143. 

60.  Where  a  joint  and  several  bond  was  execu- 
ted by  the  bankrupts,  and  a  surety  in  a  sum  to  se- 
cure a  balance  to  that  extent  on  a  running  ac- 
count, of  bankers  with  the  bankrupt,  and  on  the 
ftiith  of  which  subsequent  advances  were  made, 
but  by  subsequent  deiuings  the  surety  became  re- 
leased; held,  that  the  bankers  might,  notwith- 
standing, prove  against  the  separate  estate  of  the 

Erincipals  for  the  amount  of  balance  due.     Wal- 
er,  ex  parte,  3  Deao.  (b.)  673. 

61.  Where  the  bankrupts  lodged  with  their 
bankers  acceptances  of  the  petitioners,  as  security 
ibr  the  floating  balance  with  them,  and  they  afler- 
wards proved  for  the  whole  balance  and  received 
a  dividend ;  the  petitioners  afterwards  paid  the 
bills  and  claimed  to  have  the  amount  of  tiie  divi- 
dend, to  the  extent  of  the  bills,  refunded  and  paid 
to  them ;  the  court  dismissed  the  petition  with 
costs  as  against  the  bankers,  but  declared  the  pe- 
titioners to  be  entitled  to  all  future  dividends  in 
respect  thereof.    Holmes,  ex  parte,  3  Deac.  (b.) 

62.  Where  the  bankrupt  granted  an  annuity 
and  received  from  his  attorney  the  whole  of  the 
consideration,  but  half  an  hour  aflerwards,  and  at 
a  different  place,  paid  him  a  part  of  it  in  dis- 
charge of  a  bona  fide  debt,  and  there  were  no  cir- 
cumstances of  fraud  or  contrivance  to  evade  the 
provisions  of  the  Annuity  Act ;  held  not  a  reten- 
tion within  the  Act,  and  the  annuity  provable. 
Bogue,  ex  parte,  3  Deac.  (b.  c.)  31i). 

63.  Where  the  bankrupt,  by  deed,  granting  an 
annuity,  acknowledged  the  receipt  of^e  consid- 
eration, and  in  an  account  admitted  the  amount 
due,  and  he  had  paid  the  annuity  for  10  yesrs,  the 
court  refused  to  reject  the  proof  on  an  amdavit  by 
by  the  bankrupt  that  the  whole  of  the  considera- 
tion was  not  advanced.  Fairman,  ex  parte,  3 
Deac.  (B.  c.)  467;  and  1  Mont.  &  Ch.  125. 

64.  Where,  upon  the  grant  of  an  annuity,  the 
bankrupt,  as  surety,  covenanted  jointly  and  sev- 
erally with  the  grantee  to  pay  the  annuity,  in  case 
default  should  be  made  hy  the  grantor,  provided 
that  the  grantee  should,  in  such  case,  give  21 
days'  notice,  in  writing,  of  the  sum  in  arrear,  pre- 
vious to  any  proceeding  against  the  surety ;  held, 

Vol.  IV.  56 


that,  on  the  bankruptcy  of  the  suretj,  before  any 
default  made,  the  grantor  was  not  entitled  to  prove 
for  the  value  of  the  annuity  under  6  Geo.  4,  c.  16. 
s.  54.  Marks,  ex  parte,  3  Deac.  (b.  c.)  133;  and 
3  Mont.  &  Ayr.  521. 

65.  Where  a  party,  become  insolvent,  assigned 
all  his  estate  to  four  trustees,  who  carried  on  the 
business  for  the  benefit  of  creditors,  three  of  whom 
became  subsequently  bankrupt,  and  the  other  died 
solvent,  but  there  was  no  jomt  estate ;  held,  that 
the  rule,  that  partnership  creditors  can  only  resort 
to  the  estate  of  a  solvent  partner,  where  there  is 
one,  and  not  prove  against  the  separate  estate  of 
each,  applied  also  to  ue  case  of  joint  contractors ; 
and  that  it  was  not  a  sufficient  ground  for  expung- 
ing  the  proof  against  the  separate  estate  of  a 
partner  who  was  solvent  at  the  time  of  proof,  that 
he  had  since  become  insolvent ;  held,  also,  that 
the  estate  of  the  deceased  partner,  being  solvent, 
could  not  be  considered  in  the  light  of  a  solvent 
partner.    Bauerman, ex  parte, 3 Deao.  (B.C.) 476. 

66.  Where  one  of  two  bankrupts,  before  the 
commencement  of  their  partnership,  received  • 
deposit  of  foreign  bonds,  as  a  pledge  for  covering 
acceptances,  which  he  aflerwards  applied  to  pur- 
poses of  the  partnership;  held  not  to  discharge  his 
separate  liability,  and  that  the  commissioner  pro- 
perly admitted  proof  against  his  separate  estate ; 
and,  semblty  the  petitioner  might  elect  to  prove 
either  against  the  joint  or  separate  estate.  Me* 
inertzhagen,  ex  parte,  3  Deac.  (b.)  101. 

67.  Where  partners  carried  on  business  in  their 
separate  homes  at  M.  A  L.,  held,  that  the  holder 
of  bills,  drawn  by  one  upon  the  other,  was  bound 
to  elect  to  prove  against  the  joint  or  separate  es* 
tates,  but  that  he  was  not  bound  by  the  previous 
receipt  of  a  dividend  under  the  separate  estate,  on 
refunding  it  and  paying  the  costs  of  the  transfer 
of  proof  Law,  ex  parte,  3  Deac.  (b.  c.)  541 ;  and 
IMont.  &Ch.  111. 

68.  Where  two  partners  gave  their  joint  and 
separate  note,  ^nd  before  their  bankruptcy  one 
executed  a  mortgage  to  secure  that  and  such  other 
advances  as  might  become  due,  and  the  mortgagee 
realized  a  part  of  the  debt  due  at  the  time  of  the 
bankruptcy ;  held,  that  the  amount  due  on  the 
note  din  not  merge  in  the  mortgage,  and  that  proof 
might  be  made  on  the  note  (dtss.  Erskine,-  U.  J.) 
Bate,  ex  parte,  3  Deac.  (b.  c.)  358. 

And  see  Ex  parte  Ladbroke,  2  Gl.  &  J.  81. 

69.  Where  one  of  two  partners,  jointly  possess- 
ed of  shares,  but  standing  in  the  name  of  one,  un- 
dertook, in  consideration  of  the  payment  to  the 
firm  of  an  acceptance,  to  obtain  the  transfer ;  held, 
that,  upon  the  bankruptcy  of  the  firm,  the  claim 
on  sucn  undertaking  sounding  in  damages  and 
not  in  debt,  the  proof  could  omy  be  made  against 
the  joint  estate.  Raleigh,  ex  parte,  3  Deac.  (s.  c.) 
160;  and  3  Mont.  &  Ayr.  670. 

70.  Where  proof  had  been  made  before  pay- 
ment of  a  portion  of  the  debt  bjr  a  surety,  held, 
that  it  did  not  prevent  the  receiving  dividends  on 
the  whole  amount  of  the  proof.  Coplestone,  ex 
parte,  3  Deac.  (b.  c.)  547. 

71.  Where  the  business  was  carried  on  in  the 


9696 


[BANKRUPT] 


due;  held,  tbat  the  bills  not  having  been  dis- 
counted nor  disposed  of,  there  was  nothings  to  dis- 
place the  title  of  the  remitters,  and  that  Uiej  did 
not  pass  to  the  assig^nces  of  the  agent.  Jombart 
V,  WooUett,  2  Myl.  &  Cr.  (ch.)  389. 

2.  "Where  the  plaintiiF  contracted  for  the  build- 
ing of  a  ship,  the  price  to  be  paid  by  instalments 
upon  the  completion  of  certain  portions,  the  work 
to  be  approved  of  by  the  plaintiff's  a^ent;  after 
certain  parts  completed,  and  the  instalments 
paid,  the  builder  became  bankrupt,  and  the  as- 
ai^nees  finished  the  ship,  and  the  plaintiff  tender- 

.eathe  remaining  instalments;  held,  in  trover  for 
the  ship,  that  upon  payment  of  the  instalments 
the  property  in  the  portion  completed  vested  in 
the  plaintiff,  subject  to  the  right  of  detaining,  in 
order  to  earn  the  remaining  part  of  the  price,  and 
that  the  materials  subsequently  added  became  the 
property  of  the  general  owner,  and  that  the  ship 
did  not  pass  to  the  assignees  as  property  within 
the  order  and  disposition  of  the  bankrupt.  Clarke 
V.  Spcnce,  4  Ad.  &  £11.  (k.  b.)  448 ;  and  6  Nev. 
&M.  399. 

3.  Where  A.,  B.  and  C.  being  partners,  on 
the  retiring  of  A.,  B.  and  C.  covenanted  to  pa^ 

him 2.,  by  annual  instalments,  and  that,  if 

any  instalment  should  become  in  arrear,  A.  might 
enter  and  t^e  possession  of  all  the  partnership 
property,  and  that  the  assignment  of  A.'s  interest 
to  B.  and  C.  should  become  void ;  afterwards  B. 
retired,  and  assigned  all  his  share  to  C,  who  be- 
came bankrupt,  and  the  instalments  in  arrear,  but 
G.'a  assignees  paid  some  part,  and  also  received 
debts  due  to  the  original  firm ;  held  that  such 
debts  were  not  in  the  order,  &c.  of  C.  at  the  time 
of  his  bankruptcy  with  the  assent  of  A.,  and  that 
the  assignees  were  accountable  to  him  for  such. 
Femberton,  ex  parte,  1  Deac.  (b.)  421 ;  and  2  M. 
4b  Ayr.  549. 

4.  Where  bills  were  sent  to  the  bankrupt,  an 
agent,  before,  but  received  afler  his  bankruptcy, 
with  instructions  to  apply  the  proceeds  to  a  par- 
ticular creditor,  who  has  notice  thereof,  held,  that 
tlic  assignees  could  not  retain  them.  Cotterill,  ez 
parte,  3  Mont.  &  Ayr.  (b.)  376. 

5.  Where  a  party,  by  lending  his  name  to  a  bill, 
by  which  a  debt  may  eventually  arise,  held,  that 
it  is  a  subject  of  mutual  credit,  within  6  Geo.  4, 
c.  16,  s.  50 ;  and  where  the  defendant  in  assump- 
sit^ by  assignees,  for  money  received  to  the  use  of 
the  bankrupt,  with  a  count  for  money  received  to 
the  use  of  the  assignees,  pleaded  the  circumstances 
constituting  a  mutual  credit;  held,  that  the  plain- 
tiffs could  not,  by  their  replication,  put  in  issue 
the  legality  of  the  debt.  Hulme  v,  Mugleston,  6 
Dowl.  (p.  c.)  112;  and  3  Mees.  &  W.  (si.)  28. 

6.  Where  the  plaintiff  let  the  ffoods  to  a  hotel- 
keeper,  to  furnish  the  hotel,  which  the  defendants 
had  seized  as  assignees,  as  goods  within  the  order, 
dtc.,  of  the  bankrupt,  and  it  was  shown,  to  a  con- 
siderable extent,  to  be  the  custom  of  upholsterers 
to  let  out  furniture  to  such  persons;  held,  that  the 
plaintiff,  being  the  undoubted  owner,  the  issue  lay 
on  the  defendants  to  show  their  title  as  assignees; 
and  that  the  question  for  the  jury  was,  whether 
the  custom  was  so  general  that  persons  must  be 
supposed  to  have  known  that  the  goods,  although 
in  the  possession,  were  not  the  property  of  the 


bankrupt    The  jury  found  for  the  plaintiff.    Mul- 
lett  V.  Green,  8  C.  d^  P.  (s.  p.)  382. 

7.  Where  the  broker  entered  into  a  contract  af 
freight  on  behalf  of  the  owner,  who  afterwards  as- 
signed the  freight  and  earnings  as  a  security  for 
a  debt  to  C,  who  gave  notice  tliereof  to  the  bro- 
ker, but  not  to  the  charterer ;  upon  the  bankrupt- 
cy of  the  owner,  held  that  the  amount  due  on  the 
cnarterpart^  was  not  within  the  bankrupt's  order 
and  disposition.  Gardner  r.  Lachlan,  6  Sim« 
(cH.)  123. 

8.  Where  a  gas  company,  possessed  of  copj- 
holds,  and  by  the  deed  the  snares  were  made  per- 
sonalty ;  held,  that  a  shareholder  having  depoeiled 
shares  as  a  security,  without  notice  to  the  com- 
pany before  his  bankruptcy,  was  still  to  be  deem- 
ed the  apparent  owner,  and  that  they  passed  to 
his  assignee.  Vallance,  ez  parte,  3  M.  &  A  jr. 
(b)224;  and  2  Deac.  354. 

9.  In  trover  by  assi^ees,  plea  that  the  plaintiff 
was  not  assignee,  held  to  put  in  issue  the  petition- 
inff  creditor's  debt  and  the  act  of  bankruptcy ;  and 
held  also,  that  goods  in  possession  of  the  bankrupt, 
with  the  consent  of  his  assignee,  were  to  be  deem- 
ed in  his  order  and  disposition,  and  liable  to  be 
seized  by  his  assignee  on  a  subsequent  insolvency. 
Butler  V.  Hobson,  4  Bing.  N.  S.  (c.  p.;  290;  and 
6  Dowl.  (P.  c.)  409. 

10.  Where  the  defendant,  the  bankrupt's  agent 
in  trade,  bona  fide  sold  goods  to  a  purchaser,  after 
an  act  of  bankruptcy  committed  by  his  principal, 
but  of  which  the  defendant  was  ignorant,  and  the 
sale  took  place  two  months  before  the  commission 
issued ;  held,  in  trover,  that  having  sold  under  a 
general  authority  only,  it  was  a  sufficient  dealing 
with  the  goods  to  constitute  a  conversion,  unless 
justified  in  what  he  did  by  any  facts,  and  which 
should  have  been  specially  pleaded ;  and  that,  in 
the  absence  of  any  evidence  to  show  that  the  pur- 
chaser was  ignorant  of  the  bankruptcy,  on  a  mere 
traverse  of  the  assignee's  possession,  the  plaintiffs 
were  entitled  to  recover ;  the  6  Geo.  4,  c.  16,  ss. 
81,  82,  protecting  onl^  the  transfer  where  the 
dealing  is  without  notice,  and  the  onus  of  estab- 
lishing that  lying  on  the  party  establishing  the 
sale.   Pearson  r.  Graham,  6  Ad.  dt  £11.  (x.  b.)  899. 

1 1 .  The  assignees  being  only  entitled  derivative- 
ly from  or  through  the  bankrupt,  held,  that  as  he 
could  not  have  maintained  an  action  aj^nst  the 
East  India  Company  for  the  arrears  of  his  pension, 
it  did  not  pass  to  his  assignees.  Gibson  v.  East 
India  Company,  5  Bing.  N.  S.  (c.  p.)  262. 

12.  Where  a  sum  was  bequeathed,  subject  to 
forfeiture  if  the  legatee  should  **  mortgage,  charge, 
sell,  assign  or  incumber ;"  held,  that  bankruptey 
being  an  act  of  law,  and  not  a  voluntary  assign- 
ment by  the  legatee,  which  was  alone  contem- 
plated by  the  will,  the  assignees  were  entitled. 
Whitfield  V.  Prickett,  2  Keene,  (en.)  606. 

13.  Where  a  grantor  settled  estates  on  two  in 
succession  for  life,  on  condition  that  the  party 
entitled  for  the  time  being  should  reside  in  tble 
mansion-house  and  bear  the  name  and  arms  of  the 
grantor,  the  latter  becoming  bankrupt ;  held,  that 
having  a  vested  right  in  remainder  in  the  property 
at  the  time  of  his  bankruptcy,  it  passed,  under  the 
bargain  and  sale,  to  his  assignees,  although  liable 


[BANKRUPT] 


^699 


to  be  defeated  by  the  deikult  of  the  party  to  fiilfil 
the  condition  ;  and  the  court  would  sanction  any 
arrangement  with  the  assignees  whereby  the  for- 
feitnre  might  be  saved.  Goldney,  ex  parte,  3 
Deac.  (B.)  570 ;  and  1  Mont.  &  Cb.  75. 

14.  On  a  petition  by  one  assignee  against  his 
co-assignee  for  his  removal,  and  to  deliver  up  prop- 
erty or  the  bankrupt  which  he  had  taken  m  exe- 
cution before  the  bankruptcy,  but  allowed  the 
bankrupt  to  continue  in  the  possession,  the  court 
ordered  the  goods  to  be  sold,  and  the  proceeds  to 
be  paid  into  court,  and  an  issue,  or  that  the  com- 
missioner, with  the  assent  of  parties,  should 
decide  whether  they  were  in  the  order,  &c.  Bish- 
op, ex  parte,  3  Deac.  (b.  c.)  132. 

15.  Where  on  a  joint  commission  against  G. 
and  L.  the  latter  obtained  his  certificate,  and  in 
consideration  of  undertaking  to  pay  his  creditors 
fn  full  within  a  certain  time,  obtained  a  deed  poll 
to  enable  him  to  supersede,  and  they  also  executed 
a  power  of  attorney  to  enable  F.  to  receive  the 
dividends  for  the  use  of  L.,  and  do  what  was  req 
uisite  to  enable  L.  to  supersede.  The  consider- 
ation was  never  performed,  and  afterwards  a 
second  commission  issued  against  L. ;  held,  that 
the  creditors,  and  not  F.  were  entitled  to  receive 
the  dividends,  and  that  the  reputed  ownership 
and  order  and  disposition  of  them  was  not  in  the 
bankrupt.  Smitbers,  ez  parte,  3  Mont,  db  Ayr. 
(B.  c.)  693. 

16.  Where  foreign  merchants  remitted  bills  to 
factbrs,  who  sold  tnem  and  entered  the  amount  of 
the  price  in  their  books  to  the  credit  of  the  prin- 
cipals, who  had  the  right  of  drawing  on  them  to 
the  amount;  held  that  upon  the  bankruptcy  of  the 
factors  the  principals  were  entitled  to  the  pro- 
ceeds of  the  bills,  and  that  the  bankrupts  having 
indorsed  them  in  in  their  own  names,  were  not 
to  be  deemed  the  owners  of  them.  Pauli,  ex 
parte,  3  Deac.  (b.  c.}169. 

And  see  Scott  v.  Surman,  Willes,  405. 

17.  Where  foreign  merchants,  through  their 
agents,  procured  consignments  and  remitted  bills 
to  the  consignees  for  the  amount,  and  informed  the 
consignors  of  having  so  done,  but  before  payment 
the  agents  became  bankrupt ;  held,  that  the  latter 
were  to  be  deemed  agents  through  the  whole  trans- 
action, and  that,  notwithstanding  the  claim  of  the 
agents  or  the  consignees,  the  consignors  were 
entitled  to  recover  uie  bills  from  such  agents. 
Douglas,  in  re,  1  Mont.  A,  Ch.  (b.)  1. 

18.  Where  the  bankrupt  had  deposited  as  a 
security  for  a  loan,  by  the  petitioner,  shares  in  a 
foreign  mining  company,  accompanied  with  an 
agreement  to  complete  the  transfer  when  required, 
and  he  communicated  such  deposit  to  one  of  the 
directors,  who  communicated  it  to  the  board 
before  the  act  of  bankruptcy  committed ;  the  peti- 
tioner afterwards  seal^  up  the  shares  and  en- 
trusted them  to  the  bankrupt  to  keep  in  his  iron 
safe  for  better  custody,  where  they  remained  until 
three  weeks  before  tne  bankruptcy,  when  they 
were  delivered  back ;  held,  not  to  be  within  the 
order  and  disposition  of  the  bankrupt  at  the  time 
of  his  bankruptcy  ;  and,  tembUf  shares  of  a  com- 

Vol.  IV.  64 


pany  possessing  lands  abroad  for  the  purposes  of 
trade  are  not  to  be  deemed  real  property.  Rich- 
ardson, ex  parte,  3 Deac.  (b.  e.)  496;  and  1  Mont. 
&  Ch.  43. 

19.  Where  premises,  with  fixtures,  were  mort- 
gaged, but  the  mortgagor  continued  in  possession, 
and,  becoming  bankrupt,  his  assignees  removed 
the  fixtures ;  neld,  that  the  mortgagee,  as  against 
the  defendants  as  strangers,  was  entitled  to  consi- 
der the  mortgagor  as  his  tenant  at  will,  and  main- 
tain an  action  for  the  injury  to  his  reversionary 
interest;  held,  also,  that  having  the  same  right  to 
the  fixtures  as  his  tenant,  he  might  maintain  trover 
for  the  fixtures  so  severed,  and  that  they  did  not 
pass  to  the  assignees  as  goods  within  the  bankrupt's 
order  and  disposition.  Hitcbman  v.  Walton,  4 
Mees.  &.  W.  (ex.)  409. 

And  see  Partridge  v.  Bere,  5  B.  &  Aid.  604. 

20.  Where  the  wife  was  possessed  of  gas  shares, 
of  which  the  bankrupt  pleuged  the  certificates  as  a 
security  for  advances ;  held,  that  no  notice  having 
been  given  to  the  company  until  ailer  the  ac^  ot 
bankruptcy,  the  shares  were  to  be  deemed  within 
his  order  and  disposition.  Spencer,  ex  parjte,  3 
Mont  &>  Ayr.  (b.  c.)  697. 

21.  Where  railway  shares  were  deposited  by 
the  bankrupt's  partner  with  bankers,  as  security 
for  acceptances  by  a  third  party,  and  for  whom 
the  bankers  had  discounted  them,  and  who,  being 
managing  director  of  the  company,  was  infM-med 
at  the  time  of  renewing  the  bill  that  the  eerti& 
cates  of  the  shares  had  been  so  deposited ;  held, 
that  as  the  bankrupt  had  parted  with  the  posses- 
sion of  them,  and  tnat,  as  transfer  oouid  be  made 
without  the  authority  of  the  party  for  whose  use 
they  bad  been  so  deposited,  the  bankrupt  was  not 
to  be  deemed  the  reputed  owner,  and  in  his  ordmr 
and  disposition.  Harrison,  ex  parte,  3  Deae.  (b. 
c.)  185 ;  and  3  Mont.  &,  Ayr.  596. 

22.  Where  certificates  of  shares  of  a  foreign 
bank  were  transmitted  to  the  bankrupts  on  a  con- 
tract for  joint  purchase  of  them,  and  clothed  with 
a  trust  to  apply  the  proceeds,  when  disposed  of, 
to  retire  bills  drawn  tor  the  purchase ;  held,  that 
they  were  not  within  the  order  and  disposition  as 
the  property  of  the  bankrupt,  and  did  not  therefore 
pass  to  the  assignees.  Brown,  ex  parte,  2  Deao. 
(b.)  91 ;  and  3  Mont.  &,  Ayr.  472. 

23.  Where  the  same  party  was  secretary  to  two 
offices,  with  one  of  which  snares  were  deposited, 
held  not  sufficient  notice  of  the  transfer  of  the 
bankrupt's  interest  to  prevent  the  claim  of  reputed 
ownership.  Bignold,  ex  parte,  3  Deac.  (b.  c.) 
151 ;  and  3  Mont,  db  Ayr.  477. 


(e)  In  case  of  tnuta» 

1 .  Under  s.  79,  tlie  court  may  order,  if  it  think 
proper,  trust  property  to  be  conveyed  to  more 
than  one  trustee  in  the  place  of  a  bankrupt  trus- 
tee.   Wilkinson,  ex  parte,  2  Deac.  (b.)  151. 

2.  Where  knds  were  devised  to  the  bankrupt 
and  others,  in  trust  to  sell  and  divide  equally 
amongst  a  class  of  whom  the  bankrupt  was  one, 
and  in  consideration  of  sums  agreed  to  be  paid  to 


2700 


LBANKRUPT] 


each  of  the  cesiuiqtutriuU  by  the  bankrupt,  but 
not  in  fact  paid,  but  only  promissory  n«ite8  given, 
the?  conveyed  the  lands  to  him ;  held,  that  they 
had  a  lien  on  the  lands  devised  in  the  hands  of 
the  assignees  for  the  money  unpaid.  Latey,  ex 
parte,  1  Deac.  (b.)  557 ;  and  2  M.  de.  Ayr.  609. 

3.  Where  a  trustee  failed  on  a  petition  uphold- 
ing the  trust  deed,  and  to  annul  a  fiat,  but  con- 
sented to  have  the  account  taken  by  reference, 
ordered  to  pay  the  costs  of  the  petition,  and  in- 
terest on  the  balance  found  from  the  date  of  the 
order,  at  4  per  cent.,  although  no  interest  found 
to  have  been  made,  but  costs  of  the  reference  out 
of  the  estate.  Harding,  ez  parte,  4  Deac.  (b.) 
T93. 

And  vide  infra,  [G]  7. 


(  f )  In  case  of  mortgagee. 

1.  Upon  the  construction  of  s.  70,  of  6.  Creo.  4, 
c.  16,  held  that  assignees  tendering  the  principal 
and  interest  of  mortgaged  estates  of  the  bankrupt 
after  the  day  of  payment,  obtain  the  legal  estate 
so  as  to  maintain  trover  for  the  title  deeds.  Dunn 
V.  Massey,  1  Nev.  &  P.  (k.  b.)  57d. 

2.  Where  the  creditor  has  several  mortgages 
on  distinct  debts,  he  cannot  apply 'the  surplus  of 
one  to  make  good  the  deficiency  of  another,  but 
the  sale  of  each  must  be  applied  to  the  particular 
debt  charged  thereon.  Bignold,  ez  parte,  2  Deac. 
(B.)  66 ;  and  3  M.  &  Ayr.  9. 

3.  Where  the  bankrupt  deposited*  leases  of  two 
houses,  with  a  written  memorandum  as  a  security, 
a«id  on  the  saoue  day  signed  another  agreement 
to  pay  an  improved  rental  for  the  premises  of 
which  the  leases  were  deposited,  specifying  three 
houses,  and  that  one  house  was  let  to  J.  H.  as 
tenaut-at-wiU,  being  in  fact  contained  in  another 
lease  which  had  not  been  deposited  ;  held,  that 
the  party  had  a  lien  on  all  the  premises  mention- 
ed in  the  second  agreement.  Edwards,  ez  parte, 
1  Deac.  (b.)  611. 

4.  The  usual  order  for  sale  in  case  of  equitable 
mortgage  directed,  although  the  agreement  was 
sugges&d  to  be  a  mere  ezecutory  one  for  a  mort- 
gage, and  creating  no  lien  on  the  property.  Jones, 
ex  parte,  4  Deac.  (b  )  750. 

5.  An  equitable  mortgagee,  with  consent,  al- 
lowed to  make  improvements,  and  add  the  expense 
and  costs  to  the  charge  on  the  mortgaged  estate. 
Smith,  ez  parte,  2  Deac.  (b.)  236  ;  and  3  M.  & 
Ayr.  63. 

6.  Where  the  bankrupt  purchased  an  estate, 
which  be  mortgaged  to  tne  petitioner  before  he 
had  paid  the  purchase-money  ;  held,  that  the  lat- 
ter rould  only  sell  the  bankrupt's  interest  therein, 
unless  the  unpaid  vendor  consented,  and  the 
court  would  not  act  until  he  had  been  served. 
Wright,  ez  parte,  3  M .  dt  Ayr.  (b.)  40. 

7.  Petition  by  an  equitable  mortgagee  for  sale, 
there  being  other  liens,  some  disputed  as  to  the 
legality,  and  others  as  lo  priority  ;  held,  that  the 
court  could  make  no  order  unless  the  other  parties 
were  present  before  them,  and  dismissed  the  peti- 


tion with  costs.  Semb.  the  court  of  Review  has 
no  jurisdiction  in  matters  relating  to  the  estates  of 
bankrupts  in  those  cases  where  the  Chancellor 
formerly  exercised  it  upon  bill  in  equity.  Big- 
nold, ez  parte,  1  Deac.  (b.)  514. 

8.  Where  deeds  were  deposited  as  an  equitable 
mortgage  with  the  petitioner,  a  solicitor,  as  a  se- 
curity tor  future  as  well  as  bills  of  costs  then  due, 
the  Court  refused  to  interfere.  Wake,  ez  parte,  i 
Deac.  (b.)  352 ;  and  3  Mont.  &.  Ayr.  329. 

9.  Where  deeds  had  been  deposited  twelve  years, 
without  any  memorandum,  and  the  bankrupt  was 
dead,  the  Court  refused  to  interfere  upon  the  com- 
mon petition  by  the  equitable  mortgagee.  Jones, 
ez  parte,  3  Mont.  &.  Ayr.  (b.)  327. 

10.  Upon  a  deposit,  without  any  written  mem- 
orandum, the  bankrupt  having  died,  and  the  ap- 
plication twelve  years  after,  the  common  equitable 
mortgage  order  refused.  Jones,  ez  parte,  3  M.  & 
Ayr.  (b.)  152. 

1 1 .  A  n  agreement  to  deposit  a  lease,  when  gran- 
ted, held  to  create  an  equitable  mortgage.  O^tl, 
ez  parte,  3  M.  &  Ayr.  (b.)  153. 

12.  Where  the  deposit  was  made  only  nine  davs 
before  the  fiat  issued,  and  for  an  antecedent  debt, 
the  Court  refused  to  make  the  usual  order,  unless 
with  consent  to  have  the  proceeds  paid  into  Court, 
subject  to  any  further  order  on  the  petition  of  the 
assignees.  Ainsworth,  ez  parte,  2  Deac.  (b.)  563 ; 
and  3  Mont.  ^  Ayr.  451. 

13.  An  equitable  mortgagee  held  entitled  to  the 
rents  only  from  the  order  of  sale,  notwithstanding 
notice  to  the  tenants.  Burrell,  ez  parte,  3  Mont. 
^  Ayr.  (B.)  439. 

14.  But  where  the  common  order  was  accom- 
panied with  a  reference  to  ascertain  the  dais  of  the 
deposit  of  the  deeds,  and  the  certificate  agreed 
with  the  statement  of  the  petitioner  ]  held,  that 
he  was  entitled  to  the  rents  accruing  between  the 
former  order  and  the  time  of  the  sale  :  and  held, 
that  some  of  the  deposits  having  been  made  with- 
out memoranda,  the  costs  of  the  petition  were  to 
be  apportioned,  and  as  to  such  the  petitioner  was 
to  pay  them,  and  as  to  the  others  to  come  out  of 
the  proceeds.  Thorpe,  ez  parte,  3  Mont.  &  Ayr. 
(B.)441. 

15.  The  court  refused  to  make  any  other  than 
the  common  order  as  to  rents  received  since  the 
bankruptcy,  at  the  instance  of  an  equitable  mort- 
gagee.  Carlon,  ez  parte,  2  Deac.  (b.)  333;  and 
3  Mont.  dL  Ayr.  328. 

16.  On  a  petition  by  an  equitable  mortgagee  for 
leave  to  bid,  he  must  pay  the  costs.  Evans,  ez 
parte,  2  Deac.  (B.)  531. 

17.  Where,  upon  the  retirement  of  one  partner, 
and  assignment  of  all  the  estate,  real  and  person- 
al, of  the  firm,  a  sum  held  in  trust,  was  entered  as 
a  sum  **due  to  the  B.  trust,"  and  the  retiring 
partner  subsequently  assigned  other  estates,  hb 
separate  property,  as  a  further  security  tor  such 
sum  ;  upon  his  death,  a  bill  being  filed  a^inst  his 
representatives  for  an  account,  upon  which  it  was 
arranged  that  the  sum  due  to  the  continuing  part- 
ner should  be  taken  at  £ ,  and  a  convey- 
ance executed ;  held  that,  upon  his  bankruptcy, 
the  assignees  could  claim  no  lien  on  the  estates 
conveyed  in  respect  of  the  trust-fund,  which,  tn 


[BANKRUPT] 


2701 


fact,  remained  unpaid.     Russell,  ex  parte,  3  M.  & 
Ayr.  (B.)  192. 

18.  Where  the  bf^nkrupt  was  lessee  of  a  mil), 
machinery,  Arc,  which  he  was  restrained  from 
assigning  without  license,  and  al  owance  was  to 
be  made  to  or  by  the  bankrupt  and  lessor  for  the 
improved  or  dimininhed  value  at  the  end  of  the 
term  ;  the  bankrupt  having  made  additions,  and 
mortgaged  the  fixtures  as  a  security  for  money 
advanced,  and  the  assignees  having  sold  the  bank- 
rupt's interest,  held,  that  they  were  liable  to  the 
mortgagee  for  the  bankrupt's  interest  in  such  fix- 
tures. Spioer,  ex  parte,  3  M.  &  Ayr.  (b.)  213; 
and  2  Deac.  335. 

19  Where,  by  a  deposit  of  deeds  of  property  in 
Scotland,  no  equitable  mortofage  was  by  the  law 
of  that  country  created,  and  it  could  therefore  be 
treated  only  as  a  personal  contract,  and  not  affect- 
ing the  estates ;  held,  that  it  could  not  be  enforc- 
ed as  against  the  assignees  in  a  court  of  equity  in 
£ngland.  Pollard,  ex  parte,  2  Deac.  (b  )  ^7  ; 
and  3  M.  &  Ayr.  340. 

20.  Where  the  bankrupt,  a  few  days  before  his 
bankruptcy,  deposited  a  bill  as  a  security,  and  no 
question  of  fraudulent  preference  was  made,  order 
made  for  his  indorsing  it,  or  that  the  petitioner 
might  bring  an  action  in  the  name  of  the  assign- 
ees against  the  acceptor,  indemnifying  them. 
Rhodes,  ex  parte,  3  M .  db  Ayr.  (a.)  217 ;  and  2 
Deac.  364. 

21 .  The  assignees,  either  of  a  bankrupt  or  insol- 
▼ent  can  recover  only  such  things  as  he  has  a 
right,  both  legal  and  equitable,  and  where  that  eq- 
uitable interest  exists,  the  effect  of  an  assignment 
would  not  be  to  convert  it  into  a  legal  one :  where 
there  had  been  an  agreement  by  a  bankrupt  to 
mortgage  specific  articles  ascertained,  held,  to  pre- 
vent them  passing  to  the  assignees ;  aiiter,  if  it 
were  only  an  agreement  to  mortgage  goods  subse- 
quently to  be  acquired,  or  to  give  a  bill  of  sale  at 
a  future  day.  Moss  v.  Baker,  3  Mees.  &>  W. 
(ex.)  196. 

22.  Where,  on  a  loan,  the  borrower  gave  a  se- 
curity over  a  parcel  of  his  estate  believed  to  extend 
over  96  acres,  and  adequate  to  the  sum  advanced, 
and  the  lender  was  infeft:  it  being  afterwards  dis- 
oovered  that  it  extended  only  over  six  acres,  the 
borrower  executed  an  additional  security  convey- 
ing the  whole,  but  afler  a  sequestration  awarded 
against  him ;  in  an  action  to  reduce  that  security 
by  the  trustee,  held  void  as  against  the  trustee,  as 
a  preference  of  the  bankrupt,  reducible  under  the 
Act  1696,  and  also  as  granted  by  a  party  not  hav- 
ing the  power  of  transferring  tne  estate.  Inglis 
V.  Mansfield,  3  CI.  &Fi.  (p.j362;  affirming  the 
jnd^ent  below,  but  reversmg  it  so  far  as  costs 
agamst  the  appellant. 

23.  A  legal  mortgagee,  semhle^  is  entitled  to 
have  the  estate  sold  in  the  same  condition,  as  to 
crops,  as  it  stood  at  the  date  of  the  order  of  sale. 
Barnea,  ex  parte,  3  Deac.  (b.  c.)  223 ;  and  3  Mont. 
&  Ayr.  497. 

24.  Where  the  mortgage  deed  contained  a  cov- 
enant not  to  call  in  the  mortgage  money  for  five 
years,  if  the  interest  were  paia  regularlv,  held  that 
on  the  bankruptcy  of  the  mortgagor,  the  mortga- 
gee claiming  to  prove  was  entitled  to  the  usual 


order  of  sale.    Bignold,  ex  parte,  3  Deac.  (b.  c.) 
151  ;  and  3  Mont.  &  Ayr.  477. 

25.  Where  all  parties  agree  to  the  sale,  no  or- 
der is  necessary  for  the  sale  of  property  under  an 
equitable  mortgage.   Whitbread,  ex  parte,  3  Deac. 

(B.)311. 

26.  The  Court,  on  the  usual  order  for  leave  to 
bid  by  an  equitable  mortgagee,  refused  to  add  the 
terms  of  not  paying  a  deposit  if  declared  the  pur- 
chaser. Wilson,  ex  parte,  1  Mont.  &  Ch.  (b.) 
110;  and  3  Deac.  (b.  c.)  545. 

27.  Where  afler  a  deposit  of  deeds  with  a  writ- 
ten memorandum,  part  were  returned  and  others 
substituted,  but  without  any  fresh  memorandum, 
the  court  held  that  the  costs  of  the  usual  order 
for  sale  should  be  allowed  out  of  the  proceeds  of 
the  sale  of  the  substituted  property.  Cobham,  ex 
parte,  3  Deac.  (b.)  609. 

28.  Where  a  legal  mortgage  was  executed  in 
pursuance  of  the  agreement  on  a  deposit  of  the 
deeds,  but  after  notice  of  an  act  of  bankruptcy, 
held,  that  though  inoperative  as  a  security,  it  did 
not  merge  the  previous  equitable  mortgage,  and 
that  his  rights  revived.  Hervey,  ex  parte,  3  Deac. 
(b.  c.)  547. 

29.  A  petition  by  an  equitable  mortgagee,  claim- 
ing priority  against  parties  over  whom  the  court 
had  no  jurisdiction,  dismissed  ;  but  where  the  par- 
ties agree  to  submit,  the  court  will  decide  as  to 
priority ;  if  the  case  be  complicated,  a  mortga- 
gee may  enter  his  claim  for  the  amount  of  his  debt 
until  the  question  is  decided.  Bignold,  ex  parte, 
3  Mopt.  &.  Ayr.  (b.  c.)  706. 

30.  Whereby  the  terms  of  a  joint  stock  bank- 
ing company,  it  was  provided  that  no  share  should 
be  held  jointly,  and  that  the  shares  should  be 
chargeable  as  a  security  for  any  debt  contracted 
with  the  share-holders,  and  shares  had  been  bought 
with  partnership  property,  although  standing  in 
their  separate  names,  ana  the  debt  incurred  sub- 
sequently by  the  partnership  with  the  company  ; 
held,  that  the  company  could  not  prove  against  the 
joint  estate  without  deducting  the  value  of  the 
shares.  Conncll,  ex  parte,  3  Deac.  (b.  c.)  201 ; 
and  3  Mont,  d^  Ayr.  581. 

31.  Where  there  is  nothing  to  justify  the  infer- 
ence that  it  is  the  intention  of  the  mortgagor  that 
an  equitable  mortgagee  shall  receive  the  rents,  the 
court  will  make  only  the  common  order,  and  the 
latter  will  not  entitle  himself  to  the  rents  before 
the  order  of  sale,  by  giving  notice  to  the  tenants. 
Scott,  ex  parte,  3  Mont.  &  Ayr.  (b.  c.)  592 ;  and 
3  Deac.  304. 

32.  Where  one  of  two  partners  deposited  with 
the  petitioners  (bankers)  title-deeds,  as  a  security 
for  the  balance  due  from  the  firm,  and  he  after- 
wards alone  became  bankrupt ;  held,  that  the  us- 
ual order  for  sale  might  be  made,  but  no  proof  al- 
lowed against  the  bankrupt.  Lloyd,  ex  parte,  3 
Mont.  &  Ayr.  (b.  c.)  601 ;  and  3  Deac.  305. 

33.  In  case  of  equitable  mortgages,  if  all  parties 
agree  to  a  sale,  no  petition  is  necessaiy;  and  if  a 
party  wishes  for  the  order,  he  must  pay  the  costs. 
Whitbread,  ex  parte,  3  Mont.  ^  hjx.  (b.  c.)  604  ; 
and  3  Deac.  311. 

And  supra. 


Q70Q 


[BANKRUPT] 


(g)  In  ease  of  parbuTs, 

1.  Where  upon  the  marriaee  of  one  partner  he 
ffave  a  security  for  a  turn  to  oe  settled,  payable 
by  instalments,  and  the  partners  also,  not  to  have 
the  partnership  funds  drawn  out,  pive  a  separate 
joint  security  for  a  larger  sum ;  held,  that  the 
trustees  were  entitled  to  prove  against  the  joint 
estate  in  the  first  instance,  and  against  the  sepa- 
rate estate  for  the  balance  only,  and  not  to  double 
proof,  and  it  made  no  difference  that  the  debts 
arose  on  distinct  instruments.  Hill,  ex  parte,  2 
Deac.  (b.)  249. 

2.  Held  also,  that  the  principle  of  rebate,  apply- 
ing only  upon  payment  of  a  dividend,  none  could 
be  made  upon  the  amount  of  proof  of  a  debt  pay- 
able  in  future,    lb. 

And  tn/ra,  [G]  8. 10.  19. 

3.  Where  three  partners.  A.,  fi  ,  and  C,  bor- 
rolred  a  sum  of  10,000£.  of  their  bankers,  and  for 
wfiich,  as  security,  B.  executed  a  mortgage  of  free- 
hold, and  C.  of  copyhold  estate,  which  being  sold, 
the  estate  of  B.  realized  a  large  portion  of  the 
debt,  and  that  of  C.  only  a  smalt  portion ;  held, 
that  A.'s  estate  being  wholly  insolvent,  the  estate 
of  B.  was  entitled  to  be  recouped  from  that  of  C, 
to  ihe  extent  of  the  diflferenoe  of  the  sum  liquida- 
ted by  the  estate  of  C,  and  half  the  amount  of  the 
mortgage,  ilebt  and  interest.  Plowden,  ex  parte, 
2  Deac.  (s.)  456;  and  3  Mont,  di,  Ayr.  402. 


(h)  Mutual  credit — setoff—ftayments  protected. 

1.  An  advahoe  of  money  upon  a  deposit  of 
goods,  held  Co  amount  to  no  more  than  a  loan,  and 
not  a  payment  {protected  within  6  Geo.  4,  c.  16,  s. 
B8,  kldiough  bona  fidt^  and  wHhout  notice  of  an 
rfBt  of  bankruptcy.  Wright  v.  Fearnley,  5  Bing. 
N.  S.  (c.  p.)  89 ;  6  Sc.  m3 ;  and  7  Dowl.  (p.  c.) 

And  see  Cannan  v.  0enew,  10  Bing.  292. 
And  see  Assufnpsit. 

2.  All  contracts  made  han&fide  with  any  bank- 
rupt previous  to  the  date  and  issuing  any  fiat 
against  him,  to  be  valid,  provided  no  notice  had  of 
prior  act  of  bankruptcy.    By  2  &  3  Vict.  c.  SK). 

'b.  fn  asAifnpsit  by  assignees  oh  an  kgrceraent 
Vy  the  bankrupt  for'  the  sale  of  goods,  to  be  paid 
wr  by  fem  acceptance,  alleging  the  refusal  to  ac- 
cept, and  damage  by  loss  of  the  benefit  of  such  ac- 
ceptance, and  injury  to  his  estate  thereby  ;  held, 
thatlhe  damage-resulting  in  ppconiary  loss  only, 
H  did  not  amount-to  such  an  allegation  of  nnliqui- 
dated  dainAges  as  to  preclude  the  debtor's  right  of 
■et«oir.    Groom  v.  West,  1  Perr.  A  D.  (q.  b.)  19. 

And  see  Gibson  v.  Bell,  1  Bing.  N.  C.  743. 


(i)  AcHmis  and  ^uits  by  and  against. 

1.  In  case  against  the  sheriff  by  assignees  for 
seizing  the  bankrupt's  goods,  held  that  be  was  en- 
titled, without  pleading  specially,  to  prove  pay- 1  &  Cr.  (oh.)  379« 


ments  out  of  the  proceeds,  nccesaarily  made,  in 
reduction  of  the  damages.  Goldsmidv.  Raphael, 
3  Sc.  (p.  c.)  385. 

2.  Where  the  assignees  commenced  a  suit  in 
equity,  without  the  consent  of  creditors,  a  refer- 
ence directed  whether  beneficial ;  if  there  were 
a  subsequent  approbation  by  creditors  of  a  suffi- 
cient amount,  held  enough.     Llewellyn,  ex  parte, 

1  Deac.  (B.)  474. 

3.  Want  of  assets  is  a  defence  in  the  court,  to 
an  application  by  the  solicitor  against  the  assig- 
nees for  payment  of  his  bill,  and  an  inquiry  may 
be  had  whether  in  fact  they  have  assets.  Adams, 
ex  parte,  2  M.  &  Ayr.  (b.)  706. 

4.  Where  P.  &  Co.,  the  bankrupts,  deposited 
the  East  India  Company's  paper  as  security  for 
the  re-payment  of  a  loan  to  toe  respondents  (bank- 
ers), and  in  default  of  re-payment  by  a  given  day 
to  sell  for  their  reimbursement,  renmring  the 
surplus  'to  P.  &  Co.,  the  bankers  being  at  the 
time  holders  of  notes  which  they  had  discounted 
for  P.  &  Co.,  but  before  the  re-payment  of  the 
loan  P.  &  Co.  were  declared  insolvent  under  the 
Indian  Bankrupt  Act,  9  Geo.  4,  c.  73,  similar  in 
its  provisions  with  the  6  Geo.  4,  c.  16.  The  bank- 
ers sold  the  paper,  and  af\er  re-pavment  of  the 
loan  there  was  a  considerable  surplus ;  held,  in 
an  action  by  P.  &  Co.  to  recover  the  sorploa, 
that  it  did  not  fall  within  the  principle  of  mutual 
credit  within  the  act,  and  that  the  bankers  could 
not  set  off  the  amount  -due  firom  P.  &  Co.  on  the 
notes  (reversing  the  judfraent  below.)  Towiff 
V.  Bank  of  Bengal,  1  Deac.  (b.)  6SS ;  and  1 
Moore,  (p.  c.)  150. 

5.  Where  the  bankrupt,  being  uncertificated, 
brought  an  action  for  work,  and  a  sum  being  on 
reference  found  due  to  him,  his  assignees  claimed 
it,  held  that,  upon  a  fVesh  action  brought  by  the 
bankrupt,  and  a  rule  of  interpleader  obtained,  the 
assifirnees  were  bound  to  satisfy  the  attomey^s 
bill  both  for  the  costs  of  the  former  action  and  of 
the  reference.  Jones  v.  TumbuU,  2  Mees.  d(t  W. 
(n.)  601 ;  and  5  Dowl.  (p.  c.)  591. 

6.  Where  an  indictment  had  been  nrosecnted 
against  the  bankrupt,  on  which  he  had  been  ac- 
quitted, and  a  reference  directed  as  to  there  being 
probable  cause,  before  the  costs  of  it  aMowed  i 
neld  that  such  petition  ought  not  to  enter  into  the 
details  of  the  accusation.    -Gumming,  -ex  parte, 

2  Deac.  (s.)  93;  and  3  M.  dk  Ayr.  29. 

7.  A  general  order  may  be  made  for  the  assign- 
ees to  institute  suits  and  actions,  but  where  there 
is  a  solvent  partner  absent  abroad,  he  should  be 
served  with  tiie  order  personally  or  by  substitution. 
Wilson,  ex  parte,  3  M.  &  Ayr.  (b.)  219;  and  2 
Deac.  387. 

8.  A  consent  by  a  creditor  to  instituting  &  suit, 
given  by  an  authorized  agent,  is  sufficient.  Bel- 
cher, ex  parte,  3  M.  &  Ayr.  (b.)  448. 

9.  Under  6  Geo.  4,  c.  16,  s.  88,  the  consent  to 
the  institution  of  a  suit,  by  the  majority  of  credit- 
ors who  have  proved,  may  be  authorized  by  a  ma- 
joritv  acting  by  attorney,  under  a  regular  power 
for  that  parpose.    Bannatyne  v.  Leiuiler,3  Myl. 


[BANKRUPT] 


2708 


IOl  In  anumpaU  by  aanffiiees  for'moner  receiv- 
ed to  the  ow  of  the  bankrupt  before  the  bank- 
ruptcy, plea,  that  the  money,  althoujrh  in  the.  de- 
fendant's possession  after  the  bankruptcy,  was  in 
fact  received  before,  and  tliat  the  bankrupt  was 
indebted  to  the  defendant  in  a  large  sum,  which 
he  claimed  to  set  off,  held  bad,  as  confessing,  but 
not  avoiding  ;  as,  if  received  before  the  bankrupt- 
cy the  assignees  could  only  claim  it  as  received 
under  a  fraudulent  preference,  in  which  case  the 
general  issue  would  be  the  proper  plea.  Wood  v. 
Smith,  4  Mees.  &.  W.  (ex.)  522;  and  7  Dowl.  (p. 
c.)  214. 

11.  In  trover  by  assignees,  on  a  plea  denying 
that  the  plainti&  were  assignees ;  held,  that  it 
put  in  issue  the  petitioning  creditor's  debt  and  act 
of  bankruptcy.  Buckton  r.  Frost,  1  Perr.  dt  D. 
(<l.  B.)  102. 

And  see  Butler  v.  Hobson,  4  Bing.  N.  C.  290. 

IS.  Where  a  builder  entered  into  a  contract 
with  the  defendants  for  preparing  and  fixing  cer- 
tain works,  and  for  which  he  was  to  be  paid  on 
being  fixed,  and  approved  of  by  the  surveyor,  and 
tli^  contract  contamed  a  stipulation  that  if  the 
builder  should  become  bankrupt,  the  defendants 
might  take  possession  of  the  work  then  already 
done,  and  avoid  and  put  an  end  to  the  agreement, 
and  should  pay  so  much  as  should  be  adjudged  the 
fiiir  worth- of  the  work  actually  done  anafixed  ; 
and  certain  sashes  having  been  made  and  approved 
of,  and  taken  to  the  premises,  where  pullies,  the 
property  of  the  defendants,  were  added,  but  be- 
fore bemg  fixed  the  builder  became  bankrupt,  hav- 
ing received  advances  beyond  the  amount  of  the 
work  certified  to  have  been  done ;  held,  that  the 
property  in  the  sashes  remained  in  the  bankrupt, 
notwithstanding  the  approval,  and  addition  made 
of  the  pullies  thereto,  and  that  the  assignees,  after 
demand  and  unqualified  refusal,  might  maintain 
trover  for  the  sashes.  Tripp  v.  Armitage,  4  Mees. 
Sl  W.  («x.)  €87. 

13.  In  trover  against  assignees,  pleas,  first,  not 
guilty, and  secondly,  denying  the  property  in  the 

Elaintifis ;  held,  that  the  defendanta,  under  the 
itter  plea,  were  entitled  to  show  that  the  mods 
were  in  the  order  and  disposition  of  the  bankrupt 
as  the  true  owner,  and  that  the  defendanta,  ae  as- 
signees, sold  the  goods.  Isaac  v.  Belcher,  5  Mees. 
«.  W.  (EX.)  139 ;  and  7  Dowl.  (p.  c.)  516. 

14.  Where  a  oiedilor  had  sold  his  debt,  held 
that  he  was  a  competent  witness  to  support  ihefiai. 
PttlKng  V,  Meredith,  8  C.  &  P.  (n.  i.)  763. 

15.  Proceedings  in  a  creditor's  suit  against  the 
estate  of  a  joint  obligor,  a  surety  of  the  oankrnpt 
to  the  petitioners,  as  to  the  liability  of  the  surety, 
held  admissible  in  evidence  on  a  petition  to  prove 
against  the  estate  of  the  principals.  Walker,  ex 
parte,  3  Deac.  (£.)  672. 


[6]  Pnoor — nrviDZKDs. 

1.  Proof  on  a  bond  against  sureties  to  bankers, 
held  not  to  have  been  properly  admitted  where 
part  of  themmonnt  consisted  of  unstamped  checks 


issued  more  than  a  statutable  distance  firom  the 
banker's  residence;  and  a  condition  that  what 
the  agent  should  certify  as  the  balance  should  be 
taken  as  the  balance,  would  not  bind  the  surety, 
as  to  such  items  as  were  void  by  the  statute,  and 
no  obligation  in  the  principal  to  repay.  Swan, 
ex  parte,  1  Deac.  (s.)  746 ;  and  2  M .  d^  Ayr. 
656. 

2.  Where  bankers  at  N.  had  an  agent  at  T., 
sixteen  miles  from  N.,  and  a  customer  residing 
twenty  miles  from  N.  was  in  the  habit  of  sending 
for  small  sums,  and  once  a  week  gave  a  check 
for  the  whole,  by  filling  up  a  blank  check  of  the 
N.  bank,  to  which  it  was  transmitted  by  the 
agent  as  a  voucher ;  held,  that  the  giving  such 
check  was  not  an  issuing  within  the  meaning  of 
the  Stamp  Act,  precluding  the  bankers  from  prov- 
ing in  respect  of  the  sums  so  advanced.  To 
render  a  party  subject  to  the  penalties  of  the  act, 
not  only  must  there  be  an  issuing  to  the  party  en- 
titled to  demand  payment,  but  the  money  mast 
be  paid  on  the  check  so  issued :  held  also,  that  it 
could  not  be  presumed  against  the  N.  banker* 
that  they  knew  that  the  cwecks  were  drawn  at  a 
different  place  from  that  which  appeared  <m  the 
face  of  them :  2dly,  the  bankers  having  upon  the 
dishonor  of  one  bill,  at  a  meeting  with  the  draw- 
er and  acceptor,  and  communication  of  the  latter 
being  insolvent,  refused  to  accept  a  composition, 
did  not  amount  to  an  agreement  to  waive  the  pre- 
sentment and  notice  of  dishonor  of  other  billa 
coming  due,  and  the  amount  of  which,  therefore, 
wns  ordered  to  be  deducted  from  the  proof.  Big- 
nold,  ez  parte,  1  Deac.  (b.)  712;  and  2  M.  dSt 
Ayr.  633. 

3.  A  complaint  of  a  rejection  of  a  claim  by  the 
commissioners  is  not  an  appeal  from  a  judgment 
by  a  court  competent  to  determine  a  suit  and  bind 
the  parties.    lb. 

4.  Where  on  a  transaction,  ostensibly  the  par- 
chase  of  a  bond,  usurious  interest  was  agreed  for, 
and  tlie  purchaser  forbore  to  prove  the  debt  under 
the  commission  of  the  obligee,  and  the  latter  in 
consideration  of  a  further  advance  gave  a  seeu^ 
rity  for  the  whole  amount,  held  that  the  second 
security  was  so  tainted  with  the  original  illegal 
contract  as  to  justify  the  rejection  of  the  proof  > 
the  party  was  however  allowed  to  prove  in  respect 
of  tne  latter  advance.  De  Grouchy,  ez  parte,  2' 
Deac.  (B.)  79 ;  and  3  M.  &  Ayr.  21. 

5.  Where  bills  were  bona  fide  discounted  aaJ 
goods  deposited  as  a  collateral  security,  held  that 
since  the  3  d&  4  Will.  4,  c.  96,  s.  7,  proof  of  such 
bills  could  not  be  rejected  on  the  ground  of  usu* 
rious  interest  having  been  agreed  for,  but  the  di* 
vidends  might  be  retained  to  enable  the  assigneea 
to  inquire  mto  their  right  to  recover  the  goeda 
pledged  in  the  hands  of  the  petitioner.  Knight, 
ex  parte,  1  Deac.  (b.)  459;  and  2  M.  &  Ayr. 
568. 

6.  Where  the  secretary  of  a  coursing  club  be- 
came bankrupt,  having  subscriptions  collected  in 
his  hands,  held  that  the  treasurer  wai  the  proper 
person  to  prove,  and  the  possibility  that  the  funds 
might  be  applied  to  purposes  agamst  the  16  Car. 
2,  c.  7,  (Gaming)  was  no  objection.  Kijng,  ex 
parte,  2  Deac.  (b.)  S3;  and  2  Id.  d&  Ayr. 


2704 


[BANKRUPT] 


7.  A  erpditor  who  has  rpceivvd  a  drridend  UDder  i  mintstntor.  New  Ord.  1836 ;  1  Deac.  (b.)  693 ; 
the  fnsolTcnt  Act  has  the  mne  n?ht  of  proof  for   and  2  M.  &  A  jr.  xxziv. 

the  leaidoe  of  hi.  debt  a.  he  wooTd  ^r  leceir-  ,5  ^here  a  lather  adraneed  a  turn  to  hia  aon 
ing  a  dmdcDd  under  any  deed  of  trnnt  Fen  -  ^  ^^  him  op  in  bosine»,  taking  a  note  for  the 
wjck,  ex  parte,  2Deac.  (b  )  27 ;  and  2  M.  &  Ajr  ^  .„^o„^  ^jif  j^^^t^  ^hlch  four  yeain  after  he 
^  exchanged  for  a  bond  ;  held,  that  notwithsUnd- 

8.  Where  the  bankrupt  became  poMessed  of  '°?  expressions  of  his  son's  fautring  the  bond  after 
trust  funds,  knowing  them  to  be  such,  heH  re-  ^'*  death,  yet  clearly  intending  to  retain  a  con- 
aponsible  to  the  cestui  que  IruMtM,  as  thooirh  ac-  H^''  *'J^^  i^  ^^  executors  were  entitled  to  prove 
toally  appointed  trustee,  and  they  may^rove  .  >^  against  the  son:  and  costs  given  to  the  peti- 
against  his  estate,  and  are  not  barred  by  the  >  ^on^r,  although  against  the  decision  of  the  com- 
Statute  of  Limitations.  Gowers,  ex  parte,  2  niisisioners.  llidler,  ex  parte,  2  Deae.  (v.)  225 ; 
Deac.  (B.)  207.  .  and  3  M  &  Ayr.  62. 

9.  Where  the  creditor  drew  bills  on  one  of  two  •  ^^  Where  the  bankrupt  entered  into  an  agree- 
partners  for  his  own  private  debt,  and  obtained  ™^"*  ^*^  ^^  owner  of  salt-works,  by  which  he 
the  partnership  acceptance,  without  inquiry  whe-  j  ^"g*g<^<*  ^  manufacture  the  salt  <or  a  term,  and 
ther  the  one  had  authority  to  pledge  the  partner-  1  ^^.  granted  an  annuity  charged  on  the  sums  pay- 


ship  property,  proof  agamst  the  joint  estate  ex 
panged.    Thorpe,  ex  parte,  2  Deac.  (b.)  lb. 

10.  Where  the  bill  on  which  the  proof 


was 


able  to  him  under  the  agreement ;  held,  that  such 
annuity  was  capable  of  valuation,  notwithstand- 
ing ito  being  liable  to  forfeiture  by  reason  of  non- 
,.,,,....        ,.  performance  of  the  conditions  and  covenants. 

«i*'T^  "^,"***!>»'«^  "V  ^  time  was  lost  before  ,  Parratt,  ex  parte,  1  Deac.  (b.)  696;  and  2  M.  dk 
the  dividend  declared,  the  commissioners  should    Ayr.  &16. 

give  special  directions  to  the  official  assignee  to       17   -aru  ^4%.^%^  t^    -*  «-u-i^  ■    *t.  1 

pay  thTdividends  without  production  of  Uie  bill.   JJ;  T^L    ^.»*"'^™P*'  '^J']?  raAe  employ- 
WiUts,  ex  parte,  1  Deac.  (l)  496  ;  and  see  New    P^.V!*^  ^.  petitioner,  committed  embextlement. 

Order,  in  fcnkr'.  14  May  W     S.  P.  in  JL7f  ^^  ^  ^'^^'  ^l  *-  '"JT*  ?^  '^JflT^u^  !L 

'  ^'"^  "'    cure  the  amount  by  lustalroento ;  held,  that  the 

latter  was  not  entitled  to  prove  until  he  had  pro- 
secuted for  the  felony,  and  that  having  lieen  a 
party  to  the  componnding  felony,  semb.  he  could 
not  be  competent  to  prosecute.  Elliott,  ex  parte, 
2  Deac.  (b.)  179;  and  3  M.  dk  Ayr.  110. 

And  see  Master  r.  Miller,  4  T.  R.  333;  Crosby 
r.  Long,  12  East,  413 ;  Stone  v.  Marsh,  6  B.  dk 
A.  Cr.  564 ;  and  Holland,  ex  parte,  1  Mont.  &■ 
M.  396 ;  questioning  ex  parte  Birks,  2  M.  ^ 
Ayr.20d,  n. 

18.  The  surety  to  an  annuity  bond  prior  to  6  G. 
4,  c.  16,  and  which  had  been  given  up,  held  not 
entitled  to  prove  in  respect  m  paymenta  made 
since  the  commiMion  issued  against  the  principal. 


a  lost  bond,  upon  indemnity  to  the 
Kobins,  ex  parte,  1  Deac.  (s  )  5tf7. 

11.  Where    A.  and  B.,  prior  to  1780,    were 
partners  as  army  agento  ;  when  A.  rehired,  the 
firm  was  carried  on  in  the  same  way  and  with  the 
same  books  by  B.  and  C,  and  they  continued  to  do 
BO  down  to  the  time  of  their  bankruptcy  in  18^, 
and  rendered  accounta  to  the  War  office  according 
to  the  regulations  inued  in  1783,  not  as  with  the 
respective  firms,  but  merely  of  the  sum.  i«ued 
in  re.pect  of  each  regiment ;  held,   (Cross,  J., 
dia.)  that  it  could  not  be  presumed  that  the  latter 
firnf  had  adopted  the  debt  due,  at  the  withdrawal 
of  A.,  to  the  Crown,  nor  that  the  Crown  had 
anented  to  such  adoption,  m>  as  to  be  entitled  to 
prove  the  whole  debt  accruing  to  the  Crown 
during    the  respective  firms,  against  the  estate 
of  the  latter  firm ;  but  it  appearing  that  the  as- 
signees of  B.  and  C.  and  the  Crown  had  insti- 
tuted proceedings  against  the  representatives  of 
A^  in  Scotland  charging  A.  as  the  debtor  of 
BQch  portion  of  the  debt,  a  claim  permitted  to  be 
entered    until  the  result  of  sach   proceedings 
known.    Sandham,  ex  parte,  4  Deac.  (b.)  812; 
diacoasing  Clayton's  case,  1  Mer.  572. 

12.  Where  it  appeared  from  the  bankrupt's 
books  that  there  were  items  of  dealings  between 
the  parties  within  six  years,  held  sufficient  to  take 
the  caw  out  of  the  statute,  and  that  the  account 
ought  to  be  taken  and  the  creditor  admitted  to 
prove  for  the  balance  found.  Seaber,  ex  parte,  1 
Deac.  (B.)  543. 

13.  And  where,  although  there  appeared  no 
payment  within  that  period  to  the  petitioner  by 
the  bankrupt,  but  only  an  advance  by  him  of  the 
amount  of  a  drainage-rate,  held  sufficient  evidence 
of  a  running  account  between  them.  Peachey, 
ex  parte,  1  i5eac.  (b).  551. 


Paxton,  ex 
Deae.  62. 


parte,  3  M.  A  Ayr.  (b.)  5  ;  and  3 


19.  Where  the  obligee  of  a  bond,  a.  trustee  for 
other.,  but  with  a  beneficial  interest  tlierein  him- 
self, deposited  it  as  a  security  for  advances  to 
himself;  held,  that  no  notice  having  been  given 
to  the  obligor,  the  bonda  were  to  be  deemed  with- 
in the  reputed  ownerahip  of  the  bankrupt ;.  held 
also,  that  a  security  given  by  the  bankrupt,  on  an 
expectancy  of  an  interest  as  next  of  kin  of  a  lu- 
natic during  intestate,  must  be  noticed  by  the 
creditor  in  bis  prooof.  M'Turk,  ex  parte,  2  Deae. 
(B.)  58 ;  and  3  M.  &  Ayr.  1. 

20.  Where  monies  agreed  to  be  settled  by  the 
bankrupt  on  his  marriage  were  in  fact  drawn 
from  the  partnership,  but  without  the  knowledge 
of  the  wife,  and  were  after  the  marriage  ad- 
vanced to  the  partnership,  secured  by  their  joint 
bond,  the  trustees  held  entitled  to  prove  in  re- 
spect of  the  bond,  and  the  dividends  to  accumu- 
late until  the  principal  was  realized.  Crofla,  ex 
parte,  2  Deac.  (b.)  102. 


21.  The  mere  non-entry  in  the  book,  of  the 
party  seeking  to  prove  is  not  of  itwlf  a  ground 
14.  Checks  for  payment  of  dividend,  to  de-jof  rejection;  but,  if  rejected,  the  court  cannot 
eeaaed  creditor,  to  be  mdorwd  by  executor  or  ad-   refer  the  matter  to  any  other  penon,  but  must  it- 


[BANKRUPT] 


2705 


wlf  decide  the  questioa.    Beaiiley.ez  parte,  2  M. 
&  Ayr.  (b.)  m.  ^        r- 

22  Where  the  creditor  sold  goods  to  one  part- 
ner, as  he  believed,  on  the  partnership  account, 
and  on  the  bankruptcy  proved  ao^ainst  the  joint 
estate,  but  it  turned  out  tnat  they  were  purcliased 
on  the  separate  account,  the  proof  allowed  to  be 
transferred.     Vining,  ex  parte,  I  Deac.  (b.)  555. 

23.  To  constitute  the  making  of  a  claim  to 
prove  under  a  commission,  within  the  meaning 
of  6  Geo.  4,  c.  16,  s.  59,  the  plaintiff  must  either 
prove  his  debt  or  have  his  claim  entered  on  the 
proceedings  under  the  commission.  Augard  v. 
ThompsoD,  2  Mees.  &  W.  (ex.)  617;  and  5 
Dowl,  (p.  c.)  762. 

24.  The  court  will  restrain  a  party  who  proves 
from  proceeding  at  law  for  the  same  debt,  which, 
if  doubtful,  it  will  refer  for  inquiry.  Diack,  ex. 
parte,  2  M.  &  Ayr.  (b  )  675. 

25.  Where  by  mistake  an  error  was  in  the  con- 
dition of  a  bond,  the  court  allowed  it  to  be  amend- 
ed to  enable  the  party  to  prove.  White,  ex  parte, 
2M.  &Ayr.  (B.)541. 

26.  The  court  will  only  reduce  a  proof  at  the 
instance  of  the  bankrupt  by  consent,  and  with  an 
affidavit  that  there  is  no  collusion.  Pownall,  ex 
parte,  2  M.  &  Ayr.  (b.)  707. 

27.  Where  afler  a  composition  and  commission 
in  1825,  not  paving  15«.  m  the  pound,  the  bank- 
rupt, with  the  knowledge  of  his  assignees,  again 
commenced  business,  and  continued  until  a.  fiat  is- 
sued in  1835,  under  which  the  official  assignee  col- 
lected assets  ;  the  court  ordered  them  to  be  distrib- 
uted  amongst  the  creditors  under  the  fiat,  unless  a 

Ctition  was  presented  by  the  original  asiignees 
fore  the  second  day  of  term,  afWr  payment  of 
costs.  Abbott  and  another,  ez  parte,  1  Deac.  (b.) 
479 ;  and  2  M.  <&  Ayr.  599. 

28.  Where  a  creditor  held  a  bill  as  a  security 
for  the  debt  proved,  and  afler  the  receipt  of  divi- 
dends, the  bill  was  paid  in  full ;  the  Court  held 
that  it  had  no  power  over  his  representative  to 
compel  the  dividend  to  be  refunded  ;  aliter,  as  to 
dividends  received  after  the  payment  of  the  bill. 
Carr,  ez  parte,  3  M.  ds  Ayr.  (b.)  64. 

29.  Where  the  creditor  delayed  his  proof,  under 
a  misapprehension  of  a  supposed  composition,  the 
court  allowed  him  to  call  a  meeting  to  establish 
his  proof,  and  in  the  meantime  payment  of  a  divi- 
dend to  be  stayed.  Hunt,  ez  parte,  2  Deac.  (b.) 
213. 

30.  The  5  dt  6  Will.  4,  o.  29,  s.  5,  held  not  to 
nSkei  an  order  for  distribution  of  unclaimed  di- 
vidends obtained  before  the  passing  of  the  act. 
Curtis,  ez  parte,  1  Deac.  (b.)  583  >  and  2  M.  & 
Ayr.  732. 

31.  But  where  they  had  been  actually  paid  in 
to  the  accountant,  held  to  be  within  tlie  ez  press 
provisions  of  the  act,  and  that  the  court  could  not 
act  upon  a  preliminary  order  obtained  before  the 
act  Bell,  ez  parte,  lb.  595 ;  and  1  M.  &  Ayr. 
733. 

32.  A  creditor  whose  debt  is  disputed,  and  a 
sum  set  apart  under  1  d&  2  Will  4,  c.  56,  s.  31, 
held  not  entitled  to  interest  upon  substantiating 
his  proof.  Jamieson,  ez  parte,  2  Deac.  (b.)  6.  9. 
P.  Lewis,  ez  parte,  2  M.  ^  Ayr.  (b.)  670. 


33.  Where  goods  were  directed  to  be  procured 
by  an  agent,  with  an  authority  to  draw  a  bill  and 
get  It  discounted,  and  with  the  proceeds  pay  for 
the  goods,  which  was  done  ;  but  uefore  the  arrival 

I  (  f  the  goods,  or  presentment  for  acceptance,  the 
principal  became  bankrupt,  and  the  assignees  sold 
the  goods  for  the  benefit  of  the  estate;  held,  that 
the  circumstances  did  not  amount  to  an  accep- 
tance of  the  bill,  or  enable  a  subsequent  indorsee 
for  valuable  consideration  to  prove  under  the  es- 
tote ;  but  an  issue  offered  as  to  the  custom  of  mer- 
chanU  whether  what  was  done  amounted  to  an 
acceptonce.  Bolton,  ez  parte,  2  Deac.  (b.)  537  ; 
and  3  M.  &  Ayr.  367.  \    J        ^ 

34.  Where  a  factor,  to  whom  goods  were  con- 
signed, accepted  bills  on  the  security  of  the  pro- 
ceeds, for  his  principals  A.  and  B  ,  who  paid  them 
into  their  bankers,  who  knew  of  the  arrangement ; 
held,  that  the  latter,  on  the  bankruptcy  of  the 
principols  and  the  factor,,  were  entitled  to  have  the 
proceeds  of  the  goods  remaining  unsold  applied  in 
ezchange  of  the  bills,  and  to  prove  for  the  balance 
against  both  estates,  but  the  proof  which  they  had 
made  in  full  ezpunged  pro  tanto.  Hobhouse,  ez 
parte,  3  M.  &  Ayr.  (b.)  269;  and  2  Deac.  291. 

35.  Where  mone^  had  been  advanced  to,  and 
went  for  the  use  ofa  firm,  one  of  whom  assigned 
securities  to  a  trustee,  under  which  a  considerable 
part  ofa  debt  was  received  ;  held  that,  as  against 
the  firm  the  creditor  was  entitled  to  prove  for  the 
whole  amount  of  the  debt,  and  not  merely  for  the 
balance  due.  Adams,  ez  parte,  3  M.  &,  Ayr.  (b.) 
157. 

36.  Where  paving  commissioners  merely  nomi- 
nated one  of  a  banking  firm  as  treasurer,  without 
making  a  due  appointment  as  directed  by  the  Act, 
and  the  collector  paid  monies  into  the  bank,  but 
the  commissioners  drew  checks  on  the  individual 
partner  as  treasurer,  and  which  were  paid  by  the 
firm,  and  the  account  was  kept  in  a  pass-book  as 
between  the  firm  and  the  commissioners ;  held 
that,  upon  the  bankruptcy  of  the  firm,  the  com- 
missionen  could  only  prove  against  the  joint  es- 
tote,  and  not  against  the  separate  estote  of  the  one 
named  their  treasurer.  Dobinson,  ez  parte,  2 
Deac.  (b.)  341.  349. 

37.  Where,  on  the  retiring  of  one  partner,  th« 
other  continued  the  business  under  another  firm, 
the  former  assigning  his  moiety  of  the  partnership 
effecto,  and  the  latter  indemnifying  him  against 
debto,  &c.,  and  at  the  time  of  the  dissolution,  a 
creditor  continued  to  deal  with  the  latter  without 
any  rest  in  the  account,  until  his  bankruptcy ; 
held,  that  the  joint  debt  could  not  be  proved 
against  his  separate  estote.  Appleby,  ez  parte,  2 
Deac.  <B.)  482. 

38.  Where  the  wife,  before  marriogei  assigned 
a  debt  from  A.,  and  also  a  debt  from  B.,to  A.  and 
B.  in  trust  to  invest,  &c.,  but  which  they  never 
did,  but  each  continued  to  pay  the  interest  on 
their  respective  debto  ;  held,  that  each  was  liable 
for  his  own  default  only,  and  that  proof  could  on- 
ly be  made  by  the  cestui  que  trust  against  the  es- 
tote of  B.,  become  bankrupt,  for  his  debt.  Wood- 
ward, ez  parte,  3  M.  &  Ayr.  (b.)  232 ;  and  2  Deao. 

1401. 


2706 


[BANKRUPT] 


30.  Where,  upon  the  marriage  of  the  bankmpt, 
the  wife's  property  was  settled  to  the  separate  use 
of  the  wife,  and  on  the  death  of  either,  to  the  use 
of  the  surviTor,  and  afterwards  for  the  children, 
and  the  hankrupt  covenanted  to  pay  to  the  trus- 
tees a  sum  to  the  like  uses ;  held,  that  the  contin- 
Snt  interest  of  the  bankrupt  mi^ht  be  sold,  and 
e  proceeds  applied  in  part  satisfaction  of  his  co* 
Tenant,  and  the  trustees  prove  for  the  residue  re- 
maining unpaid.  Gonne,  ex  parte,  3  M.  &  Ayr. 
(b.)  166 ;  and  2  Deac.  276. 

40.  Upon  a  bond  given  to  trustees  of  a  mar- 
riage settlement,  conditioned  for  payment  of  a 
sum  ^  in  case  he  should  become  bankrupt  or  in- 
solvent," and,  upon  being  pressed  by  the  trustees, 
be  gave  a  note  for  the  payment  of  the  sum,  pay- 
able on  demand ;  held,  that  the  trustees  might 
prove  for  the  whole  amount.  Wright,  ex  parte, 
2  Deac.  (b.)  S51 ;  and  3  M.  &.  Ayr.  387. 

41.  Trustee  of  a  benefit  society  allowed  to 
prove  a^inst  the  treasurer  (become  bankrupt) 
for  monies  received  by  him  as  such.  Crowley, 
ex  parte,  2  Deac.  (b.)  ^55. 

42.  Executors  allowed  to  prove  against  a  bank- 
rupt co-executor  without  an  order.  PhiUipps,  ex 
parte,  2  Deac.  (b.)  334. 

43.  Semb.^  in  order  to  prevent  proof  on  fraudu- 
lent judgments,  the  commissioners  may  examine 
into  the  consideration  of  a  judgment  debt,  {dub. 
Cross,  J.)  Marston,  ex  parte,  3  M.  A:  Ayr.  (b.) 
444. 

44.  Where  the  funds  were  small,  dividends  al- 
lowed to  be  paid  over  to  cestui  qut  trusts  under  a 
settlement  lost,  without  a  reference.  Harrison, 
ex  parte,  3  M.  4&  Ayr.  <b.)  302. 

45.  A  petition  to  the  court  for  a  dividend  is 
liable  to  the  same  restriction  as  an  action  would 
have  been  before  6  Greo.  4,  c.  16,  and  the  assig- 
nees may  set  up  the  Statute  of  Limitations  as  a 
bar.     Clarkson,  ex  parte,  3  M.  &  Ayr.  (b)  154. 

46-  Payment  of  dividends  refused  to  be  stayed 
in  a  case  of  gross  neglect  in  proving  the  debt  or 
entering  a  claim  on  the  proceedings.  Todd,  ex 
parte,  2  Deac.  (s.)  416. 

47.  The  commissioner  cannot  reject  the  proof 
of  a  debt  admitted  by  the  bankrupt,  and  not  oppo- 
mA  by  the  assignees,  because  it  is  not  supported 
by  the  evidence  of  third  persons.  Chapman,  ex 
parte,  3  Deac.  (b.  c.)  273. 

48.  On  a  petition  to  prove  after  rejection  by  the 
commissioners,  held,  that  it  must  show  the  grounds 
on  which  rejected ;  and  that  in  order  to  entitle  the 
party  to  take  an  order  in  the  absence  of  the  as- 
jiignees,  it  must  be  served  on  them  personally. 
Baker,  ex  parte,  1  Mont  &.  Ch.  (b.)  156. 

49.  Executor,  where  bankrupt,  held  that  he 
might  prove  in  the  usual  way  ;  and  that  the  peti- 
tioner, his  agent,  and  conversant  with  the  ac- 
counts of  the  estate,  might  be  called  as  his  wit- 
ness to  prove  the  facts.  Collingdon,  ex  parte,  1 
Mont  &  Ch.  (b.)  156. 

50.  So,  where  trustee,  his  proof  allowed,  but 
the  dividends  to  be  paid  into  (^ourt  Strettell,  ex 
parte,  1  Mont.  &  Ch.  (b.)  165. 


51.  Where  the  creditor,  having  taken  the  bank- 
rupt in  execution,  died  shortly  before  the  iMoinf 
ofihefittt^  and  eight  months  afier,  a  Judge's  or- 
der was  obtained  for  his  discharge,  on  the  ground 
of  the  suit  having  abated  by  the  death  of  the  plain- 
tiff: held  not  to  amount  to  an  extinguishment  of 
the  debt,  but  that  it  was  provable  by  the  executor 
of  the  creditor :  execution,  in  the  eye  of  the  bank- 
rupt law,  is  only  considered  as  security.  Good- 
man, ex  parte,  3  Deac.  (b.)  631 :  and  1  Mont.  d& 
Ch.  151 . 

52.  Where  the  executors  of  a  deceased  partner 
continued  to  carry  on  the  business  with  the  survi- 
vors for  12  months,  and  then,  upon  taking  the  ac- 
count, received  a  bond  from  them  for  the  bal»nf)^ 
due,  and  the  continuing  partners,'  six  years  after- 
wards, became  bankrupt ;  held,  that  the  execalor 
was  entitled  to  prove  for  the  amount  of  the  bond 
against  their  estate.  Hull,  ex  parte,  3  Deac.  {»• 
c.)  125. 

53.  Where  the  claim  was  to  recover  the  diffi?r- 
ence  between  the  contract  price  for  a  cargo  to  ar- 
rive, (which  the  bankrupt  was  to  purchase,  and 
the  vendor  to  deliver  within  14  days  after  bein^ 
landed),  and  the  market  price  at  toe  time  of  the 
refusal  to  accept;  held,  that  as  every  fact  whidi 
was  to  be  the  basis  of  calculation  of  the  damage* 
might  be  denied  or  disputed,  the  claim  was  one  of* 
damages  purely,  and  not  a  debt  provable.  The 
cases  of  slock  and  of  rights,  which  may  be  treated 
as  debts  where  mere  matters  of  calculation,  are 
exceptions  to  the  general  rule,  that  no  claim  can 
be  proved  as  a  debt  for  which  the  intervention  of 
a  jury  is  necessary.  Green  v.  BickneU,  3  Nev.  &. 
P.  (q.  b.)  634. 

54.  Where  a  party,  two  years  before  his  bank- 
ruptcy, obtainecT  a  loan,  by  way  of  mortgage  on 
lands  he  was  about  to  seU,  which  was  advanced 
on  a  note  payable  at  3  months'  date  and  renewal 
from  time  to  time,  at  the  option  of  the  kmrrower, 
for  a  period  not  exceeding  18  months,  and  a  ver- 
bal agreement  to  pay  10  per  cent  until  the  estate 
should  be  sold ;  the  note  was  renewed  every  thxee 
months,  and  the  rate  of  interest  paid ;  upon  claim 
to  prove  for  the  last  one  given,  held,  that  the  tran- 
saction was  usurious,  and  merely  colorable  to 
evade  the  usury  laws  ;  held,  also,  that  the  3  &  4 
Will.  4,  c.  IM,  s.  7,  is  only  applicable  to  bills  and 
notes  existing  at  the  time  of  the  contract  for  dis- 
counting or  negotiating  the  same,  and  where  mon- 
ey advanced  tnereon.  Terrewest,  ex  parte,  3 
Deac.  (b.)  590 ;  and  1  Mont.  &,  Ch.  146,  (since 
reversed  by  the  Lord  Chancellor). 

55.  To  enable  the  bolder  of  bills  indorsed  by  a 
bankrupt,  to  prove,  if  the  bankruptcy  occur  be- 
fore the  bills  become  due,  and  before  the  choice  of 
assignees,  the  notice  of  dishonor  must  be  given  to 
the  bankrupt ;  if  sfter  the  choice,  then  to  the  as- 
signees. Chappie,  ex  Piurte,  3  Deac.  (b.  c.)  218  ; 
and  I  Mont  &  Ayr.  490. 

56.  Where  an  acceptance  in  the  name  of  the 
joint  firm  was  obtained  as  a  security  for  the  separ- 
ate debt  of  one,  and  it  was  clear,  from  the  facta, 
that  it  was  taken  with  the  reasonable  belief  that  it 
was  fairly  available  against  the  firm  ;  held,  that  it 
was  provable  only  against  the  separate,  and  not 
against  the  joint  estate.  Thorpe,  ex  parte,  3  Mont. 
4t  Ayr.  (b.  c.)  716. 


I 


[BANKRUPT] 


2707 


57.  Where  the  debt  aroce  on  a  joint  note  made  |  that,  on  the  bankruptcy  of  the  saretv,  before  any 
in  1825  with  a  party  who,  in  1805,  executed  an  default  made,  the  grantor  was  not  entitled  to  prove 
assignment  for  tne  benefit  of  his  creditors,  under    "     -•        '        -.i  •.         ^     *.  ^ 

which  a  dividend  was  aflerwards  received   in  res- 


pect of  the  note  and  interest ',  held,  that  such  pay- 
ment by  a  co-contractor  did  not  revive  the  debt 
against  the  bankrupt  so  as  to  make  it  provable. 
Woodward,  ex  parte,  3  Mont.  &  Ayr.  (b.  c.)  609 ', 
and  3  Deac.  290. 294  ;  supporting  Jackson  v.  Fair- 
bank,  2  H.  BI.  340. 

58.  Where  the  bill  came  through  the  acceptor, 
held  that,  in  the  absence  of  fraud,  it  was  no  objec- 
tion to  the  proof.  Gill,  ex  parte,  3  Mont  &>  Ayr. 
(B.  c.)  590;  and  3  Deac.  2cj8. 

59.  Where  the  ban'krupt  was  executor  in  trust, 
and  interested  in  a  share  of  the  bequest,  but  had 
Bot  surrendered,  a  joint  legatee  allowed  to  prove  ; 
costs  to  be  paid  out  bf  the  trust  fund,  but  no  order 
made  as  to  the  bankrupt's  part.  Forrester,  ex  par- 
te, 1  Mont.  &  Ch.  (B.)  143. 

60.  Where  a  joint  and  several  bond  was  execu- 
ted by  the  bankrupts,  and  a  surety  in  a  sum  to  se- 
cure a  balance  to  that  extent  on  a  running  ac- 
count, of  bankers  with  the  bankrupt,  and  on  the 
faith  of  which  subsequent  advances  were  made, 
but  by  subsequent  dealings  the  surety  became  re- 
leased ;  held,  that  the  bankers  might,  notwith- 
standing, prove  against  the  separate  estate  of  the 
principals  for  the  amount  of  balance  due.  Wal- 
ker, ex  parte,  3  Deac.  (b.)  673. 

61.  Where  the  bankrupts  lodged  with  their 
bankers  acceptances  of  the  petitioners,  as  security 
for  the  floating  balance  with  them,  and  they  afler- 
wards proved  for  the  whole  balance  and  received 
a  dividend ;  the  petitioners  afterwards  paid  the 
bills  and  claimed  to  have  the  amount  of  the  divi- 
dend, to  the  extent  of  the  bills,  refunded  and  paid 
to  them ;  the  court  dismissed  the  petition  with 
coats  as  against  the  bankers,  but  declared  the  pe- 
titioners to  be  entitled  to  all  future  dividends  in 
respect  thereof.    Holmes,  ex  parte,  3  Deac.  (b.) 

62.  Where  the  bankrupt  granted  an  annuity 
and  received  from  his  attorney  the  whole  of  the 
consideration,  but  half  an  hour  aflerwards,  and  at 
a  different  place,  paid  him  a  part  of  it  in  dis- 
charge of  a  bona  fide  debt,  and  there  were  no  cir- 
cumstances of  fraud  or  contrivance  to  evade  the 
provisions  of  the  Annuity  Act ;  held  not  a  reten- 
tion within  the  Act,  and  the  annuity  provable. 
Bogue,  ex  parte,  3  Deac.  (b.  c.)  3U9. 

63.  Where  the  bankrupt,  by  deed,  granting  an 
annuity,  acknowledged  the  receipt  of^e  consid- 
eration, and  in  an  account  admitted  the  amount 
doe,  and  he  had  paid  the  annuity  for  10  years,  the 
court  refused  to  reject  the  proof  on  an  affidavit  by 
by  the  bankrupt  that  the  whole  of  the  considera- 
tion was  not  advanced.  Fairman,  ex  parte,  3 
Deac.  (b.  c.)  467;  and  1  Mont.  &  Ch.  125. 

64.  Where,  upon  the  grant  of  an  annuity,  the 
bankrupt,  as  surety,  covenanted  jointly  and  sev- 
erally with  the  grantee  to  pay  the  annuity,  in  case 
default  should  be  made  by  the  grantor,  provided 
that  the  grantee  should,  in  such  case,  give  21 
days'  notice,  in  writing,  of  the  sum  in  arrear,  pre- 
vious to  any  proceeding  against  the  surety ;  held, 

Vol-  IV.  55 


for  the  value  of  the  annuity  under  6  Geo.  4,  c.  16. 
s.  54.  Marks,  ex  parte,  3  Deac.  (b.  c.)  133;  and 
3  Mont.  &,  Ayr.  521. 

65.  Where  a  party,  become  insolvent,  assigned 
all  his  estate  to  four  trustees,  who  carried  on  the 
business  for  the  benefit  of  creditors,  three  of  whom 
became  subsequently  bankrupt,  and  the  other  died 
solvent,  but  there  was  no  joint  estate ;  held,  that 
the  rule,  that  partnership  creditors  can  only  resort 
to  the  estate  of  a  solvent  partner,  where  there  if 
one,  and  not  prove  against  the  separate  estate  of 
each,  applied  also  to  ue  case  of  joint  contractors ; 
and  that  it  was  not  a  sufficient  ground  for  expung- 
ing the  proof  against  the  separate  estate  of  a 
partner  who  was  solvent  at  the  time  of  proof,  that 
lie  had  since  become  insolvent ;  held,  also,  that 
the  estate  of  the  deceased  partner,  being  solvent, 
could  not  be  considered  in  the  light  of  a  solvent 
partner.    Banerman,  ex  parte,  3  Deac.  (b.  c.)  476. 

66.  Where  one  of  two  bankrupts,  before  the 
commencement  of  their  partnership,  received  a 
deposit  of  foreign  bonds,  as  a  pledge  for  covering 
acceptances,  which  he  aflerwards  applied  to  pur- 
poses of  the  partnership;  held  not  to  clischarge  his 
separate  liability,  and  that  the  commissioner  pro- 
perly admitted  proof  against  his  separate  estate ; 
and,  semble^  the  petitioner  might  elect  to  prove 
either  against  the  joint  or  separate  estate.  Me* 
inertzhagen,  ex  parte,  3  Deac.  (b.)  101. 

67.  Where  partners  carried  on  business  in  their 
separate  homes  at  M.  db  L.,  held,  that  the  holder 
of  bills,  drawn  by  one  upon  the  other,  was  bound 
to  elect  to  prove  against  the  joint  or  separate  ea* 
tates,  but  tiiat  he  was  not  bound  by  the  previous 
receipt  of  a  dividend  under  the  separate  estate,  on 
refunding  it  and  paying  the  costs  of  the  transfer 
of  proof.  Law,  ex  parte,  3  Deac.  (b.  c.)  541 ;  and 
1  Mont.  6l  Ch.  111. 

68.  Where  two  partners  gave  their  joint  and 
separate  note,  ^nd  before  their  bankruptcy  one 
executed  a  mortgage  to  secure  that  and  such  other 
advances  as  might  become  due,  and  the  mortgagee 
realized  a  part  of  the  debt  due  at  the  time  of  the 
bankruptcy ;  held,  that  the  amount  due  on  the 
note  dia  not  merge  in  the  mortjrage^and  that  proof 
might  be  made  on  the  note  (&8.  Erskine,-  C.  J.) 
Bate,  ex  parte,  3  Deac.  (b.  c.)  356. 

And  see  Ex  parte  Ladbroke,2  Gl.  db  J.  81. 

69.  Where  oneof  two  partners,  jointly  possess- 
ed of  shares,  but  standing  in  the  name  of  one,  un- 
dertook, in  consideration  of  the  payment  to  the 
firm  of  an  acceptance,  to  obtain  the  transfer ;  held, 
that,  upon  the  bankruptcy  of  the  firm,  the  claim 
on  such  undertaking  sounding  in  damages  and 
not  in  debt,  the  prooT  could  only  be  made  against 
the  joint  estate.  Raleigh,  ex  parte,  3  Deac.  (b.  c.) 
160;  and  3  Mont.  &  Ayr.  670. 

70.  Where  proof  had  been  made  before  pay- 
ment of  a  portion  of  the  debt  by  a  surety,  held, 
that  it  did  not  prevent  the  receiving  dividends  on 
the  whole  amount  of  the  proof.  Coplestone,  ex 
parte,  3  Deac.  (b.  c.)  547. 

71.  Where  the  business  was  carried  on  in  the 


9706 


[BANKRUPT] 


pfefliiM*  of  one  pulaer,  who  czeeolsd  a  mmti^^ge 
of  them  tolMnken,  loMcotvadTsiioestotlie  put- 
nerahipf  ami  died,  havm^  deriaed  the  pimieit^  to 
the  other  partnen ;  the  latter  aftenraida  becoming 
inaolvent,  eiecoted  aD  assigBment  of  all  their  es- 
tate to  tmsteea  for  the  benefit  of  credHon,  and  the 
tmalcea,  with  the  sanction  of  the  banken,  con- 
tracted for  the  nle  of  the  mortgased  premiaeB,  the 
inirebaaer  agreeing  to  pay  the  banken  the  ram 
adyanced  by  initalmenta ;  a  fiat  aHerwards  iaraed, 
and  the  banker*  proTed  for  the  amoont ;  the  proof 
allowed  to  stand,  bnt  the  diyidend  to  be  paid  into 
court  to  await  the  farther  order.  Smyth,  ex  par* 
te,  3  Oeac.  (a.)  507, 

72.  A  bankrapt  cannot  snpport  a  petition  to  ex- 
nange  a  proof  oo  the  gioond  of  ao  moeh  not 
being  doe,  onlem  he  allegea  a  nrobability  of  a 
■arpioa,  or  that  he  will  be  entitled  to  an  allow- 
ance, Pitohforth,  ez  narto,  3  Dene.  (s.  c.)  487 ; 
and  1  Mont.  &  Ch.  96. 


73.  Where  the  separate  debt  of  A.  to  C 
goaimnteed  by  B.,  who  afterwards  became  a  part- 
ner with  A^  and  on  application  lor  indolgence  no 
answer  was  retomed,  but  C.  ibrfaofe  to  soe ;  held 
that  in  the  absence  of  any  ezpraas  consent,  it  was 
not  converted  mto  a  joint  debt,  and  the  proof 
against  the  joint  estate  properly  rejected.  Sfiteh- 
cock,  ex  pairte,  3  Deac  (b.  c.)  507 ;  and  1  Moot 
dbCh.GO. 

74.  Where,  upon  the  formation  of  a  firm,  a 
creditor  of  one  partner  consented  that  his  separate 
debt  should  become  a  joint  one  from  the  firm,  and 
bills  were  drawn  and  warranto  transferred ;  held, 
that  it  coald  not  be  afterwards  proved  as  a  separ- 
ate debt.  Whitmore,  ex  parte,  3  Mont  Sl  Ayr. 
(a.  c.)€B7;  and  3  Deac  365. 

75.  The  bankrupt's  wife  admitted  to  prove  on 
behalf  of  herself  and  children.  Tbring,  ez  parte, 
1  Mont  4k  Ch.  (b.)  73. 


76.  The  ezecatriz  of  a  surviving  assignee  al- 
lowed to  pay  unclaimed  dividends  into  Court. 
Raikes,  ez  parte,  3  Deac.  (b.  t.)  494 ;  and  1  Mont 
&  Ch.  96. 

77.  Where  a  clerk  left  his  employer's  servtea 
12  months  before  bis  bankruptoy,  not  being  com- 
pelled so  to  do,  but  from  appiXMohing  insolvency, 
and  became  employed  elsewhere,  he&  not  entitled 
to  siz  months'  wages  within  6  Geo.  4,  c.  16,  s.  49. 
Gee,  ezparte,  3  Deac.  (b.)  34.  563;  and  1  Mont 
ok  Cn.  99. 

78.  AUUTj  if  he  was  compelled  to  leave.  Ben- 
nett, ez  parte,  3  Mont  dk  Ayr.  (b.  c.)  669. 

79.  The  decision  in  FusselU  ez  parte,  (2  Deae. 
158;  and  3  Mont  &,  Ayr.  67),  that  an  articled 
clerk  is  an  apprentice  within  6  Geo.  4,  c  16,  s. 
49,  reversed  by  the  Lord  Chancellor,  in  Prideauz, 
ez  parte,  3  Mont.  A  Ayr.  (b.  c.)  506 ;  and  3  Myl. 
&  Cr.  (CH.)  327. 

80.  Upon  an  order  for  proof  made  by  the  court, 
the  commissioner  cannot  decline  receiving  it  until 
a  meeting  and  inquiry.  Richardson  ez  parte,  3 
Deao.  (b.  c.)  377. 

81.  Where  a  cross  petition  is  presented  within 
a  reasonable  time,  a  petition  for  a  dividend  is  of 
course.  Lees,  ez  parte,  3  Mont  6l  Ayr.  (b.  c.) 
591 ;  and  3  Deac.  287. 


88.  Where,  oothe  njoctioa  af  psoef,  a  warn 
set  apart  and  invested  mder  1  4k  2  WBL  4, 
e.  56,  s.  31,  and  OB  appeal  the  pnafaDowed ;  held, 
that  the  creditor  waa  not  enUtled  to  the  intereet 
made  by  the  investment  JamieaoD,  ez  parte,  3 
Mont  A  AjT.  (a.  c.)  715. 

83.  The  interest  on  unclaimed  dividendsfoUows 
the  principal,  and  belongs  to  the  ciediton  who 
may  afterwards  claim.  Gregg,  ez  parte,  3  Mont 
&  Ayr.  (B.  c.)  622 ;  and  3  Deac  308. 

And  aee  Band ;  and  sttprm.  (g). 


[H]  So 

1.  The  coort,  has  no  anthority  to  enlarge  the 
time  for  sorrender,  unless  the  apfdicatMn  m  made 
at  least  siz  days  beibre  the  day  appointed  lor  the 
BumeU,  ez  parte,  3  Deac.  (n.)  2ISL 


2.  Where  the  first  certificate  was  stoyed,  and 
the  bankrupt  afterwards  procured  a  new  one ; 
held,  that  the  former  ought  first  to  have  been 
cancelled  before  the  commissioner  could  certify 
again.  Myers,  ez  parte,  2  Deac.  (b.)  97 ;  and  3 
M.  Sl  Ayr.  30. 

3.  The  signature  of  a  creditor  living  in  Scot- 
land allowed  to  be  verified  by  afiidavit  sworn  be- 
fore a  magistrate  there.  Growcock,  ez  parte,  2 
Deac.  (B.)78;  and  3M.  dk  AyT.22. 


4.  Where  the  petitioiier  waa  a  creditor  at  the 
opening  of  the  Jimt  and  might  have  entered  a 
Claim,  but  delayed  doing  so ;  held,  that  be  ooold 
not  stop  the  certificate  for  the  purpose  of  enabling 
him  to  prove  hia  debt.  Hellings,  ez  parte,  8 
Deac.  (B.)  151. 


5.  A  petition  to  sUy  certificate  will  be  dism — 
ed,  if  merely  for  the  purpose  of  provmg,  and  the 
assignees  have  not  been  served,  unlew  miscon- 
duct be  alleged  against  the  bankrupt  Woodrolie, 
ez  parte,  2  Deac.  (b.)  71 ;  and  3  M.  dk  Ayr.  14. 


[(]  Certificate. 

1.  A  certificate  having  been  allowed  by  the 
commiflrioners,  on  condition  of  hia  tendering  sat- 
is&cton"  accounts,  which  he  had  not  complied 
with  ;  held,  on  petition  to  stay  the  certificate,  that 
it  must  be  referred  back  to  be  reviewed  generally. 
Kiroberley,  ez  parte,  3  M.  dt  Ayr.  (s.)  235 ;  and 
2  Deac.  412. 

2.  Where  the  plaintiff,  fi>r  the  acooaamodatiaa 
of  the  defendant,  drew  a  bill  upon  a  party  indebt- 
ed to  the  lalter,  which  was  accepted,  and  after- 
wards indorsed  b^  the  plaintiff  to  the  defendant, 
and  upon  the  defendant  becoming  bankrupt,  and 
the  bib  dishonored,  it  was  taken  up  by  the  plain- 
tiff and  paid ;  held  to  be  a  debt  proveable  and 
barred  by  the  defendant's  certificate ;  the  plaintiff 
was  equally  a  surety  for  the  bankrupt,  as  well  as 
for  the  acceptor.  Haigh  v.  Jackson,  3  Mees.  dk 
W.  (Bz.)  5Q6. 

3.  Where  no  misconduct  was  charged  subse- 
quent to  the  fiatf  held  that  the  charge  of  having 
caused  unnecessary  delay  in  the  progress  of  a 
Chancery  suit,  and  pending  which  the  petitioner'a 


[BANKRUPT] 


9709 


drbt  eoold  not  be  ucertained,  was  not  a  miflleient 
froimd  for  stajing  the  certificate :  held  aleo,  that 
toe  word  "  witneM*'  prefixed  to  the  name  of  the 
solicitor  attesting  the  signature  of  the  petitioner, 
was  a  sufficient  compliance  with  the  general  order 
for  attestation  :  held  also,  that  it  is  unneceBsarv, 
in  a  petition  for  staying  a  certificate  lying  in  the 
office  for  allowance,  to  allege  that  it  has  been 
signed  by  the  commissionen,  or  creditors.  Stock- 
en,  ez  parte,  3Deac.  (s.)  610;  and  1  Mont.  & 
Ch.  232. 

4.  So,  it  refused  to  stay  it  until  the  determina- 
tion of  an  action  pending,  for  the  purpose  of 
realizing  part  of  the  petitioner's  debt,  where  no 
misconduct  was  alleged  against  the  bankrupt, 
and  the  parties  had  not  used  due  diligence  in 
making  his  security  available.  Pbeasant,  ez 
pwte,  3  Oeac.  (b.)  &&. 

5.  A  petition  to  stay  the  certificate  on  allega- 
tions that  certain  debts  had  been  improperly  re- 
tained, and  others  expunged,  but  not  showing 
that  they  would  have  turned  the  balance,  or  that 
the  banarupt  was  privv  thereto,  held  insufficient : 
the  bankrupt  having  also  been  a  partner  with  the 
petitioners,  held  that  it  was  not  enough  to  allege, 
that  if  the  accounte  were  taken,  a  large  balance 
would  be  due  from  the  bankrupt,  without  show- 
ing the  probable  amount ;  and  on  a  petition  by 
one,  the  other  partners,  semftts,  must  be  served 
with  the  petition.  May,  ez  parte,  3  Deac.  (s.  c.) 
388 ;  and  1  Mont.  &,  Ch.  IS. 

6.  Where  the  certificate  was  referred  back,  but 
the  commissioners  differed  in  opinion  as  to  their 
power  to  rewMmsider  it  after  having  once  signed 
It,  and  no  report  made,  the  court  aUowsd  it  to  be 
delivered  out,  with  costs  of  the  motion.  AUday, 
ez  parte,  3  Mont.  &,  Ayr.  (b.  c.)  487. 


[K]    SurXRiEDSAS. 

1.  Where  the  bankrupt  had  left  the  country 
and  not  sunrendered,  and  a  true  bill  had  been 
found  against  him  for  not  so  doing,  the  court  re- 
fused a  supersedeas  with  consent  of  creditors,  or 
to  direct  a  meeting  to  take  his  surrender.  Levy, 
ez  parte, 2  Deac.  (b.)  25 ;  and  3  M.  4t  Ayr.  685. 

3.  A  petition  to  supersede  dismissed  with  costs, 
althougn  two  verdicts  were  obtained  b^the  bank- 
rupt in  actions  against  his  assignees,  for  want  of 
a  good  petitioning  creditor's  debt,  there  being 

Eounds  for  believing  contrivance  and  collusion 
tween  him  and  the  creditor's  assignee,  who  was 
abo  the  petitioning  creditor,  and  they  consenting 
to  annul  the  commission.  Munk,  ez  parte,  3  M. 
dk  Ayr.  (b.)  252 ;  and  2  Ueae.  444. 

3.  The  certificate  of  the  commissioners  under 
the  composition  clause  (s.  133,)  need  not  state 
that  no  creditor  to  the  amount  of  502.  is  without 
the  jurisdiction  of  the  court  Butterworth,  ez 
parte,  3  Deac.  (s.  c.)  395;  and  1  Mont.  A  Ch. 
140. 


[L]   RiOHTS  or   BAVKKVPT— OF   WIVZ. 

1.  Whers^the  buiknipt's  estate  in  the  hands  of 


the  assignees  paid  14s.  in  the  pound,  but  having 
been  permitted  to  continue  the  business,  a  bal- 
ance was  alleged  to  be  due  to  them  ;  held,  that 
he  was  entitled  to  his  allowance,  but  that  the 
claim,  if  found  due  on  a  reference,  might  be  set 
ofi':  held  also,  that  if  the  last  were  intended  to 
be  a  final  dividend,  although  not  so  expressly  de- 
clared in  the  order,  the  court  would  do  so  for  the 
purpose  of  entitling  the  bankrupt  to  his  allow- 
ance. Cooper,  ez  parte,  2  Deac.  (b.)  41 ;  and  2 
M.  &  Ayr.  689. 

2.  But  he  is  not  entitled  to  set  off  against  that 
amount  sums  due  to  him  from  the  assignses  on  a 
personal  contract  with  him.  S.  C.  3  M.  d:^  Ayr. 
(B.)  137. 

3.  Where  the  defendant  omitted  to  plead  his 
bankmptcv,  and  gave  a  cognovit;  held,  entitled 
to  be  discnarged  out  of  custody,  on  affidavit  of 
his  certificate  having  been  enrolled  ;  the  cog- 
novit creates  no  new  canse  of  action.  Oswald 
V,  Williams,  5  Dowl.  (p.  c.)  159 ;  1  Mees.  &  W. 
(zx.)  550;  and  1  Tyr.  &,  Gr.  985. 

4.  The  bankrupt  is  entitled  under  s.  132  to  be 
furnished  with  copies  of  the  assignees'  accounts, 
and  not  merely  to  inspection  of  them,  and  he 
may  petition  for  that  purpose  without  a  previous 
application  to  the  commissioners.  Emerson,  ez 
parte,  2  Deac.  (b.)  156;  and  3  M.  db  Ayr.  133. 

5.  The  bankrupt  is  entitled  to  copies  of  the  de- 
positions on  petition  to  annul  the  fiat  or  reverse 
the  adjudication,  and  such  proceedings  cannot  be 
used  in  evidence  against  him  unless  he  has  notiee 
of  the  intention  to  do  so.  Goodwin,  ez  parte,  1 
Deac.  (B.)  695 ;  and  1  M.  &  Ayr.  532. 

6.  On  an  application  by  a  eeshU  que  trust  to  re- 
move a  bankrupt  trustee ;  held  that  he  was  en- 
titled to  the  costs  of  his  appearance.  Whitley, 
ez  parte,  1  Deac.  (b.)  478. 

7.  Where  the  defendant  became  bankrupt; 
held,  that  the  plaintiff  could  not  apply  to  the 
court  under  6  Geo.  4,  c.  16,  s.  59,  ror  leave  to 
discontinue,  unless  he  had  either  proved  under 
the  commission,  or  had  his  claim  entered  on  the 
proceeding  under  the  Jiat.  Angarde  v.  Thomp- 
son, 5  Dowl.  (r.  c.)  762. 

8.  Where  the  bankrupt  after  repeated  applica- 
tions for  payment  of  a  previous  debt,  but  after  a 
secret  act  of  bankruptcy,  delivered  goods  bona 
fide  in  part  payment ;  held  to  be  a  payment  pro- 
tected by  6  Geo.  4,  c.  16,  s.  82.  Cannon  o.  Wood, 
2Mees.  &W.(BX.)465. 

9.  Where  goods  were  placed  in  the  defendant's 
hands  as  a  security  for  advances,  and  after  an  order 
given  for  an  advance  thereon,  and  no  advance 
made,  but  it  was  agreed  that  it  should  at  some  fu- 
ture time  be  set  off  against  bills  of  exchange, 
the  bailor  became  bankrupt,  and  the  advance  was 
subsequently  made  on  the  order,  which  was  found 
to  have  been  a  fraudulent  preference,  and  the 
goods  remaining  in  specie  unaffected  by  any 
Sen ;  held,  that  the  sulMeqoent  advance  was  not 
a  payment  protected  within  6  Geo.  4,  c.  16,  s.  83. 
Gieen  v.  White,  3  Bing.  N.  9.  (c.  p.)  59;  and  3 
Sc.  387. 

10.  Where  the  circnmstances  under  which  the 
defendant  bought  goods  of  the  banknipt  jvst  be- 


2710 


[BANKRUPT] 


fore  the  bankniptoj,  showed  that  he  knew  of,  or 
had  the  means  of  knowing,  the  embarrassed  state 
of  the  bankrupt's  afiairs,  and  that  the  transaction 
was  not  honest ;  held,  that  tlie  payment  was  not 
protected  ;  the  terms,  **  really  and  bona  fide  paid," 
mean  something  different  n'om,  and  additional 
to,  an  actual  payment.  Devafi  v.  Venables,  3 
Bing.  N.  S.  (c.  r.)  400;  and  4  Sc.  12;). 

11.  Where  a  trader  conveyed  substantially  the 
whole  of  his  property  to  trustpes  to  sell  and  pay 
creditors,  and  joined  m  the  conveyance  of  premi- 
ses to  a  purchaser,  who  five  years  'afterwards  sold 
them  to  the  defendant,  who  objected  to  tlie  title, 
alleging  the  first  conveyance  to  be  an  act  of  bank- 
ruptcy,  although  no  commission  ever  issued  ;  held 
to  be  within  the  protection  of  s.  87  of  G  Geo.  4, 
c.  16.  Earl  Granville  v.  Danvers,  7  Sim.  (ch.) 
121. 

12.  Where  the  clerk  quitted  the  service  six 
months  before  the  issuing  ihefiatj  on  account  of 
the  bankrupt's  having  assigned  his  property,  and 
inability  to  pay  him;  held, that  he  was  entitled 
under  s.  48.  Saunders,  ex  parte,  2  Deac.  (e.)  40 ; 
and  2  M.  &  Ayr.  684.     . 

13.  The  6  Geo.  4,  c.  16,  s.  127,  vesting  all  fu- 
ture e^cta  of  a  party  becoming  a  second  time 
hinkrupt,  unless  his  estate  shall  pay  lbs.  in  the 
pound  ;  held  to  apply  only  to  cases  arising  afler 
the  passing  of  the  act.  Gutlirie  v.  Boucher,  8 
8im.  (cH.)l248. 

14.  ApplieaUon  on  motion  to  discharge  a  cer- 
tificated bankrupt,  on  the  ground  of  the  certifi- 
cate being  void  m  law,  being  under  a  third  com- 
mission, and  ISg,  in  the  pound  not  paid,  refused ; 
doubting,  however,  the  validity  of  the  decision, 
and  that  it  was  a  question  to  be  raised  on  the  re- 
cord.    Summers  v.  Jones,  3M.  Sc  Ayr.  (b.)  400. 

15.  Where  the  last  examination  was  adjourned 
Buu  dUf  without  a  protection  given,  and  a  second 
day  appointed,  when  he  attended,  but  no  protec- 
tion given,  he  was  afterwards  arrested,  but  upon 
attending  to  be  further  examined,  received  a  pro- 
tection; lield,  that  it  did  not  entitle  him  to  be 
discharged  from  the  arrest.  Bailey,  ex  parte,  3 
M.  &>  Ayr.  (e.)  408. 

16.  It  is  of  course  to  order  a  bankrupt  to  exe- 
cute a  conveyance,  under  6  Geo.  4,  c.  16,  s.  78, 
unless  he  contests  the  fiat.  Brown,  ex  parte,  3 
M.  «&  Ayr.  (b.)  263;  and  2  Deac.  479. 

17.  The  6  Qeo.  4,  c.  16,  s.  120,  applies  only  to 
parties  assisting  the  bankrupt  in  the  concealment 
of  bis  goods,  and  not  to  a  case  of  debtor  snd  cre- 
ditor; semb.f  a  creditor  might,  however,  come 
within  the  act,  although  a  fraudulent  preference 
is  intended :  but  a  separate  penalty  cannot  be  re- 
covered for  each  distinct  act  of  concealment. 
Brooks  9.  Glencross,  2  M.  ^  Rob.  (k.  p.)  62. 

18.  Where  the  assignees,  whilst  the  bankrupt 
was  proceeding  to  get  the  commission  superse- 
ded, sold  his  estate,  |nd  he  filed  a  bill  against 
them  and  the  solicitor,  charging  fraud  and  collu- 
sion in  the  sale,  and  alleging  that  all  the  other 
creditors  were  satisfied  and  consenting  to  tlie 
ntpersedeas  ;  held,  that  it  appearing  that  no  other 

Crson  was  interested  except  the  bankrupt,  and 
QoM  get  DO  relief  in  the  Court  of  Bankrupt- 1 


cy,  and  that  the  bill  was  sustainable,  the  demur- 
rer overruled.  Lautour  v,  Halcombe,  8  Sim.  (ch.) 
76. 

19.  Where  the  bankrupt  was  tenant  from  year 
to  year,  at  a  rent  payable  on  the  9th  October  and 
6th  April,  and  became  bankrupt  during  a  current 
half-year,  and  the  assignees  having  declined,  tlie 
bankrupt,  on  the  5ih  April,  delivered  up  the  po»- 
session,  under  6  Geo.  4,  c.  16,  s.  75  ;  held,  that  a 
tenancy  by  parol  was  within  the  statute,  and  the 
rent  not  accruing  due  until  the  6th  April,  he  was 
not  liable  in  use  and  occupation  for  the  time  he 
occupied  pro  rath.  Slack  v.  Sharp,  3  Nev.  &^  P. 
(q.  B.)  390. 

20.  Any  one  or  more  of  the  judges  of  the 
court  empowered  by  warrant  to  exercise  the  same 
powers  as  are  given  by  1  &  2  Will.  4,  c.  56,  to 
any  three  of  them.  3  M.  &  Ayr.  (b.)  285 ;  and 
2  Deac.  491. 

21.  Where  the  commissioner  orders  the  allow- 
ance before,  he  may  sign  it  after  the  choice  of 
assignees,  and,  if  maide  with  consent  of  the  assig- 
nees, they  cannot  afterwards  object  that  there  is 
not  any  estate.  Stephenson,  ex  parte,  3  Mont. 
dL  Ayr.  (a.  c.)  605 ;  and  3  Deac.  311. 

And  see  Action;  Bail;  "Power. 


[M]    Court  of   Rxvikw  —  Ju&iSDicTioH-^Ar* 

FEALS. 

1.  Where  the  petitioner  agreed  with  the  bank- 
rupt to  procure  a  lease  of  premises  then  used  in 
his  business,  and  assign  to  the  bankrupt,  in  consi- 
deration of  sums  to  he  paid  by  instalments,  and 
secured  by  bonds,  and  the  bankrupt  was  let  into 
possession,  but  the  petitioner,  by  toe  death  of  the 
lessor,  being  unable  to  obtain  the  lease,  except 
with  restrictive  covenants,  had  called  upon  the 
assignees  to  rescind  the  agreement,  which  had 
been  done  under  order  of  the  court,  and  the  bonds 
directed  to  be  delivered  up ;  held,  that  the  court 
had  authority  to  make  such  order  as  ftie  equity  of 
the  case  required  ;  ond  directed  an  inquiry  as  to 
what  ought  to  be  allowed  for  the  use  and  occupa* 
tion  by  the  bankrupt,  and  also  for  dilapidations 
and  ground-rent  paid,  and  proof  to  be  made  for 
such  amount  Beneoke,  ex  parte,  2  Deac.  (b.)  46 ; 
and  2  M.  <&  Ayr.  692. 

2.  The  court  will  entertain  a  petition  as  to  the 
delivery  of  specific  chattels,  if  the  parties  consent 
to  be  bound ;  but  a  party  who  is  only  trustee  can* 
not  give  such  consent.  Ellison,  ex  parte,  4  Deac. 
(B.)  725 ;  and  2  M.  &,  Ayr.  365. 

3.  Where  the  commissioner  to  whom  an  order 
of  reference  had  been  made,  whether  a  contract  by 
the  assignees  were  beneficial  or  not,  reftised  to  in- 
terfere, the  court  reluctantly  allowed  it  to  go  to 
the  registrar.  Bradstoek,  ex  parte,  1  Deac.  (a.) 
691;  and  2  M.  A;  Ayr.  593. 

4.  The  court  refused  to  interfere  and  confirm 
the  registrar's  report,  as  to  its  being  beneficial  that 
the  bankrupt's  trade  should  be  carried  on,  the  cre- 
ditors consenting  thereto,  fiamer,  ex  parte,  2 
Deac.  (b.)  39. 

5.  An  order  confirming  an  arrangement  made 


[BANKRUPT] 


2711 


between  the  buiknipt  ind  bis  aMriffiieee,  witb  the 
coDseiit  of  the  great  majoritj  of  the  creditors, 
made  without  directing  a  reference.  Chambers, 
in  re,  1  Myl.  &  Cr.  (ch.)  509. 

6.  Where  the  Vice-Chancellor  had  ordered  the 
comraissioners  to  tax  the  costs  of  petitions,  which 
he  adopted,  and  ordered  the  payment,  the  court 
refused  to  reverse  his  order  Hadfield,  ex  parte,  2 
Deac.  (b.)  114;  and  S.  C.  Christy,  ex  parte,  3  M. 
&.  Ayr.  88. 

7.  Although  the  Lord  Chancellor  may  hear  an 
appeal  otherwise  than  on  special  case,  it  is  not 
alone  enough  to  induce  him  to  do  so  that  the  mat- 
ters of  law  and  fact  are  blended,  and  tlie  latter 
numerous.  Maberly,  in  re,  2  M,  &  Ayr.  (b.)  686 ; 
8.  P.  Britten,  ez  parte,  and  Butterworlh,  in  re, 
lb. 

8.  Where  the  judgment  of  the  court  of  review 
had  been  reversed  b^the  Lords  Commissioners, 
the  Lord '  Chancellor'^a  new  judge,  and  who  bad 
heard  no  part  of  the  case,)  would  with  reluctance 
allow  an  appeal  to  the  House  of  Lords,  without 
first  hearing  the  appeal  complained  of.  Watkins, 
ez  parte,  3  Al.  &.  Ayr.  (b.)  134. 

9.  A  party  receiving  part  of  the  estate  and  be- 
eoming  assignee,  and  so  not  able  to  sue  himself,  is 
accountable  to  the  court :  where  a  party,  being  a 
member  of  Parliament,  disobeys  an  order  of 
court  for  payment  of  money,  queer,  if  it  can  issue 
a  dutringas  a^inst  him  ?  Semb.  s.  4  of  1  &  2 
Will.  4,  o.  56,  IS  confined  to  the  matters  referred 
to,  viz.  to  process  connected  with  issues.  Grim- 
wood,  ez  parte,  3  M.  &  Ayr.  (b.)  285 ;  and  2 
Deac.  465. 

10.  The  court  will  direct  a  vitfa  toce  ezamina- 
tion,  both  parties  agreeing,  and  affidavits  may  be 
read  on  suchezamination.  Biggs,  ez  parte,  3  M. 
A;  Ayr.  (b.)  152, 153;  and  3  M.  &  Ayr.  328. 

11.  The  court  has  no  jurisdiction  in  bank- 
ruptcy to  order  the  funds  of  a  testator,  in  the 
hands  of  a  bankrupt  ezecutor,  to  be  divided 
amongst  his  creditors,  but  a  bill  must  be  filed  for 
that  purpose,  and  it  will  make  a  special  order  for 
transfering  the  fund  in  its  power  to  the  account- 
antpgeneral  upon  such  bill  being  filed.  Williams, 
ez  parte,  3  Deac.  (b.  c.)  378;  and  1  Mont.  &.  Ch. 
9J. 

12.  The  court  has  no  jurisdiction  to  enforce 
specific  performance  of  contracts  under  sales  by 
order  of  the  court ;  and  if  it  had,  from  the  mere 
statement  io  the  conditions  that  the  sale  was  by 
such  order,  it  could  not  be  inferred  that  the  pnr- 
ebaser  had  submitted  to  the  jorisdiction.  Catts, 
ez  parte,  3  Deac.  (b.  c.)  242 ;  reversing  Brettell, 
ez  parte,  ib.  11.  543:  and  overruling  Uould,  ez 
parte,  2  Dene.  &  Ch.  818 ;  Barrington,  ez  parte, 
4  Deac.  ft  Ch.  46 ;  and  3  Mont.  &  Ayr.  549. 

13.  Where  the  court  of  Review  had,  upon  the 
petition  of  the  bankrupt,  annulled  the  fiat,  with 
costs  to  be  paid  by  the  petitioning  creditor,  and 
upon  which  the  order  of  the  Lord  Chancellor 
iMDed,  annulling  the  fiat;  held  that  the  Lord 
ChMicellor  had  no  jurisdiction  over  what  had 
taken  place  in  the  Court  of  Review,  unless  upon 
appeal  brought  before  him  upon  a  special  case, 
unless,  nnder   very  epecial   circumstances,  he 


should  otherwise  direct ;  and  the  lefuaal  to  intro* 
duce  into  the  case  a  statement  of  certain  facts 
would  not  be  a  ground  of  appeal  by  sect.  3  of  1 
«S^  2  Will.  4,  c.  56,  making  tne  determination  of 
the  Judge  in  the  settlement  of  the  case  final  and 
conclusive.  Stubbs,  ex  parte,  3  Deac.  (b.)  549;- 
correcting  the  observations  of  Lord  Brougham,  in 
Keys,  ex  parte,  3  Deac.  275 ;  and  1  Mont.  ^  Ayr. 
242. 

14.  Any  one  Judge  empowered  to  exercise  the 
same  powers  as  by  the  same  Act  creating  the  court 
are  given  to  any  three  of  them.  Queen's  War- 
rant, 3  Mont.  &  Ayr.  (b.  c.)  724. 

15.  A  petition  against  the  decision  of  the  com* 
missioners  on  a  question  of  proof,  on  which  the 
court  hears  new  evidence  m  the  case,  is  not  to 
be  construed  an  appeal  in  a  strict  legal  sense^ 
although  called  so  m  the  Act ;  and  a  party  tliere- 
fore  held  not  precluded  by  the  lapse  of  more  than 
a  month  after  such  determination  :  but  on  rehear- 
ing the  court  adhered  to  the  former  decision  (in 
ex  parte,  Whitmore,  3  Deac.  365).  Jackson,  ez 
parte,  3  Deac,  (b-)  651. 

16.  Where  the  registrar  becoming  insolvent^ 
resigned,  the  court  refused  to  interfere  to  order 
payment  of  arrears  of  salary  to  him,  his  assignee 
refusing  to  receive  it  Biousfield,  ez  parte,  1 
Mont  i&Ch.  (B.)41. 

17.  Decrees  and  orders  of  Courts  of  Equity 
and  Court  of  Review  to  have  the  efleot  of  judg* 
menu.    1  &  2  Vict.  c.  110,  s.  18. 

18.  It  is  of  course  to  revive  a  former  order^  on 
petition  unless  some  hardship  can  be  shown  from 
the  court  so  doing.  £vans,  ez  parte,  3  Deac.  (b. 
c.)  381. 


[N]   PrACTICZ  OB  FZT1T10H8— COSTS. 

1.  Affidavits  alleged  to  be  impertinent  not  read 
on  the  hearing ;  costs  disallowed  if  found  by  the 
officer  to  be  impertinent.  Harvey,  ez  parte,  1 
Deac.  (b.)  571. 

2.  Where  several  affidavits  are  filed  at  the  same 
time,  only  one  fee  is  payable  for  filing;  if  at  dif* 
ferent  times,  on  the  same  day,  it  will  depend  on 
circumstances  whether  one  or  more  shall  be  al- 
lowed. Uadfield,ez  parte,  2  Deac.  (b.)  118;  and 
3  M.  dc  Ayr.  92. 

3.  There  is  no  occasion  for  a  petition  to  refer 
for  scandal,  it  is  a  motion  of  course.  Gomm,  ez 
parte,  2  M.  &  Ayr.  (b.)  512. 

4.  Where  the  party  had  applied  to  have  the  pe- 
tition stand  over  for  his  own  convenienee,  and 
then  moved  to  refer  all  the  affidavits  refened  for 
scandal  and  impertinence,  the  court  imposed  terms. 
Knight,  ez  parte,  2  Deac.  (b.)  75;  and  3  M.  4k 
Ayr.  19. 

5.  The  court  will  not  vary  the  minutes  ailer  an 
order  had  been  drawn  up,  and  a  notice  of  such 
motion  does  not  prevent  toe  drawing  up  of  the  or- 
der. Bell,  ez  parte,  1  Deac.  (s.)  SO;  and  2  M. 
A  Ayr.  578. 


am 


[BANUUPT] 


an.  4k  Ayr.  (b.) 


far 
at  the  rcg*^tnr'B 
Ml  Ajt.  (b.)  1. 

8.  Ahhovi^lfe 


^,  it  nnj  be  Kt 
Ni  appTicalMMi 
Cooftr,  ex  putr,  31L 


petitioa  iOed,  toirbieli 

allowed  it  to  be  fifed 

ejL  pute,  3  M.  A  Ajr. 


ofapnty, 
be  Tcad  i 
afaiaat  bun,  jet  wbrre  tbe  baskrvpt 
intncatod  m  the  leaolt  of  tlie  petitioA,  it  eovld 
be  read  agai— t  bim  witboat  Botiee,  aad  a 
Wilkes,  ex  parte,  2  Deae.  (a.) 
1;  iad  2  M.  4k  Arr.  G»7.  S.  P.  2ii^^M^  ex 
parte,  1  Deae.  (a.)  ^2d. 

9.  So,  «B  a  petitsoo  to  amnl  a  /at, 
as  to  the  tiadui^  Bot  aDoved  to  be 
Botiee  aad  copiea  had  beea  pven  to  the  part? 
against  whom  inteaded  to  be  oaed.  Tharheu, 
ex  paitf,  S  Ueac  (a.)  9;  aad  2  M.  &  Ajr.  673. 

10.  Ob  a  petitioB  to  icyeiie  the  adjndicatioB,  a 
relerenee  to  reriae  the  petitioning  creditor's  dc^t 
ordered,  arith  liber^  to  receire  farther  depositions. 
Gartfej,  ex  parte,  2  M.  4k  Ajr.  (a.)  524. 


the    C*^" 


the 
the  same  point,  after  notice 
bj  ooe  that  the  decisioa  in  one  shall  be 
as  to  the  other,  the  oosU  of  affidsTiU 
afWrvaids  filed  ib  the  ktler  will  not  be  allowed. 
Seott,ex  parte,3  M.  4k  Ajr.  (a.)  433. 

21.  A  partj  is  not  disipialified  from  petitioning 
in  another  bankmptcj,  bj  reanoa  of  hia  being 
biaaeir  an  oncertificated  baahropt.  Saver,  ex 
'''^        (a.)  491. 


11.  A  petition  to  remove  assignees  o*  the 
groond  of  eoDnaioB,  tosoreharge  and  ftbilj  their 
aeeoants,  and  refer  the  aolicitori  sad  aeeountants' 
bills  to  be  taxed,  beU  onihiftnoas,  and  that  it 
Blight  be  disBiissJEd  m  IpCs,  or  in  part ;  and  the 
petition  as  against  the  aeoonntants  disroiiacd  with 
coats.  Knight,  ex  parte,  2  Deae.  (a.)  215;  and 
3  M.  4k  Ajr.  58. 


12.  A  petitHW  to  move  can  onlj  be  made  after 
an  expreas  re)eetioB  b^  the  eommnsiooer,  and  he 
is  not  estopped  bj  a  jodgraent  from  iaqoiring  as 
to  the  valjditj  of  the  debt  Maiaoii,ex  parte,2 
Deae.  (a.)  245. 

13.  The  eonrt  will  not  impoae  on  a  judge  the 
tnmbfe  of  prodneing  his  notes,  nnlem  good  groond 
be  shown  fiir  a  new  trial.  Church,  ex  parte,  (a.) 
72;  and  8.  C.  3  M.  4k  Ajr.  15. 

14.  In  taxing  the  coats  between  solicitor  and 
client,  if  the  registrar  allows  foar  retainera  of 
eoonsel,  be  oogfat  to  allow  fear  brieft;  held  alao, 
that  a  lee  to  coonael  for  settling  a  petition,  not  of 
coarre,  was  allowable.  Hadfield,  ex  parte,  2 
Deae.  (a.)  118;  and  8.  C.  Christy,ex  parte,3  M. 
4k  Ajr.  ^ 

15.  Costs  of  the  daj  on  postponement,  not  al- 
lowed where  eoansel  not  instrucied  on  the  other 
side  at  the  time  of  the  application  to  postpone. 
Hill,  ex  parte,  3  Deae.  (a.)  239. 

16.  Unopposed  motions  to  postpone  a  petition, 
rM|aire  the  consent  of  eoansel  on  the  otoer  side. 
Brodie,  ex  parte,  3  M.  4k  Ajr.  (a.)  205 ;  and  2 
Deae.  318. 

17.  Upon  appljing  for  a  petition  to  stand  over, 
it  mast  be  on  pajment  of  full  costs  of  the  daj. 
Kent,  ex  parte,  2  Deae.  (a.)  287. 

18.  Where  the  eopj  of  the  petition  is  not  pro- 
dnoed,  a  party  ooold  not  be  allowed  to  depose  to 


and  the 


an  order 

between  the  bankrupt 

the  qoestiona  between  them. 


apetatJoB bj  two  crediton,  to  aetit  aaide,  dismiss- 
ed with  costs.  Jerrard,  ex  parte,3M.  4k  Ajr.  (a.) 
356. 

23.  Several  alBdavita  being  referred  and  one 
onl J  certified  aeandalooB,  the  partj  ordered  to  paj 
the  balance  on  taxing  the  coata.  Knight,  ex 
parte,  3  Bl  4k  Ajr.  (a.)  143. 


24.  AU  proceeding  '^7*!!'  nntil  aeearitv  for 
coata  given,  the  petitioner  being  in  Scotlana  and 
no  step  taken  bj  the  respondent.  Soott,  ex  parte, 
3  M.  4k  Ajr.  (a.)  393. 


25.  PetitioB  ofdered  to  atand  over  generallj, 
nntil  spcoritj  for  costs  given,  where  the  petitioBer 
described  hmiself  ovt  of  the  jorisdictioB  of  the 
coart.  Scott,ex  parte,2  Deae.  (a.)  566;  andS 
M.  4k  Ajr.  433. 

26.  A  creditor  petitioning  to  tax  the  bill  of  the 
petitioning  creditor's  solicitor,  before  the  commis- 
sioner had  compfeted  his  taxation,  held,  irregolar, 
and  the  petition  diamiaaed  with  costs.  Lacaa,  ex 
parte,  2  Deae.  (a.)  fSBL 

• 

27.  A  petition  is  neeessarv  to  set  aside  an  order 
in  bankmptcj  irregnlarlj  obtained.  Haward,  ex 
parte,  3  Mont.  &  Ajr.  (a.  c.)  608 ;  and  3  Deao« 

26.  The  practice  is  to  hear  the  petition,  and  if  it 
appears  that  the  Jp^rtiea  are  at  issae  on  anj 
matter  of  ftct,  to  direct  a  vrsd  voce  examination, 
l^te,  ex  parte,  3  Deae.  (a.  c.)  516. 

29.  Where  one  of  the  jndffea  of  the  Court  of 
Review  had  refosed  to  certuj  a  special  caae  as 
being  a  qoestion  of  fact,  a  petition  of  appeal  dis- 
missed with  costs.  Woodward,  ex  parte,  3  Deae. 
(a.)  293. 

30.  The  mere  cireamstance  of  a  petition  stand- 
ing over  does  not  prevent  the  partj  from  filing 
fresh  affidavits;  but  if  filed  late,  time  will  be 
given  to  answer.  WorthingU>n,ex  parte,  3  Deae. 
(a.  c.)  332. 

31.  Where  on  a  petition  for  rehearing,  an  af- 
fidavit contains  additional  facta,  known  on  the 
former  hearing,  a  aapplemental  petition  ought  to 
be  filed.    fiocSEer,  ex  parte,  3  Deae.  (a.  c.)  347. 

32.  Where  there  is  no  variation  between  the 


[BANKRUPT] 


2713 


order  and  tlie  ninates,  the  eooit  will  not  ▼■?▼  the 
litter,  bat  leave  the  pArty  to  petition  for  lenear- 
ing.    Dolly,  ez  parte,  3  Deac.  ^b.)  51. 

33.  Where  costa  are  ordered  to  be  pnid  to  the 
bankrupt  or  hia  solicitor,  a  demand  by  the  former 
ia  eufficient  to  ground  a  motion  for  committal. 
Diack,  ex  parte,  3  Deac.  (a.)  53. 

34.  A  petitioner  cannot,  by  not  opening  his 
petition,  prevent  the  respondent  having  the  costs 
of  his  affidavits ;  if  not  filed  in  time,  and  the  pe- 
titioner thinks  they  ought  to  be  excluded,  he 
ahould  apply  for  a  rehearing.  Sidebotham,  ex 
parte,  3  Deac. 


496. 


(B.  c.)  221 ;  and  3  Mont.  A  Ayr. 


35.  On  a  reference  to  appoint  a  trustee,  it  is 
not  neoessary  to  confirm  the  report :  aUter,  if  the 
officer  is  to  select  and  report  his  nomination  to 
the  court.  Anon.  3  Deac.  (b.  c.)  233;  S.  C. 
llaaefield,  ez  parte,  3  Mont.  Hl  Ayr.  487. 

36.  On  a  petition  for  the  appointment  of  a  new 
trustee  in  place  of  the  bankrupt,  held,  that  if 
■erved,  he  is  entitled  to  have  his  coats.  Whitley, 
ez  parte,  3  Mont  A,  Ayr.  (b.  c)  696. 

37.  On  application  for  a  special  case,  the  grounds 
of  appeal  must  be  stated  to  the  judee  ctjrtifying 
it,  and  the  caae  must  stale  the  &ct8  found  by  the 
court,  not  the  evidence  of  them.  Wilson,  ex  parte, 
3  Deac.  (b.  c.)  214. 

38.  Where  the  affidavit  in  answer  to  a  petition 
referred  to  exhibits,  being  extracts  and  copies  of 
accounts  relating  to  the  petitioner's  debt,  but  not 
mutual  accounts  between  the  bankrupt  and  the 
petitioner,  the  court  refused  to  order  copies  to  be 
nirntahed  to  the  bankrupt,  before  the  bearing  of 
the  petition.    Parr,  ex  parte,  3  Deac.  (b.)  607. 

39.  Where  the  affidavits  were  directly  contra- 
dictory, the  court  would  not  decide  on  probabili- 
ties, but  allow  a  viva  voce  examination  of  parties, 
or  an  issue.    Bunn,  ez  parte,  3  Deac.  (b.  c.)  120. 

40.  Where  counsel  not  being  prepared  with  an 
affidavit,  the  petition  is  ordered  to  stand  over,  it 
cannot  keep  its  place  in  the  paper,  if  the  party  in 
the  following  petition  objects.  Crossley,  ex  parte, 
3  Deac.  (b.  c.)  404 ;  and  1  Mont.  A  Ch.  93. 

41.  Where  the  application  to  remove  the  fiai 
from  Norfolk  to  town  was  refused,  the  court  held, 
that  to  dispense  with  the  attendance  of  the  peti- 
tioning creditor  at  the  opening,  must  be  the  sub- 
ject of  a  separate  application.  Wright,  ex  parte, 
1  Mont.  &  Ch.  (b.)  144. 

42.  On  a  petition  to  annul  a  joint  jEol,  one 
only  having  been  found  bankrupt,  held  that  the 
affidavit  ought  to  have  been  entitled,  **in  the 
matter  of  A.  and  B."  Fisher,  ez  parte,  3  Deac. 
(fi.)  695. 

And  rid,  9upra^  and  infra. 


[O]  Solicitor. 

1.  The  solicitor  has  no  lien  against  the  estate, 
but  his  right  is  against  the  assignees  personally. 
Where  an  action  was  brought  against  the  official 


assignee  by  the  bankrupt,  who  dispoted  the  bank- 
ruptcy, the  court  refused  to  order  the  official  as* 
signee  to  pay  the  amount  to  the  solicitor,  but  the 
assignees,  with  liberty  to  retain  out  of  the  estate. 
Where  actions  are  brought  against  the  official  as- 
signee, it  is  his  duty  to  apply  to  the  court,  who 
Will  extend  to  him  the  same  protection  as  the 
court  of  equity  does  to  receivers,  Rains,  ez 
parte,  2  Deac.  (s.)  229  ;  and  3  M.  &  Ayr.  51 . 

• 

2.  The  court  has  no  jurisdiction  to  order  the 
executor  of  a  deceased  solicitor  to  pay  costs  of 
taxation;  and  sembUj  not  to  refuna  a  balance 
found  to  be  due,  if  assets  were  not  admitted ;  but 
an  inquiry  might  be  had  as  to  assets.  Spackman, 
ez  parte,  3  M.  &r  Ayr.  (b.)  135. 

3.  Where  a  solicitor  was  employed  on  business 
not  taxable,  and  being  required  to  strike  a  docket, 
which,  not  having  been  admitted  as  a  solicitor  in 
bankruptoy,  be  employed  another  to  do;  held, 
that  his  bill  containing  the  latter  as  texable  mat- 
ter, he  could  not  split  it  to  avoid  a  taxation  of 
part.  Cass,  ex  parte,  4  Deac.  (b.)  718 )  and  2  M. 
&  Ayr.  170. 

4.  After  an  order  for  texation  he  cannot  with- 
draw items  inserted  by  misUke,  so  as  to  exclude 
them  from  the  calculation  of  one-sixth  of  the 
whole ;  and  where  after  taxation  by  the  commis- 
sioners, a  re-tazation  by  the  officer  la  ordered,  the 
sums  tazed  off  by  the  commissioners,  and  dis- 
allowed by  the  officer,  are  to  be  included  in  the 
calculation.  (Diss.  Erskine,  C.  J.)  Hadfield,ez 
parte,  2  Deac.  (a.)  113;  and  S.  C.  Christy,  ex 
parte,  3  M.  d&  Ayr.  100. 

5.  A  bill  conteining  a  charge  for  attending  the 
commissioners  on  benalf  of  an  equiteble  mort- 
gagee held  taxable.  Williams,  ez  parte,  1  Deac. 
(B.)  469;  and  2  M.  &  Ayr.  578. 

6.  Where  the  solicitor's  bill  up  to  the  choice  of 
assignees  had  been  tezed  by  the  commissioners^ 
and  paid  upwards  of  two  years,  the  court,  at  the 
instauce  of  a  creditor,  directed  a  re-tazation,  on 
objectionable  items  stoted  in  the  affidavit,  though 
not  in  the  petition,  without  bringing  the  petition- 
ing creditor  before  the  court.  Moore,  ez  parte,  1 
Deac.  (b.)  578. 

7.  One  of  three  petitioning  creditors  held  eA<^ 
titled  to  petition  for  the  taxation,  undertaking  to 
pay  the  coste  of  the  action  commenced  ;  and  tho 
order  was  a  suspension ;  and  the  practice  in  bank- 
ruptoy is  to  give  coste  where  one-sixth  is  taken  off^ 
whether  an  action  has  been  commenced  or  not. 
Watte,  ex  parte,  1  Deac.  (b.)  588 ;  and  2  M.  d& 
Ayr.  681. 

8.  A  solicitor  will  not  be  allowed  beyond  1/. 
for  himself  and  clerk  at  each  meeting,  unless  a 
necessity  be  shown  for  an  extra  clerk ;  advertise- 
menta  in  country  papers,  afler  being  advertised 
in  the  Oazette,  will  not  be  allowed.  Hadfield, 
ex  parte,  2  Deac.  (b.)  121 ;  and  S.  C.  Christy,  ez 
parte,  3  M.  &  Ayr.  96. 

9.  After  an  order  for  taxation  the  bill  cannot  be 
altered  by  insertinf  items,  or  withdrawing  others ; 
and  the  court  will  only  hear  exceptions  to  taxa- 
tion where  involvings  question  of  principle.    Ib« 

10.  An  order  for  taxation  of  a  aolieitor't  bill  iu. 


S714 


[BANKRUPT— BARON  AND  FEME] 


bankraptcj,  become  insolvent  as  against  his  as- 
signee, dismissed  with  costs  Simpson,  ex  parte,  3 
M!  Hl  Ayr.  (b.)  223 ;  and  2  Deac.  400. 

11.  The  coart  refused  to  allow  the  name  of  a 
commissioner  to  be  struck  out  of  the  fiat,  to  en- 
able him  to  act  as  solicitor  to  the  commission. 
Brinton,  ex  parte,  3  Mont.  &  Ayr.  (b.)  395. 

12.  Where  the  solicitor  to  the  fiat  was  also  a 
mortgagee  of  the  bankrupt's  estate ;  held,  that  he 
might  tender  provisional  biddings  at  the  sale  for 
iht  protection  of  his  own  interests,  reserving  all 
farther  considerations  until  afler  the  sale,  and 
another  solicitor  to  be  appointed  to  conduct  the 
sale.  Briggs,  ex  parte,  3  Oeac.  (b.  c.)  2^^;  and 
3  Mont.  6l  Ayr.  585. 

13.  Where  the  petitioner,  a  creditor,  who  had 
only  lately  proved,  applied  to  re-tax  the  solicitor's 
bill,  which  had  been  taxed  and  paid  two  years 
«go ;  held,  that  upon  the  general  jurisdiction,  he 
-was  not  precluded,  but  that  the  objectionable 
items  mast  be  pointed  out,  and  he  cannot  refer 
to  them  in  the  bill  of  costs  not  set  out  in  the  pe- 
tition; and  if  the  petitioning  creditor  or  his  soli- 
citor have  received  part  of  the  estate,  they  must 
be  parties.  Moore,  ex  parte,  3  Mont  &  Ayr. 
^(b.  c.)  699. 

14.  The  court  will  not  delay  the  dividend 
<where  the  solicitor  does  not  take  in  his  bill  in  a 
seasonable  time,  and  a  petition  that  unless  he  de- 
'livered  it  in  for  taxation,  the  dividend  might  be 
•declared,  dismissed.  Monk,  ex  parte,  3  Mont,  dk 
Ayr.  (b.  c.)  626. 

15.  Upon  a  petition  to  tax  the  solicitor's  and 
also  the  messenger's  bill,  the  objection  that  the 
petition  was  multifarious,  over-ruled;  but  held 
irregular  to  bring  the  latter  before  the  court,  and 
directed  that  the  payment  of  his  costs  should  de- 

Prad    nltimately  on    the  taxation    of  his    bill, 
ring,  ezparte,  3  Mont  &  Ayr.  (b.  c.)  607 ;  and 
3  Deae.  322. 

16.  Where  the  bill  is  taxed  after  the  death  of 
tlie  solicitor,  his  representatives  will  not  be  order- 
ed to  pay  the  costs  of  taxation,  although  more 
than  a  sixth  be  taken  off:  and  the  court  refused  to 
«llow  them  to  be  set  off  against  the  costs  of  an 
-action  brought  against  assignees  for  the  reco- 
very of  the  amount.  Hammond,  ex  parte,  1 
Mont  dL  Ch.  (b.)  136. 

17.  Where  one  only  of  three  assignees  required 
the  commissioners  to  tax  the  solicitor's  bills, 
which  was  at  first  refused,  but  the  commissioners 
afterwards  professed  to  tax  four  of  the  bills  (12 
in  number),  the  others  not  concurring,  and  a 
flmall  sum  being  taken  off,  the  bills  were  paid ; 
held,  that  the  assignee  was  not  estopped  by  such 
payment  from  applying  for  an  order  of  taxation, 
but  that  he  must  either  make  his  co-nssignees  par- 
ties or  serve  them  with  the  petition.  Fosbrooke,  ex 
parte,  3  Dcac.  (b.)  687;  and  1  Mont.  &  Ch.  176. 

18.  In  the  case  of  petitioning  creditor  and  so- 
licitor, the  court  has  jurisdiction  to  tax,  where 
the  items,  if  allowed,  come  out  of  the  estate. 
Davis,  ex  parte,  3  Mont  &  Ayr.  (b.  c.)  624;  and 
3  Deac.  320. 


BARON  AND  FEM£. 

[A]  Rights  op  Husbaitd. 

[B]  Op  the  wifb. 
[CJ  Inter  se. 


[A]  Rights  of  HussAffn. 

1.  Where  the  goods  were  supplied  to  the  wife 
living  apart  from  the  husband,  and  kept  in  igno- 
rance of  the  marriage  of  his  daughter,  for  whose 
use  the  wife  had  ordered  part,  and  the  rest  for 
the  purpose  of  balls,  dec ,  against  the  express  re- 
monstrance of  the  husband,  and  to  wnom  the 
plaintiff  never  made  any  reference  ;  held,  that 
not  being  necessary  nor  suitable,  the  husband 
was  not  liable.  Atkins  9.  Curwood,  7  C.  dk  P. 
(M.  F.)  756. 

.  2.  Money  lent  to  the  wife,  or  expended  at  her 
request,  in  supporting  an  indictment  against  the 
husband  for  assaulting  her,  cannot  be  recovered 
in  an  action  against  him,  such  a  proceeding  not 
being  necessary  to  her  protection ;  tliUr  in  the 
case  of  exhibiting  articles  of  the  peace  against 
him.     Grindallv.  Grodmand,  1  Nev.  dt  P.  (k.  b.) 

And  see  Shepherd  v.  Mackoul,  3  Campb.  326. 

3.  Where  the  father  has  the  custodv  of  the 
children,  and  they  are  obtained  from  nim,  the 
court  will  restore  them  to  him  as  to  the  Iwd 
custodv ;  and  will  only  not  act  upon  its  jurisclio- 
tion  where  there  is  danger  in  entrusting  them  to 
his  care.  Rex  v.  Greenhill,  6  Nev.  &>  M.  (k.  b.) 
244  ;  and  4  Ad.  &  £11.  624. 

And  see  Rex  v.  Dobhyn,  lb.  644 ;  and  Rez  v. 
Wilson,  lb. 

4.  Where  the  wife's  property  was  settled  on 
default  of  issue  on  the  wife's  next  of  kin,  she 
being  illegitimate,  held  that  her  husband,  taking 
out  administration,  was  entitled  to  the  fund,  ana 
not  the  crown.  Hawkins  v.  Hawkms,  7  Sim. 
(ch.)  173. 

5.  And  the  fund  having  been  devised  to  tmst- 
ees  for  the  use  and  benefit  of  the  wife,  to  be  paid 
and  settled  on  her  for  life  in  case  of  marriage ;  if 
not,  the  interest  to  be  paid  to  her,  and  in  the 
event  of  her  not  marrying,  or  dyin^,  then  over ; 
held  that  the  husband  taking  out  aaministration, 
was  entitled,     lb. 

6.  In  an  action  for  beer  and  spirituous  liquors 
supplied  to  the  defendant's  wife,  he  being  gener- 
ally absent,  and  a  stranger  having  cautioned  the 
plaintiff  that  the  defendant  would  not  pay  for  such 
articles,  and  more  than  sufficient  had  been  paid  to 
cover  tlie  amount  of  the  beer  supplied  ;  held,  that 
it  was  for  the  plaintiff  to  show  that  the  wife  con- 
tracted the  debt  by  the  authority  of  her  husband, 
and  not  for  the  latter  to  prove  having  given  notice 
to  the  plaintiff  not  to  supply  the  goods  to  his  wife, 
Spreadbury  v.  Chapman,  8  C.  dk  P.  (iv.  p.)  371. 

7.  Where  the  husband  and  wife  are  living  apart, 
the   husband  allowing  her  a  soffieient  mainte- 


[BARON  AND  FEME] 


2716 


nance ;  held  that  he  was  not  liable  for  necessa- 
ries supplied,  and  it  is  immaterial  whether  the 
tradesman  has  notice  or  not.  Mizen  r.  Pick,  3 
Mees.  &,  W.  (ex.)  481. 

8.  Where,  in  an  action  against  the  husband  for 
supplies  to  the  wife,  living  separate,  and  only  a 
payment  of  a  sum  into  court  pleaded ;  held,  that 
the  defendant  thereby  admitting  the  authority  to 
contract,  it  was  a  question  only  of  amount,  but 
that  she  could  not  pledge  his  credit  beyond  what 
would  be  reasonable  and  necessary  for  her  subsis- 
tence; the  bill,  140/.,  being  for  horses  and  car- 
riages let  on  hire  for  10  months,  and  73/.  paid 
into  court,  the  jury  found  for  the  defendant  £m- 
mett  0.  Norton,  8  C.  <&  P.  (n.  p.)  506. 

9.  But  he  will  not  be  liable  to  any  extent  if 
she  be  living  apart  in  adultery :  the  verdict,  how- 
ever, in  an  action  for  cnm.  con.  being  inter  alios 
partes^  is  not  evidence  in  the  action  for  such  sup- 
plies ;  and  if  the  husband  inform  the  tradesman 
that  she  is  living  in  adultery,  he  will  not  be  liable 
beyond  necessaries,  although  he  does  not  prove, 
the  adultery.  Hardie  v.  Grant,  8  C.  &  P.  (n.  p.) 
512. 

10.  In  an  action  for  coals  supplied  to  the  wife, 
living  separate,  held  that  he  was  liable,  unless 
the  wife  be  shown  to  haye  a  competent  provision, 
and  it  lies  on  him  to  show  that,  and  a  mere  notice 
that  he  will  not  paj  is  not  sufficient  to  relieve 
him  from  the  liability :  where  the  tradesman 
served  both,  and  agreed  with  the  husband  not  to 
charge  him  with  the  goods  supplied  to  the  wife, 
he  could  not  recover  from  the  husband.  Dixon 
».  Hurrcll,  8  C.  &  P.  {«.  p.)  717. 

11.  In  case  by  husband  and  wife  for  slander  of 
the  latter,  held  that  special  damage  for  loss  of  the 
wife*s  service  could  not  be  recovered,  which 
would  accrue  to  the  husband  alone.  Dengate  v. 
Gardiner,  4  Mees.  &  W.  (ex.)  5. 

12.  Where  the  wife  of  the  defendant  took  her 
niece  to  the  plaintiff's  school,  and  there  was 
sliffht  evidence  of  her  agency  in  ordinary  house- 
hold expenses,  which  was  objected  to  as  madmis- 
sible,  the  court  considering  it  some,  although 
slight,  evidence  to  ^o  to  the  jury,  refused  to  dis- 
turb the  verdict.  M'George  v.  £gan,  5  Bing.  N. 
S.  (c.  p.)  196. 

13.  In  a  cause  of  divorce,  the  costs  of  the  wife 
taxed  against  the  husband,  although  she  possess- 
ed a  separate  and  permanent  income,  and  that  of 
the  husband  was  variable,  it  not  appearing  that 
her  income  was  adequate  to  her  support,  and  also 
payment  of  the  costs.  Belcher  v.  Bielcher,  1 
Curt,  (archks)  444. 

14.  But  where  be  had  been  recently  discharged 
under  the  Insolvent  'Act,  the  court  refused  the 
application  against  him,  although  the  wife  had  no 
separate  property.     Walker  v.  Walker,  lb.  560. 

15.  Where  husband  and  wife  perished  at  sea, 
the  husband  at  the  time  the  vessel  struck  being 
on  deck,  and  the  wife  and  child  below,  there  being 
no  evidence  of  the  latter  having  survived,  ad- 
ministration with  the  will  annexed  granted  to  the 
next  of  kin  of  the  husband  as  a  widower.  In  the 
Goods  of  Murray,  1  Curt,  (prkr.)  596. 

And  see  Action;  Arrest. 
Vol.  IV.  56 


[B]        Of  the  wife. 

1 .  Where  afler  an  informal  marriage  contract 
in  Holland,  where  the  parties  were  domiciled, 
upon  the  death  of  the  father  and  second  marriage, 
and  birth  of  children  in  this  country,  the  rights 
of  the  children  were  settled  under  a  judicial  pro- 
cess in  Holland,  and  each  declared  entitled  to  one- 
fourth  of  the  mother's  personal  estate  ;  held,  that 
their  rights  so  ascertained,  whilst  they  continued 
domiciled  in  this  country,  were  to  be  administered 
according  to  the  law  of  this  country,  and  that  the 
father  was  entitled  to  the  enjoyment  of  the  chil- 
dren's property  until  they  attained  18,  as  by  the 
law  of  Holland  he  would  have  been.  Grambier 
V.  Gambier,  7  Sim.  (cu.)  263. 

2.  Where  afler  the  marriage  of  a  female  ward 
of  the  court,  a  moiety  of  a  plantation  estate  in 
Demerara,  her  property,  was  settled  for  the  bene- 
fit of  her  and  of  the  children  of  the  marriage,  bat 
which  settlement,  by  the  colonial  law,  was  void  ; 
and  she,  with  her  husband,  aflerwards  mortgaged 
the  estate  ;  held,  that  the  equity  of  the  wiie  only 
attached  to  the  person  of  the  husband  and  not 
upon  the  estate,  and  that  the  mortgagees,  though 
having  filU  notice,  were  not  a&cted  by  that 
equity.  Martin  v.  Martin,  2  Russ.  &,  M.  (ch.) 
507. 

3.  A  bequest  of  the  residue  to  A.  and  B.,  one  a 
married  woman  and  the  other  her  daughter,  for 
their  own  use  and  benefit,  "  independent  of  any 
other  person ;"  held  to  include  the  husband,  and 
that  they  were  entitled  for  their  separate  use. 
Margetts  v,  Barringer,  7  Sim.  (ch.)  4fe. 

4.  Where  the  wife  was  deranged  and  had  been 
deserted  by  her  husband,  part  of  the  capital  of  a 
fund  in  court,  to  which  she  was  entitled^  ordered 
to  be  applied  to  her  maintenance.  Peters  0. 
Grote,  7  Sim.  (ch.)  238. 

5.  Where  upon  a  separation  a  counterpart  was 
prepared  for  the  wife's  trustees ;  held,  that  it  was 
not  to  be  considered  a  necessary  for  the  wife,  so 
as  to  enable  the. wife's  trustees  to  recover  for  the 
expense  of  preparing  it.  Ladd  v.  Lynn,  2  Mees. 
&  W.  (ex.)  265. 

6.  Where  the  wife  having  separate  property, 
employed  and  undertook  to  pay  the  attorney  out 
of  ner  own  estate,  which  was  afterwards  sought 
to  be  enforced  by  bill  against  her,  semble^  that  if 
on  taxation  more  than  one-sixth  of  the  bill  were 
taken  off,  the  solicitor  would  be  entitled  to  the 
costs  of  taxation.  Murray  v.  Bailee,  7  Sim.  (ch.) 
194. 

7.  Where  a  feme  sole  executed  a  transfer  of 
stock  to  trustees,  who  executed  a  declaration  of 
the  trust  to  be  to  her  for  life,  for  her  sole  and 
separate  use,  and  free  from  the  control  of  any 
husband,  and  afler  her  death  to  such  uses  as  she 
should  appoint,  and  for  default  thereof  in  trust 
to  the  use  of  herself,  her  executors,  <S:c. ;  she 
afterwards  married,  and  by  deed,  reciting  the 
settlement,  executed  by  her  husband  and  herself, 
assigned  the  dividends  in  trust  to  secure  an  an- 
nuity granted  by  the  husband ;  held,  that  his 
joining  in  the  deed  operated  as  a  confirmation  of 
the  deed  of  settlement,  and  that  the  assignment 
by  the  wife  was  valid.  Maber  v.  Hobbs,  2  Tounge 
(ex.  E<i.)  317. 


«716 


[BARON  AND  FEME] 


8.  Where,  in  an  action  for  goods  sold,  defendant 
pleaded  coverture ;  replication,  that  the  huRband 
was  an  alien,  and  never  within  the  kingdom,  and 
that  the  promises  were  made  and  cause  of  action 
accrued  whilst  the  defendant  was  living  separate, 
and  that  she  contracted  and  promised  as  tLfcme 
sole;  rejoinder,  traversing  each  of  these  facts; 
held,  that  on  such  issues  the  plaintiff  was  bound  to 
prove  that  the  defendant  represented  herself  to 
be  A  feme  sole  to  the  plaintiff,  or  that  he  dealt  with 
her  believing  her  to  be  such ;  and  that  her  deal- 
ings with  other  persons,  and  representations  that 
she  was  a  feme  sole,  were  inadmissible,  unless  so 
made  as  to  come  to  tlie  plaintiff's  knowledge, 
fiarden  v.  De  Kevcrbcrg,2  Mees.  &  W.  (ex.)  61. 

9.  The  court,  on  petition,  took  the  consent  of 
the  wife,  though  a  minor,  to  have  a  sum  paid 
over  to  the  husband.  Gullin  v.  Gullin,  7  Sim. 
(CH.)  83a 

10.  Where  the  wife  was  sued  before  marriage, 
and  the  plaintiff  afterwards  proceeded  and  took 
her  in  execution,  it  not  being  sworn  that  she  had 
no  separate  property,  the  court  refused  to  dis- 
charge her,  but  left  the  husband  to  bring  his  writ 
of  error.  Evans©.  Chester,  6  Dowl.  (p.  c.)  140  ; 
and  2  Mees.  &  W.  (ex.)  847. 

11.  On  a  plea  of  coverture,  a  letter  written  by 
the  husband  (being  abroad)  in  answer  to  one 
shortly  before  addressed  to  him,  held  admissible, 
and  BufHcient  to  entitle  the  defendant  to  a  verdict. 
Reed  r.  Norman,  8  C.  <&  P.  (n.  p.)  65. 

13.  Where  a  bond  was  assigned  to  trustees  for 
such  intents  and  purposes  as  P.,  a  feme  coverte^ 
should  direct  and  appoint,  and  she  afterwards  ap- 
pointed her  interest  to  certain  parties,  in  order  to 
indemnify  them  in  case  of  their  not  being  able 
to  recover  monies  appropriated  by  her  husband, 
their  solicitor ;  held,  1st,  to  be  a  trust  executed,  to 
which,  although  the  consideration  had  not  been 
available,  the  court  would  give  effect,  and  2dly, 
that  tlie  appointees  were  entitled  to  file  a  supple- 
mental bill  to  have  the  benefit  of  a  suit  instituted 
for  having  the  interest  declared,  and  become  de- 
fective by  the  bankruptcy  of  P.'s  husband.  Col- 
linson  v.  Patrick,  2  Keene,  (ch.)  123. 

13.  The  wife  of  a  person  who  has  taken  the 
benefit  of  the  Insolvent  Act,  and  no  settlement 
upon  her  marriage,  held  entitled  to  have  a  fund 
in  court  applied  for  the  benefit  of  herself  and 
children.  Brett  v.  Grecnwell,  3  Younge  <&  C. 
(EX.  Eq.)  230. 

14.  Upon  a  devise,  gifl  or  settlement  of  pro« 
perty  to  a  woman  for  her  separate  use,  and  inde- 
pendent of  the  control  of  any  husband,  it  may  be 
enjoyed  by  her  as  separate  estate,  although  it  may 
▼est  in  her  whilst  originally  covert,  or  smgle,  or 
becoming  subsequently  discovert;  and  the  nature 
and  extent  of  her  powers  will  be  collected  by  the 
court  from  the  terms  in  which  the  gif\  is  made  to 
her  ;  if  made  without  more  ihan  "  for  her  sole 
and  separate  use,"  she  has  during  the  coverture 
an  alienable  estate  independent  of  her  husband ; 
if  "  without  power  to  alienate,"  she  has  the  pre- 
sent enjoyment  of  an  unalienable  estate,  inde- 

Eendent  of  him  ;  and  in  either  of  such  cases,  she 
as  a  power  of  alienation  when  discovert,  the 
restraint  being  annexed  to  the  separate  estate 
only,  of  which  it  is  only  a  modification,  nnd  tlie 
separate  estate  existing  only  during  coverture ;  ' 


whilst  discovert,  the  separate  estate,  whether 
modified  by  restraint  or  not,  is  suspended,  al- 
though capable  of  arising  upon  the  happening  of 
a  marriage ;  where,  therefore,  the  wife  was  enti- 
tled to  a  life  interest  in  two  separate  estates,  one 
modified  by  the  restraint,  the  other  not,  and  she 
had  assigned  her  interest  as  security  for  annui- 
ties granted  by  her  and  her  husband,  held  that 
the  grantee  acquired  no  right  under  his  security 
as  against  the  former,  but  was  entitled  in  respect 
of  the  latter  to  relief,  and  for  a  receiver  and  ac- 
count. Tullett  V.  Armstrong,  1  Beav.  (ch.)  1 ; 
reviewing  the  cases. 

15.  So  where  the  woman,  being  a  widow  at  the 
date  of  the  will  and  at  the  death  of  the  testator, 
aflerwards  married  ;  held,  that  the  husband  was 
not  entitled  to  the  separate  estate.  Scarborough 
V.  Bornian,  1  Beav.  (ch.)  34. 

16.  Where  the  devise  was  to  a  woman  unmar- 
ried, at  the  death  of  the  testator,  for  her  separate 
use,  and  without  power  of  anticipation,  and  she 
aflerwards  married,  became  discovert,  and  con- 
tracted a  second  marriage,  without  having  dis- 
posed of  the  property  wnilst discovert;  held,  thai 
the  clauses  of  separate  use  and  against  anticipa- 
tion attached  upon  the  latter  marriage.  Clarke 
V.  Jaques,  1  Beav.  (ch.)  36. 

17.  Where  the  wife  entitled  to  reversionary 
freehold  and  funded  estate  on  her  marriage,  set- 
tled it  to  her  separate  use,  and  her  first  husband 
dying  she  contracted  marriage  again  ',  held,  that 
she  was  entitled  to  the  interest  of  the  trust 
fund  for  her  separate  use.  Dixon  9.  Dixon,  1 
Beav.  (ch.)  40. 

18.  Where  a  prisoner  was  described  in  the 
indictment  as  a  single  woman,  but  had  been 
described   by  all  the  witnesses  as  the  wife  of  the 

I  other  prisoner,  and  passed  and  appeared  as 
such,  if  the  jury  were  satisfied  that  she  was  so  in 
fiict,  the  jury  ought  to  acquit,  notwithstanding 
she  had  pleaded  to  the  indictment.  R.  v.  Wood- 
ward and  another,  8  C.  &  P.  (k.  p.)  561. 

ID.  Where,  in  consideration  of  the  wife  pro- 
ceedincr  no  further  in  the  probecution  of  an  in- 
dictment fur  an  assault,  the  husband  agreed  to 
secure  her  an  annuity  ;  held  an  illegal  contract, 
and  that  in  a  creditor's  suit,  she  was  not  entitled 
to  come  in  as  a  creditor.  Garth  v.  Earnshaw,  3 
Younge  &  C  (ex.  kq.)  584. 

20.  Where  the  husband  and  wife  were  joined 
as  co-plaintiffj  in  a  suit  relating  to  the  wife's 
separate  estate,  the  court  refused  to  dismiss  the 
bill ;  but  on  giving  security  for  the  costs  incurred, 
allowed  tlie.  wife  to  amend  by  adding  a  next 
friend,  nnd  nnkinff  the  husband  a  defendant. 
England  r.  Downs,  I  Beav.  (ch.)  96. 

21.  Where  a  moiety  of  the  wife's  contingent 
interest  in  a  reversion  expectant  had  been  as- 
signed as  a  security  for  the  debt  of  the  husband, 
and  upon  the  contingency  hap{)ening,shc  insisted 
on  a  settlement,  and  a  moiety  was  settled  ;  held, 
that  the  aKsignment  passed  all  the  remaining 
moiety,  and  not  the  half  of  it;  held  also,  that  the 
wife's  costs  in  enforcing  her  equity  were  to  be  de- 
ducted from  the  entire  fund,  before  division. 
Archer  r.  Gardiner,  1  Coop.  (cii.  c.)  340. 


r 


[BARON  AND  FEME] 


2717 


32.  The  coart  will  enforce  the  payment  of  the 
alimony  decreed ;  nor  will  it  refuse  to  do  so  on 
the  mere  ground  that  the  wife  has  removed  out 
of  the  jurisdiction,  and  refuses  to  obey  an  order  of 
the  court  of  King's  Bench  for  delivering  up  the 
children  to  the  husband.  Greenhill  v.  Greenhill, 
1  Cart,  (cons.)  4&i. 


[C]  Inter  sr. 

1.  Where  the  wife  for  several  years  acquiesced 
in  her  husband's  receipt  of  her  pin-money,  and 
there  was  no  evidence  to  sustain  a  contract  or 
promise  to  pay  it,  or  of  continued  claim  of  it ; 
held,  that  the  Master  had  properly  allowed  only 
one  year's  amount.  Thrupp  v.  ilalman,  3  Myl. 
&.  K.  (CH.)  513. 

2.  Although  in  the  case  of  a  wife  consenting 
to  the  husband  receiving  money  of  hers,  her  con- 
sent in  court  would  be  sufficient;  yet,  where  the 
.wife  had  assigned  it  by  deed  to  a  trustee  as  to 
part  of  it  for  the  husband,  held,  that  the  bill  by 
Dotli  against  the  trustee,  to  give  effect  to  the  deedf, 
was  to  be  deemed  the  bill  of  the  husband  alone, 
and  that  she  ought  to  be  a  defendant.  Hanrott 
V.  Cadwallader,  2  Russ.  &>  M.  (ch.)  545. 

3.  Bequest  by  a  husband  to 'A.,  as  his  wife,  it 
afterwards  appearing  that  she  was  at  the  time 
married,  and  her  first  husband  still  living ;  held, 
not  invalid  by  such  false  description,  the  testator 
and  legatee  appearing  to  have  had  common  know- 
ledge of,  and  equally  guilty  of  the  criminal  act, 
which  did  not  affect  their  civil  rights ;  aliter,  if 
the  false  character  was  acquired  by  a  fraud  which 
had  deceived  the  testator.  Giles  v.  Giles,  1  K. 
(cH.)  685. 

4.  A  supplemental  bill  filed  by  her,  describing 
herself  as  A.  P.,  alias  A.  G.,  bv  her  next  friend 
against  the  first  husband,  in  order  to  make  him  a 
party ;  held,  not  to  be  such  an  alteration  in  the 
irame  of  the  record  as  to  render  the  evidence  ta- 
ken in  the  first  cause  inadmissible  at  the  hearing 
of  the  two  causes,  and  did  not  affect  the  liability 
of  a  witness  examined  in  the  former  suit  for  per- 
jury,   lb. 

5.  Upon  a  bill,  against  husband  and  wife, 
charging  fraud,  and  he  being  out  of  the  jurisdic- 
tion, she  by  her  answer  disclaimed  any  interest  in 
the  suit,  and  denied  that  she  had  any  separate 
property ;  held  insufficient,  being  bound  to  an- 
swer fully,  if  at  all.  Whiting  v.  Rush,  2  Tounge 
&  C.  (ex.  e«.)  546. 

6.  Where  by  a  deed  executed  after  marriage,  a 
power  was  given  of  jointuring,  which  was  sub- 
sequently executed,  held,  that  she  was  not  com- 
petent during  coverture,  to  elect  between  the 
jointure  and  her  right  of  dower,  and  a  consent  by 
her  counsel  to  release  her  jointure  was  not  bind- 
ing upon  her  after  her  husband's  decease.  Frank 
V.Frank,  3  Myl.  &  Cr.  (ch.)  171. 

7.  Where  an  annuity  was  settled  on  the  wife 
upon  the  marriage,  during  her  life,  to  pay  to  such 
persons  as,  notwithstanding  her  coverture,  she 
should  appoint,  and  in  default,  to  her  sole  and 
wparate  use ;  held,  that  on  the  death  of  the  hus- 


band, she  became  absolutely  entitled,  and  that 
upon  the  insolvency  of  her  second  husband, 
the  annuity  passed  to  his  assignee,  subject  to  the 
wife's  right  to  a  provision  out  of  it.  Bradley  r. 
Hughes,  8  Sim.  (cu.)  149. 

8.  Where  by  a  post-nuptial  settlement  the  hus 
band  and  wife  agreed  that  all  the  property  which 
she  was  or  nii^ht  become  entitled  to,  should  be 
held  in  trust  lor  her  for  life,  and  after  her  death 
for  the  husband,  and  after  the  death  of  the  survi- 
vor, to  such  children  as  the  wife  should  appoint, 
whether  begotten  by  her  then  or  any  future  hus- 
band, the  court  refused  to  give  effect  to  such  a 
settlement.  Halloway  7\  Headington,  8  Sim. 
(cH.)  324 ;  over-ruling  Ellis  r.  Nimmo,  Lloyd  6b 
G.  Rep.  333. 

9.  Where  a  part  of  residuary  estate  was  be- 
queathed to  one  of  the  plaintiffs,  a  married  wo- 
man, for  her  sole  and  separate  use,  without  power 
of  anticipation,  and  afterwards  to  her  children 
equally,  and  a  bill  was  filed  by  the  husband  and 
wife  and  the  children,  for  an  account;  held,  that 
as  regarded  the  wife,  it  being  to  be  considered 
the  suit  of  tlie  husband,  the  husband  ought  to 
have  been  made  a  defendant,  and  a  demurrer  for 
misjoinder  of  him  as  plaintiff,  allowed ;  but 
amendment  by  striking  out  his  name  as  plaintiff, 
and  making  him  a  defendant,  and  a  party  inserted 
as  plaintiff,  as  next  friend  of  the  wife  and  chil- 
dren, permitted.  Wake  ».  Parker,  2  Keene,  (ch.) 
59. 

10.  Upon  a  bequest  by  a  testatrix  of  a  fund  for 
the  separate  use  of  her  daughter  for  life,  and  af- 
terwards for  her  executors  and  administrators,  for 
their  own  absolute  use  and  benefit,  the  daughter 
bein^  separated  from  her  husband,  made  a  will, 
appointing  the  stock,  but  the  will  was  not  proved, 
and  the  husband  took  out  administration ;  held, 
that  the  daughter  had  no  power  to  appoint  the 
fund,  and  he  was  entitled  to  the  stock.  Wallis 
V.  Taylor,  8  Sim.  (ch.)  241. 

11.  Bequest  to  testator's  daughter  of  a  sum, 
with  a  direction  that  if  her  husband  should  be 
indebted  to  him  at  the  time  of  his  death,  the  debt 
should  be  deducted  from  the  legacy ;  the  husband 
dying  in  the  testator's  life  time,  held  that  the  per- 
sonaldebt  of  the  husband  was  not  to  be  deducted 
from  the  daughter's  legacy.  Davis  v.  Elmes,  1 
Beav.  (ch.)  131. 

12.  Where  premises  were  demised  to  husband 
and  wife,  and  the  former  let  them ;  held,  in  an 
action  for  an  injury  to  the  reversion,  that  the  wife 
ought  to  have  been  joined.  Wallis  v.  Harrison, 
5  Mees.  &  W.  (ex.)  142. 

13.  SenA.  wh^re  in  a  j^ettlement  the  joint  con- 
sent of  husband  and  wife  is  necessary  to  authoriie 
the  fund  to  b  *  left  outstanding  on  a  security,  they 
may  jointly  file  a  bill  to  have  the  trust  executed, 
although  the  fund  is  settled  to  the  wife's  separate 
use.  Kirby  v.  Mash,  3  Tounge  6c  C.  (e:x.  xq.) 
295. 

And  see  Action  ;  JinnuUy ;  Bankrupt ;  ChUdren; 
Copyhold;  Dower;  Indictment;  Infant;  Insol- 
vent; Libel;  PUading^  (c.  l.) 


2718 


[BASTARD— BILLS] 


BASTARD. 

1.  Upon  the  qoestjon  of  iUe^timacy,  neither 
the  motlv*r  nor  her  basband  are  competent  to 
prove  non-accen ;  where  therefore  the  husband 
fiad  been  ^ro»  ciamined  with  a  view  of  estab- 
liahing  facts  from  which  non-access  was  necessa- 
rily to  be  inferred,  held  that  the  sessions  impro- 
perly receired  such  eridence,  and  the  order  made 
thereupon  quashed.  Rex  r.  Sourton,  6  Nev.  & 
M.  (K.  s.)  575;  and  3  Ad.  &  £11. 180. 

And  see  2  Stark.  £v.  130, 2d  ed. 

2.  The  application  for  an  order  on  the  putatire 
&ther,  under  4  &  5  WiU.  4,  c.  76,  s.  72,  srmb. 
must  be  made  to  the  first  sessions  aller  the  child 
becomes  chargeable ;  where  no  explanation  was 
given  for  not  doinz  so,  held  that  it  was  afterwards 
too  late.    Rex  v.  Heath,  6  Ner.  «&  M.  (k.  b  )  345. 

3.  And  held,  (per  Coleridge,  J.)  that  it  is  for 
the  justices  to  determine  in  each  case,  whether 
the  application  could,  under  the  circumstances, 
have  been  made  sooner  with  effect.  Rex  r.  Ox- 
fordshire Justices,  6  Nev.  (k  M.  (k.  b.)  :351  ;  and 
5Dowl.  (p.  c.)  116. 

4.  The  4  &  5  Will.  4,  c.  76,  s.  57,  making  a 
bastard  part  of  the  family  of  the  mother's  ai\er- 
taken  husband  ;  held,  to  be  construed  with  refer- 
ence to  the  purpose  of  maintenance  only,  and  not 
of  settlement,  and  that  where  the  bastard  resided 
apart  from  the  mother,  it  was  removable  to  the 
place  of  birth,  and  not  to  the  residence  of  the 
mother.  Reg.  r.  Wendson,  3  Nev.  &,  P.  (q.  b.)  62. 

5.  An  order  of  filiation  at  sessions  upon  the 
evidence  of  the  mother,  and  corroboration  thereof, 
not  stating  it  to  be  in  some  material  particular, 
held  bad.  Reg.  v.  Read,  1  Perr.  &  Dav.  (q.  b.) 
413. 

6.  Where  the  order  of  filiation  bv  the  sessions 
did  not  expressly  adjudge  the  de&ndant  to  be 
the  &ther,  but  only  stated  the  court  to  be  satisfied 
of  that  fact,  held  to  be  a  sufficient  allegation  ; 
and  also  the  stating  generally  the  child  to  be 
chargeable,  by  reason  of  the  mother's  inability, 
without  going  on  to  state  the  circumstances ;  the 
chargeability  arising  on  8th  March,  and  the  ap- 
^ication  having  l^n  made  at  the  following 
Easter  sessions,  the  hearing  was  deferred  untU 
the  Mid-summer  sessions,  on  the  ground  of  the 
the  defendant  having  kept  out  of  the  way  to  avoid 
service  of  the  notice  of  application ;  held,  that  an 
order  made  at  the  latter  sessions  was  not  too 
late.    R.  V.  Lewis,  1  Perr.  &  D.  (q.  b.)  112. 

7.  Where  an  order  of  filiation  had  been  made 
by  iustices,  for  the  payment  of  a  weekly  sum, 
on  the  putative  father  of  a  bastard  child,  against 
which  no  appeal  had  been  made  for  being  exces- 
sive ;  held,  that  it  was  not  competent  to  the  jus- 
tice who  was  called  on  to  enforce  the  order  to 
inquire  whether  the  whole  sum  was  expended 
on  the  child,  and  a  mandamvs  granted.  Reg.  v, 
Godd,  1  Perr.  d^  Dav.  (q.  b.)  456. 

8.  Where  the  notice  of  application  to  the 
sessions  for  an  order  of  filiation,  served  upon 
the  putative  &ther,  was  signed  by  two  overseers 


and  one  guardian  of  the  parish,  having  abo  two 
churchwardens,  held  insufficient;  the  sections 
72  and  73  intending  that  the  majority  of  the  ag- 
grt'gate  body  constituting  the  overseers  should 
concur  in  signing  it,  and  that  the  sessions,  there- 
fore, properly  refused  to  hear  the  application 
founded  on  such  notice.  R.  r.  Cambridgeshire 
Justices,  7  Ad.  &  Ell.  (q.  b.)  480.  S.  P.  R.  r. 
Salop  Justices,  lb.  404 ;  and  R.  r.  Gloucester- 
shire Justices,  lb.  485. 

9.  And  the  notice  of  application  may  be  signed 
by  the  churchwardens  and  overseers,  although 
the  parish  forms  part  of  a  union,  and  sends  a 
guardian  to  the  board.  Reg.  v.  James,  1  Perr.  &, 
Dav.  (q.  b.)  4^. 

10.  Justices  in  petty  sessions  empowered  to 
make  orders  in  bastardy,    fiy  2  &  3  Vict.  e.  85. 

And  see  Eridence;  Poor;  Sessions;  Trespass. 


BEER. 

In  trespass  against  justices  for  seizing  plaintiff's 
goods  under  a  distress  for  a  penally  under  a  con- 
viction for  having  kept  open  his  beer  shop  at 
times  prohibited  by  the  justices  in  sessions,  held, 
that  the  conviction  was  bad,  for  not  averring  that 
that  the  sessions  made  such  order,  nor  at  what 
time  the  house  was  kept  open.  Newman  v.  Hard* 
wicke,  3  Nev.  dc  P.  (q.  b.)  368. 

And  see  Indictment. 


BENEFIT  SOCIETY. 
See  Bankruptcy;  Friendly  Society. 


BILLS. 

[A]  What   so— cohsideratiov — validitt 

STAMP. 

[B]  Accxptarcb. 

[C]  Trarsfxr. 

[D]    PRESBlfTMBNT. 

[E]  Notice  of  dishonor. 
£F]  Actions  ih  respect  of. 


[A]  What  so — consideration— validitt — 

STAMP. 

1.  Where  the  instrument  contained  an  abeolate 
promise  to  pay  the  amount,  and  was  properly 
stamped  as  a  note ;  held,  that  the  terms  being 
added,  *^and  I  have  deposited  title  deeds  as  a 
collateral  security  for  the  same,"  did  not  make  it 
less  a  note  assignable  within  the  statute.  Wise 
V.  Charlton,  6  Nev.  &  M.  (k.  b.)  364 ;  and  4  Ad. 
&  Ell.  786. 

2.  A  note  payable  with  interest  on  demuid  is  a 


[BILLS] 


2719 


present  debt,  and  the  statute  begins  to  ran  firom 
its  date.  Norton  v,  EUam,  2  Mees.  &  W.  |(ex.) 
461. 

3.  In  an  action  against  acceptor,  the  plea  being? 
that  the  plaintiff  received  the  bill  as  a  security 
for  differences  in  the  price  of  Spanish  stock  on  a 
given  day  ;  held,  that  the  price  of  the  stock  was 
an  immaterial  allegation ;  but  scTnb.  the  plaintiff 
was  entitled  to  judgment,  non  obst.  vercd.  for  the 
defendant.  Robson  v.  Faltows,  3  Bing.  N  S.  (c. 
p.)  392 ;  and  4  Sc.  43. 

And  see  Oaklj  v.  Rigby,  2  New  C.  732. 

4.  Addition  of  the  place  where  made  payable, 
after  acceptance,  hela  a  material  alteration,  and 
Titiating  the  acceptance.  Desbrowe  v.  Wether- 
by,  1  >f.  &  Rob.  (N.  p.)  438. 

5.  In  the  absence  of  any  evidence  by  the  con- 
stitution of  a  joint-stock  company,  or  any  autho- 
rity given  by  deed  or  otherwise ;  held,  that  the 
chairman  of  the  board  of  directors  had  no  impfied 
authority  to  bind  the  company  at  large  by  his  ac- 
ceptance of  bills  of  exchange,  and  that  payment 
by  members  of  the  company  of  bills  so  accepted 
before  they  became  members,  was  properly  found 
by  a  jury  as  holding  out  no  liability  on  similar 
bills  issued  after  they  became  members.  Bramah 
V.  Roberts,  3  Bing.  N.  S.  (c.  p.)  963. 

6.  Where  the  holder  of  joint  and  several  notes, 
upon  one  becoming  due,  agreed  with  one  of  the 
soretJes  to  accept  a  sum  in  full  satisfaction  of  the 
note  due,  and  or  the  moiety  for  which  the  surety 
was  liable  on  those  not  due,  which  was  paid,  and 
the  name  of  the  surety  erased  from  the  notes ; 
held,  that  it  discharged  also  the  other  parties. 
Nicholson  V.  Revell,  6  Nev.  dt  M.  (k.  b.)  ]93; 
and  4  Ad.  &  £11. 675 ;  questioning  ex  parte  Gif- 
ford,  6  Ves.  jun.  805. 


7.  Where  the  bill  was  in  the  hands  of  an  inno- 
cent indorsee  for  valuable  consideration,  and  be- 
fore issue  joined,  the  5  &6  Will.  4,  c.  41,  passed, 
making  such  bills  voidable  only ;  held  that  the 
act  was  prospective  only,  and  that  the  plaintiff 
could  not  avail  himself  of  the  act.  Hitchcock  v. 
Way,  2  Nev.  &  P.  (k.  b.)  72. 

8.  A  letter  in  the  terms  ^^  1  have  received  the 

sum  of /.,  which  1  borrowed  of  you,  and  1 

have  to  be  accountable  for  the  said  sum,  with 
legal  interest;"  held  an  agreement,  and  not  a 
promissory  note,  and  admissible  with  an  a|Tee- 
ment  stamp.  Home  v,  Redfearne,  4  Bing.  N.  S. 
(c.  p.)  433. 

9.  Where  the  plaintiff  and  defendant  had  sign- 
ed a  note  as  principal  and  surety,  and  after  issuing, 
the  name  of  a  third  party  was  added,  with  con- 
sent of  all  parties,  as  an  additional  surety;  held 
not  a  material  alteration,  so  as  to  require  an  addi- 
tional stamp.  Cattin  v.  Simpson,  3  Nev.  Sl  P. 
(<l.  B.)  248. 

10.  Where  in  assumpnt  against  acceptor  of  a 
bill  at  two  months,  the  word  two  appeared  to  have 
been  written  on  the  word  threey  wnich  had  been 
oneared,  the  stamp  being  sufficient  for  a  bill  at 
fioo,  but  not  for  one  at  mree  months ;  held,  that 
the  plaintiff  was  bound  to  show  by  evidence  <fe- 
karg  the  inatnunent  that  the  alteration  had  been 


I  properly  made.    Knight  v.  Clements,  3  Nev.  &> 
I  P.  (<l.  B.)  375. 

And  see  Bishop  v.  Chambre,  1  Mood.  &  M. 
116. 

11.  An  instrument,  whereby  the  party  pro- 
mised to  pay  a  sum  with  interest,  **  and  all  fines 
according  to  rule;"  held,  that  it  could  not  be 
declared  on  as  a  note,  and  the  count  thereon  being, 
joined  with  one  on  an  account  stated,  and  gene- 
ral damages  given,  a  ventre  de  novo  awarded.  Ay- 
rey  v.  Fearnsides,  4  Mees.  &,  W.  (£x.)  168 ;  and 
6  bowl.  (p.  c.)  654. 

12.  On  an  agreement  for  a  loan  at  a  usurious 
interest,  to  be  secured  as  advanced  by  notes  pay- 
able at  one  month  after  date,  and  to  be  renewed 
as  often  as  they  should  become  doe,  and  Is.  in 
the  pound  be  paid  on  each  renewal ;  held  within 
the  protection  of  the  3  <&  4  Will.  4,  c.  98.  Holt 
r.  Miers,  5  Mees.  &  W.  (ex.)  168 ;  questioning 
Terrewest,  ex  parte,  since  reversed  by  the  Lord 
Chancellor. 

And  now  see     Sl  3  Vict.  c.  37. 

13.  The  exemption  of  58  Greo.  3,  c.  93,  of  bills 
and  notes  given  for  usurious  consideration,  in  the 
hands  of  innocent  holders,  is  confined  to  the 
cases  where  such  holders  discount  or  pay  a  valu- 
able consideration  for  such  bills,  and  not  where 
they  receive  them  (although  innocently)  in  satis- 
faction of  an  antecedent  debt ;  held,  also,  that  the 
provisions  of  3  dS&  4  Will.  4,  c.  98,  are  not  confin- 
ed merely  to  bills  drawn  for  a  time  certain,  not 
having  more  than  three  months  to  run,  but  ap- 
ply also  to  such  as  are  payable  on  demand. 
Vallance  v.  Seddel,  6.  Ad.  &  £11.  {q,,  b.)  932. 

14.  Bills  and  notes  at  less  than  twelve  months 
date,  above  10/.,  not  to  be  affected  by  the  usury 
laws.    By  2  &  3  Vict.  c.  37. 

And  see  Evidence  ;  Stamp. 


[BJ    ACCEPTAHCE. 

1.  In  assumpsit  by  indorsee  against  acceptor, 
plea  that  the  defendant  did  not  accept  the  bill 
modjo  et  forma,  but  generally,  and  it  appeared  that 
the  acceptance  had  oeen,  without  his  knowledge, 
altered  by  the  addition  of  payment  at  a  particu- 
lar banker's,  where,  when  presented,  it  was  dis- 
honored, and  on  application  to  the  defendant  he 
denied  having  accepted  it  payable  there,  but  was 
always  ready  to  pay  at  his  own  place  of  residence ; 
held,  not  to  amount  to  an  acknowledgment  of  a 
subsisting  debt  to  entitle  the  plaintiff  to  recover  on 
an  account  stated.  Calvert  v.  Baker,  4  Mees. 
&  W.  (EX.)  417 ;  and  7  Dowl.  (p.  c.)  17. 

2.  Where  the  declaration  alleged  a  special  ac- 
ceptance, payable  at  a  certain  place,  ^  and  not 
elsewhere, '  which  latter  words  were  not  on  the 
bill ;  held,  to  constitute  an  allegation  of  a  special 
acceptance,  and  the  variance  fatal,  hut  that  the 
sheriff  was  bound  to  have  allowed  the  record  to 
be  amended  as  to  such  variance,  and  a  new  trial 
granted.    Higgins  v.  Nichols,  7  Dowl.  (p.  c.) 


m4 


[BILLS] 


[C] 


tn  MStmmfiAii  hj  b^!^c  ifx'ssst  pror  icdor- 
erf"  a  n  :f :  r'- 1,  thit  the  b  rfie  ^w  dnvn 
for  a  <tebi,  acki  laoorse^i  br  t>e>  ^:Vr.::A3t  ezpm«- 
I J  as  a  secantT  :>r  i.::ie  d-  ^  ;,  m^  ijni  s^xh  debt 
lU«i  be^n  piio  mc  tJ»e  D'.^kr  Ccn^>c  b^ic^  to  the 
putT  nltimateij  1  ir^le ;  b«flc,  oo  ^vaeni  cemar- 
ivr,'th«t  the  CkcU  sc&ietf  la  Uir  p ^&  sai^cK^ntij 
shov^  thit  the  Botp  had  bei^a  satts^d,  and  hx 
the  Stamp  Act  bo  ton^n'  iir;pi:^>^«f .  Baitrom  r. 
GmMt,  1  PeiT.  *  Dar.  v^-  ■  ■  "-^  7. 

And  see  PreBklcT  r.  Fox,  9B.  &  Cr.  1^>:  and 
Tkon^iMd  V.  Clarke,  :2  Stark,  v'.  r,  c.)  &L 


[O]  PkxsurniEjrr. 

1.  Where  a  check  on  a  banker  at  B.  was  cash- 
ed at  M  ,  a  branch  of  the  X.  W.  C  o.^  on  the  :^th, 
and  forwarded  the  sauie  dav  to  the  principai  house 
of  the  N.  W.  Co,  at  M„  a  place  I'i  m'Ie>  iK^ai  B  , 
and  on  the  SIst  was  presented  at  B.  and  dt&hoD- 
oied ;  held,  the  presentment  was  too  Ute,  as  it 
oagfat  not  to  hare  been  delayed  beyond  the  next 
day  aAer  the  receipt  at  M.  '  Moole  r.  Brown,  4 
Bin^  N.  S.  (c.  p  )  266. 

2.  Where  a  bill  was  drawn  at  C,  in  Newftmnd- 
land,  on  the  12th  August,  in  daplicate,  from 
which  place  there  was  a  daily  post  to  St.  John's 
and  a  post-office  packet  from  thence  to  England 
three  times  a  week,  and  the  Toyage  about  1^ 
days,  and  the  bill  was  not  presented  for  accept- 
ance until  the  16th  of  November  and  was  dishon- 
ored when  due,  and  the  jury  found  a  verdict  for 
the  defendant,  the  court  refused  to  disturb  it , 
Stiaker  v.  Graham,  4  Mees.  &,  W.  (ex.)  721.       ; 

3.  In  asswmpsit  on  a  bill  by  indorsee  a^fsinst 
acceptor,  and  plea  of  payment,  a  prior  indorsee 
held  a  competent  witness  for  the  defendant,  al- 
though on  the  rotr  dirt  he  acknowledged  that  he  ' 
received  money  from  the  defendant  to  pay  the 
plaintiff  the  amount  of  the  bill.  8  Ad.  &,  £11.  i 
((I.  B.)  917. 


[£]  Notice  of  dishonor. 

1.  Where  verbal  notice  of  the  dishonor  was  left 
with  the  wife,  held  sufficient  Honsego  v.  Cowne, 
9  Mees.  &  W.  (bx.)  348. 

2.  A  letter  written  to  the  drawer  of  a  foreign 
bill,  stating  the  presentment  and  dishonor,  is  suf- 
ficient notice,  without  containing  a  copy  of  the 
protest  (xoodman  v.  Harvey,  1  Nev.  Ck,  M.  (k. 
B.)  372 :  and  4  Ad.  <&  Kll.  870. 

3.  Proof  that  the  drawer,  being  applied  to  if  be 
was  aware  of  the  bill  having  been  dishonored,  re- 
plied, **  Yes,  1  have  had  a  civil  letter  from  G.  on 
the  subject,  and  will  call  and  arrange  it ;"  held 
sufficient  to  dispense  with  further  proof.  Norris 
V,  Salomonson,  4  Sc.  (c  p.)  257. 

4.  Where  the  attorney  addressed  a  letter  to  tlie 
defendant,  informing  him  that  his  note  (setting  it 
out)  became  due  the  day  before,  had  been  return- 


ed unpaid,  and  requested  him  to  remit  the  amount 
by  return  of  post,  with  Is.  6d,  noting;  hdd,  a 
snScicnt  notice  of  dishonor.  Hedger  r.  Steaven- 
M,  1  Nev.  A  P.  (X.  B.)  799 ;  and  5  Dowl,  (p.c.) 
<<  I. 

5.  Where  the  notice  only  stated  that  the  note 
became  doe,  and  was  returned  unpaid  ;  held  in- 
scf.cient  Boulton  r.  Welsh,  3  Bing.  N.  S.  (c. 
I .;  6c»&- 

6.  Where  the  bill  indorsed  in  blank  was  left  by 
the  indorsee  with  an  attorney  for  presentment, 
who,  on  being  dishonored,  wrote  the  following 
day  to  the  drawer,  stating  his  name  and  resi- 
dence ;  held  a  sufficient  notice,  although  not  sta- 
tioff  on  whose  behalf,  or  where  the  bill  was  Iving. 
W^dihorpe  r.  Lawes,  2  Mees.  &.  W.  (ex.)  109. 

7.  In  an  action  by  indorsee  against  drawer, 
where  the  letter  containing  the  notice  of  dishon- 
or did  not,  through  misdirection,  reach  the  defen- 
dant until  two  days  after  the  proper  time ;  held, 
ti;xt  It  was  for  the  jury  to  say  whether  the  holder 
nad,  under  all  the  cireumstances,  taken  due  and 
proper  steps  to  forward  the  notice.  Siggen  t. 
Brown,  1  M.  ±  Rob.  (s.  p.)  520. 

t*.  So.  where  sent  to  a  wrong  address,  from  the 
indi5tinctiH*ss  of  the  drawer's  name  on  the  bill. 
Hewitt  r  Thompson,  lb.  543. 

n.  Want  of  efl^ts  in  the  hands  of  the  drawer 
iR-Id  to  excuse  the  holder  of  a  bill  from  the  neces- 
sity of  presenting,  as  well  as  of  giving  notice  of 
dish'^nor  to  the  drawer.  Terry  v.  Parker,  1  Nev. 
Jfc  P.  (K.  a.)  7r>2. 

And  see  B45K  or  Englakd  ;  Bavtkrupt; 
The  case  of  Solarte  r.  Palmer,  affirmed  in  D.  P., 
a  Bli.  N.  S.  (p.)  874 ;  and  2  01.  &  Fi.  93. 

10.  Where  upon  the  dishonor,  the  clerk  of  the 
plaintifi*,  the  indorsee,  ^ve  a  notice  by  letter  to 
the  drawer  in  a  printed  form,  in  the  terms,  "  Tour 
bill  drawn  on  T.  and  accepted  by  him,  is  this  day 
returned  with  charges,  to  which  we  request  your 
immediate  attention  ;*'  held  sufficient.  Grugeon 
r.  Smith,  2  Nev.  A.  P.  (k.  b.)  303 ;  and  6  Ad.  & 
Ell.  49tK 

11.  Where  H.,  the  holder,  gave  notice  by  letter 
in  the  terms,  **  Messrs.  H.  are  surprised  that  G.*b 
bill  was  returned  to  the  holder  unpaid,**  followed 
by  a  personal  communication  from  the  indorsee, 
expressing  his  regret,  and  promising  to  write  to 
the  other  parties,  by  whom  or  by  himself  the  bill 
should  be  paid ;  held  sufficient.  Houlditch  a. 
Cauty,  4  Bing.  N.  S.  (c.  p.)  411. 

12.  Where  the  bill  was  drawn  by  the  defendant, 
dated  merely  **  London,*'  on  the  acceptor,  resi- 
dent also  there,  but  his  address  was  fully  stated ; 
held,  that  a  letter  put  into  the  post-office  by  the 
holder  in  the  country,  addressed  to  the  defendant, 
containing  notice  of  the  dishonor,  simply  London, 
was  evidence  to  go  to  the  jury  of  due  notice  of 
dishonor.  Clarke  v.  Sharpe,  3  Mees.  &  W.  (n.) 
166. 

13.  A  letter  by  the  plaintiff's  attorney  stating 
the  bill,  describing  it,  *Mies  due  and  unpaid  at 
my  office  ;"  held  insufficient  notice  of  dishonor, 
not  stating  it  to  have  been  presented  and  dishon- 
ored :  but  a  verbal  statement  to  the  drawer  that 
the  bill  has  come  baok  from  the  drawee  diahonor- 


\ 


r 


[BILLS] 


2721 


ed,  the  bill  bein^  shown  with  the  notary's  mark, 
held  safficient  Phillips  v.  Gould,  8  C.  &  P.  (n. 
p.)  355. 

And  see  Solarle  v.  Palmer,  2  CI.  &  Fi.  93 ; 
and  5  Moore  <S^  P.  475. 


[F]    ACTIANS  IN   RESPECT  OF. 

1.  The  court  refused  to  try  the  legality  of  the 
consideration  on  an  affidavit  in  support  of  a  motion 
to  discharge  the  defendant  out  of  custody.  Cur- 
zon  V.  Hodg;e8,  5  Dowl.  (p.  c.)  98. 

2.  Where  a  bill  drawn  by  defendant  and  deliv- 
ered to  the  plaintiff  was  stolen,  and  with  bis  in- 
dorsement forged  thereon  was  paid  by  the  defen- 
dant's bankers,  and  returned  to  him ;  held,  that  no 
title  passing  by  the  forgery,  the  plaintiff  was  en- 
titled to  recover  the  bill  in  trover,  there  bein^  no 
T^egVig^nce  found  on  the  part  of  the  plainlifi,  al- 
though six  weeks  elapsed  before  the  loss  was  dis- 
covered, and  notice  given  to  the  defendant.  John- 
son r.  Windle,  3  Bing.  N.  S.  (c.  r  )  225 ;  and  3 
Sc.606.  ' 

3.  The  bonhfide  holder  of  a  bill  which  has  been 
lost  or  fraudulently  obtained  is  entitled  to  recover, 
unless  the  circumstances  under  which  it  came  in- 
to his  posession  amounts  to  mala  fides  on  bis 
part ;  grr>ss  negligence  is  not  sufficient.  Grood- 
man  v.  Harvey,  6  Nev.  &.  M.  (k.  b.)  372 ;  and  4 
Ad.  &  £11.  870. 

4.  Where  the  count  on  a  bill  stated  the  defen- 
dant's acceptance  and  promise,  ^^  wh<>reby  an  ac- 
tion had  accrued,  &c. ;"  held  to  be  in  substance 
a  count  in  debt,  which  was  not  maintainable  by 
indorsee  against  acceptor.  Cloves  v.  Williams,  3 
Bing.  N.  S.  (c.  p.)  868. 

5.  In  assumpsit  on  a  promissory  note,  payable 
by  instalments,  the  whole  to  become  payable  on 
default  made  in  any,  averring  such  default, 
"  whereby,"  &c. ;  general  demurrer,  that,  by  de- 
fault made  in  any  instalment,  tlie  note  did  not  be- 
come due  without  a  demand  of  it ;  held  bad,  as 
too  large,  there  being  a  debt  as  to  the  instalments 
due.    Teague  v.  Morse,  2  Mees.  &  W.  (ex.)  599. 

6.  Where  at  the  trial  it  was  found  that  the  dec- 
laration omitted  the  date  at  which  the  bill  b(>came 
payable,  and  the  Judge  had  refused  to  allow  the 
plaintiff  to  amend,  ana  non-suited  ;  the  court  set 
it  aside,  on  payment  of  costs,  with  leave  to  amend, 
and  the  defendant  to  plead  de  novo.  Pullen  r. 
Seymour,  5  Dowl.  (p.  c.)  164. 

7.  Where  the  declaration  merely  stated  that  the 
indorsee  delivered  the  bill  to  the  plaintiff  without 
indorsement,  held  bad.  Cunliiie  v.  Whitehead, 
3  Bing.  N.  S.  (c.  r.)  828. 

8.  In  assumpsit  against  the  drawer,  the  decla- 
ration must  allege  a  promise  to  pay ;  a/tVrr,  in  the 
case  of  acceptor,  where  the  acceptance  constitutes 
a  promise.  Henry  v.  Burbridge,  3  Bing.  N.  S. 
(c.  p.)  501 ;  4  Sc.  296;  and  5  Dowl.  (p.  c.)  484. 

9.  Declaration  on  a  bill  by  drawer  against  ac- 
ceptor, alleging  the  bill  to  nave  been  made  on 
— ,  payable  four  monUu  afier  date,  **  which  pe- 


riod has  now  elapsed ;"  held  sufficient,  without 
averring  that  it  had  elapsed  before  the  commence- 
ment ot  the  suit.  Owen  r.  Waters,  2  Mees.  & 
W.  (Kx.)  91 ;  and  5  Dowl.  (p.  c.)  324. 

10.  The  court  will  not  look  out  of  the  declara- 
tion to  see  whether  the  action  is  commenced  be- 
fore the  declaration  is  filed,     lb. 

11.  Where  the  declaration  on  a  note  stated  that 
one  S.  T.  made  i&c.,  and  thereby  he  promised  to 

pay  to  the  order  of  defendant  at  Messrs.  T  *s  £, 

two  months  after  date,  which  period  had  be- 
fore the  commencement  of  the  suit  elapsed,  and 
there  delivered  the  said  note  to  the  plaintiff,  and 
promised  to  pay  the  same  according  to  the  tenor 
and  effect  thereof;  but  that  Messrs.  T.  did  not, 
nor  did  the  said  S.  T.,  nor  the  defendant,  at  any 
time  pay,  Ac,  although  the  said  note,  when  due, 
was  presented  at  Messrs.  T.'s  on  the  day  of  its 
becoming  due,  of  which  defendant  had  notice; 
held,  on  motion  in  arrest  of  judgment,  that  the 
promise  was  well  stated,  and  the  breach  sufficient. 
Hedger  v.  Steavenson,  1  Nev.  &  P.  (k.  b.)  799; 
and  5  Dowl.  (p.  c.)  771. 

12.  Where  the  declaration  on  bills  set  out  the 
name  of  the  plaintiff  only  by  the  initial  of  one 
Christian  name,  as  it  appeared  on  the  instru- 
ments ;  held  to  be  cured  by  the  3  &>  4  Will.  4,  c. 
42,  s.  11.     Lindsay  v.  Wells,  5  Dowl.  (p.  c.)  618. 

13.  In  assumpsit  by  the  executor,  on  a  note 
payable  to  the  order  of  his  testator,  alleging  a 
promise  to  the  plaintiff;  held,  that  the  plea  non 
assumpsit  was  good.  Gilbert  9.  Piatt,  7  Dowl. 
(p.  c.)  748. 

14.  In  assumpsit  by  payee  against  maker ;  plea^ 
that  it  wns  given  ror  money  and  goods  to  be 
thereafter  lent  and  supplied,  and  that  plain- 
tiff had  jnot  lent,  &c. ;  replication,  that  the  defen- 
dant broke  his  promise  without  the  cause  in  hi» 
plea  in  that  behalf  alleged ;"  held  proper.  Wat- 
son V.  Wilks,5  Ad.  &  Ell.  (k.  b.)  237. 

15.  Where  in  an  action  on  a  check  the  defen^ 
dant  pleaded  only  that  it  was  given  for  a  gam- 
bling debt,  the  court  refused  leave  to  add  another 
plea  that  it  had  been  drawn  more  than  15  mile» 
from  where  the  bankers  resided.  Jenkins  v.. 
Creech,  5  Dowl  (p.  c.)  393. 

16.  In  assumpsit  by  indorsee  against  indorser^ 
plea,  that  defendant  did  not  make  or  draw  the  bill 
as  in  the  declaration  alleged  ;  held  good  in  sub> 
stance,  although  bad  in  form,  every  indorser  being- 
in  law  a  new  drawer,  and  that  the  plea  could  not 
be  treated  as  a  nullity .  Allen  v.  Walker,  2  Mees. 
&  W.  (EX.)  317 ;  and  5  Dowl.  (p.  c.)  460. 

17.  Where  the  plaintiff,  an  executor,  declared 
on  a  bill  payable  to  his  testator,  laving  the  prom- 
ise to  pay  to  himself  as  executor ;  ^eld,  that  a  plea 
of  non  assumpsit  to  the  plaintiff  as  executor  as 
aforesaid  was  good,  not  being  a  promise  contained 
in  the  note,  nor  implied  out  of  it  Timmis  v. 
Piatt,  1  Nev.  &  P.  (K.  B.)  720. 

18.  Where  the  plea  in  assumpsit  hj  an  indorser 
against  acceptor  merely  alleged  that  the  payee 
received  the  bill  for  the  purpose  of  paying  the 
proceeds  to  the  defendant,  and  had  failed  to  do  bo^ 
without  averring  any  fraud  in  the  transaotion ; 


27^ 


[BILLS] 


held,  not  sidficieat  to  call  opoo  the  bolfder  to  prore 
coomdenikm.  Jacob  r.  HoDgate,  1  M.  &  Rob. 
(3.  p.)  445 ;  qoestiooinf  Tnomas  v.  Newton,  '2 
Carr.  &  P.  GOG;  and  Ueatb  r.  Sanaom,  2  B.  & 
Ad.t£fl. 

19.  Where  the  defendant  pleaded  that  the  note 
was  made  on  certain  terms,  and  indoned  by  the 
plaintiff  withoat  consideration,  and  the  pUintiff 

replied  that  £ was  giren  for  it,  the  issue 

being  on  the  defendant,  and  be  called  no  witness : 
held,  that  the  plaintiff  was  entitled  to  recoYer 
that  som.  Edwards  v.  Jones,  7  C.  db  P.  (s.  r.; 
633. 

20.  Where  the  drawers  of  the  bill  kept  accoont 
with  the  plaintiffs  as  bankers,  which  thipj  indors- 
ed to  them,  and,  upon  its  bein^  returned  di^^ho- 
nored,  it  was  entered  on  the  debit  side  of  the  ac- 
cognt,  which  at  the  time  was  considerably  against 
the  drawers,  and  remained  so  at  the  commenee- 
Bient  of  the  action  ;  the  bankers  had,  on  former 
4iecaaions,  allowed  the  drawers  to  overdraw  their 
aeeonnts,  bat  they  were  under  no  obligation  to  do 
00 ;  held,that  such  entrr  was  no  evidence  in  support 
of  a  plea  that  the  bankers  had  received  thai  sum 
in  ntisfaction  of  the  bill.  Ryder  v.  Wyllett,  7 
C.  &  P.  (».  P.)  GW. 

21.  In  assumpsit  by  indorsee  against  maker; 
pk«,  that  it  was  ^iven  for  a  gaming  debt,  and 
withoat  consideration,  and  indorsed  to  plaintiff 
with  notice;  replication,  that  it  was  indorsed 
without  notice  of  the  illegality,  and  for  good  con- 
sideration ;  held,  that,  upon  such  issue,  the  de- 
fendant was  bound  to  give  evidence  to  connect 
the  plaintiff  with  the  parties  illegally  concoctinn- 
the  note,  and  that  the  plea  did  not  amount  to  an 
admission  of  any  existing  illegality,  and  that  the 
inry  could  only  draw  inferences  of  it  from  facts. 
£dmunds  v.  Groves,  5  Mees.  &.  W.  (ex.)  G42  ; 
and  5  Dowl  (p.  c  )  775. 

22.  Where  the  only  issue  raised  was,  whether 
the  bill  was  indorsed  aAer  it  became  due ;  held, 
that  the  onus  of  establisbin^  it  lay  on  the  defen- 
dant. Lewis  r.  Parker,  G  ^ev.  &  M.  (k.  b.)  294 ; 
and  4  Ad.  &.  £U.  838. 

23.  In  an  action  against  drawer,  upon  plea  that 
he  did  not  make  the  note,  evidence  of  imbecility 
of  mind  could  not  be  gone  into.  Harrison  v. 
Richardson,  1  M.  &  Rob.  (h.  p.)  504. 

24.  Plea  in  assumpsit  by  indorsee  against  ma- 
ker, that  he  gave  two  bills  to  the  plaintiff  to  take 
op  the  note,  and  in  lieu  thereof;  and  that  de- 
fendant was  a  party  liable  on  the  bills  to  the  plain- 
tiff, and  that  they  were  outstanding  in  the  hands 
of  the  plaintiff;  held,  that  it  was  for  the  jury  to 
■ay  if  tne  bills  were  given  in  lieu  of  and  in  satis- 
faction of  the  note,  or  only  to  gain  time  for  the 
payment;  if  the  former,  it  was  a  good  defence, 
altnough  the  latter  part  of  the  plea  was  not  prov- 
ed ;  if  the  latter,  it  ought  to  be  shown  that  both 
were  outstanding  at  tne  commencement  of  the 
action  Goldshede  v.  Cottrell,  2  Mees.  &  W. 
(EI.)  20. 

25.  Plea  to  a  declaration  on  a  note  payable  ab- 
solutely with  interest,  that  it  had  been  substituted 
for  a  note  given  on  an  agreement  for  a  share  in  a 
partnerBhip,  and  that  it  had  been  thereby  stipu- 


I  bled  that  tke  priMipil  «M  to  be  paid  oat  of  the 
:  defendant's  jearlv  share  of  the  profits,  and  that 
unless  the  (t^fendant  &iled  in  am  psurt  at  the 
'  afrreement,  the  plaintiff  woold  not  call  soddenly 
I  for  the  payment  of  the  balanrp  oa  the  ooto ;  the 
.  original  note  also  contained  a  Mwilay  statemeat 
as  to  the  mode  of  liquidalion ;  and  the  janr  fimnd 
that  the  note  for  which  the  actaoat  was  fatoagbt 
was  substituted  few  and  given  on  the  same  condi- 
tions :  held  that,  although  the  replication  limited 
the  issue  U>  the  question  whether  the  plaintiff  had 
^ven  reasMiable  notice  of  enforcing  the  note,  it 
,  was  competent  to  the  defendant    to  show  the 
;  whole  circumstances  of  the  transaction,  and  of 
the  substitution  of  the  note  lor  the  original  OBe, 
.  but  that,  altnough  the  plaintiff  mi^it  not  be  e»- 
,  titled  to  recover  the  balance  of  the  principal  doe, 
I  he  was  entitled  to  a  verdict  for  the  interesL    Bay- 
lis  r.  Ringer,  7  C.  &.  P.  (s.  r.)  Gdl. 

26.  Upon  plea  to  a  declaration  bv  a  second  in- 
dorsee against  acceptor,  that  the  bill  was  an  ac- 
commodation bill  given  to  R.,  and  that  the  in- 
doraeroent  was  maife  after  the  bill  became  due ;  it 
appearing  that  at  the  time  of  accepting  the  bill 
R.  and  the  defendant  were  friends,  but  subse- 
quently quarrelled,  and  the  bill  was  not  put  in 
suit  until  five  vears  after  it  became  due,  and  nei- 
ther party  called  R. :    held  to  amount  to 


facie  evidence  on  the  part  of  the  defendant  to  go 
lo  a  jury,  fiounsall  r.  Harrison  1  Alees.  dk  W* 
(EX.)  611;   and  1  Tyr.  &  Gr.  U25. 

27.  In  an  action  by  indorsee  against  a^yptor, 
an  order  having  been  obtained  for  inspection, 
plea  denying  the  acceptance,  indorsement,  dx. 
and  also  that  it  was  on  paper  improperly  stamped 
under  3  <&  4  Will.  4,  c  97,  s.  17,  the  latter  being 


admissible  under  the  plea  of  non-acceptance, 
ordered  to  he  struck  out.     Dawson  r.  Macdonald, 

2  Mees.  &  W.  (ex.)  2a 

28.  In  assumpsit  by  indorsee  against  acceptor ; 
plea,  that  after  the  bill  became  due,  he  tendered 
the  amount  of  the  bill  with  interest,  held  bad  on 
demurrer ;  a  tender  after  the  day  cannot  be  plead- 
ed by  the  acceptor.  Poole  v.  Tumbridge,  2  Alees. 
&  W.  (ex.)  223. 

And  see  Hume  v.  Peploe,  8  East,  167. 

29.  In  assumpsit  against  acceptor  on  a  bill  in« 
dorsed  to  a  banking  company ;  held,  that  an  al- 
legation in  a  plea  that  the  plaintiffs  were  a  bank- 
ing company,  consisting  of  more  than  six  persona, 
and  that  they  were  illegally  associated  during  the 
privileges  granted  to  Uie   fiank  of  England  by 

3  &  4  Will.  4,  c.  98,  as  compounded  of  law  and 
fact,  was  therefore  traversable.  Ransford  v. 
Copeland,  1  Nev.  A  P.  (k.  b.)  671. 

30.  In  debt  by  the  holder  against  acceptor; 
plea,  as  to  part,  actio  non^  because  he  received  no 
consideration,  but  had  delivered  it  to  a  third  per- 
son to  get  it  discounted,  from  whom  the  plaintiff 
detained  it  for  his  own  debt,  and  only  auvanced 
the  part  admitted,  and  issue  joined  that  the  de- 
fendant was  indebted  beyona  that  sum,  which 
was  found  for  the  defendant ;  held,  that  although 
such  plea  was  bad,  yet  the  plantiff  having  choaen 
to  go  to  trial,  he  let  the  defendant  into  any 
defence  which  he  might  have  to  the   action. 


[BILL] 


2723 


Finleyioa  v.  Mackensie,  3  Binff.  N.  S.  (c.   p.) 
824. 

31.  In  assumpsit  affainst  the  acceptor;  plea, 
that  after,  &c.,  the  defendant  was  resident  in 
Scotland,  and  executed  an  assignment  of  his  per- 
sonal property  for  the  benefit  of  his  creditors,  and 
notice  thereof  to  the  plaintifi^  who  authorized  his 
attorney  by  writing  to  concur  in  such  deed  and 
receive  his  dividend,  alleging  such  proceedings 
to  be  in  conformity  with  the  law  of  Scotland,  and 
that  by  reason  of  the  premises  and  by  force  of 
the  laws  there  he  was  absolutely  discharged ; 
held,  Ist,  that  by  issue  on  such  plea  the  law  of 
Scotland  was  put  in  issue,  and  the  defendant 
bound  to  give  evidence  of  it ;  and  2ndly,  that  no 
deed  of  composition  having  been  executed  by  the 

Elaintiff,  nor  any  act  done  binding  him  not  to  sue 
is  debtor,  there  was  nothing  on  the  face  of  the 
plea  amounting  to  a  defence  to  the  laws  of  this 
country.  Woodham  v.  Edwards,  1  Nev.  &  P. 
(K.  B.)  207. 

32.  Where  the  declaration  by  an  indorsee 
against  indorser  of  a  note  described  tlie  defen- 
dant as  the  maker,  and  to  whom  no  notice  of 
dishonor  had  been  given  ;  held,  that  the  rule 
that  an  indorser  stood  in  the  situation  of  a  new 
maker,  applied  only  to  the  case  of  a  bill  and  not 
of  a  note,  and  that  the  plaintiff  was  not  entitled 
to  recover.  Gwinnell  v.  Herbert,  5  Ad.  Sl  £11. 
(K.  B.)  436. 

33.  Where  the  clerk  of  a  nanking  firm  of  three 
partners,  upon  the  death  of  two,  continued  to 
manage  the  business  for  the  surviving  partner  in 
order  to  wind  up  the  affairs,  and  in  the  course 
of  such  employment  using  and  signing  the 
name  of  the  old  firm,  drew  a  bill  on  H.,  which 
was  accepted  ;  held,  that  his  own  name  not  being 
on  the  bill,  he  was  not  personally  liable  as  the 
drawer,  unless  that  it  were  shown  that  he  had  no 
anthority  to  draw  in  the  name  of  the  firm,  or 
had  not  done  so  bona  fide.  Wikon  v.  Bar- 
Uurop,  2  Mees.  Sl  W.  (xx.)  863. 

34.  Where  upon  a  bill  becoming  due,  the  ac- 
ceptor asked  for  time,  and  subseouenUy  gave 
another  bill  for  the  same  amount,  aamitting  that 
something  was  due  for  interest,  and  that  the 
plaintiff  should  continue  to  hold  the  first  bill  un- 
til the  second  was  paid,  which  was  done  shortly 
after  it  fell  due ;  held,  that  that  the  plaintiff  was 
entitled  still  to  sue  on  the  first  for  the  interest 
due  on  it,  and  that  the  facts  did  not  establish  an 
agreement  alleged  in  the  plea  that  the  acceptance 
of  the  latter  discharged  the  defendants  from  such 
interest.  Lumley  r.  Mnsgrave,  4  Bing.  N.  S. 
(c.  p.)  9 ;  and  3  Sc.  230, 238. 

35.  In  assumpsit  on  a  banker's  check ;  held, 
that  under  the  general  plea  that  the  defendant 
did  not  make,  &c.  he  might  show  the  check  to 
be  post  dated,  without  pleading  it  specially,  and 
that  he  was  not  precluded  from  the  objection  by 
its  haying  been  read  before  the  objection  taken. 
Field  V.  Wood,  8  C.  &  P.  (ir.  p.)  52. 

And  see  Dawson  v.  Macdonald,  2  Mees.  &  W. 
2& 

36.  In  ai^mpsit  by  indorsee  against  acceptor, 
where  the  plea  was  bad  for  duplicity,  and  the 
replication  de  inmria;  held,   that  no  objection 

Vol.  IV.  67 


could  be  made  by  demurrer  on  the  ground  of  sev- 
eral matters  being  put  in  issue,  being  occasioned 
by  the  defendant  s  plea.  Reynolds  v,  Blackburn, 
6  Dowl.  (p.  c.)  19. 

37.  Where  the  making  of  the  bill  was  admitted 
on  the  record,  and  the  only  issues  raised  were, 
the  indorsements,  presentment,  notice  of  dishon- 
or, and  consideration ;  held,  that  it  was  not  in- 
cumbent on  the  party  producing  the  bill  to  ex- 
plain an  alteration  wnicti  appeared  to  have  been 
made  in  the  date.  Sibley  v.  Fisher,  2  Nev.  A  P. 
(q.  B.)  430. 

38.  Where  there  are  counts  on  the  consideration 
of  the  bill  as  well  as  on  the  bill,  the  plaintiff  will 
be  entitled  to  enter  his  verdict  on  sucn  as  apply  to 
the  consideration,  if  the  subject  be  stated  in  the 
particulars,  and  may  recall  a  witness  to  prove  such 
part  of  the  consideration  after  he  has  closed  his 
case.    Ryder  v.  Ellis,  8  C.  &  P.  (m.  p.)  357. 

39.  Upon  a  plea  in  assumpsit  on  bills,  that  the 
defendant,  if  liable,  was  only  so  as  surety ;  held, 
that  he  was  not  entitled  to  inspection  or  a  deed, 
by  which  it  was  said  time  had  been  given  to  the 

grincipal,  to  which  the  surety  was  not  a  party, 
mith  V.  Winter,  3  Mees.  A  W.  (xx)  309;  and  6 
Dowl.  (p.  c.)  386. 

40.  In  assumpsit  against  the  defendant  as  joint 
maker  of  a  note  ;  plea  that  the  defendant  joined 
merely  as  a  surety,  of  which  the  plaintiff  had 
no  notice  of  its  not  having  been  paid  until  the 
commencement  of  the  action,  and  that  the  plain- 
tiff gave  time  to  the  party  without  the  defendant's 
knowledge  or  consent;  held  ill  on  general  de- 
murrer. Clarke  v.  Wilson,  3  Mees.  &  W.  (ex.) 
208. 

41.  Where  until  inspection  of  the  check  on 
which  the  action  was  brought  it  could  not  be 
known  that  it  required  a  stamp,  being  post  dated  ; 
held  that  it  was  not  too  late  to  take  Uie  objection 
after  it  had  been  read,  and  the  fact  of  post  dating 
need  not  be  specially  pleaded.  Field  «.  Woods, 
2  Nev.  &  P.  (K.  B.)  117;  and  6  Dowl.  (p.  c.)  23. 

42.  In  an  action  by  payee  against  maker,  a 
party  who  was  a  joint  maker,  and  for  whom  the 
defendant  was  surety,  held  an  inadmissible  wit- 
ness, being  liable,  not  only  for  damages  and  costs 
recovered  Dv  plaintiff,  but  for  the  defendant's  own 
costs,  and  that  he  could  not  be  rendered  compe- 
tent by  an  indorsement  on  the  postea  under  3  &  4 
Will.  4,  c.  42,  8.  26.  Stanley  v.  Jobson,  2  M.  ds 
Rob.  (b.  p.)  103. 

43.  In  any  action  against  the  acceptor  of  a  bill 
or  maker  of  a  note,  the  defendant  to  be  allowed 
to  have  the  proceedings  stayed  on  payment  of  the 
debt  and  costs  in  that  action  only.    Reg.  Gen.  3 

ev.  &  P.  (q.  B.)  370. 

44.  Where,  in  an  action  against  acceptor,  he 
pleaded  that  the  acceptance  was  obtained  by  force 
of  duress  and  that  he  never  had  any  value  for 
the  acceptance ;  held  bad,  on  demurrer  for  du- 
plicity, and  that  the  objection  was  not  removed, 
DV  reason  of  the  second  branch  of  the  plea  being 
ill  pleaded.  Stephens  v.  Underwood,  4  Bing.  N. 
S.  (c.  p.)  655 ;  6  Dowl  (p.  c.)  737 ;  and  6  Sc.  (c. 
p.)  402. 


2724 


[BILL— BOND] 


45.  In  an  action  by  the  indorsee  against  the 
maker,  and  issue  on  the  fact  of  presentment ;  a 
promise  by  the  defendant,  ailer  the  note  became 
due,  to  pay,  held  to  be  a  sufficient  admission  of 
the  presentment  having  been  duly  made.  Croz- 
on  V,  Worthen,  5  Mees.  &  W.  (kx.)  5. 

46.  Plea,  in  an  action  by  the  holder  against  the 
acceptor,  that  the  bill  was  accepted  in  part  pay- 
ment of  a  larger  debt  from  the  defendant  to  the 
drawer,  and  that,  before  it  became  due,  the  defen- 
dant being  in  embarrassed  circumstances,  he  en- 
tered into  a  composition  witli  his  creditors,  to 
which  the  drawer  was  a  party,  and  averred  a 
payment  of  the  composition  and  receipt  thereof 
m  satisfaction  of  all  claims  in  respect  of  the  bills 
or  otherwise ;  held,  that  amounting  to  matter  of 
discharge  and  not  of  excuse,  the  replication  de 
imuria  was  bad.  Jones  v.  Senior,  4  Mees.  &> 
W.  (XX.)  123  ;  and  6  Dowl.  (p.  c.)  701. 

47.  In  assumpsit  by  indorsee  against  drawer, 
plea  that  the  bill  was  drawn  and  indorsed  in  pay- 
ment of  the  price  of  hops  as  of  a  certain  planter, 
and  to  answer  certain  samples,  and  alleging  that 
the  plaintiff  had  not  delivered  any  hops  answer- 
ing such  samples, "  or  any  hops  whatever ;"  held, 
that  the  latter  allegation  was  immaterial ;  the 
plea  showing  a  total  failure  of  the  consideration, 
and  that  if  tne  plaintiff  relied  on  the  defendant's 
haying  accepted  those  delivered,  though  of  infe- 
rior quality,  he  should  hare  replied  it.  Wells  v. 
Hopkins,  o  Mees.  &  W.  (xx.)  7. 

48.  Where  in  trover  for  a  bill  the  defendant 
pleaded  that  the  plaintiff  indorsed  it  in  blank,  and 
that  the  party  who  became  the  holder  pledged  it 
with  the  defendant  as  a  security  for  a  debt ;  rep- 
lication, that  at  the  time  the  defendant  received 
it,  he  knew  that  the  party  had  no  authority  to 
pledge  it ;  held  good.  Hilton  v.  Swan,  5  Bmg. 
N,  S!  (c.  p.)  413. 

49.  Where  the  plea,  in  an  action  against  the 
drawer  by  a  second  indurser,  denied  the  indorse- 
ment to  the  first  indorser,  held  not  distinguish- 
able from  a  traverse  that  he  did  not  indorse  the  bill 
modo  et  forma  within  the  meaning  of  the  Judge's 
order  to  plead  in  the  latter  terms.  Waters  v. 
Thanet,  Earl  of,  7  Dowl.  (p.  c.)  251. 

50.  A  count  by  the  payee  against  the  acceptor 
of  a  bill,  in  the  form  given  by  Reg.  Trin.  1  Will. 
4,  held  properly  joined  with  ouer  indebitatus 
coants  in  debt.  Crompton  v.  Taylor,  4  Mees.  & 
W.  fsx.)  138 ;  and  6  Dowl.  (p.  c.)  660. 

51.  Where  the  issue  joined  in  an  action  against 
the  drawer  was,  whether  due  notice  of  dishonor 
bad  been  given  ;  it  appearing  six  months  afler  it 
became  due,  the  drawer  requested  the  holder  to 
exhaust  all  his  influence  to  obtain  payment  from 
the  acceptor,  as  the  bill  had  been  merely  drawn 
for  his  accomodation ;  held,  that  in  the  absence 
of  any  unconditional  promise,  the  judge  properly 
directed  the  jury  to  say  whether  they  could  pre- 
sume from  the  circumstances  that  the  defendant 
had  received  notice  of  dishonor.  Hicks  v.  Duke 
of  Beaufort,  4  Bing.  N.  S.  (c.  p.)  229. 

59.  Upon  a  plea  that  the  defendant  had  not 
a  notice  from  the  plaintiff  of  the  non-payment  ;'* 
held,  that  notice  proved  from  another  party,  the 


indorser's  clerk,  was  sufficient    Newen  v.  Gill, 
8  C.  &  P.  (K.  p.)  357. 

And  see  Bail;  Banker  ;  Bankrupt;  InsolvaU; 
Landlord;  Pleading,  (c.  l.) 


BOND. 

1.  Where  the  husband,  reciting  an  intended 
marriage,  and  that  he  was  to  be  possessed  of  her 
stock  in  trade,  and  that  he  had  agreed  to  execnte 
a  bond  in  a  sura  payable  to  the  children  of  her 
late  husband  within  12  months  after  the  wife's 
death,  in  the  event  thereinafter  specified,  and  the 
condition  was,  that  he  should  pay,  &c.  "  if  upon 
taking  an  account  of  the  stock  m  trade,  if  tAe» 
carried  on  by  him^  the  same  should  amount  to 

£. ;"  held,  that  a  plea  by  the  obligor  that 

he  had  discontinued  the  business,  was  an  answer 
to  an  action  on  the  bond,  having  exercised  a 
power  of  closing  the  concern,  which  was  reser- 
ved to  him  by  the  condition.  Beswick  v.  Swin- 
dells, 3  Ad.  <&  £11.  (k.  b.)  868;  affirming  the 
judgment  in  King's  Bench. 

2.  Where  upon  an  arrangement  between  a 
father  and  son  for  the  payment  of  the  debts  of 
the  latter,  he  executed  a  lM>nd  which  was  agreed 
to  be  deposited  in  the  hands  of  certain  referees, 
being  intended  as  a  security  for  the  son's  future 
behaviour,  and  who  were  empowered  within 
a  certain  period  to  direct  it  to  be  'cancelled  if 
they  thought  fit,  which  thev  omitted  to  do  dar- 
ing the  Fife- time  of  the  father ;  the  court,  un- 
der the  circumstances,  being  of  opinion  that  it 
was  not  intended  to  operate  as  a  security  for 
the  debt,  but  for  collateral  purposes,  which  had 
been  fully  satisfied,  and  that,  if^that  were  doubt- 
ful, the  conduct  of  the  obligor  during  a  lone 
period  and  dealing  with  the  instrument  amounted 
in  equity  to  a  release,  decreed  it  to  be  delivered 
up  to  be  cancelled.  Flower  v.  Marten,  2  Myl.  db 
Cr.  (cH.  459. 

3.  Although  the  transaction  constitutes  a  debt 
in  the  first  instance,  a  debtor  is  at  liberty  to  show 
that  the  ceditor  subsequently  altered  his  intention 
and  treated  it  as  a  giA.  lb. 

4.  A  bond  executed  by  defendant  as  a  surety, 
conditioned  for  the  payment  of  interest  on  £  ^ 
on  the  Ist  March  of  the  first  year,  the  like  at  the 
end  of  the  second  year,  and  the  principal  and  like 
sum  of  interest  at  the  end  of  the  third  ;  the  first 
interest  was  not  paid  until  the  30th  March  ;  held, 
that  the  bond  was  thereby  forfeited,  and  the  for- 
feiture not  waived  by  the  acceptance  of  the 
interest ;  and,  on  tiie  defendant's  bankruptcy, 
was  proveable  under  his  commission,  and  the  debt 
tlierofore  barred  by  his  certificate.  Skinner's 
Company  r.  Jones,  3  Bing.  N.  S.  (c.  p.)  481 ;  and 
4  Sc.  271. 

5.  Where  the  son,  having  executed  a  bond  to 
his  father  for  1,000^  and  interest,  aflerwardk 
became  surety  with  his  father  in  a  bond  to  a  third 
party  for  500/.,  and  a  memorandum  was  indorsed 
on  the  son's  bond,  that  it  had  been  agreed  that 
the  son  should  not  be  called  on  for  thf^  principal 
sum  until  the  fatlier's  bond  were  paid  off;  held, 
first,  that  it  did  not  relieve  the  son  from  the  inter- 


[BOND] 


2725 


est  on  the  principal  money ;  and,  secondly,  that 
the  son  having  aAerwards,  by  arrangement,  got 
rid  of  and  discoarged  the  father's  bond,  could  not, 
as  surety,  take  the  benefit  beyond  the  sum  ac- 
tually paid  ',  his  own  contract  with  the  principal 
being  indemnity,  it  was  his  duty  to  make  the  best 
terms  he  coald  for  the  party  in  whose  behalf  he 
was  acting.  Reed  v.  Nbrris,  2  Myl.  &  Cr.  (ch.) 
361. 

6.  In  debt  on  bond  to  the  guardians  of  an  union, 
on  a  contract  for  the  supply  of  bread,  in  loaves  of 
4  lbs.  weight,  conditioned  for  performance  of  the 
contract,  irUer  alia,  that  the  defendant  would 
deliver  such  bread  in  loaves,  and  of  which  a  bill 
of  particulars  should  be  sent  with  such  articles, 
at  the  time  of  delivery  thereof,  or  within  one 
month  from  such  delivery,  provided  that  if  such 
articles  were  not  duly  served,  or  should  be  defi- 
cient in  the  weight  stated,  or  if  delivered  without 
such  bill  of  particulars,  that  the  board  might 
retam  them,  or  gfve  notice  to  the  defendant  to 
fetch  them  away  ;  the  defendant  pleaded  perfor- 
mance generally ;  and  tlie  replication  assigned  for 
breaches,  first  a  delivery  of  loaves  deficient  in 
weight;  second,  a  delivery  without  any  bill  of 
particulars,  whereupon  the  plaintiffs'  returned 
them,  and  incarred  great  charges  in  obtaining  a 
supply  ;  held,  that  evidence  of  the  loaves  bemg 
brought  to  the  house,  and  part  handed  out,  and, 
on  being  weighed  and  found  deficient,  returned 
and  refused  to  be  taken,  was  a  sufficient  delivery  to 
mpport  the  issue  on  the  first  breach ;  and,  second- 
ly, that  the  board  having  a  right  to  return  the 
articles  unless  a  bill  were  delivered  with  them, 
an  issue  whether  it  was  dispensed  with  at  the 
time  was  not  an  immaterial  issue,  although, 
temble,  it  might  have  been,  if  found  for  the  plain- 
tiff, as  there  could  be  no  dispensation  by  parol  of 
an  instrument  under  seal.  Elliott  v.  Martin,  2 
Mees.  &;  W.  (az.)  13. 

7.  In  debt  on  bond  conditioned  for  securing  the 
payment  of  1,400/.  on  a  day  named;  plea,  as  to 
80(U.,  parcel,  4\lc.,  payment  afler  the  day,  and,  as 
to  die  residue,  a  release  to  the  executor  of  a  joint 
obligor  deceased ;  held,  as  to  the  first,  that  the 
penal  sum  being  forfeited,  and  the  payment  only 
as  to  part  of  the  sum  mentioned  in  the  condition, 
the  plea  was  bad ;  secondly,  that  nothing  appear- 
ing to  show  the  defendants  to  be  only  sureties, 
the  release  was  no  discharge  of  the  surviving  ob- 
ligor; held  also,  that  it  was  not  necessary  to 
aver  a  breach  in  the  non-payment  of  the  sum,  if 
enough  appeared  on  the  declaration  to  show  that 
the  money  was  due.  Ashbee  v.  Pidduck,  1  Mees. 
A  W.  (EX.)  364 ;  and  1  Tyr.  A.  Gr.  1016. 

8.  Plea  to  debt  on  bond,  that  it  was  given  on  a 
oormpt  agreement  for  articles  of  apprenticeship 
to  the  plamtiff,  as  an  apothecary  and  surgeon,  for 
two  years,  but  that  the  deed  should  be  ante-dated, 
to  enable  the  defendant  to  be  admitted  as  an 
apothecary  at  the  end  of  two  instead  of  five  years, 
contrary  to  the  55  Geo.  3,  c.  19,  s.  15 ;  aher  a 
verdict  for  the  defendant,  the  court  refused  judg- 
ment for  the  plaintiff,  non  obst.  vered.  Prole  v. 
Wiggins,  3  Bing.  N.  S.  (c.  p.)  230;  and  3  Sc. 
GOl. 

9.  Where  the  plea  to  debt  on  bond  by  execu- 


tors disclosed  matter  showing  the  bond  to  be 
void  ;  held,  that  as  the  plaintiff  might  have  then 
abandoned  the  suit,  he  was  liable  to  the  costs, 
lb. 

10.  Where  A.  and  B.  became  jointly  and  sever- 
ally bound  for  the  payment  of  an  annuity  to  C. 
for  life  in  manner  following ;  viz.,  one  moiety  by 
by  A.  during  her  life,  and  the  other  moiety  by  JS. 
during  A.'s  life,  and  after  her  death,  the  whole 
by  B.  during  the  life  of  C. ;  held,  afVer  the  death 
of  A.,  B.  failing  to  pay  the  annuity,  that  A.'s 
estate  was  liable.  Church  v  King,  2  Myl.  d&  Cr. 
(CH.)  220. 

11.  Where  it  once  is  shown  that  the  party  ex- 
ecuting the  deed  is  aware  of  its  contents,  evi- 
dence that  the  party  was  induced  to^ezecute  it  by 
previous  fraudulent  misrepresentations  held  inao* 
missible,  upon  the  plea  that  it  was  obtained  by 
fraud  and  covin.  Mason  v.  Ditchboume,  1  M.  » 
Rob.  (N.  p.)  460. 

12.  Where  money  was  advanced  by  bankers  in 
London  to  a  partner  in  a  banking  firm  in  Ireland, 
and  bonds  executed  in  Dublin  for  the  amount  in 

sums  of /.  sterling,  *'  with  legal  interest"  and 

warrants  of  attorney  for  entering  judgments  in 
the  K.  B.  in  Ireland  recited  the  sums  in  the  same 
terms  as  in  the  bonds ;  credit  was  given  in  the 
books  of  the  English  banking  house  for  the  full 
sum,  and  bills  accepted  by  them  drawn  by  the 
banking  company  in  Ireland  ;  held,  that  the  debt 
was  payable  m  English  currency  and  with  Eng- 
lish interest.  Noel  v.  Rochfort,  10,  Bli.  N. 
S.  (p.)  483;  reversing  the  judgment  below,  2 
Younge  <&  J.  330,  An.  Dig.  1829, 128. 

13-  In  an  action  by  the  assignee  of  a  bond  on  a 
promise  to  pay  at  a  given  time,  in  consideration 
of  a  forbearance  to  sue;  held,  first,  that  there  was 
sufficient  mutuality  and  a  good  consideration  for 
the  promise ;  secondly,  that  the  plaintiff  being  a 
third  party  sustaining  detriment  by  forbearing  to 
enforce  his  right  to  sue  in  the  name  of  the  obli- 
gee, the  promise  was  not  nudum  pactum;  and 
lastly  that  the  bond  being  forfeited  before  the 
agreement,  it  was  in  no  respect  varied  by  the  pa- 
rol contract  entered  into  between  the  plamtiff  and 
defendant.  Morton  r.  Bum,  2  Nov.  A  P.  (k.  b.) 
297. 

14.  Where  the  obligee  had  sued  one  of  two  ob- 
ligors on  a  joint  a  several  indemnity  bond,  and 
received  a  sum  in  discharge  of  the  debt  and 
costs ;  he  afterwards  sued  i&  other,  who  pleaded 
the  acceptance  of  the  sum  so  paid  in  satisuiction ; 
held,  that  the  anus  lay  on  the  defendant  to  show 
that  it  was  taken  as  a  settlement  of  the  entire 
cause  of  action,  and  the  court  refused  to  set  aside 
the  verdict  found  for  the  plaintiff.  Field  o. 
Robins,  3  Nev.  &  P.  (<i.  b).  226. 

15.  Where  no  proceedings  were  taken  on  a 
bond  for  three  years  after  the  death  of  the  obligor, 
and  the  obligee  who  was  aware  of  the  considera- 
tion had  allowed  an  injunction  in  Ireland  to  issue, 
and  the  bill  to  be  taken  pro  confessoy  without  se- 
curing himself  the  liberty  of  proceeding  in  Uie 
action,  and  his  representatives,  the  defendants, 
being  in  possession  of  all  his  papers,  were  unable 
to  give  any  account  of  the  consideration,  the 


2726 


[BOND— BOROUGH  RATE] 


coart  continued  the  injancUon,  and  the  qaeation 
being  whether  there  was  any  debt,  it  would  not 
impoae  the  terms  of  bringing  the  money  into 
court.  Milltown,  Earl  of,  v.  Stewart,  3  Myl.  «& 
Cr.  (cH.)  Id. 

16.  On  a  bond  to  pay  any  balances  due  to 
bankers  in  Scotland ;  held,  that  where  the  drafts 
were  in  fact  drawn  beyond  the  statutory  distance, 
or  wrong  dated  a^  to  time  or  place,  and  made 
▼oid  by  55  Geo.  3,  c.  184,  s.  13,  and  which  mode 
of  draw'mg  was  known  to  the  bankers,  no  debt 
aroee  upon  the  bond.  Swan  v.  Bank  of  Scotland, 
10  Bli.  N.  S.  (p.)  627 ;  (reversing  the  judgment 
bebw),  S.  C.  Swan,  ex  parte,  1  Deac.  746;  2  M. 
&  Ayr.  656. 

17.  Where  the  respondent  signed  a  bond  as 
surety  for  a  party,  trustee  to  a  bankrupt's  estate, 
for  laithfuUv  accounting,  and  by  the  practice  in 
Scotland,  tne  creditors  appointed  commissioners 
to  superintend  the  proceedings  of  the  trustee ; 
held,  m  suit  on  the  bond,  that  the  default  was 
not  by  the  default,  concealment  or  connivance 
of  the  commissioners,  and  that  the  surety  was  not 
discharged.  MTaggart  v.  Watson,  10  Bli.  N.  S. 
(f .)  618. 

18.  Where  a  bond  was  given  by  a  merchant  to 
his  bankers  as  a  security  for  a  balance  and  for 
future  advances,  to  which  the  respondent  became 
a  party  as  surety,  afterwards  the  bond  being  de- 
fective, a  fresh  one  was  executed  in  a  larger  sum, 
as  was  alleged  to  secure  a  floating  balance,  but  in 
the  common  form,  with  interest,  from  the  dnte 
of  the  execution,  which  was  also  signed  by  the 
respondent  as  surety,  but  the  purpose  was  not 
explained  to  him  ;  held,  that  he  was  liable  only 
for  the  balance   then   actually   due,   subject  to 

*  an  account  of  payments  subsequently  made  to 
the  bankers  by  his  principals.  Walker  v.  Hard- 
man,  11  Bli.  N.  S.  (p.)  22D. 

19.  Where  the  defendant,  W.  F.  B.,  executed 
the  bond  in  the  name  of  W.  B.,  and  appeared  at 
the  time  to  be  known  by  the  latter  name,  and  the 
declaration  was  against  W.  F.  B.,  sued  by  the 
name  of  W.  B. ;  upon  the  plea  non  est  factum, 
held,  that  the  bond  was  not  void,  and  that  the  ob- 
jection, if  valid,  could  not  be  available  under  that 
plea.     Williams  v.  Bryant,  7  Dowl.  (r.  c.)  502. 

20.  In  debt  on  bond  ;  plea,  averring  the  bank- 
ruptcy of  the  plaintiff  and  appointment  of  assig- 
nees, who,  by  reason  of  the  premises,  became  en- 
titled to  the  bond  debt;  a  replication,  that  the 
plaintiff  had,  b^  indenture,  assigned  the  bond  as 
a  farther  secunty  for  a  debt,  with  a  proviso  for  re- 
demption, and  that  the  action  was  brought  for  the 
benefit  of  such  creditor;  on  special  demurrer, 
held,  Ist,  that  the  plaintiff  was  not  bound  to  make 
profert  of  the  indenture ;  2nd,  that  the  replica- 
tion properly  stated  facts,  showing  that  the  bond 
did  not  vest  in  the  bankrupt's  assignees ;  and, 
lastly,  the  bond  being  of  less  amount  than  the 
balance  due  on  the  debt  for  the  security  of  which 
it  had  been  assigned,  and  so  no  benefit  to  arise  to 
the  bankrupt's  estate,  and  no  other  available  se- 
curity, the  transfer  of  the  plaintiff's  interest  in 
the  bond,  although  only  stated  to  be  a  further  se- 
curity was  complete.  Dangerfield  v.  Thoipas,  1 
Perr.  &  Dav.  (q,.  b.)  287. 


21.  Where  R.  and  8.,  partnen,  executed  joint 
and  several  bonds  to  O.,  on  an  advance  of  money 
to  the  firm,  and  before  the  day  of  payment  of  the 
first,  3.  died,  and  K.  being  introduced  as  partner, 
the  firm,  in  consideration  of  the  efiects  and  out- 
standing debts,  agreed  to  pay  a  certain  sum  to  the 
executors  of  S.,  and  indemnify  against  thebonda, 
amongst  other  scheduled  partnership  debts ;  the 
new  firm  continued  to  pay  O.  the  interest,  and  he 
subsequently,  without  the  consent  of  S.'s  execu- 
tors, extended  the  time  of  payment  of  the  bonds 
for  three  years,  and  on  a  further  advance,  took  a 
collateral  security,  reserving  his  right  against  S.'s 
executors,  but  the  arrangement  was  concealed 
from  them  ;  held,  that  by  sucR  indulgence,  the 
representatives  of  S.  were  discharged  from  liabili- 
ty (affirming  the  judgment  below  of  the  Master  of 
the  Rolls).  Oakeley  v,  Pasheller,  4  CI.  &  Fi. 
(p.)  207. 

22.  Where  parishionen  at  a  ▼ntry  agreed  thai 
the  overseers  snould  give  their  bond  for  a  debt  doe 
from  the  parish,  and  by  a  minute  resolved  that 
tliey  should  be  indemnified  out  of  the  rates,  and 
the  obligee,  a  parishioner,  signed  the  agreement 
and  resolution  of  the  vestry  ;  he  subsequently  re- 
ceived for  many  years  the  interest  out  of  the  rates, 
without  calling  on  the  obligors  for  the  principal ; 
held,  that  the  parishioners  having  no  power  to 
bind  the  parish,  and  the  obligee  having  acceded 
to  the  resolutions  only  so  far  as  they  would  bind 
the  parish,  the  liability  of  the  obligors,  who  under- 
took personally  to  pay,  was  not  affected  thereby. 
Jaquet  v.  Lewis,  8  Sim.  (ch.)  480. 

23.  In  debt  on  bond,  where  the  breaches  were 
assigned  in  the  replication  under  the  statute; 
held,  that  the  jury  might  assess  the  damages  with- 
out any  special  venire.  Scott  v.  Starey,  4  Bing. 
N.  S.  (c.  p.;  724 ;  6  Sc.  598 ;  and  6  Dowl.  (p.  c.) 
714. 

And  see  Quin  v.  King,  1  Meea.  &  W.  42. 

24.  Where  the  assignee  of  a  bond  obtained  from 
the  obligee  a  mortgage  as  a  collateral  security, 
which  TCing  sold,  proved  insufficient;  held,  that 
Uie  creditor  was  not  entitled  to  an  order  in  the 
suit,  for  satisfaction  of  the  balance  due,  but  must 
resort  to  his  remedy  at  law  on  the  bond  in  the 
name  of  his  assignor.  Keys  v.  Williams,  3  Tounge 
&  C.  (ex.  sq.)  462.  It  is  not,  however,  a  geneni 
principal,  that  in  no  case  will  a  court  of  equity 
give  efl^ct  to  an  equitable  assignment. 

And  see  Bankrupt ;  Creditor  ;  Pleadmg  ; 
Stamp;  Surety;  Will, 


BOROUGH    RATE. 

1.  Where  county  justices  had  exercised  con- 
current jurisdiction  with  the  borough  justices,  and 
the  expenses  of  prisoners  and  prosecutions  for 
ofiences  within  the  borough  had  been  paid  by  the 
county  ;  held,  that  the  borough  could  not  support 
an  exemption  from  the  county|rate  on  immemo- 
rial prescription  on  a  lost  grant,  on  the  ground  of 
never  having  contributed,  and  always  having 
maintained  its  own  bridges  and  gaol,  and  iaqnisi- 


[BOROUGH  RATE— CARRIER] 


2727 


lions  before  its  own  coroner.    R.  v.  Hay  ward,  6 
Ad.  &  £U.  (X.  B.)  590. 
And  see  Certiorari,  CoRroRATioH. 


BOROUGH  COURTS. 
Proceeding  in  borough  courts,  under  Munici- 
pal Corporation  Act,  regulated  by  2  «&  3  Vict.  c. 
27. 


BOUNDARY. 

1.  Upon  a  question  of  boundair  between  two 
farms,  evidence  of  the  boundary  of  the  plaintiff's 
farm  haying  been  ffiven  that  it  was  the  same  as 
that  of  a  hamlet;  held,  that  eyideBce  of  reputation 
aa  to  the  boundary  of  the  hamlet ^vas  receivable 
as  of  a  fact  relevant  to  the  issue.  Thomas  v. 
Jenkins,  1  Nev.  &  P.  (k.  b.)  588. 

2.  The  case  of  Godfrey  v.  Little,  1  Russ.  &  M. 
(cu.)  59,  affirmed  on  appeal.  lb.  630. 

3.  Where  the  boundary  between  two  manors  is 
shown  to  be  a  natural  boundary,  upon  a  question 
as  to  the  boundary  of  one  of  those  manors  and  an 
adjoining  one,  the  finding  of  the  former  by  com- 
missioners of  boundaries  is  admissible  in  evidence 
to  enable  the  jury  to  say  whether  the  continua- 
tion of  the  natural  boundary  is  not  also  the 
boundary  between  the  latter  manors;  held,  also, 
that  although  the  verdict  miffht  not  strictly  be 
evidence  of  reputation,  yet,  that  it  was  a  record 
of  proceedings  of  such  a  public  nature  as  to  make 
it  admissible.  Brisco  v.  Lornax,  3  Nev.  &  P.  (q,. 
m.)2SS. 


pontage  to  the  men  of  K.  for  the  same  repairs, 
were  admissible  documents,  as  material  to  tne  is< 
sue,  and  good  evidence  proving  it.  Reg.  v.  Lady 
Sutton,  3  Nev.  &  P.  (q,.  b.)  5®. 

And  see  Manor  ;  Pleadings  [c.  l.]  Poor. 


BROKER. 

Where  one  broker  procured  the  cargo,  and 
aderwards  obtained  the  freight,  and  another,  also 
referred  to  by  the  shipowner,  cleared  out  the  ship, 
and  paid  the  charges ;  held  that,  by  the  usage,  he 
was  entitled  to  share  the  comm  ission,  and  could 
not  sue  the  shipowner.  The  usage  and  general 
course  of  busines  must  be  proved  by  witnesses 
speaking  to  instances  in  which,  to  their  own  know- 
ledge, it  has  been  ^led  upon.  Hall  r.  Benson, 
7C.  &P.  (N.  p.)  7U. 

And  see  Poor. 


CANAL. 

Where,  the  Act  for  making  a  canal  limits  no 
precise  time  in  which  its  provisions  are  to  be  ex- 
ecuted, held  that  they  are  to  continue  until  the 
company  think  proper  to  execute  the  work,  and 
there  is  no  implied  limitation  as  to  their  being  ex- 
ecuted within  a  reasonable  time  from  the  passing 
of  the  Act ;  held  also,  that  the  power  to  treat  with 
persons  interested  in  land  does  not  apply  to  those 
who  have  a  mere  easement  or  right  of  passage 
over  land ;  to  them  they  are  only  bound  to  make 
compensation  for  any  damage  tney  may  sustain 
by  reason  of  the  company's  works ;  and  where 
the  land  is  out  on  lease,  the  company  may  treat 
for  the  reversion,  without  making  compensation 
for  the  subsisting  lease,  unless  they  should  disturb 
the  tenant  during  the  term.  Thicknesse  v.  Lan- 
caster Canal  Company,  4  Mees.  &  W.  (ex.)  472. 

And  see  Action  ;  Covenant ;  Poor, 


BRIDGE. 

1.  The  Court  will  interfere  by  injunction  to 
prevent  a  nuisance  to  a  public  road  ;  where,  there- 
u>re,  one  county  was  proceeding  in  the  repair  of 
a  public  bridge  over  a  river,  dividing  two  counties, 
in  such  a  manner  as  to  create  a  nuisance,  unless 
the  other  county  proceeded  in  a  particular  manner 
with  the  repairs  on  their  side,  an  injunction  gran- 
ted ;  and  held,  that  the  surveyor  and  contractors, 
under  the  circumstances,  were  properly  made 
parties.  Attorney  General  v.  Forbes,  2  Myl.  & 
Cr.  (CH.)  123. 

2.  A  prescriptive  liability  to  the  repair  of  a 
public  bridge,  m  the  absence  of  any  evidence  to 
the  contrary,  and  by  itself,  includes  a  liability  to 
repair  the  nighways  at  the  ends  of  it  within  the 
distance  of  SOO  feet  Reg.  v.  Lincoln  Mayor, 
Ac,  3  Ney.  &  P.  (q.  b.)  273. 

3.  On  an  indictment  for  not  repairing  a  bridge 
ratioru  tenurtt ;  held,  that  in  order  to  negative  any 
such  immemorial  liability,  a  record  of  a  present- 
ment in  18  Edw.  3,  by  the  men  of  K.  against  the 
bishop  of  L.,  for  the  non-repairs  of  the  bridge,  on 
which  the  jury  negatived  the  liability  of  the  bish- 
op, and  went  on  to  find]  that  the  bridge  had  been 
built  about  60  years,  and  that  they  were  wholly 

ignorant  who  of  right  was  bound  to  repair  it,  the   ^      j^  "  *      . 

yer4ict  being  followed  soon  after  by  a  grant  of  I  (k.  b.)  129;  and  5  Dowl.  (r.  c.)  429. 


CARRIER. 

1.  Plea,  in  an  action  against  a  carrier  for  loss 
by  negligence,  that  the  goods  were  undertaken 
to  be  carried,  d^c,  on  an  express  condition  that 
the  plaintiff's  servant  was  to  accompany  and 
watch  over  them,  and  that  the  loss  was  occasioned 
by  his  neglect  so  to  do,  and  not  through  the  negli^ 
gence  of  the  defendant;  held  bad,  as  amountiiu^ 
to  the  general  issue.  Brind  v.  Dale,  2  Mees.  £ 
W.  (EX.)  775. 

2.  Where  the  mail-coach  of  the  defendant 
stopped  regularly  at  an  inn  for  parcels,  which 
the  innkeeper  received ;  held,  that  it  was  not  the 
less  a  receiving-house  of  the  defendant,  becanse 
the  innkeeper  received  also  parcels  for  other 
coaches.  It  appearing  that  the  parcel  directed  to 
London  was  sent  by  ue  plaintiff  by  the  mail-cart 
from  B.  to  M.,  where  it  was  delivered  to  the  inn- 
keeper ;  held  that  the  driver  of  the  mail-cart  was 
to  be  taken  to  be  the  agent  of  the  plaintiff  for  the 
purpose  of  delivering  it  to  go  by  the  defendant's 
coach,  and  that  he  was  not  to  be  considered  as 
haying  anything  to  do  in  forwarding  it,  or  for  its 
safety  beyond  M.    Syms  e.  Chaphn,  1  N.  &  P. 


[CARRIEIU-CERTIORARri 


a  Held  ilw,  thai  an  ob>>ctJon  onder  the  11    4,  c.  33,  ■.  1,  to  rpmore  an  iadietment  ftrnot  pp. 

puringaroad  fromanmfenarcoiirtfisaliaolateiB 
the  fint  matanoe.  R.  r.  Lenb,  5  Dowl.  (r.  c.) 
123. 

2.  The  writ  btakea  avaj  bj  25  Geo.  S.  e.  26, 
s.  JO,  for  remoTins  an  indJctmeot  for  keying  a 

gamin?  " 


Geo.  4  &  1  WiJL  4,  c.  6^,  tnat  the  raioe  was  not 
declared  at  the  time  of  bookiD^,  most  m>w  be 
apeekllj  pleaded.  lb. 

4.  A  partf  letting  oat  his  carts,  which  p!ied 
for  hire  on  the  pubbe  vharfs,  to  anj  vho  would 
engage  them,  semb.^  would  not  be  deemed  a  coa>- 
mon  carrier,  hot  liable  for  loos  bj  the  ne^Iieence 
of  hk  aenrata.    Brind  r.  Dak,  o  C.  4c  F.  (%,  r.) 

^^-  3.  Upon  a 

5.  Where  the  plaintifT  desired  that  the  parcel  more  an  order    of 
oontajningprintsmighibe  sent  for,  and  the  porter  must  be  entered  mto  purraant  to  the  5  Geo.  2, 
of  the  booking-office  accordingly  fetched  it,  and  c-  1^*,  Sw  2,  by  an  mhabiUnt,  oo  behalf  of  himaelf 


,  where  the  application  is  made  at 
the  instance  of  a  defendant.  R.  e.  Foz,  5  DowL 
.'p.  c;  212. 


by  aparith  to  le- 
the 


and  the  other  intiabitanta,  with  two  nuetiea 
r.  Abergele,  1  Ner.  &  P.  (a.  a.)  237. 

4.  An  indjctment  againci  aeveial  haring  been 
remoYed  by  certtorart,  without  the  eooaent  of  one 
held  that  be  could  not  compelled  to  pay  the  eoali 
of  the  trial  ahhongfa  he  had  appeared  and  piraded 
to  it,  and  been  tned  tiiereoa.    R.  v.  If  Mat  11,  5 


H  vaa  pnt  in  £be  defendant's  van  ;  the  raloe  was 

not  declared  at  the  time  of  the  deliTeir,  nor  the 

increaaed  charge,  according  to  the  defendant's 

notice  under  1  WilL  4,  c.  6e, paid,  baton  delivery 

a  higher  charge   was  made,  on  the  ground  of 

being  pictures,  which  reqnired  more  care ;  held, 

that  the  deliTcry  at  the  office  by  the  defendant's 

porter  waa  to  be  taken  to  be  a  delivery  there  by    0^,"^^  (p".  c.)  SSlT 

the  plaintiff's  agent,  and  no  formal  declaration  '  v  *    v 

having  been  made,  the  mere  conviction  of  the  j     5.  The  court,  considering  the  Central  Court 

contents  was  not  equivalent  for  what  is  required  '  competent  to  decide  all  maters  of  Uw,  refuaed  a 

by  the  Act;  stmb.,  if  the  jury  should   find  the    certiorari  to  remove  an  indictment,  on  the  ground 

losa  or  injury  to  have  been  occasioned  through    that  difficult  matters  of  law  might  ariae.    R.  «. 

grom  negligence,  the  notice  and   Act  of  Parlia-  ;  Templar,  1   Ner.  db  P.  (a.  a.)  91 ;  and  5  DowL 

ment  would  not  be  a  defence.    Boys  r.   Pink,  t  •  (p.  c.)  240. 

O.  at     .  (a.  P.;        •  ....  16.  Upon  motion  to  quaah  the  writ  for  removiof 

6.  Where  a  railroad  Act  enabled  the  company  ^  order  of  Sesaiona,  held  not  aufficient  to  mem 
to  carry  passengers  and  goods,  and  contamed  also  .  ^j^  ^^^^^^^  required  by  13  Geo.  2,  c.  15,  on  one 
a  clause  requinng  noUce  of  action  to  be  given  in  jagtJce  present  at  the  Sessiona,  and  on  another 
respect  of  any  thmg  done  in  pursuance  of  such  .  ^^^  present;  and  it  is  competent  to  the  parties  to 
Act ;  a  loss  haying  arisen  by  the  carnages  getting  ^^^  ^  ^j^  ^^^j^  j^fo^  tl^  ^nl  obtained ;  and 
off  the  railroad,  in  consequence  of  caiUe  having  '^^'^  J^^  too  late  to  object  to  the  serriee  of  the 
strayed  thereon,  through  the  msufficiency  of  the    ^^^^  ^(^^  y^  ^nl  imatd^  although,  if  qoaah- 


fences  made  by  the  company ;  held,  that  having 
availed  themselrea  of  the  permission  given  by  the 
Act  to  carry  goods,  &c,  they  thereby  became 
common  carriers,  and  liable  as  such,  and  that  the 
action  being  brought  against  them  aa  such,  no 
notice  of  action  waa  necessary ;  held  also,  that  if 
the  evidence  as  to  the  negligence  and  cause  of 
loM  did  not  support  the  declaration,  the  objection 
should  have  been  made  at  the  trial,  when  the  dec- 
laration might  have  been  amended.  Palmer  r. 
Grand  Junction  Railway  Company,  4  Meea.  &. 
W.  (EI.)  749 ;  3  Dowl.  (p.  c.)  232. 

7.  In  an  action  against  carriers  for  negligence, 
simply  stating  the  delivery  and  receipt  of  the 
goods  to  be  carried  for  hire,  not  alleging  the  de- 
fendants to  be  common  carriers,  but  that  thereup- 
on it  became  and  was  the  duty  of  the  defendants 
to  take  due  care  of,  and  to  carry,  Ac. ;  held,  that 
there  being  nothing  to  show  that  the  action  was 
founded  on  contract,  but  that  the  declaration  might 
be  read  aa  founded  on  the  general  custom  of  the 
realm,  and  that  aHer  verdict  the  court  must  so 
read  it,  the  action  was  to  be  construed  as  an  action 
of  tort,  and  that  one  of  several  defendants  might 
be  found  guilty.  Pozzi  v.  Shipton,  1  Pcrr.  &,  Dav. 
<<l.  B.)  4. 

And  see  RaUtDay  ;  Ship. 


CERTIORARI. 
1.  The  rule  for  a  certiorari^  under  5  dt  6  Will. 


ed,    it  may  be  to  late  to  aoe  out  a  fieah  one.     R. 
V.  Rattislaw,  5  Dowl.  (p.  c.)  539. 

7.  Where  upon  a  plaint  in  an  inferior  ooort,  a 
foreicn  attachment  waa  iasocd,  and  a  claim  waa 
filed  Dv  a  third  party,  on  which  iasne  waa  joined ; 
held,  that  such  issue  was  within  the  21  Jae.,  c 
23, 8. 2,  and  that  if  the  claimant  were  enabled  to 
sue  out  a  rertiorori,  he  could  only  do  so  within 
the  time  limited  bythe  statute.  Wait  c.  Coombn, 
6  Dowl.  (p.  c.)  127. 

8.  Where  a  writ  of  foreign  attachment,  in  a 
provincial  court,  waa  issued  by  W.  against  C^ 
and  the  goods  of  the  latter  seized  under  it,  where- 
upon a  claim  waa  entered  by  B.,  alleging  the 
goods  to  be  his,  and  six  weeks  after  the  issue  waa 
entered  for  trial,  and  upon  its  coming  on  lor  trial 
a  certiorari  was  tendered  by  B.,  but  refuaed  by 
the  Judge  below,  and  the  cause  waa  heard  under 
protest;  held,  that  B.  waa  not  entitled  to  sue  out 
the  certiorari  under  2t  Jac.  c.  23,  s.  2,  and  a  mo- 
tion for  an  attachment  against  the  Jud^  for  re- 
fusing to  receive  the  writ  discharged  with  costs. 
Bruce  v.  Wait,  3  Mees.  A.  W.  (ex.)  21. 

9.  The  court  refused  to  issue  a  certiorari  to  re- 
move an  inquisition  to  assess  compensation  for 
lands  taken  under  a  railway  Act,  where  the  in- 
qaisition  was  not  set  out  on  affidavit,  or  the  omis- 
sion accounted  for,  and  only  stated  that  the  depo- 
nent "  objected"  that  it  did  not  contain  the  reoui- 
aite  notice  to  treat,  and  no  matter  of  feet  dis- 


[CERTIORARI— CHARITY] 


2729' 


tinctlj  alleged  from  which  a  qoestion  of  law 
might  arlae.      Reg.   v.  Manchester  and  Leeds  > 
Railway  Company,  3  Nev.  <&  F.  (q.  b.)  439.  ' 

10.  Where  the  Judge  of  a  borough  court  im- 

f»roper]y  receiyed  a  certiorari  issued  afler  the  time 
imited  by  the  21  Jac,  c.  23,  s.  2,  and  the  record 
was  returned  and  filed  in  the  superior  court,  a 
procedendo  awarded.  Laverack  v.  Bill,  6  Dowl. 
(p.  c.)  Ill ;  and  3  Mees.  &  W.  (ex.)  621. 

11.  The  effect  of  132  s.  of  5  &  6  Will.  4,  held 
to  take  away  the  certiorari^  as  to  an  order  of  ses- 
sions made  upon  an  appeal  against  a  borough 
rate.  Reg.  v.  Ripon  Justices,  2  Nev.  &  P.  (a- 
B.}  411. 

12.  Where  a  railroad  Act  directed  the  inquisi- 
tiom  taken  for  assessing  compensation,  and  judg- 
ment thereon  to  be  kept  by  the  clerk  of  the  peace, 
and  to  be  deemed  records,  &c. ;  held,  1st,  that  a 
eertiorari  would  lie,  although  afler  judgment; 
held  also,  that  the  rule  nisi  was  properly  directed 
to  the  clerk  of  the  company,  although  the  inqui- 
sition was  out  of  his  custoay.  R.  v.  Manchester 
and  Leeds  Railway  Company,  1  Perr.  <&  Day. 
(q.  B.)  164. 

13.  And  where  the  certiorari,  in  respect  of  all 
proceedingi^^  taken  in  pursuance  of  the  act,  was 
taken  away,  held  that  it  applied  to  cases  where 
compensation  had  been  assessed  under  it  for  lands 
bejTond  the  limits  of  the  prescribed  line.  R.  v. 
firistol  and  £xeter  Railway  Company,  lb.  170,  n. 

14.  Where  a  former  motion  for  a  certiorari  fail- 
ed, from  defect  of  the  affidayits,  the  court  would 
not  allow  it  to  be  renewed  on  amended  affidavits. 
R  V,  Manchester  and  Leeds  Railway  Company, 
1  Ferr.  &>  Day.  (q.  b.)  164. 

15.  The  statutable  regulations  held  to  apply  on- 
ly to  the  eases  of  defendants  suing  out  the  writ  of 
eertiorari,  and  a  prosecutor  therefore  held  not 
bound  by  5  Geo.  2,  c.  19,  s.  2,  to  enter  into  recog- 
nixances  to  remoye  an  order  of  session  for  quash- 
ing a  conyiction.  Spencer,  ex  parte,  1  Per.  ds 
Day.  (q.  B.)  358. 

16.  Where  the  defendant  had  pleaded  to  and 
trayersed  an  indictment  for  an  assault,  at  the  ses- 
sions, and  without  giving  the  usual  notice  of  his 
intention  to  try,  according  to  the  practice  of  the 
sessions,  brought  on  the  trial  and  obtained  an  ac- 
onital,  a  certiorari,  with  the  yiew  of  setting  aside 
me  yerdict,  refnsed.  Reg.  v.  Unwin,  7  Dowl. 
(p.  c.)  578. 

And  see  Costs;  Highway,  7;  Indictment;  Ses- 
sUms;  Turnpike, 


CHARGE. 

1.  Where  a  testator  directed  his  trustees,  at  the 
expiration  of  three  years,  to  pay  a  sum,  charged 
on  lands  deyised  to  his  son,  to  his  daugh- 
ter's husband,  he  giving  sufficient  security 
to  them  that  it  should  be  settled  upon  certain 
trusts  for  the  daughter  and  her  children  ;  the  son 
before  the  expiration  paid  off  the  money,  and  the 
trustees  took  a  bond  firom  the  husband ;  held. 


that  the  term  being  for  the  benefit  of  the  son.  It 
was  competent  to  him  to  anticipate  the  time  of 
payment,  upon  the  condition  stipulated  by  the 
will  being  performed,  and  without  which  the  lands 
would  not  be  discharged,  but  that  under  the  cir- 
cumstances, the  bond  was  not  such  a  security  as 
the  trustees  should  have  been  satisfied  with. 
Mills  r.  Osborne,  7  Sim.  (ch.)  30. 

2.  Where  a  father,  seised  of  estates  in  fee  and 
in  tail,  on  his  daughter's  marriage  covenanted  to 
settle  an  annuity  to  trustees,  to  the  uses  of  the 
marriage,  and  by  deed  or  will  to  settle  lands  of 
200/.  yearly  value,  or  4,000/.  in  lieu ;  by  a  sub- 
sequent deed  with  his  sun,  and  no  other  parties, 
they  agreed  to  suffer  a  recovery  of  the  entail- 
ed estates,  and  sell  those  in  fee  ;  and  afler  provi- 
ding for  certain  sums  for  their  respective  uses^ 
ana  that  4,000/.  should  be  paid  pursuant  to  the 
former  covenant  in  favor  of  the  daughter,  the 
recovery  was  suffered,  but  they  afterward  aban- 
doned that  settlememt,  and  a  fresh  arrange- 
ment took  place  between  the  father  and  son, 
limiting  the  lands  to  the  son  in  fee,  who  subse- 
quently mortgaged  them  ;  held,  that  the  original 
covenant  for  payment  of  the  annuity  created  a 
charge  on  the  estates  and  the  mortgagee,  having 
notice, continued  subject  to  that  charge  ;  but  that 
the  first  agreement  between  the  father  and  [son, 
providing  for  the  4,000/.,  was  merely  voluntary, 
and  created  no  charge,  and  that  it  was  competent 
to  them  to  abandon  it.  Ravenshaw  v.  Hollier, 
7  Sim.  (cH.)  3.     Affirmed  by  Lord  Chancellor. 

3.  Where  the  father,  be  ins  at  the  time  of  his 
death  a  trader,  and  indebted  both  by  specialty 
and  simple  contract,  devised  real  estates  to  his 
son,  who  on  his  marriage  settled  them  in  trust 
for  his  wife  and  children  ;  held,  that  the  effect  of 
3  &  4  W,  &  M.  c.  14,  and  47  Geo.  3,  c.  74, 
hemg  to  make  the  heir  or  devisee  personally  liable 
to  the  amount  of  the  assets  devised  or  descended, 
and  not  to  charge  the  real  estate  with  the  debts 
of  the  ancestor,  the  widow  and  children  of 
tJie  son  were  entitled  to  hold  the  estates  settled, 
discharged  from  the  debts  of  the  testator.  Spack- 
man,  v.  Timbrell,  8  Sim.  (ch.)  253. 

4.  Where  a  motion  was  dismissed  with  costs, 
for  which  a  subpama  had  been  issued,  and  every 
epdeavor  made  to  serve  the  party,  the  court  held 
that  it  was  like  a  judjrment  at  law,  and  that  it 
would  enforce  the  order  by  charging  Government 
stock  of  the  party,  under  1  £  2  Vict.,  c.  110. 
BUke  V.  White,  3  Younge  &  C.  (ex.  xq.)  434. 

And  see  Debts;  Incumbrance;  Legacy,  [I]  4-; 
Marriage  Settlement ,2;  Specific  Peiforwiance,  4. 


CHARITY. 

1.  Where  estates  were  devised  to  a  corporattoo, 
for  the  use,  interest,  and  performance  of  the  tes- 
tator's will,  and  certain  parts  of  the  property 
were  given  to  his  brother  for  life,  and  for  other 
purposes  not  charitable,  but  also  for  some  charitar 
ble  purposes ;  and  if  the  condition  upon  which  the 
estate  was  devised  was  not  performed,  then  a  gift 
over  to  his  brother  in  fee ;  held  not  to  be  a  mere 
trust,  but  that  the  corporation  took  beneficially > 
and  not  for  charitable  purposes,  farther  than  tft 


3930 


[CHARITY] 


the  extent  of  the  chaiwes  apecificalhr  impoeed. 
Attorney-Crenend  v.  Cx>rdwainera'  Companj,  3 
Myl.  &K.  (CH.)534. 

2.  Before  the  1  W.  &  M.  c.  21,  the  commir 
■ioners  of  the  Great  Seal  had  oo  power  to  iwae  a 
commisf  ioo  of  charitable  uses ;  and  a  decree  by 
such,  made  daring  the  commonwealth,  held  null. 
Attorney- General  v.  Atherstone  School  Goycr- 
nors,  3  Myl.  6l  K.  (ch.)  544. 

3.  And  see  the  principles  by  which  the  court 
ia  guided  in  schemes  for  management  and  yisi- 
tatorial  jurisdiction  oyer  schools.  lb. 

4.  Where  the  founder  of  a  fellowship  in  a  col- 
lege directs  a  preference  in  favor  of  scholars  to 
be  sent  from  a  particular  school ;  held,  that  such 
candidate  was  not  to  be  deemed  exempt  from  the 
usual  college  examinations  as  to  his  fitness  ;  a 
party  so  endowing  is  to  be  presumed  conusant  of 
the  rules  of  the  society  on  which  he  is  about  to 
engraft  a  new  member,  and  to  intend  that  such 
person  shall  be  subject  to  the  same  provisions  att 
other  candidates  for  election  ;  but  tnc  refusal  to 
submit  to  examination  having  arisen  from  mistake, 
held,  that  he  was  still  entitled  to  go  before  the 
roaster  and  fellows  and  be  examined,  and  that  his 
fitness  was  of  a  positve  and  not  relative  nature. 
Inge,  ex  parte,  2  Russ.  &.  M.  (en.)  500. 

5.  And  such  candidate,  if  not  found  "  able,'* 
•although  qualified  otherwise  as  to  birth,  &c. ; 
held  that  another  might  be  legally  elected,  al- 
though not  possessed  of  those  qualifications,  if 
posessing  the  requisite  ability.  S'.  John's  Col- 
lege, in  re,  2  Russ.  &.  M.  (ch.)  603. 

6.  Where  the  declared  object  of  the  original 
founders  of  a  meeting  house  was  simply  "  for  the 
iKrvice  and  worship  of  God,"  yet  the  court 
would  look  to  the  doctrines  at  the  time  not  allow- 
ed by  law  to  be  preached,  as  assisting  in  deter- 
mining the  opinions  of  the  persons  creating  the 
the  trust ',  the  decree  therefore  declared,  that  it 
ought  not  to  be  applied  to  the  support  or  teach- 
ing of  the  doctrines  of  any  sect  denying  the  doc- 
trine of  the  Trinity,  which  at  the  time  of  erect- 
ing the  meeting-house  could  not  be  legally  taught 
or  preached  tl^rein.  Attorney- General  v.  Pear- 
4K>n  and  others,  7  Sim.  (ch.)  200. 

7.  Where  an  advowson  was  granted  for  the  ad- 
vancement and  better  maintenance  of  a  graromar- 
«chool,  and  subsequently  the  hereditaments  and 
personal  estate  belonging  to  the  school  was  by 
Act  of  Parliament  vested  in  trsutees,  in  trust  for 
the  school,  except  the  right  of  presentation  to 
ecclesiastical  benefices,  which  were  declared 
to  be  in  the  mayor,  &c.,  of  the  town,  in  which  by 
A  clause,  preference  was  to  be  given  to  certain 
persons ;  held,  first,  that  the  corporation  were  in- 
vested with  a  trust  not  of  benefit,  but  strictly  to 
present  proper  persons  out  of  the  favored  class ; 
and  that,  secondly,  the  5  &^6.  Will.  4,  c.  76,  s.  71, 
did  not  apply  to  such  benefices,  and  that,  under 
the  provisions  of  that  Act,  the  Chancellor  was 
bound  to  appoint  new  trustees  in  the  place  of  the 
corporation.  Shrewsbury  School,  in  re,  1  Myl. 
&  Cr.  (CH.)  632. 

8.  Where  lands  were  granted  to  a  corporation 
created  by  royal  grant,  of  a  master  and  oye  poor 


men,  with  a  diieetion  that  S2f .  aboold  be  paid  to 
each  of  the  ^re  poor,  and  that  the  income  and 
revenues  of  the  lands  granted  should  be  applied 
to  the  support  of  the  master  and  poor,  and  for  the 
repairs  of  the  buildings ;  held,  that  the  whole 
funds  being  giyen  to  both,  with  a  certain  amount 
to  one,  and  the  unascertained  residue  to  the  other, 
the  five  poor  were  not  entitled  to  share  the  in- 
creased revenues  of  the  charity  :  but  that  a  sum 
given  to  the  master,  on  a  treaty  for  compensation 
for  injury  to  the  lands,  was  not  to  be  considered 
a  personal  and  accidental  benefit  to  hioi,  but  to 
be  treated  as  a  sum  received  by  him  as  truatee  for 
the  charity,  and  of  which  he  waa  only  to  enjoy 
his  share  of  the  annual  profit  arising  therefrom : 
held,  also,  that,  ItHDking  to  the  duties  and  objects 
of  appointing  the  master,  residence  was  essential 
to  the  scheme.  Attorney-General  r.  Smythies, 
2  Russ.  &  M.  (CH.)  717;  and  2  Myl.  &.  Cr.  1%; 
and  I  K.  2^. 

9.  Where  a  testatrix,  in  1680,  devised  a  rent- 
charge,  upon  trust  for  the  maintenance  of  a  Cath- 
olic priest  for  the  help  of  poor  Catholics;  upon 
an  information  filed  before  the  2  dL  3  Will.  4,  c. 
115,  held  that  such  bequest  was  for  a  charitable 
purpose,  and  being  illegal,  the  Crown  was  enti- 
tled to  direct  the  application,  cy-pres,  of  the  fund 
to  otlier  charitable  purposes,  in  a  legal  mode. 
Attorney- General  r.  Todd,  1  K.  (ch.)  803. 

10.  Where  sums  of  money  were  given  in  trust 
to  a  company,  to  be  invested  in  land  for  the  main- 
tenance of  poor  alms-men  of  the  company  yearly 
for  ever,  and  the  company  had  neyer  inyested, 
and  had  mixed  the  fund  with  their  own,  but  had 
in  fact  properly  applied  the  full  income  of  the  gift 
to  the  objects  of  the  grantor's  bounty ;  held,  that 
a  distinct  investment  ought  to  have  been  made 
within  a  reasonable  time,  but  that  they  were  not 
required  to  make  a  distinct  establishment,  no  ae|>- 
arate  foundation  having  been  directed ;  and  that 
the  company  might  ap^y  the  funds  for  the  bene- 
fit of  persons  already  their  alms-men ;  the  court, 
however,  looking  to  what  had  been  done,  refused 
an  inquiry  as  to  any  loss  having  been  incurred  by 
the  neglect  to  invest,  and  directed  the  fund  to  be 
laid  out  in  the  3  per  cent,  consols :  costa  of  the 
relators,  as  between  party  and  party,  aUowed ;  but 
extra  costs  out  of  the  ciiarity  fund  refused.  At- 
tomey-Greneral  v.  Fishmongers'  Company,  1  K. 

11.  Where  the  founder  of  a  school  gave  lands 
to  a  guild  for  its  support,  and  afterwards  gave 
lands  to  a  college,  on  condition  of  their  maintain- 
ing five  scholars,  to  be  chosen  firom  the  school  by 
the  guild,  and  gave  the  master  and  fellows  of  the 
college  power  of  appointing  and  removing  the 
master  of  tlie  school ;  the  guild  being  afterwards 
dissolved  by  the  Act  of  Parliament,  and  the  se- 
lection of  the  scholars  to  be  sent  to  the  coUege 
given  to  the  schoolmaster,  and  yicar  and  churcn- 
wardens  of  the  parish,  and  on  their  default  to  the 
college,  and  on  their  like  default  to  the  Arch- 
bishop of  York  :  held,  that  the  foundations  of  the 
school  and  of  the  scholarships  were  distinct,  and 
that  one  information  for  alleged  abuses  in  the 
administration  of  both  was  bad  for  multifarious- 

Ineftj  held  also,  that  the  Archbishop  ovtghX  to 


[CHARITY] 


2731 


hare  been  made  •  party.    Attomey*General  v. 
8t  John's  College,  7  Sim.  (ch.)  241. 

12.  A  special  visitor  can  only  be  where  he  is 
BO  speciallj  named  and  appointed  by  the  founder, 
and  if  so,  it  will  not  exclude  the  jurisdiction  of 
the  court ;  where  the  patron  was  such  for  want 
of  a  special  appointment,  but  had  never  exercised 
any  visitatorial  power,  the  court,  in  a  case  where 
the  original  foundation  and  endowment  of  an  an- 
cient hospital  were  unknown,  and  the  warden, 
af\er  paying  certain  small  stipends  and  repairs, 
retained  the  surplus  to  his  own  use,  being  declar- 
ed a  trustee  only,  referred  it  to  the  Master  to  set- 
tle a  scheme  for  the  application  of  the  revenues. 
Attorney- General  v,  York,  Archbishop,  2  Russ. 
dt  M.  (cH.)  461;  reversing  the  decision  of  the 
Vice-Chancellor. 

13.  After  a  reference,  and  appointment  by  a 
Master  of  new  trustees  of  a  charity,  the  court  will 
adopt  his  appointment,  unless  it  bie  clearly  shown 
that  the  parties  appointed  are  objectionable,  and 
the  court  will  not  enter  into  the  question  of  the 
fitness  of  others  rejected ;  an  exercise  of  the  ap- 
pointment by  old  trustees  for  political  purposes, 
neld  a  sufficient  cround  for  his  not  re-appointing 
them :  held  also,  that  there  being  nothing  in  the 
will  of  the  founder  showing  that  the  intended  bene- 
fits were  to  be  confined  to  members  of  the  church 
of  £ngland,  Uie  Master  was  justified  in  appointing 
as  trustees  individuals  not  members  of  that  church. 
Norwich  Charities  in  re,  2  My  I.  &  Cr.  (ch.) 
275. 

14.  Where  charity  lands  were,  by  the  opera- 
tion of  59  Geo.  3,  c.  12,  s.  17,  become  vested 
in  the  church  wardens  and  overseers,  part  being 
sold  for  the  purpose  of  a  local  Bridge  Act ;  held, 
that  the  petition  for  in  vesting  the  purchase-money 
might  be  presented  in  their  names ',  but  semble, 
having  no  corporate  seal,  they  could  not  authorize 
an  attorney  to  continue  to  receive  the  dividends. 
Annesley,  ez  parte,  2  Tounge,    (ex.  sq.)  350. 

15.  The  court  may  direct  an  account  of  char- 
ity estates  in  the  hands  of  a  corporation,  from  the 
date  of  the  foundation  of  the  charity,  where  the 
misapplication  has  been  gross ;  yet,  under  circum- 
stances, it  directed  them  to  be  taken  only  from 
the  last  appointment  of  trustees  nominated  by 
the  corporation  to  administer  the  charity.  Attor- 
ney-General V.  Newbury  Mayor,  &c.,  3  Myl.  & 
K.  (cH.)  647. 

16.  Where  the  information  stated  a  case  wholly 
inconsistent  with  the  facts  really  existing,  and 
which  were  obtained  from  the  answer,  but  the 
relators  did  not  amend  the  bill,  or  put  the  case 
into  a  shape  which  might  have  entitled  them  to 
some  relief,  and  no  application  had  been  made 
before  filing  the  bill  to  correct  the  alleged  abuse, 
which,  if  any,  arose  out  of  a  decree  of  commission- 
ers in  1686,  according  to  which  the  trustees  had 
ever  since  acted;  the  court  dismissed  the  infor- 
mation with  costs.  Attorney- General  v.  Grocers' 
Company,  I  K.  (ch.)  506. 

The  case  of  Giblett  v.  Hobson,  5  Sim.  651, 
affirmed  on  appeal,  3  Myl.  &  K.  517. 

17.  A  lease  of  lands  and  hereditaments  for| 
Vol.  IV.  58 


charitable  uses,  where  already  in  mortmain  ;  held 
not  to  be  invalidated  by  9  Geo.  4,  c.  36.  Walk- 
er V.  Richardson,  2  Mees.  &,  W.  (ex.)  882. 

18.  Where  money  given  to  a  corporation,  to 
dispose  of  it  as  they  pleased,  was  appropriated  by 
thei9  to  the  endowment  of  lectureships,  the  in- 
come to  be  applied  for  payment  of  them ;  held, 
not  a  charitable  trust  within  the  meaning  of  s.  71 
uf  5  &  6  Will.  4,  c.  76.  Oxford  Charities,  in  re, 
3  Myl.  &Cr.  (CH.)239. 

19.  Where  certain  members  of  the  congrega- 
tion, and  pew-holders,  claiming  to  be  trustees  of 
the  lease  of  a  chapel  for  religious  worship,  ac- 
cording to  the  doctrines  of  the  Scotch  Church, 
filed  a  bill  against  other  trustees  in  whom  the 
lease  was  vested,  alleging  the  placing  ministers 
not  of  the  Scotch  Cnurch  therein,  and  other 
breaches  of  trust,  praying  relief  and  that  the 
trusts  might  be  performed  :  the  alleged  trust  being 
made  out,  and  the  breaches  established  in  evidence, 
decree  as  prayed;  and  held,  that  the  record  was 
properly  tramed,  and  that  by  amendments  mak- 
ing the  original  plaintiffs  sue  on  behalf  of  all 
having  the  same  interest,  the  parties  or  firame  of 
the  record  was  not  so  altered  as  to  prevent  the 
depositions  taken  in  the  original  suit  being  used 
in  the  amended  one,  and  that  there  would  be  no 
difficulty  in  sustaining  perjury  on  such  deposi- 
tions. Milligan  v.  Mitchell,  3  Myl.  &  Cr.  (ch.)  72. 

20.  Where  a  testator  endowing  a  grammar- 
school  contemplated  a  fixed  income  oriSO^.,  to 
arise  from  loan  or  investment  in  land,  and 
after  providing  for  the  erection  of  a  school-house, 
«&c.,  six  tenements  for  alms-folk,  six  fellowships 
and  scholarships  in  the  college  of  C,  he  appoint- 
ed the  master  and  four  senior  fellows,  afler  the 
death  of  his  executors,  the  supervisors  of  his 
will ;  and,  including  51.  to  the  master  and  30«.  to 
each  of  the  four  senior  fellows,  he  distributed  the 
income  to  the  amount  of  2432.  lis,  3d.,  and  willed 
that  the  remainder  should  be  from  time  to  time 
bestowed  in  such  charitable  uses  as  his  executors 
and  supervisors  should  think  fit ;  the  fund  hav- 
ing been  invested  in  land,  and  the  rents  latterly 
far  exceeded  the  contemplated  income,  held, 
that  the  supervisors  took  the  remainder  upon  trust 
for  charitable  purposes,  without  application  to 
their  own  benefit ;  but  the  court  regarding  the 
intimate  connexion  intended  by  the  testator  be- 
tween the  college  and  the  school,  notwithstanding 
long  misappropriation,  refused  to  remove  the 
trustees ;  and  there  having  been  great  accumu- 
lations through  their  economical  administration, 
allowed  them  their  costs  out  of  the  funds  accu- 
mulated. Attorney-general  v.  Caius  CoUefe« 
Cambridge,  2  Keene,  (ch.)  150. 

21.  Gift  to  trustees  of  lands,  at  the  time  pro 
ducing  501.  per  annum,  for  decayed  "  gentlemen" 
of  the  devisor's  family  first,  then  of  others,  to  be 
allowed  10^  a  year  so  &r  as  the  rents  would  ex- 
tend; the  rental  now  amounting  to  5002.,  a  refer 
ence  ordered  for  a  scheme  as  to  mcreasing  the  al 
lowance,  &c.,  and  more  accurately  to  define  the 
the  objects,  excluding  minors.    Attorney-general 
IK  Holland,  2  Tounge  &  C.  (sx.  eq.)  68^. 

22.  Where  one  of  several  trustees  was  directed 
to  be  the  acting  manager  for  one  year  in  rotation ; 
held,  that  a  succeeding  one  was  not  liable  for  the 


2722 


[BILLS] 


held,  not  fufficient  to  call  upon  the  holder  to  prove 
coDsideration.  Jacob  v.  Hangate,  1  M.  <&  Rob. 
(v.  p.)  445;  queationinff  Thomas  v.  Newton,  2 
Carr.  &  P.  606;  and  Heath  v.  Sanaom,  2  fi.  & 
Ad.  291. 

19.  Where  the  defendant  pleaded  that  the  note 
was  made  on  certain  terms,  and  indorsed  by  the 
plaintiff  without  consideration,  and  the  plaintiff 

replied  that  £ was  given  for  it,  the  issue 

being  on  the  defendant,  and  he  called  no  witness ; 
held,  that  the  plaintiff  was  entitled  to  recover 
that  sum.  Edwards  v.  Jones,  7  C.  &  P.  (k.  p.) 
€33. 

20.  Where  the  drawers  of  the  bill  kept  account 
with  the  plaintiffs  as  bankers,  which  they  indors- 
ed to  them,  and,  upon  its  bein^  returned  disho- 
nored, it  was  entered  on  the  debit  side  of  the  ac- 
count, which  at  the  time  was  considerably  against 
the  drawers,  and  remained  so  at  the  commence- 
ment of  the  action ;  the  bankers  had,  on  former 
occasions,  allowed  the  drawers  to  overdraw  their 
accounts,  but  they  were  under  no  obligation  to  do 
00 ;  held,that  such  entry  was  no  evidence  in  support 
of  a  plea  that  the  bankers  had  received  that  sum 
in  satisfaction  of  the  bill.  Ryder  v.  Wyllett,  7 
C.  &  P.  (N.  P.)  6oa. 

21.  In  assumpsit  by  indorsee  against  maker; 
,  {»lea,  that  it  was  ^iven  for  a  gaming  debt,  and 

without  consideration,  and  indorsed  to  plaintiff 
with  notice;  replication,  that  it  was  indorsed 
wiihout  notice  of^  the  illegality,  and  for  good  con- 
sideration ;  held,  that,  upon  such  issue,  the  de- 
fendant was  bound  to  give  evidence  to  connect 
the  plaintiff  with  the  parties  illegally  concocting 
the  note,  and  that  the  plea  did  not  amount  to  an 
admission  of  any  existing  illegality,  and  that  the 
iury  could  only  draw  inferences  of  it  from  facts. 
Edmunds  r.  Groves,  5  Mees.  <Sfc  W.  (ex.)  642 ; 
and  5  Dowl.  (p.  c  )  775. 

22.  Where  the  only  issue  raised  was,  whether 
the  bill  was  indorsed  afler  it  became  due ;  held, 
that  the  onus  of  establishing  it  lay  on  the  defen- 
dant. Lewis  r.  Parker,  6  Nev.  ^  M.  (k.  b.)  294 ; 
and  4  Ad.  ^  KU.  838. 

23.  In  an  action  against  drawer,  upon  plea  that 
he  did  not  make  the  note,  evidence  of  imbecility 
of  mind  could  not  be  gone  into.  Harrison  v. 
Richardson,  1  M.  &  Rob.  (n.  p.)  504. 

24.  Plea  in  assumpsit  by  indorsee  against  ma- 
ker, that  he  gave  two  bills  to  the  plaintiff  to  take 
up  the  note,  and  in  lieu  thereof^  and  that  de- 
fendant was  a  party  liable  on  the  bills  to  the  plain- 
tiff, and  that  they  were  outstanding  in  the  hands 
of  the  plaintiff;  held,  that  it  was  Tor  the  jury  to 
say  if  tne  bills  were  given  in  lieu  of  and  in  satis- 
faction of  the  note,  or  only  to  gain  time  for  the 
payment;  if  the  former,  it  was  a  good  defence, 
although  the  latter  part  of  the  plea  was  not  prov- 
ed ;  if  the  latter,  it  ought  to  be  shown  that  both 
were  outstanding  at  the  commencement  of  the 
action.  Goldshede  v.  Cottrell,  2  Mees.  &  W. 
(EX.)  20. 

25.  Plea  to  a  declaration  on  a  note  payable  ab- 
solutely with  interest,  that  it  had  been  substituted 
for  a  note  given  on  an  agreement  for  a  share  in  a 
partnership,  and  that  it  had  been  thereby  stipu- 


lated that  the  principal  was  to  be  paid  out  of  the 
defendant's  yearlv  share  of  the  profits,  and  that 
unless  the  defendant  failed  in  nis  part  of  the 
agreement,  the  plaintiff  would  not  call  suddenly 
for  the  payment  of  the  balance  on  the  note ;  the 
original  note  also  contained  a  similar  statement 
as  to  the  mode  of  liquidation ;  and  the  jury  found 
that  the  note  for  which  the  action  was  brought 
was  substituted  for  and  ffiven  on  the  same  condi- 
tions ;  held  that,  although  the  replication  limited 
the  issue  to  the  question  whether  the  plaintiff  had 
given  reasonable  notice  of  enforcing  the  note,  it 
was  competent  to  the  defendant  to  show  the 
whole  circumstances  of  the  transaction,  and  of 
the  substitution  of  the  note  for  the  original  one, 
but  that,  although  the  plaintiff  might  not  be  en- 
titled to  recover  the  balance  of  the  principal  due, 
he  was  entitled  to  a  verdict  for  the  interest.  Bay- 
lis  r.  Ringer,  7  C.  &  P.  (n.  p.)  691. 

26.  Upon  plea  to  a  declaration  by  a  second  in- 
dorsee against  acceptor,  that  the  bill  was  an  ac- 
commodation bill  ffiven  to  R.,  and  that  the  in- 
dorsement was  made  afler  the  bill  became  due ;  it 
appearing  that  at  the  time  of  accepting  the  bill 
R.  and  the  defendant  were  friends,  but  subse- 
quently quarrelled,  and  the  bill  was  not  put  in 
suit  until  five  vears  afler  it  became  doe,  and  nei- 
ther party  called  R.  :  held  to  amount  to  prima 
facie  evidence  on  the  part  of  the  defendant  to  go 
to  a  jury,  fiounsall  v.  Harrison  1  Mees.  &,  W. 
(ex.)  611 ;   and  1  Tyr.  &  Gr.  925. 

27.  In  an  action  by  indorsee  against  acceptor, 
an  order  having  been  obtained  for  inspection, 
plea  denying  the  acceptance,  indorsement,  dtc. 
and  also  that  it  was  on  paper  improperly  stamped 
under  3  &  4  Will.  4,  c  97,  s.  17,  the  latter  being 
admissible  under  the  plea  of  non-acceptance,  waa 
ordered  to  be  struck  out.     Dawson  v.  Macdonald, 

2  Mees.  &  W.  (ex.)  26. 

28.  In  assumpsit  by  indorsee  against  acceptor ; 
plea,  that  afler  the  bill  became  due,  he  tendered 
the  amount  of  the  bill  with  interest,  held  bad  on 
demurrer ;  a  tender  afler  the  day  cannot  be  plead- 
ed by  the  acceptor.  Poole  v.  Tumbridge,2Mee8. 
&  W.  (EX.)  223. 

And  see  Hume  v.  Peploe,  8  East,  167. 

29.  In  assumpsit  against  acceptor  on  a  bill  in- 
dorsed to  a  banking  compemy ;  held,  that  an  al- 
legation in  a  plea  that  the  plaintiffs  were  a  bank- 
ing company,  consisting  of  more  than  six  persons, 
and  that  they  were  illegally  associated  during  the 
privileges  granted  to  me   Bank  of  England  by 

3  &.  4  Will.  4,  c.  98,  as  compounded  of  law  and 
fact,  was  therefore  traversable.  Ransford  v. 
Copeland,  1  Nev.  d&  P.  (k.  b.)  671. 

30.  In  debt  by  the  holder  against  acceptor; 
plea,  as  to  part,  actio  non^  because  he  received  no 
consideration,  but  had  delivered  it  to  a  third  per- 
son to  get  it  discounted,  from  whom  the  plaintiff 
detained  it  for  his  own  debt,  and  only  aavanoed 
the  part  admitted,  and  issue  joined  that  the  de- 
fendant was  indebted  beyond  that  sum,  which 
was  found  for  the  defendant;  held,  that  although 
such  plea  was  bad,  yet  the  plantiff  having  chosen 
to  go  to  trial,  he  let  the  defendant  into  any 
defence  which  he  might  have  to  the   action. 


[BILL] 


2723 


Finleyaon  v,  Mackenzie,  3  Bine.  N.  S.  (c.   p.) 
824. 

31.  In  assumpsit  against  the  acceptor;  plea, 
that  after,  dec,  the  defendant  waa  resident  in 
Scotland,  and  executed  an  assienment  of  his  per- 
sonal property  for  the  benefit  of  his  creditors,  and 
notice  thereof  to  the  plaintiff,  who  authorized  his 
attorney  by  writing  tio  concur  in  such  deed  and 
receive  hia  dividend,  alleffing^  such  proceedings 
to  be  in  conformity  with  the  law  of  Scotland,  and 
that  by  reason  of  the  premises  and  by  force  of 
the  laws  there  he  was  absolutely  discharged ; 
held,  Ist,  that  by  issue  on  such  plea  the  law  of 
Scotland  was  put  in  issue,  and  the  defendant 
bound  to  give  evidence  of  it ;  and  2ndly,  that  no 
deed  of  composition  having  been  executed  by  the 

Elaintiff,  nor  any  act  done  binding  him  not  to  sue 
ia  debtor,  there  was  nothing  on  the  face  of  the 
plea  amounting  to  a  defence  to  the  laws  of  this 
country.  Wofraham  v.  Edwards,  1  Nev.  &  P. 
(K.  B.)  207. 

32.  Where  the  declaration  by  an  indorsee 
against  indorser  of  a  note  described  the  defen- 
dant as  the  maker,  and  to  whom  no  notice  of 
dishonor  had  been  given  ;  held,  that  the  rule 
that  an  indorser  stood  in  the  situation  of  a  new 
maker,  applied  only  to  the  case  of  a  bill  and  not 
of  a  note,  and  that  the  plaintiff  was  not  entitled 
to  recover.  Gwinnell  v.  Herbert,  5  Ad.  &  £11. 
(x.  B.)  436. 

33.  Where  the  clerk  of  a  oanking  firm  of  three 
partners,  upon  the  death  of  two,  continued  to 
manage  the  business  for  the  surviving  partner  in 
order  to  wind  up  the  affairs,  and  in  the  course 
of  such  employment  using  and  signing  the 
name  of  the  old  firm,  drew  a  bill  on  H .,  which 
was  accepted ;  held,  that  his  own  name  not  being 
OD  the  bill,  he  was  not  personally  liable  as  the 
drawer,  unless  that  it  were  shown  that  he  had  no 
authority  to  draw  in  the  name  of  the  firm,  or 
bad  not  done  so  bona  fide.  Wilson  v.  Bar- 
throp,  2  Mees.  &  W.  (ex.)  863. 

34.  Where  upon  a  bill  becoming  due,  the  ac- 
ceptor asked  for  time,  and  subseouenUy  gave 
another  bill  for  the  same  amount,  admitting  that 
something  was  due  for  interest,  and  that  the 
|>laintiff  should  continue  to  hold  the  first  bill  un- 
til the  second  was  paid,  which  was  done  shortly 
after  it  fell  due;  held,  that  that  the  plaintiff  was 
entitled  still  to  sue  on  the  first  for  the  interest 
due  on  it,  and  that  the  facts  did  not  establish  an 
agreement  alleged  in  the  plea  that  the  acceptance 
of  the  latter  discharged  the  defendants  from  such 
interest.  Lumley  r.  Mnsgrave,  4  Bing.  N.  S. 
(c.  p.)  9 ;  and  3  Sc.  230, 2^. 

35.  In  assumpsit  on  a  banker's  check ;  held, 
that  under  the  general  plea  that  the  defendant 
did  not  make,  &c.  he  might  show  the  check  to 
be  post  dated,  without  pleading  it  specially,  and 
that  he  was  not  precluded  from  the  objection  by 
its  having  been  read  before  the  objection  taken. 
Field  V.  Wood,  8  C.  &  F.  (ir.  p.)  52. 

And  see  Dawson  v.  Macdonald,  2  Mees.  &  W. 
26. 

36.  In  assumpsit  by  indorsee  against  acceptor, 
where  the  plea  was  bad  for  duplicity,  and  the 
rei^ieation  dt  injmria;  held,   that  no  objection 

Vol.  IV.  67 


could  be  made  by  demurrer  on  the  ground  of  sev- 
eral matters  being  put  in  issue,  being  occasioned 
by  the  defendant^  plea.  Reynolds i?.  Blackburn, 
6  Dowl.  (p.  c.)  19. 

37.  Where  the  making  of  the  bill  was  admitted 
on  the  record,  and  the  only  issues  raised  were, 
the  indorsements,  presentment,  notice  of  dishon- 
or, and  consideration ;  held,  that  it  was  not  in- 
cumbent on  the  party  producing  the  bill  to  ex- 
plain an  alteration  wnich  appeared  to  have  been 
made  in  the  date.  Sibley  v.  Fisher,  2  Nev.  A  P. 
(q.  B.)  430. 

38.  Where  there  are  counts  on  the  consideration 
of  the  bill  as  well  as  on  the  bill,  the  plaintiff  will 
be  entitled  to  enter  his  verdict  onsucn  as  apply  to 
the  consideration,  if  the  subject  be  stated  in  the 
particulars,  and  may  recall  a  witness  to  prove  such 
part  of  the  consideration  after  he  has  closed  his 
case.    Ryder  r.  Ellis,  8  C.  &  P.  (f.  p.)  357. 

39.  Upon  a  plea  in  assumpsit  on  bills,  that  the 
defendant,  if  liable,  was  onljr  so  as  suretv ;  held, 
that  he  was  not  entitled  to  inspection  or  a  deed, 
by  which  it  was  said  time  had  been  given  to  the 
principal,  to  which  the  surety  was  not  a  party. 
Smith  V.  Winter,  3  Mees.  &  W.  (bz)  309;  and  6 
Dowl.  (p.  c.)  386. 

40.  In  assumpsit  against  the  defendant  as  joint 
maker  of  a  note  ;  plea  that  the  defendant  joined 
merely  as  a  surety,  of  which  the  plaintiff  had 
no  notice  of  its  not  having  been  paid  until  the 
commencement  of  the  action,  and  that  the  plain- 
tiff gave  time  to  the  party  without  the  defendant's 
knowledge  or  consent;  held  ill  on  general  de- 
murrer. Clarke  v.  Wilson,  3  Mees.  &  W.  (ex.) 
208. 

41.  Where  until  inspection  of  the  check  on 
which  the  action  was  brought  it  could  not  be 
known  that  it  required  a  stamp,  being  post  dated ; 
held  that  it  was  not  too  late  to  take  the  objection 
after  it  had  been  read,  and  the  fact  of  post  dating 
need  not  be  specially  pleaded.  Field  v.  Woods, 
2  Nev.  &  P.  (K.  B.)  117;  and  6  Dowl.  (p.  c.)  23. 

42.  In  an  action  by  payee  against  maker,  a 
party  who  was  a  joint  maker,  and  for  whom  the 
defendant  was  surety,  held  an  inadmissible  wit- 
ness, being  liable,  not  only  for  damages  and  costs 
recoveredliy  plaintiff,  but  for  the  defendant's  own 
costs,  and  that  he  could  not  be  rendered  compe- 
tent by  an  indorsement  on  the  postea  under  3^4 
Will.  4,  c.  42,  s.  26.  Stanley  v.  Jobson,  2  M.  & 
Rob.  (N.  p.)  103. 

43.  In  any  action  against  the  acceptor  of  a  bill 
or  maker  of  a  note,  the  defendant  to  be  allowed 
to  have  the  proceedings  stayed  on  payment  of  the 
debt  and  costs  in  that  action  only.    Reg.  Gen.  3 

ev.  &  P.  (Q.  B.)  370. 

44.  Where,  in  an  action  against  acceptor,  he 
pleaded  that  the  acceptance  was  obtained  bv  force 
of  duress  and  that  he  never  had  any  value  for 
the  acceptance ;  held  bad,  on  demurrer  for  du- 
plicity, and  that  the  objection  was  not  removed, 
Dv  reason  of  the  second  branch  of  the  plea  being 
ill  pleaded.  Stephens  v.  Underwood,  4  Bing.  N. 
S.  (c.  p.)  655 ;  6  Dowl  (p.  c.)  737 ;  and  6  Sc.  (c. 
p.)  402. 


2734 


/ 


[BILL— BOND] 


45.  in  an  action  by  the  indoraee  a^inat  the 
maker,  and  isane  on  the  fact  of  preaentment ;  a 
promise  by  the  defendant,  after  the  note  became 
dae,  to  pay,  held  to  be  a  sufficient  admission  of 
the  presentment  having  been  duly  made.  Crox- 
on  V,  Wortben,  5  Mees.  &  W.  (ex.)  5. 

46.  Plea,  in  an  action  by  the  holder  against  the 
acceptor,  that  the  bill  was  accepted  in  part  pay- 
ment of  a  larger  debt  from  the  defendant  to  the 
drawer,  and  that,  before  it  became  due,  the  defen- 
dant being  in  embarrassed  circumstances,  he  en- 
tered into  a  composition  with  his  creditors,  to 
which  the  drawer  was  a  party,  and  averred  a 
payment  of  the  composition  and  receipt  thereof 
m  satisfaction  of  all  claims  in  respect  of  the  bills 
or  otherwise  ;  held,  Uiat  amounting  to  matter  of 
discharge  and  not  of  excuse,  the  replication  de 
injuria  was  bad.  Jones  v.  Senior,  4  Mees.  & 
W.  (ax.)  123  ;  and  6  Dowl.  (p.  c.)  701. 

47.  in  assumpsit  by  indorsee  against  drawer, 
plea  that  the  bill  was  drawn  and  indorsed  in  pay- 
ment of  the  price  of  hops  as  of  a  certain  planter, 
and  to  answer  certain  samples,  and  alleging  that 
the  plaintiff  had  not  delivered  any  hops  answer- 
ing such  samples,  ^*  or  any  hops  whatever ;"  held, 
that  the  latter  allegation  was  immaterial ;  the 
plea  showing  a  total  failure  of  the  consideration, 
and  that  if  tne  plaintiff  relied  on  the  defendant's 
having  accepted  those  delivered,  though  of  infe- 
rior quality,  ne  should  have  replied  it  Wells  v. 
Hopkins,  5  Mees.  &  W.  (ex.)  7. 

48.  Where  in  trover  for  a  bill  the  defendant 
pleaded  that  the  plaintiff  indorsed  it  in  blank,  and 
that  the  party  who  became  the  holder  pledged  it 
with  the  defendant  as  a  security  for  a  debt ;  rep- 
lication, that  at  the  time  the  defendant  received 
it,  he  knew  that  the  party  had  no  authority  to 

>led^  it ;  held  good.    Hilton  r.  Swan,  5  Bmg. 


pieqge  ii; 
N.  s!  (c.  p. 


)  413. 

49.  Where  the  plea,  in  an  action  against  the 
drawer  by  a  second  indurser,  denied  the  indorse- 
ment to  the  first  indorser,  held  not  distinguish- 
able from  a  traverse  that  he  did  not  indorse  the  bill 
modo  et  forma  within  the  meaning  of  the  Judge's 
order  to  plead  in  the  latter  terms.  Waters  v. 
Thanet,  Earl  of,  7  Dowl.  (p.  c.)  251. 

50.  A  count  by  the  payee  against  the  acceptor 
of  a  bill,  in  the  form  given  by  Keg.  Trin.  1  Will. 
4,  held  properly  joined  with  ouer  indebitatus 
counts  in  debt.  Crompton  v.  Taylor,  4  Mees.  & 
W.  (KX.)  138 ;  and  6  Dowl.  (p.  c.)  660. 

51.  Where  the  issue  joined  in  an  action  against 
the  drawer  was,  whether  due  notice  of  disnonor 
bad  been  given  ;  it  appearing  six  months  aflcr  it 
became  due,  the  drawer  requested  the  holder  to 
exhaust  all  his  influence  to  obtain  payment  from 
the  acceptor,  as  the  bill  had  been  merely  drawn 
for  his  accomodation ;  held,  that  in  the  absence 
of  any  unconditional  promise,  the  judge  properly 
directed  the  jury  to  say  whether  they  could  pre- 
sume from  the  circumstances  that  the  diTcnclant 
had  received  notice  of  dishonor.  Hicks  v.  Duke 
of  Beaufort,  4  Bing.  N.  S.  (c.  p.)  229. 

52.  Upon  a  plea  that  the  defendant  had  not 
a  notice  from  the  plaintiff  of  the  non-payment ;" 
held,  that  notice  proved  from  another  party,  the 


indorser's  clerk,  was  sufficient    Newen  9.  Gill, 
8  C.  &  P.  (k.  p.)  357. 

And  see  Bail;  Banker  ;  Bankrupt;  InmttceiU; 
Landlord;  Pleading,  (c.  l.) 


BOND. 

1.  Where  the  husband,  reciting  an  intended 
marriage,  and  that  he  was  to  be  possessed  of  her 
stock  in  trade,  and  that  he  had  agreed  to  execute 
a  bond  in  a  sum  payable  to  the  children  of  her 
late  husband  within  12  months  after  the  wife's 
death,  in  tlie  event  thereinafter  specified,  and  the 
condition  was,  that  he  should  paj,  &c.  ^  if  upon 
taking  an  account  of  the  stock  m  trade,  if  tkesi 
carried  on  by  Aim,  the  same  should  amount  to 

£. ;*'  held,  that  a  plea  by  the  obligor  that 

he  had  discontinued  the  business,  was  an  answer 
to  an  action  on  the  bond,  having  exercised  a 
power  of  closing  the  concern,  which  was  reser- 
ved to  him  by  the  condition.  Beswick  0.  Swin- 
dells, 3  Ad.  <&  £11.  (k.  b.)  868;  affirming  the 
judgment  in  King*s  Bench. 

2.  Where  upon  an  arrangement  between  a 
father  and  son  for  the  payment  of  the  debts  of 
the  latter,  he  executed  a  bond  which  was  agreed 
to  be  deposited  in  the  hands  of  certain  referees, 
being  intended  as  a  security  for  the  son's  future 
behaviour,  and  who  were  empowered  within 
a  certain  period  to  direct  it  to  be  'cancelled  if 
they  thought  fit,  which  they  omitted  to  do  dur- 
ing the  fife-time  of  the  uther ;  the  court,  un- 
der the  circumstances,  being  of  opinion  that  it 
was  not  intended  to  operate  as  a  security  for 
the  debt,  but  for  collateral  purposes,  which  had 
been  fully  satisfied,  and  that,  itthat  were  doubt- 
ful, the  conduct  of  the  obligor  during  a  lone 
period  and  dealing  with  the  instrument  amountM 
in  equity  to  a  release,  decreed  it  to  be  delivered 
up  to  be  cancelled.  Flower  r.  Marten,  2  Myl.  & 
Cr.  (cH.  459. 

3.  Although  the  transaction  constitutes  a  debt 
in  the  first  instance,  a  debtor  is  at  liberty  to  show 
that  the  ceditor  subsequently  altered  his  intention 
and  treated  it  as  a  gift.  lb. 

4.  A  bond  executed  by  defendant  as  a  surety, 
conditioned  for  the  payment  of  interest  on  JS  , 
on  the  Ist  March  of  the  first  year,  the  like  at  the 
end  of  the  second  year,  and  the  principal  and  like 
sum  of  interest  at  the  end  of  the  third  ;  the  first 
interest  was  not  paid  until  the  :^h  ftfarch  ;  held, 
that  the  bond  was  thereby  forfisited,  and  the  for- 
feiture not  waived  by  the  acceptance  of  tlie 
interest ;  and,  on  tlie  defendant's  bankruptcy, 
was  proveable  under  his  commission,  and  the  dent 
therefore  barred  by  his  certificate.  Skinner's 
Company  v.  Jones,  3  Bing.  N.  S.  (c.  p.)  481 ;  and 
4  Sc.  271 . 

5.  Where  the  son,  having  executed  a  bond  to 
his  father  for  1,000/.  and  interest,  afterwaith 
b<>camo  surety  with  bis  father  in  a  bond  to  a  third 
party  for  500/.,  and  a  memorandum  was  indorsed 
on  the  son's  bond,  that  it  had  been  agreed  that 
the  son  should  not  be  called  on  for  thf*  principal 
sum  until  the  father's  bond  were  paid  off;  held, 
first,  that  it  did  not  relieye  the  son  from  the  inter- 


[BOND] 


S73$ 


eat  on  the  principal  money  ;  and,  secondly,  that 
the  Bon  havinff  afterwards,  by  arrangement,  got 
rid  of  and  discharged  the  father*s  bond,  could  not, 
as  surety,  take  the  benefit  beyond  the  sum  ac- 
tually paid  ;  his  own  contract  with  the  principal 
being  indemnity,  it  was  his  duty  to  make  the  best 
terms  he  could  for  the  party  in  whose  behalf  he 
was  acting.  Reed  v.  Nbrris,  2  Myl.  &.  Cr.  (ch.) 
361. 

6.  In  debt  on  bond  to  the  guardians  of  an  union, 
on  a  contract  for  the  supply  of  bread,  in  loaves  of 
4  lbs.  weight,  conditioned  for  performance  of  the 
contract,  inter  alia^  that  the  defendant  would 
deliver  such  bread  in  loaves,  and  of  which  a  bill 
of  particulars  should  be  sent  with  such  articles, 
at  the  time  of  delivery  tliereof,  or  within  one 
month  from  such  delivery,  provided  that  if  such 
articles  were  not  duly  served,  or  should  be  defi- 
cient in  the  weight  stated,  or  if  delivered  without 
sueh  bill  of  particulars,  that  the  board  might 
return  them,  or  gFve  notice  to  the  defendant  to 
fetch  them  away  ;  the  defendant  pleaded  perfor- 
mance generally ;  and  the  replication  assigned  for 
breaches,  first  a  delivery  of  loaves  deficient  in 
weight;  second,  a  delivery  without  any  bill  of 
particulars,  whereupon  the  plaintiffs'  returned 
them,  and  incurred  great  charges  in  obtaining  a 
supply  ;  held,  that  evidence  of  the  loaves  being 
brought  to  the  bouse,  and  part  handed  out,  and, 
on  being  weighed  and  found  deficient,  returned 
and  refused  to  be  taken,  was  a  sufficient  delivery  to 
rapport  the  issue  on  the  first  breach ;  and,  second- 
ly, that  the  board  having  a  right  to  return  the 
articles  unless  a  bill  were  delivered  with  them, 
an  issue  whether  it  was  dispensed  with  at  the 
time  was  not  an  immaterial  issue,  although, 
MmA/e,  it  might  have  been,  if  found  for  the  plam- 
tiff,  as  there  could  be  no  dispensation  by  parol  of 
an  instrument  under  seaL  Elliott  v.  Martin,  2 
Mees.  &  W.  (xx.)  13. 

7.  In  debt  on  bond  conditioned  for  securing  the 
payment  of  1,400/.  on  a  day  named ;  plea,  as  to 
80w.,  parcel,  ^c,  payment  afler  the  day,  and,  as 
to  the  residue,  a  release  to  the  executor  of  a  joint 
obligor  deceased ;  held,  as  to  the  first,  that  the 
penal  sum  being  forfeited,  and  the  payment  only 
as  to  part  of  the  sum  mentioned  in  the  condition, 
the  plea  was  bad ',  secondly,  that  nothing  appear- 
ing to  show  the  defendants  to  be  only  sureties, 
the  release  was  no  discharge  of  the  surviving  ob- 
ligor; held  also,  that  it  was  not  necessary  to 
aver  a  breach  in  the  non-payment  of  the  sum,  if 
enough  appeared  on  the  declaration  to  show  that 
the  money  was  due.  Ashbee  v.  Pidduck,  1  Mees. 
6l  W.  (»x.)  364 ;  and  1  Tyr.  Ol  Gr.  1016. 

8.  Plea  to  debt  on  bond,  that  it  was  given  on  a 
corrupt  agreement  for  articles  of  apprenticeship 
to  the  plaintiff,  as  an  apothecary  and  surgeon,  for 
two  years,  but  that  the  deed  should  be  ante-dated, 
to  enable  the  defendant  to  be  admitted  as  an 
apothecary  at  the  end  of  two  instead  of  five  years, 
contrary  to  the  55  Geo.  3,  c.  19,  s.  15 ;  afler  a 
yerdict  for  the  defendant,  the  court  refused  judg- 
ment for  the  plaintiff,  rum  obst.  vered.  Prole  v. 
Wiggins,  3  Bing.  N.  S.  (c.  p.)  230 ;  and  3  Sc. 
601. 

9.  Where  the  plea  to  debt  on  bond  by  execu- 


tors disclosed  matter  showing  the  bond  to  be 
void  ;  held,  that  as  the  plaintiff  might  have  then 
abandoned  the  suit,  he  was  liable  to  the  costs, 
lb. 

10.  Where  A.  and  B.  became  jointly  and  sever- 
ally bound  for  the  pavment  of  an   annuity  to  C. 


for  life  in  manner  following ;  viz.,  one  moiety  by 
by  A.  during  her  life,  and  the  other  moiety  by  o, 
during  A. 'a  life,  and  af^r  her  death,  the  wnole 
by  B.  during  the  life  of  C. ;  held,  afler  the  death 
of  A.,  B.  failing  to  pay  the  annuity,  that  A.*s 
estate  was  liable.  Church  v  King,  2  Myl.  &  Cr. 
(cH.)  SS20. 

11.  Where  it  once  is  shown  that  the  party  ex- 
ecuting the  deed  is  aware  of  its  contents,  evi- 
dence that  the  party  was  induced  to.execute  it  by 
previous  fraudulent  misrepresentations  held  inad- 
missible, upon  the  plea  that  it  was  obtained  by 
fraud  and  covin.  Mason  v.  Ditchboume,  1  M.  » 
Rob.  (5.  p.)  460. 

12.  Where  money  was  advanced  by  bankers  in 
London  to  a  partner  in  a  banking  firm  in  Ireland, 
and  bonds  executed  in  Dublin  for  the  amount  in 

sums  of L  sterling,  **  with  legal  interest"  and 

warrants  of  attorney  for  entering  judgments  in 
the  K.  B.  in  Ireland  recited  the  sums  in  the  same 
terms  as  in  the  bonds ;  credit  was  given  in  the 
books  of  the  English  banking  house  for  the  full 
sum,  and  bills  accepted  by  them  drawn  by  the 
banking  company  in  Ireland  ;  held,  that  the  debt 
was  payable  in  English  currency  and  with  Eng- 
lish interest.  Noel  v.  Rochfort,  10,  Bli.  N. 
S.  (p.)  483;  reversing  the  judgment  below,  2 
Younge  &  J.  330,  An.  Dig.  1829, 128. 

13'  In  an  action  by  the  assignee  of  a  bond  on  a 
promise  to  pay  at  a  given  time,  in  consideration 
of  a  forbearance  to  sue;  held,  first,  that  there  was 
sufficient  mutuality  and  a  good  consideration  for 
the  promise ;  secondly,  that  the  plaintiff  being  a 
third  party  sustaining  detriment  by  forbearing  to 
enforce  his  right  to  sue  in  the  name  of  the  obli- 
gee, the  promise  was  not  nudum  pactum;  and 
lastly  that  the  bond  being  forfeited  before  the 
agreement,  it  was  in  no  respect  varied  b^  the  pa- 
rol contract  entered  into  between  the  plaintiff  and 
defendant.  Morton  v.  Bum,  2  Nev.  dt  P.  (k.  b.) 
297. 

14.  Where  the  obligee  had  sued  one  of  two  ob- 
ligors on  a  joint  a  several  indemnity  bond,  and 
received  a  sum  in  discharge  of  the  debt  and 
costs ;  he  afUrwards  sued  the  other,  who  pleaded 
the  acceptance  of  the  sum  so  paid  in  satisfaction ; 
held,  that  the  <mu8  lay  on  the  defendant  to  show 
that  it  was  taken  as  a  settlement  of  the  entire 
cause  of  action,  and  the  court  refused  to  set  aside 
the  yerdict  found  for  the  plaintiff.  Field  v, 
Robins,  3  Nev.  &  P.  (q.  b).  226. 

15.  Where  no  proceedings  were  taken  on  a 
bond  for  three  years  afler  the  death  of  the  obligor, 
and  the  obligee  who  was  aware  of  the  considera- 
tion had  allowed  an  injunction  in  Ireland  to  issue, 
and  the  bill  to  be  taken  jfro  confesso^  without  se- 
curing himself  the  liberty  of  proceeding  in  the 
action,  and  his  representatives,  the  defendants, 
being  in  possession  of  all  his  papers,  were  unable 
to  give  any  account  of  the  consideration,  the 


2736 


^COMMITMENT— CONDITION] 


2.  When  the  warrant  of  commitment  of  parties 
charged  with  riot  under  7  &.  8  Geo.  4,  c.  30,  a.  8, 
only  stated  that  they  had  be^un  to  pall  down  and 
demolish  "  in  part'  a  dwelling-house,  charging 
also  other  acts  of  bailable  raisdeuieanor ;  held,  that 
as  regarded  the  former  charge,  it  was  defective, 
and  the  parties  therefore  admitted  to  bail.  Reg. 
V.  Lowden  and  others,  7  Dowl.  (p.  c.)  53d. 


COMMON. 

1.  Where  the  defendant  claimed  as  appurtenant 
to  his  farm  the  exclusive  right  of  pasturage  for 
sheep  and  lambs  over  a  certain  common  ;  held 
that  his  grant  as  alleged,  being  limited  to  those 
cattle,  it  would  not  entitle  him  to  depasture  the 
sheep  of  others  there  "  on  tack,"  as  being  inju- 
rious to  the  lord's  right  as  to  what  was  not  grant- 
ed ;  and  although  evidence  of  the  commoner 
having  so  depastured  on  tack  was  admissible, 
it  was  not  evidence  in  derogation  of  the  lord's 
right,  as  tending  to  show  a  usurpation  only.  Jones 
V.  Richards,  1  Wev.  &  P.  (jt.  b.)  747;  and  5  Ad. 
&  EU.  529. 

2.  Plea  of  enjoyment  of  common  right  for  30 
years  before  the  commencement  of  the  suit,  held 
sufficient  although  not  alleged  tuxt  before,  &c.  the 
8  &  3  Will.  4,  c.  71,  s.  4,  being  nothing  more  than 
an  exposition  of  proof  requisite  to  support  tlie 
right  Jones  v.  Price,  3  Bing.  N.  S.  (c.  p.)  ^2} 
and  3  Sc.  376. 


f 


3.  A  party  cannot  support  a  claim  of  common 
er  cause  de  vicinage^  over  open  downs  adjoining 
is  own  common,  which  are  the  exclusive  pro- 
perty of  the  owner,  although  there  is  no  bounda- 
ry fence  separating  the  lands.  Heath  c,  £lliott, 
4  fiing.  N.  8.  (c.  r.)  3S8. 

4.  In  case  for  disturbing  plaintiff's  right  of 
eommon,  plea  justifying  as  for  defendant's  own 
commonable  cattle,  replication  that  ali  were  not 
the  defendant's  cattle,  levarU  and  eoue/uuUj  &«. ; 
held,  that  the  action  being  in  substance  for  sur- 
charging, it  ought  to  have  been  newly  assigned, 
and  that  the  Judge  properly  rejected  evidence 
respecting  it.  Bowen  v.  Jenkins,  2  Nev.  &>  P. 
{k.  b.)  87. 

And  see  Preseription. 


COMPENSATION. 

1.  Where  the  London  Dock  Company  pur- 
chased lands  adjoining  the  plaintiff's  shop,  and 
in  the  execution  of  the  works  stopped  up  streets, 
&c.,  which  the  pl^iintiff  alleged  to  have  deprived 
him  of  many  customers,  ana  thereby  diminished 
the  Yalue  of  his  shop;  held  that  it  was  in  the 
nature  of  injury  to  the  good  will  only,  and  not 
to  the  estate  and  interest  in  the  house  within  the 
provision  for  compensation  given  by  the  act. 
ilez  V,  London  Dock  Company,  6  Nev.  &>  M. 
(s.  B.)  390 }  and  5  Ad.  &  £11. 162. 

2.  Where  a  local  act  directed  the  amount  of 
compensation  for  loss  sustained  in  the  execution 
of  the  worka  under  the  act,  when  ascertained  by 


a  jury,  to  be  entered  up  as  a  iudgment  on  the  re- 
cord of  the  quarter  sessions,  but  no  mode  of  re- 
covery given,  it  being  doubtful  whether  debt  m\gbt 
be  maintained  on  such  judgment,  and  so  no  cer- 
tain effectual  remedy,  a  mandamus  granted  for 
the  sum  so  ascertained  ;  held  also  that  upon  such 
application  the  court  could  not  go  into  the  ques- 
tion of  any  irregularity  in  the  previous  proceed- 
ings for  the  mandamus  to  the  sheriff  to  impanel  a 
jury  to  assess  such  damages.  Rex  v.  Nottingham 
Old  Waterworks  Company,  1  Nev.  &  P.  (e.  b.) 
480. 

3.  Where  the  local  Act  empowered  road  trus- 
tees to  take  lands,  making  satisfaction  to  the 
^*  owners  or  proprietors,"  held  to  extend  to  the 
interests,  not  merely  of  owners  of  the  inheritance, 
but  of  any  person  having  a  beneficial  interest  in 
the  land,  and  that  a  termor  was  entitled  to  com- 
pensation.   Lister  v.  Lobley.  6  Nev.  ^  M.  (k.  b.) 

aio. 

4.  Where  the  tenant's  interest  was  merely  an 
expectancy  of  renewal  from  improvements  he  had 
made ;  held  that  he  was  not  entitled  to  claim  com- 
pensation in  respect  thereof  from  the  proprietors 
of  a  railway  company,  who  had  taken  the  premi- 
ses, the  Act  containing  no  words  sufficient  to 
comprehend  such  an  interest.  Rex  v.  Liverpool 
and  Manchester  Railway  Company,  6  Nev.  A 
M.  (K.  B.)  186;  and  4  Ad.  &  Ell.  &0. 


COMPOSITION. 

1.  Where  an  hotel-keeper,  at  the  time  of  his  li- 
cence expiring,  being  in  difficulties,  assigned  all 
his  stock  m  trust  to  continue  the  trade,  and  out 
of  the  profits  to  pay  a  dividend  to  such  creditors 
as  would  execute  the  deed  of  assignment;  and  a 
licence  was  afterwards  taken  out  and  assigned  to 
the  trustee ;  held,  first,  that  the  assignment  of  the 
trade,  &c.  at  the  time  there  was  no  licence,  did 
not  render  it  illegal,  it  not  being  certain  nor  in- 
tended that  anythmg  ille^  sbonld  be  done ;  but 
secondly,  that  as  by  shanng  the  profits,  the  cred- 
itors executing  might  become  partners,  a  liability 
they  were  not  bound  to  submit  to,  the  assignment 
was  not  valid.  Owen  v.  Bode,  6  Nev.  A,  M.  (a. 
B.)  448 ;  and  5  Ad.  <&  Kll.  28. 

2.  Where  a  creditor,  holding  a  policy  as  a  se- 
curity for  his  debt,  refused  to  sign  the  compo- 
sition deed,  unless  the  policy  were  assigned  to 
him,  which  was  done  ;  held  to  be  a  fraud  on  tlie 
other  creditors,  and  the  party  assigning  having 
become  bankrupt,  his  assignees  were  entitled  to 
recover  the  amount  received  on  the  policy,  al- 
though the  composition  had  never  been  paid. 
Alsagcrv.  Spalding,  4  Bing.  N.  S.  (c.  p.)  407. 

Andoce  Bond. 


CONDITION. 

1.  Where  the  occupier  of  an  hotel,  not  haTiiig 
obtained  a  wine  licence,  and  being  about  to  qutt 
and  transfer  the  premises  to  the  defendant,  bad 
deposited  a  sum  as  an  indemnity  for  the  expense  of 


[CONDITION— CONTRACT] 


2737 


procuring  ib«^  licence,  and  duly  attended  the  meet- 
ing of  the  magistrates  for  that  purpose,  and  which 
would  have  oeen  (granted  but  for  the  non-attend- 
ance, of  the  defendant ;  held,  that  as  a  case  within 
the  12  sect,  of  the  9  Geo.  4,  c.  61 ,  it  was  the  duty 
of  the  defendant  to  have  given  the  notices  requir- 
ed by  the  Act,  and  that  he  could  not  take  ad- 
vantage of  the  non-performance  of  the  condition, 
occasioned  by  his  own  neglect,  and  that  the 
plaintiff  was  entitled  to  recover  back  the  sum 
deposited.  Bryant  r.  Beattie,  4  Bing.  N.  S.  (c. 
p.)  254. 

2.  Upon  a  devise  for  life,  remainder  to  A.,  a 
party,  tne  testator's  heir,  upon  condition  that  with- 
in three  months  after  the  testator's  death  he  should 
convey  certain  leasehold  premises,  and  in  default 
then  over  ;  on  a  special  case,  stating  the  will  and 
facta,  it  not  being  expressly  stated  tliat  the  heir 
had  notice  of  the  condition  within  the  period  lim- 
ited, the  heim  of  A.  were  not  precluded  by  the 
conditional  limitation,  and  the  court  could  not  in- 
fer the  fact  of  A.  having  had  such  notice.  Doe 
V,  Crisp,  1  Perr.  ^  D.  (q.  b.)  37. 

And  see  Devise  ;  Least. 


CONSTABLE. 

1 .  Constables  appointed  for  keeping  the  peace 
near  public  works,  justices  empowered  to  order 
payments  to,  out  of  the  funds  of  the  company. 
By  I  &  2  Vict.  c.  80. 

2.  County  and  district  constables,  establishment 
of  by  2  ^  3  Vict  c.  93. 

And  sec  Officer. 


CONTRACT. 

1.  Upon  a  contract  for  a  ship  then  buildingi 
specifymg  the  description  and  particulars,  for  a 
certain  sum,  "  and  payment  as  follows  opposite 
each  name  subscribed,"  and  which  was  signed  by 
scyeral,  and  amongst  the  rest  by  the  plaintiff  for 
one-fourth  ;  held  not  to  amount  to  a  present  bar- 

S.in  and  sale,  but  of  the  ship  when  finished,  and 
at  until  then  no  part  vested  so  as  to  enable  the 
plaintiff  to  maintam  trover.     Laidler  v.   Burlin 
son,  2  Mees.i&  W.  (£x.)  602. 

2.  In  assumpsit  for  not  delivering  possession  of 
premises,  agreed  to  be  demised,  a  small  part  of 
which  consisted  of  small  cottages,  occupied  by 
weekly  tenants,  of  which  the  plaintiff  was  aware, 
and  made  no  objection,  held  that  it  was  sufficient 
to  justify  a  finding  by  the  jury  in  favor  of  a  plea 
stating  the  circumstances,  and  that  the  plaintiff 
agreed  to  accept  the  attornment  of  the  tenants 
instead  of  an  actual  delivery  of  possession.  Pal- 
mer 0.  Temple,  6  Nev.  &.  M.  (k.  b.)  159. 

3.  In  an  action  on  a  contract  for  not  accepting 
oil   "  of  good  and   merchantable  quality,"  being 

the  cargo  of  the  ship  F.,  consisting  of 

casks  at per  tun  ;  plea,  that  at  the  time  of 

the  contract,  the  casks  were  not  good  and  mer- 
chantable, held  bad ;  the  subject  of  the  contract 
being  the  oil,  and  not  the  casks,  which  was  mat- 


ter of  description  only,  and  not  of  the  essence  of 
the  contract  and  if  the  contract,  even  had  been 
a  sale  of  them  also,  a  defect  in  any  would  only 
ffo  to  part  of  the  consideration.  Gower  r. 
Von   Dedalzen,  3  Bing.  N.  S.  (c.  p.)  717. 

4.  Upon  a  contract  to  serve  as  a  news  reporter, 
at  certain  wages,  for  one  whole  year,  and  so  from 
year  to  year,  so  long  as  the  parties  should  re- 
spectively please ;  held  to  be  a  yearly  service, 
and  could  not  be  terminated  but  at  the  end  of 
the  current  year.  The  usage  in  the  case  of 
menial  servants,  to  discharge  the  contract  at  a 
month's  notice,  is  only  matter  of  fact,  triable  by 
the  jury,  and  not  matter  of  law  ;  and  if  put  on 
the  record  as  matter  of  law,  the  court  could  not 
distinguish  it  from  any  other  yearly  contract  of  ^ 
service.  Williams  v.  Byrne,  2  Nev.  &  P.  (k.  b.) 
139. 

5.  Where  the  defendant  had  retained  the  plain- 
tiff  as  French  teacher  in  his  school,  at  a  yearly 
salary,  held,  that  his  having  absented  himself  for 
two  days  on  the  expiration  of  the  vacation,  was 
not  such  a  breach  of  duty  arising  out  of  the  con- 
tract, express  or  implied,  as  could  justify  the  de- 
fendant in  puttmg  an  end  to  it.  Fdlieul  v.  Arm- 
strong, 2  Nev.  &  P.  (<i.  B.)  406. 

6.  Where  several  parties  opened  an  account 
jointly  with  bankers,  field  to  be  a  joint  and  several 
contract,  and  that  the  latter  might  in  equity  resort 
to  the  estatt!  of  one  of  the  parties  deceased,  al- 
though the  debt  at  law  only  remained  against  the- 
survivors  ;  and  that  there  is  no  distinction  wheth- 
er the  debt  arises  on  mercantile  partnership  debts: 
or  not ;  but  that  the  surviving  joint  creditors  must 
be  made  parties,  although  no  decree  is  sought 
against  them,  being  interested  in  taking  the  ac- 
counts. Thorpe  v.  Jackson,  2  Younge  &  C.  (xx. 
Kq.)  553. 

7.  Where  the  defendants,  being  four  directors- 
of  a  company,  and  liable  individually  on  a  bill^ 
and  being  unwilling  to  make  a  call,  applied  to 
the  plaintiff  to  advance  them  the  amount,  which 
he  agreed  to  do,  if  they  would  pay  his  bill  for 
goods  supplied  to  the  company ;  held,  that  it  was: 
for  the  jury  to  say  whether  the  advance  was  made* 
on  the  credit  of  the  company,  or  of  the  individuaS 
directors,  to  relieve  them  from  a  personal  liability^ 
Colley  V.  Smitli,  2  M.  &  Rob.  (n.  p.)  96. 

8.  In  etssumpsit  on  a  contract  for  the   sale  oP 
railway  shares,  to  be  conveyed  on  or  before  the* 

,  on  the  first  issue,  Tum  assumpsity  held  that 

the  option  of  time  was  to  be  with  the  party  who 
was  to  do  the  first  act,  viz  the  purchaser,  and  that 
the  verdict  ought  to  be  entered  for  the  plaintiffs ; 
and  being  a  matter  that  would  have  been  material' 
to  the  parties,  it  was  not  a  subject  of  amendment 
of  the  record  by  the  Judge  at  nisiprius :  second- 
ly, upon  the  plea  that  the  plaintifis  were  not  tlie 
proprietors  of  the  shares,  and  had  no  title  to  con- 
vey them  ;  held,  that  the  mere  entry  of  the  names 
in  the  transfer  book  was  no  proof  of  title,  although 
their  title  would  have  been  incomplete  without ; 
and,  lastly,  upon  the  plea,  that  the  plaintiffs  ten- 
dered certificates  of  the  shares,  held,  that  the 
meaning  of  the  contract  was,  that  the  party  was 
to  convey,  and  deliver  certificates,  showing  either 
on  the  uce  of  them,  or  from  the  indonements, 


2738 


[CONTRACT— CONVICTIONJ 


that  thtf  title  was  in  the  pailj  eonveyinff.    Hare 
r.  Waring,  3  Mees.  &  W.  (ex.)  36S2. 

9.  In  assumpsit f  for  not  receiving  lead  on  a 
contract,  deliverable  in  **  /■/'  plea,  that  the  plain- 
tiff was  not  ready  to  deliver  within  a  reasonable 
time,  in  manner  and  form,  dtc.,  on  which  issue 
was  joined  ;  held,  that  the  evidence  of  the  broker 
of  the  defendant,  that  at  the  time  of  the  contract 
the  lead  was  said  to  be  '^  ready  for  shipment," 
was  admissible  not  to  vary  the  contract,  but  as 
material  to  the  issue,  what  was  a  reasonable  time 
for  delivery  ;  held  also,  that  the  usual  places  of 
shipment  being  at  G.  or  L.,  it  was  rightly  left  to 
the  jury  to  say  whether  one  or  other  of  those 
places  was  not  to  be  intended  as  the  place  where 
the  goods  were  ready  to  be  shipped.  £ilis  r. 
Thomson,  3  Mees.  &  W.  (zz.)  445. 

10.  A  clause  in  a  building  contract,  in  default 
of  completing  certain  work  within  the  space  of 
four  months  and  half  from  the  date  of  the  contract, 
of  so  much  per  week  as  liquidated  damages,  to  be 
deducted  from  the  sum  agreed  to  be  paid ;  the 
work  not  being  able  to  be  commenced  for  one 
month,  from  the  party's  inability  to  enter  into  pos- 
JKSsion ;  held,  that  the  works  not  being  completed 
within  the  stipulated  time,  no  forfeiture  accrued 
on  account'  of  Uie  delay.  Holme  v.  Guppy,  3 
Mees.  &  W.  (ex.)  387. 

11.  In  assumpsUhy  assignees  for  non-perfor- 
mance of  a  contract  to  be  performed  on  the  12th 
June  1835,  averring  that  the  bankrupt  before,  dtc, 
and  the  plaintiff,  as  assignees,  were  always  ready 
and  willing,  &c. :  held,  that  the  bankruptcy  and 
insufficiency  of  assets  were  grounds  on  which  the 
jury  might  mfer  that  the  plaintiff  had  not  always 

been  ready,  &c.,  and  that  the  plaintiffii  having 
taken  no  steps  towards^nforcing  the  contract  un- 
til January  18^,  the  jury  might  properly  infer 
that  they  had  abandoned  it.  Lawrence  v. 
Knowles,  5  Bing.  N.  S.  (c.  p.)  399. 

12.  Where  a  party  agreed  with  the  plaintiff  to 
work  for  him  at  a  particular  trade  for  12  months, 
and  so  on  from  12  months  to  12  months,  and  to 
give  12 months'  notice  if  he  should  quit;  but  he 
iiflerwards  quitted  and  went  to  work  for  the  defen- 
dant ;  in  an  action  against  the  latter  for  harboring 
and  detaining  his  servant,  held  that  the  agreement 
being  signed  only  and  binding  on  one  side,  with- 
out any  reciprocal  benefit  on  the  other,  was  void, 
as  nudum  pac  Km,  and  that  it  was  competent  to 
the  defendant  to  raise  the  objection.  Sykes  v. 
Dixon,  1  Perr.  &  Dav.  (^.  b.)  403. 

13.  Where  a  doubt  is  raised  by  evidence  upon 
the  meaning  of  a  mercantile  contract,  evidence  of 
the  usage  or  course  of  trade  at  the  place  where  the 
contract  made,  held  admissible,  as  where  in  an 
action  for  freight  of  cotton  from  Bombay,  the 
tisage  was  to  calculate  it  at  the  screw  there  ;  bat 
where  the  usage  appears  unreasonable,  on  account 
of  the  difference  between  the  measurement  on  the 
merchant's  premises  and  at  the  time  of  shipment, 
evidence  of  such  difference  ought  to  be  received 
as  having  weight  with  a  jury,  whether  the  usage 
does  or  does  not  exist.  Bottomley  r.  Forbes,  5 
Bing.  N.  S.  (c.  p.)  121 ;  and  8  Sc.  866. 

14.  Where  the  defendant,  in  consideration  the 
plaintiff  would  receive  bills,  payable  at  different 
dates,  in  satisfaction  of  a  debt  due  from  D.,  and 


gire  time,  undertook,  in  ease  of  de&olt,  and  of  the 
plaintiff  issuing  a  ea.  m.,  to  procure  D.  to  be  sur- 
rendered into  custody  of  the  sheriff,  so  that  he 
might  be  arrested  on  such  writ ;  and  if  he  should 
fiLilin  so  doing,  that  he  would  pay  the  amount  of 
any  of  the  notes  as  they  should  become  due ;  held, 
that  as  it  was  not  necessarily  the  effiwt  of  the 
agreement  that  the  arrest  of  D.  should  be  procu- 
red by  unlawful  means,  it  did  not  render  th.*  con- 
tract unlawful.  Kewis  o.  Davison,  4  Mees.  &,  W. 
(EX.)  654. 

15.  Where  the  plaintiff  contracted  to  do  cer- 
tain work  for  a  specified  sum,  held  that  he  could 
not  maintain  an  action  for  the  yalue  of  the  work 
done,  on  the  ground  of  fraud  in  the  representa- 
tion by  the  £fendant  of  the  quantity;  for  tlie 
work  he  must  recover  on  the  contract,  although 
he  might  sue  for  the  deceit.  Selway  v.  Foffg,  5 
Mees.  <&  W.  (ex.)  83. 

And  see  Bankntpt ;  Barom  otid  Feme  ;  BUU  ; 
EeeUsiattical  Persons;  Landlord  amd  Tetumt; 
iAtp;  Strrty;  Use  amd  Oeeupatiom;  Vsndar  mmd 
Purchaser, 


CONTRIBUTION. 

Where  one  of  several  stage  proprietors  had 
been  sued  for  damage  by  negligent  driving  of 
their  servant;  it  appearing  that  there  was  a  part- 
nership fund,  out  of  which  the  expenses  weie  to 
be  first  paid,  and  the  residue  divined ;  held,  thai 
an  action  for  contribution  could  not  be  supported 
by  the  one  who  had  paid  the  damages  against  his 
co-proprietors.  Pearson  v.  Skelton,  1  Mees.  db 
W.  (EX.)  504;  and  1  Tyr.  &  Gr.848. 

And  see  Manor;  Partner. 


CONVICTION. 

1.  Where  upon  a  conviction  for  forcible  entry 
and  detainer,  uie  party  traversed  the  issue,  and 
an  inquisition  was  thereupon  had,  and  an  award 
of  restitution  indorsed  upon  the  inquisition,  the 
court  having  upon  certiorari  quashed  the  convic- 
tion ;  held,  that  it  could  not  sustain  the  inquin- 
tion  as  a  substantial  proceeding,  and  that  it  had 
no  discretion,  but  that  re-restitution  must  be 
awarded.  Rex  v.  Wilson,  6  Nev.  &  M.  (a.  b.) 
625 ;  S.  C.  3  lb.  753 ;  and  1  Ad.  &  Ell.  627. 

2.  If  either  the  adjudication  of  the  fact  which 
constitutes  the  crime,  or  the  jud|^n)ent  thereon, 
are  imperfect,  the  conviction  is  bad ;  where 
therefore  a  conviction  was  framed  on  1  Will.  4, 
c.  32  (Grame),  which  directs  the  penaltv  to  be 
paid  to  the  parish  officer,  and  by  him  to  be  paid 
over  for  the  use  of  the  county  rate,  (but  which, 
by  5  dc  6  Will.  4,  c.  20,  s.  2,  was  directed  as  to 
one  moiety  to  be  paid  to  the  informer,  and  the 
other  as  before,)  and  adjudicated  the  whole  pen- 
alty to  be  paid  to  the  overseer,  to  be  applied  ac- 
cording to  the  direction  of  the  statute  in  such 
case  Sixi. ;  held,  that  such  conviction  was  bad,  and 
that  an  imprisonment  until  so  paid  was  illegal, 
and  that  the  justices  were  liable  in  trespass.  Grii^ 
fith  V.  Harries,  2  Mees.  dt  W.  (ex.)  Si5. 

And  see  Beer, 


[COPARCENER— COPYHOLD] 


3739 


COPARCENER. 

W1mi6  one  of  two  pveenen  alienated  her  moi- 
ety to  a  straoffBr  in  fee,  and  a  deed  of  partition 
was  exeeuted  oy  the  latter  and  the  remaining  co- 
pareener  to  a  stranger  to  the  use  as  to  one  moiety 
of  the  ooparoener  in  fee ;  held,  that  she  did  not  take 
the  moiety  as  parchaaer  under  the  oonveyance,  so 
as  to  let  in  the  heir  exparU  ^aienut  on  ber  death. 
Doe  d.  Crossthwaite  «.  Dixon,  1  Nov.  ^  P. 
(K.  B.)  855. 

And  see 


COPYHOLD. 

1.  Where  a  PArty  possessed  of  customary  free- 
hold, became  Dankmpt,  and  the  premises  were 
asM|pied  to  assignees,  who  after  bis  death  were 
admitted  ;  held,  that  the  estate  being  in  the  aan^ 
nees  if  the  title  were  perfected,  or  in  the  heir  if 
not  perfected,  the  lessor  was  entitled  to  reeover 
on  one  or  other  of  those  demises.  Doe  d.  Dan- 
son  9.  Parke,  4  Ad.  &  Ell.  (k.  b.)  616. 

2.  Where  an  issue  was  directed  to  try  whether 
by  the  custom  the  youngest  sister  of  the  deceas- 
ed, or  the  youngest  son  of  the  settlor's  youngest 
nephew,  was  tlw  customary  heir,  and  the  jury, 
bf  findhig  for  the  defendant,  had  negatived  the 
plaintiff's  title  as  customary  heir,  and  the  efibot  of 
the  Terdsct  was  to  establish,  within  an  eztensive 
district,  a  rule  ;Qf  inheritance,  of  which  there  was 
no  distinct  precedent  in  evidence ;  the  Court  un- 
willing to  bind  the  rights  by  a  single  trial,  and 
where  the  Judge  had  stated  the  issue  to  be  be- 
tween a  common  law  heir  and  a  customary  heir, 
and  that  the  former  must  prevail  unless  the  cus- 
tom was  established  by  positive  evidence,  a  sec- 
ond trial  allowed.  Locke  v.  Colman,  2  Myl.  &» 
Cr.  (CB.)  43. 

3.  Where  a  testator  seised  of  copj^hold,  and 
having  no  customary  heir  or  next  of  ain,  devised 
it  to  one  of  his  executors  upon  condition  that  he 

should  pay  the  other  £ ,  to  be  taken  as 

part  of  the  personal  estate,  out  of  which  his  debts 
and  legacies  were  to  be  paid,  and  the  residue  ap- 
plied to  charitable  purposes ;  the  latter  bequests 
being  void  under  the  Mortmain  Act ;  held,  that 
as  the  lord  could  only  take  pro  defectu  tueredisy 
and  the  Crown  only  by  escheats,  which  could 
not  arise,  as  it  belonged,  if  at  all,  to  the  lord,  the 
devisee  took,  discharged  of  the  condition.  Hench- 
man V.  Attomey-Greneral,  3  Myl.  db  K.  (cr  ) 
485. 

4.  Where  di^rent  parties  claim  by  different 
titles,  the  lord  must  admit  both,  that  neither  may 
be  shut  out  from  making  his  claim.  R.  v.  Hex- 
ham, 1  Nev.  &  P.  (K.  B.)  53.     , 

5.  Where  admission  was  in  pursuance  of  the 
surrender,  or  of  what  by  statute  was  equivalent 
thereto,  and  not  of  a  voluntary  grant  by  the  lord  ', 
held,  that  the  lord's  title  was  immaterial.  Doe  v. 
Thompson,  1  Nev.  &  P.  (k.  b.)215  ;  5  Ad.  &  Ell. 
532  i  and  see  1  Coke  R.,  140,  (b). 

YoL.  IV.  59 


6.  Copyhold  held  to  pass  by  the  devise  of  an 
heir,  although  he  had  not  been  admitted  nor  sur* 
rendered  to  the  use  of  his  will ;  extending  56 
Geo.  3,  c.  192.  Doe  v.  Wilson,  5  Ad.  6l  £11.  (k. 
B.;321. 

7.  Where  a  person  filling  the  office  of  clerk  of 
the  castle  of  F.,  stated  it  to  be  usual  for  him,  as 
well  as  the  steward,  to  take  surrenders ;  held  a 
valid  custom,  and  evidence  of  its  existsnce  for  a 
jury.  Doe  v.  Mellersh,  5  Ad.  &  £11.  (x.  b.)  541 ; 
and  1  Not.  &  P.  30. 

8.  Where  a  devisee  of  copyhold,  on  admittance, 
paid  the  iuU  fine  due  by  the  custom,  and  after- 
wards surrendered  to  the  use  of  himself  for  life, 
with  remainders  over,  and  on  being  admitted  to 
his  life  estate  paid  a  nominal  fine  of  Is. ;  held, 
that  in  the  absence  of  any  custom  to  warrant  it, 
the  remainder-man,  on  admittance,  was  not  liahle 
to  pay  any  fine ;  the  admission  of  the  tenant  for 
life  is  the  admission  of  the  remainder-man.  Phy- 
pers  V.  Ebwin,  3  Bing.  N.  S.  (c.  p.)  250 ;  and  3 
Sc.634. 

9.  An  immemorial  custom  in  a  manor  lo  sar- 
render  lands  in  trust,  valid.  Snook  v.  Southwood, 
5  Ad.  &  £11.  (K.  B.)  239. 


10.  Where  a  party  seised  of  customary  lands, 
by  marriage  settlement  covenanted  to  surrender 
to  trustees,  on  trust  for  the  settlor's  wife,  as  they 
should  appoint,  amongst  the  children  of  the  mar- 
riage, witn  a  limitation,  in  default  of  issue  of  the 
marriage  at  the  time  of  the  death,  to  the  right 
heirs  of  the  settlor  for  ever,  according  to  the  cus- 
tom, &c. ',  there  was  issue  a  daughter,  who  died 
before  the  mother,  who  survived ;  the  settlor  by 
will  recitiuff  the  settlement  and  trusts  as  to  such 
customary  lands,  devised  all  his  lands  not  set- 
tled to  sell  and  pay  debts,  and  apply  the  residue 
for  the  maintenance  of  his  daughter,  and  on  her 
attaining  21,  to  pay  over  the  overplus;  the  daugh- 
ter, by  her  will,  aevised  all  her  lands,  &^.  to  J. 
H. ',  held,  that  the  voungest  sister  of  the  settlor, 
who  at  the  death  of  nis  widow  was  the  heir-at-law 
of  the  settlor  according  to  the  custom,  was  entitled 
to  the  lands  under  the  trusts  of  the  marriage  set- 
tlement.   Bush  V.  Locke,  9  Bli.  N.  S.  (p.)  1. 

11.  On  an  application  to  enrol  a  deed  of  dispo- 
sition under  3  ik  4  W.  4,  c.  74.  s.  53,  it  is  suffi- 
cient if  the  affidavit  discloses  the  contents  with- 
out annexing  a  copy  of  the  deed.  Crosby  r.  For- 
tescue,  5  Dowl.  (p.  c.)  227. 

12.  Where  by  a  custom  as  to  lands  whereon  at 
the  death  of  the  tenant  the  best  beast,  dkc.,  was 
due  for  a  heriot,  it  was  also  found  that  if  the  ten- 
ant let  his  land,  and  at  his  decease  the  heriot  was 
not  answered,  the  person  to  whom  the  land  ought 
to  come  should  pay  40f .  instead  of  a  heriot ;  held, 
that  the  lord  in  such  case  was  entitled  only  to  the 
pecuniary  payment  in  lieu  of  the  heriot.  Croome 
v.  Guise,  4  Bing.  N.  S.  (c.  p.)  148. 

13.  The  lord  as  of  right  is  entitled  to  the  cus' 
tody  of  the  court  rolls,  and  the  steward  holds 
them  only  as  his  agent.  Where  he  was  solicitor 
also  of  the  testator  under  whom  the  parties  were 
entitled,  the  court  made  an  order  for  him  to  de- 
liver them  over  to  the  receiver  in  the  cause. 

1  Rawes  v.  Rawcs,  7  iSixu.  (ch.)  G25. 


2740 


[COPYHOLD— CORPORATION] 


14.  Deyise  to  testator's  wife,  of  ^^  all  my  copy- 1 
h4/ld  in  H.,  in  the  parish  of  K.,  and  likewise  all ' 
monies  lent  on,  &c.,'*  held,  that  the  former  part 
of  the  bequest  alone,  or  token  in  conjunction  with 
the  other  bequest,  were  not  sufficient  to  carry  the 
fee,  and  that  the  devisee  took  only  a  life  interest 
in  the  copyhold ;  the  devisee  having  been  admit- 
ted to  hola  according  to  her  husband's  will,  but  not 
the  heir  of  the  devisor,  and  without  having  ever 
surrendered  to  the  use  of  his  will,  he  also  devised 
the  estates  to  his  mother ;  held,  that  such  devise 
was  good,  witliout  admittance,  but  that  his  mo- 
ther's life  estate  merging  in  the  fee,  another  ad- 
mittance in  respect  of  the  fee  devised  was  neces- 
sary, and  without  which  she  had  no  deviseable  es- 
tate ;  held  also,  that  her  devisees,  being  heirs  al- 
so to  the  original  devisor,  having  been  admitted, 
though  as  devisees,  their  admittance  had  relation 
to  the  will  of  the  first  devisor,  and  that  tliey  were 
entitled  to  recover  their  devised  shares.  Doe  v. 
Lawes,  2  Nev.  &  P.  (k.  b.)  195. 

And  Bee  Devise. 

15.  In  the  case  of  Locke  r.  Colman,  2  Myl.  &> 
Cr.  42,  the  jury  bavins  again  found  in.  favor  of  the 
defendant,  the  Lord  Chancellor  refused  a  third 
new  trial,    lb.  635. 

16.  Upon  a  devise  of  copyhold  for  life,  remain- 
der to  the  devisor's  heir  at  law,  who  died  intes- 
tate, and  without  ever  having  entered  or  in  any 
way  dealt  with  the  reversion;  held,  that  the 
right  heir  of  the  devisor  was  entitled  to  maintain 
ejectment  without  admittance.  Doe  r.  Crisp,  1 
Perr.  &  D.  (<i.  b.)  37. 

17.  Where,  upon  a  devise  of  copyhold  for  life, 
and  a  full  fine  paid  upon  the  admission  of  the 
tenant  for  life,  the  heir  of  the  devisor  had  surren- 
dered his  reversion  ;  held,  that  the  lord  might  re- 
fuse admittance  to  the  surrenderee,  unless  on 
payment  of  the  fines  payable  in  respect  of  the 
descent  on  the  heir.  R.  v.  Dullingbam,  Lady  of 
the  Manor  of,  1  Perr.  &.  D.  (q.  b.)  172. 

18.  The  words"  lands  of  any  tenure"  in  3  d&  4 
Will.  4,  c.  74,  s.  77,  held  to  extend  to  copyholds, 
and  that  by  construing  that  with  the  91st  sect,  a 
married  woman,  whose  husband  was  living  in 
America,  separated  from  her,  mi^ht  convey  copy- 
hold property  devised  to  her  for  her  sole  and 
•cparats  use,  without  his  concurrence.  Shirley, 
ex  parte,  7  Dowl.  (p.  c.)  25d. 

19.  Where  large  stones  (probably  fallen  from 
adjoining  clif!s,  but  uncertain  when)  were  em- 
bedded m  the  land  of  the  copyholder  at  the  time 
of  his  admission,  held  that  he  could  not  remove 
them,  and  that  the  lord  might  maintain  trover  for 
such  as  he  had  removed  and  sold.  Dearden  v. 
Evans,  5  Mees.  Sl  W.  (ex.)  11. 

And  see  Charity  ;  Fine ;  Wills. 


COPYRIGHT. 

1 .  Where  in  debt  for  penalties  under  3  &  4  Will. 
4,  c.  15,  the  jury  had  found  that  the  defendant  had 
represented  in  a  dramatic  performance  part  of  the 
plaintiff* 's  production,  the  court  refused  to  inter- 
fere. Planche  v.  Braliam,  4  Bing.  N.  S.  (c.  i'.) 
17  ;  3  Sc.  242 ;  and  8  C.  &  P  (n.  p.)  (itJ. 


2.  Benefit  of  international  copyright  secured  to 
authors,  by  1  dt  2  Vict  c.  59. 

3.  Where  the  defendant  had  proposed  an  ar- 
rangement with  the  plaintiff*  as  to  the  publication 
of  toe  work,  and  the  latter  had  full  knowledge 
of  the  intention  to  make  large  extracts  from  exist- 
ing works,  and  the  defendant  proceeded  without 
any  caution  or  interference  by  the  plaintiff  in  the 
publication  of  the  first  volume,  the  court  refused 
to  interpose  by  injunction  to  restrain  the  defen- 
dant from  proceeding :  the  court  always  exer- 
cises a  discretion  as  to  whether  it  shall  mterfere 
before  tlie  estabi  ishroent  of  the  legal  right.  Saun- 
ders r.  Smith,  3  Myl.  &  Cr.  (ch.)  711. 

4.  The  question  of  piracy  does  not  necessarily 
depend  upon  the  quantity  of  the  matter  extracted, 
and  if  there  be  any  doubt  as  to  the  exclusive  le- 
gal title  of  the  party  claiming  the  interference  of 
the  court,  it  will  not  exercise  its  jniisdiction 
until  the  title  be  first  established  at  law.  Bnm- 
well  V.  Halcomb,  lb.  737. 

5.  Of  designs  for  woven  fabrics  extended  by  2 
&  3  Vict.  c.  13, 17. 


CORONER.  ^ 

1.  Payment  of  expenses  of  holding  inquests 
regulated.    By  1  Vict  c.  68. 

2.  The  court  refused  a  certiorari  to  remove  an 
inquisition  purporting  to  be  taken  before  the  cor- 
oner, but  in  fact  held  before  his  clerk.  Daws,  ex 
parte,  1  Perr.  &  D.  (q.  b.)  146. 


CORPORATION. 

1.  The  attendance  of  burgesses  at  corporate 
meeetings  being  a  public  duty,  oZ/  ought  to  be 
summoned  ;  and  a  qualification  of  a  custom,  thai 
the  accidental  omission  to  summon  one  or  two 
should  not  vitiate  the  assembling,  is  not  good ; 
there  is  no  valid  distinction  between  the  cases  of 
select  or  indefinite  bodies ;  a  dispensation  by  a  cor- 
porator is  not  a  sufficient  excuse  for  omitting  to 
summon  him.  Rex  v.  Langhorne,  6  Nev.  6l  M. 
(K.  b.)  203;  and  4  Ad.  &  Ell.  538. 

2.  In  a  suit  to  which  a  corporation  were  parties, 
and  a  corporator  who  had  been  disfranchised  be- 
fore the  trial  was  tendered  as  a  witness,  the  char- 
ter required  all  corporate  acts  to  be  executed  at  a 
meeting  whereat  the  two  bailiffs  and  twelve  assis- 
tants should  be  present ;  held,  that  a  resignation 
at  a  meeting  where  a  less  number  were  present 
was  not  a  valid  resignation,  and  that  he  was  not 
therefore  a  competent  witness,  and  that  a  release  ^ 
by  him  to  the  body  of  which  he  still  constituted  a' 
part  did  not  render  him  competent;  held  alaot, 
that  the  2  &  3  Will.  4,  c.  42,  did  not  apply  to  such 
a  case.  Godmanchestcr  Bailiffs,  &e.  v.  Phillipsi, 
6  Nev.  &  M.  (K.  B.)  211 ;  and  4  Ad.  &  £U.  550. 

3.  Where  the  information  against  a  corporation 
possessed  of  borough  funds  and  charity  estates, 
charged  in  mere  general  terms  a  proposed  misap- 
plication, demurrer  allowed,  for  not  stating  fiusts 
clearly  showing  a  breach  of  trust ;  if  there  oe  any 


[CORPORATION] 


2741 


poesible  itate  of  things  in  which  the  facts  alleged 
may  not  amount  to  breach  of  trust,  the  court  will 
ratner  presume  that  what  is  intended  to  be  done 
is  intended  to  be  rightfuUj  done }  and  semb.  it 
would  be  a  rightful  application  of  corporate  funds 
to  pay  the  expense  of  opposing  qua  warrarUo  infor- 
mations going  to  impeach  the  very  le^al  existence 
of  the  corporation.  A  ttomey-  Gcner3  v.  Norwich 
Mayor,  &c.,  2  Mvl.  &  Cr.  (cii.)  400.  Affirming 
the  judgment  of  the  Master  of  tlic  Rolls,  1  K.  (ch.) 
700. 

4.  Parties  haying  duties  cast  upon  them  in  the 
administration  of  a  fund  are  entitled  to  feimburse 
themselves  out  of  such  fund  the  expenses  incur- 
red in  performing  those  duties.  lb. 

5.  Where  the  old  council  of  the  town  of  ii.,  in 
the  interval  between  the  passing  of  5  &,  6  Will.  4, 
c.  76,  and  the  election  of  the  new  council,  raised 
money  on  mortgage  of  corporate  property,  and 
appropriated  it  to  increase  the  permanent  endow- 
ment of .  the  clergy  there,  and  the  information 
contained  no  allegation  of  fraud,  collusion  or  im- 
providence, or  injury  to  the  inhabitants,  but  the 
object  likely  to  be  beneficial  to  the  town,  and  the 
new  council  took  no  steps  to  call  in  question 
the  application  of  the  borougrh  funds,  the  court 
allowea  the  demurrer  to  a  bill  to  set  aside  the 
mortgage,  and  restrain  the  application.  Attorney- 
G«neru  v.  Aspinall,  1  K.  (ch.)  513. 

6.  In  a  proper  case  the  particular  remedy  given 
by  s.  97,  does  not  exclude  the  jurisdiction  of  the 
court.  lb. 

7.  Semb,  the  Municipal  Reform  Act  does  not 
ereate  a  new  corporation,  ^er  Patteson,  J.) 
Ludlow  Corporation  v.  Tyler,  7  C.  &  P.  (h.  p.) 
537. 

8.  The  insertion  of  a  place  in  the  Municipal 
Reform  Act  is  prima  fucie  evidence  of  a  munici- 
pal corporation  there }  but  where  it  appeared  by 
affidavits  that  there  never  had  been  an  incorpor- 
ation, but  that  the  borough-holders  were  grantees 
of  certain  freehold  burgages  for  purposes  of  trade, 
the  court  refused  a  mamSamus  to  compel  the  de- 
livery of  the  documents  and  surrender  of  the 
property.    Rex  v.  Greene,  1  Nev.  &  P.  (k.  b.) 

m. 

9.  Where  a  corporation  seised  of  a  watercourse 
were  by  Acts  of  Parliament  authorized  to  impose 
water  rents  on  the  inhabitants,  for  the  purpose 
of  improving  the  supply;  held,  that  such  rates 
could  not  be  applied  by  them  to  the  discharge  of 
debts  incurred  in  improvements  before  the  passing 
of  the  Acts,  nor  in  compensation  of  services  of 
new  or  old  officers.  Dublin  Corporation  v.  Atp 
tomey-General,  9  Bli.  N.  S.  (b.)  395. 

10.  The  notice  of  appeal  against  a  rate  under  the 
Municipal  Corporation  Act  must  state  a  grievance 
or  ftets  from  which  it  must  necessarily  be  inferred. 
R.  9.  Poole  Recorder,  &c.,  1  Nev.  ^  P.  (k.  b.) 
756;  1  Nov.  A;  M.  (k,  b.)  756. 

11.  Where,  prior  to  the  passing  of  5  &  6  Will. 
4,  c.  76,  the  office  of  clerk  to  the  justices  of  the 
borough  had  always  been  held  and  exercised  by 
the  town-clerk,  ana  after  that  Act,  and  the  grant- 
ing a  separate  commission  to  the  borough,  anoth- 


er clerk  to  the  justices  had  been  appointed,  and 
upon  application  to  the  Lords  of  the  Treasury  the 
former  clerk  had  been  held  entitled  to  an  annuity 
as  a  compensation  for  the  loss  of  the  office ;  hela, 
tliat  the  word  "  office"  in  the  Act,  was  not  to  be 
strictly  construed,  and  that  the  office  of  which 
the  party  had  been  deprived  was  one  intended  to 
be  compensated,  and  as  to  which,  the  Lords  of 
the  Treasury  having  jurisdiction,  their  decision 
was  final.  Rex  v.  Bridgewater  Mayor,  &c.,  1 
Nev.  &  P.  (K.  B.)  466. 

12.  Where,  previous  to  the  5  &  6  Will.  4,  c.  76, 
there  existed  bailiffs  in  the  city  O.,  having  some 
duties  analogous  to  those  of  sherifiT,  but  no  sheriff*, 
held  that  such  officer  created  by  the  Act  did  not 
supersede  tlie  duty  of  the  county  sheriffT  to  ex- 
ecute process  from  the  superior  courts.  Granger 
V.  Taunton,  3  Ring.  N.  S.  (c.  r.)  64 ;  3  So.  393; 
and  5  Dowl.  (p.  c.)  190. 

13.  The  provision  of  the  Municipal  Corporation 
Act  for  raising  rates  being  prospective  only,  held 
that  without  reference  to  tne  general  rule  a  rate 
made  retrospectively  for  the  payment  of  expenses, 
which  had  been  incurred,  could  not  be  supported. 
Woods  V,  Reed,  2  Mees.  &  W.  (ex.)  777. 

14.  Municipal  Corporation  Act  amended  by  1 
Vict.  c.  78. 

15.  Rates,  provisions  for  levying  in  such  cor- 
porations.   By  1  Vict  c.  81. 

16.  Under  5  &  6  Will.  4,  c.  76,  ss.  60.  65,  coun- 
ty iustices  have|jurisdiction|oyer  corporate  officen, 
although  the  corporation  has  magistrates  of  its 
own.  Gateshead  Justices  in  re,  6  Ad.  &  £11.  (k. 
B.)550. 

17.  Where  a  local  Act  authorized  the  corpora- 
tion of  P.  to  appoint  or  displace  certain  port  offi- 
cers, and  amongst  other  a  quay-master,  and  assign 
salaries  out  of  the  wharfae^e  dues  ;  held,  that  the 
town  council,  under  6  Will.  4,  c.  76,  being  by 
sect.  72,  made  trustees  for  executing  all  acts  rela- 
ting to  the  borough,  having  removed  the  quay- 
master  appointed  before  that  Act,  were  to  be  deem- 
ed to  have  so  displaced  him  under  the  local  Act, 
and  that  he  was  not  entitled  to  compensation  un- 
der the  Municipal  Reform  Act;  held  also,  that  if 
the  office  were  not  a  borough  office,  the  lords  of 
the  Treasury  had  no  jurisdiction  to  award  com- 
pensation, and  a  rule  for  a  mandamus  to  the  cor- 
poration, to  execute  the  bond  for  payment  of  an 
annuity  awarded,  refused.  Reg.  v.  Poole  Mayor. 
Ac.,  3  Nov.  &  P.  ((I.  B.)  119. 

18.  Where  the  appointment  to  the  office  of  town 
clerk  was  made  pending  the  fiill,  although  in  the 
usual  form  for  life,  and  the  right  to  compensation 
nominal,  and  had  been  rejected  by  the  Lords  of 
the  Treasury,  the  court  refused  a  mandamus;  and 
muer,  if  the  court  has  jurisdiction  to  review  their 
decision.    Lee,  ex  parte,  2  Nev.  &,  P.  (k.  b.)  63. 

19.  Where  in  1794  a  party  was  appointed  bj 
the  corporation  to  assist  the  chamberlain  in  his 
business,  witli  a  salary,  for  so  long  as  he  should 
behave  himself  well  therein,  and  the  office  was 
continued  down  to  the  period  of  the  Municipal 
Reform  Bill,  when  it  was  abolished ;  held,  tiiat 


17749 


[CORPORATION] 


mrt  being  a  ehutered  officer,  ho  was  not  entitled 
to  compeniation  within  s.  66  of  the  Act  Harrej, 
ez  parte,  3  Ney.  A,  P.  («.  a.)  159. 

20.  Where  compensation  had  been  awarded  to 
a  town-clerk,  under  the  proTiiions  of  the  5  &  6 
Will.  4,  c.  76;  held,  on  demurrer,  that  an  infor- 
mation could  not  be  lUBtained  in  a  Court  of  Equi- 
ty, either  on  the  ground  of  the  compensation  be- 
ing excessive,  and  founded  on  a  computation  of 
profits  arising  from  other  offices,  or  of  the  adjudi* 
cation  having  been  obtained  by  fraudulent  ad- 
journments and  alteration  in  the  constitution  of 
the  town  council,  there  being  no  facts  which  could 
be  relied  on  as  forming  a  foundation  for  the  charge 
oflraud.  A ttomey-geneial  v.  Poole  Corporation, 
2  Keene,  (ch.)  190. 

21.  Where  by  the  local  Act,  the  corporation 
Irere  authorised  to  appoint  one  or  more  minister 
or  ministers  to  churches  erected  under  the  Act, 
and  the  applicant  had  been  appointed  lecturer  un- 
der a  minister,  and  filled  the  office  above  seven 
vears ;  held,  that  the  compensation  clauses  under 
the  Municipal  Corporation  Act,  being  to  be  con- 
strued liberally,  that  he  was  to  be  deemed  a  min- 
ister within  tne  meaning  of  tlie  Municipal  Act, 
and  not  of  the  local  one,  and  that  he  was  entitled 
to  compensation ;  and  it  made  no  difierence  that 
the  office  was  created  voluntarily  by  the  corpora- 
tion, and  not  by  the  local  Act.  Keg.  v.  Liverpool 
Corporatioa,  3  Nev.  &  P.  (q.  a.)  2d0. 

22.  The  order  of  the  Master  of  the  Rolls,  over- 
ruling the  demurrer  in  Attorney-general  v.  Aspin- 
all,  1  Keene,  513,  set  aside  on  appeal.  2  Myl.  & 
Cr.  (cH.)  613. 

23.  Notice  of  appeal  against  a  borough  rate, 
served  on  the  town-clerk,  held  sufficient,  as  the 
servant  of  the  parties  making  the  rate :  tiie  Act 
giving  the  appeal,  and  empowering  the  recorder 
to  hear  and  determine,  as  in  the  case  of  appeals 
against  county  nies.  JReg.  v.  Carmarthen  Recor- 
der, Ac.,  3  Nev.  A  P.  (((.  b.)  19. 

24.  In  the  ease  of  a  borough  divided  into  wards, 
the  court  of  revision  of  the  Durffess  lists,  held,  to 
be  constituted  by  the  mayor  and  assessors  for  the 
mayor's  ward,  and  not  by  the  mayor  and  assessors 
for  the  whole  borough,  under  sect.  43,  and  the  ir- 
regularity a  ground  for  a  quo  warraiUo  ;  but  where 
it  was  oecasioned  under  legal  advice,  and  under 
no  improper  motive,  nor  attended  with  any  seri- 
ous consequences,  the  court,  acting  on  its  discre- 
tionary power,  refused  the  writ,  tlie  granting  it 
having  a  probable  tendency  to  dissolve  the  entire 
corporation ;  held  also,  that  a  party  who  had  been 
a  candidate,  and  voted  at  theeleetion  of  tbe  officer 
Whose  title  was  impeached  by  the  defect  in  the 
btirgesi  roll,  was  not  competent  to  become  a  rela- 
tor ;  but  that  an  inhabitant  to  whom  the  objection 
did  not  apply,  mieht  use  the  affidavits  of  such  par- 
ly in  rapport  of  his  own  which  might  be  insoffi- 
cienl  to  sustain  the  application :  a  burgess  would 
be  a  good  relator,  although  the  effisct  of  the  infor- 
inatioB,  if  muted,  might  be  to  dissolve  the  oor- 
potation.    Keg  v.  Parry,  2  Nev.  A  P.  («.  b.)  414. 

K.  Where  a  oouneillor's  name  has  been  expon- 

g»d  fhrtn  the  burgess  roll,  the  writ  of  ^Me  worron* 
,  and  not  of  mawrfewitti,  to  hold  a  fresh  election, 


is  the  proper  mode  of  trying  hie  title  to  tha  offiee. 
Rag.  V.  Ricketts,  3  Nev.  dk  P.  («.  b.)  151. 

26.  Where  one  vacancy  had  been  duly  declared 
by  the  council,  according  to  the  provisions  of  s. 
52  of  the  Municipal  Act,  and  another  happening, 
the  mayor  alone  gave  notice,  and  at  the  election, 
some  of  the  voters  gave  votes  for  two  eondidates 
jointly,  and  others  singly  for  another;  held,  thai 
the  latter  being  onlv  valid  votes,  the  others  were 
thrown  away,  and  the  party  receiving  such  single 
votes  duly  elected.  Reg.  v.  Leeds  Mayor,  dtc., 
3  Nev.  &  P.  (<l.  B.)  145. 

27.  But  where  votes  were  given  for  a  candidate 
rendered  ineligible,  but  of  whose  disqualification 
no  express  notice  was  given  to  the  voters ;  held, 
that  a  party  havine  a  minority  of  votes,  was  not 
duly  elected,  and  liaving  accepted  the  office,  a 

Sto  warrmUo  directed  to  issue.    Reg  r.  Uionis,  3 
ev.  &P.  (<i.B.)149. 

28.  Where  the  parties  were  declared  to  be  elect- 
ed town-councillors  by  the  mayor,  and  they  ac- 
cepted the  office,  and  made  the  declamtion  requi- 
red, a  mandamus  to  admit  other  candidates  on 
the  ground  of  improper  votes  having  been  receiv- 
ed, refused.  Rex  r.  Winchester  Mayor,  &c., 
2  Nev.  &  P.  (K.  B.)  274. 

29.  It  being  strictly  necessary,  under  5  &  6 
Will.  3,  c.  76,  s.  69,  that  the  minutes  of  nrooeed- 
ings  by  the  council  should  be  signed  by  the  chair- 
man at  tbe  time  of  the  meeting,  and  not  after- 
wards, the  court  refused  a  iiuinaamtu  command- 
ing the  mayor  and  town-clerk  to  enter  a  reaolu- 
tion  passed  at  a  meeting  in  the  minute  book. 
Reg.  r.  Evesham  Mayor,  dbc.  3  Nev.  dc  P.  (q^  b.) 
351. 

30.  A  corporation  was  authorised  to  make  bye* 
laws,  with  penalties,  to  the  use  of  the  corporation ; 
held,  that  a  bye-law,  impoaing  a  fine  fix*  not  tak- 
ing an  office,  reserving  the  penally  to  tbe  nuKter, 
&c.  for  the  time  being,  for  the  use  of  the  corpo- 
ration, was  valid.  Graves  v.  Colby,  1  Perr.  & 
Dav.  (<i.  B.)  235. 

31.  But  where  the  action  of  debt  was  brought 
by  the  master,  &c.,  who  were  such  at  the  time 
of  the  fine  being  incurred,  but  had  ceased  to  be 
so  at  the  time  of  the  action  being  commenced ; 
held,  on  demurrer,  that  a  plea,  that  the  plaintiib 
were  not  master,  &c.,  was  good  ;  and  mbiMs,  the 
right  of  action  did  not  pass  to  the  suooeeding 
master,  4ic.    lb. 

32.  In  the  election  of  town  councilloTB,  vnder 
5  &  6  Will.  4,  c.  76,  the  returning  officer's  duty 
is  only  ministerial,  to  return  the  candidate  who 
has  the  actual  majority,  and  the  elector  must  take 
it  upon  himself  to  decide  whether  the  candidate 
for  whom  he  votes  is  properly  qualified  or  Bot} 
the  voting  papers  are  tne  proper  evidence  of  the 
election,  ^tiiough  not  the  record  of  it ;  but  whan 
produced,  held  that  they  must  be  proved  to  be  the 
aamu  that  were  given  in  at  the  eleotioii.  Rq^.  9. 
Ledgard,  3  Nev.  dk  P.  (q.  b.)  513. 

33.  Under  the  9  Geo.  4,  o.  17^  a.  2,  reqaifiv  a 
party  eteeted  to  a  corporate  offiee  to  niaka  ne 
declaration  **  within  oae  month  next  befaie,  of 
upon  his  adffliaaioQ ;"  held,  that  be  had  a  right  to 


[CORPORATION— COSTS] 


9748 


be  admitted  preTioiie  to  making  it.    R.  e.  Hum- 
phrej,  3  Nev.  &P.  (q.  b.)  6dl. 

34.  Under  the  5  dt  6  Will.  4,  c.  76,  the  power 
of  appointiog  inapeotors  of  weights  and  measures 
under  5  A.  6.  WUl.  4,  c.  63,  hu  devolved  upon 
reeorders  of  the  boroughs.  R.  v.  Hull  Recorder, 
3  Nev.  &  P.  (d.  B.)  Q^. 

35.  Upon  an  application  under  1  Vict  c.  78,  s. 
24,  for  a  mandamus  to  restore  the  name  of  a  per- 
son expunged  from  the  burgess  list,  the  court  is 
bound  to  require  proof  of  title,  and  it  will  not  re- 
instate simply  on  the  ground  of  the  notice  of 
objection  being  bad :  and  qutere  if  such  notice 
being  submitted,  with  the  objector's  name  and 
place  of  abode,  would  be  a  sufficient  compliance 
with  the  form  prescribed  by  5  Jk.  6  Will.  4,  c.  76, 
8.  17?  Reg.  V.  Harwich  Mayor,  &c.,  1  Perr.  & 
0.  (n,  B.)  134. 

36.  The  decision  of  the  Vicc-Chancellor,  di- 
recting a  corporation  to  make  compensation  out 
of  general  corporate  property,  not  given  upon 
special  trust,  for  losses  by  breaches  of  trust, 
which  the  corporation  were  declared  liable  to 
make  good,  reversed,  the  plaintiff  being  left  to  en- 
force his  remedy  by  the  usual  process  against  a 
corporation.  Attorney- General  v.  Retford  Bail- 
iffs, A&c.  3  Myl.  4fc  Cr.  (ch.)  484.  S.  C.  2  Myl.  & 
K.  35  (An.  I5ig.  1635),  62. 

37.  Where  the  declaration  in  debt  stated  that 
certain  lands  were,  in  176S2,  enclosed  by  Act  of 
Parliament,  reciting  the  fee  simple  to  be  in  B., 
and  that  the  Mayor  and  burgesses  of  S.  were  en- 
titled to  the  right  of  pasturas^ ;  and  it  directed 
that acres  should  be  allotted  to  the  corpo- 
ration, who  might,  in  common-hall  assembled, 
grani  such  leases  as  should  be  thought  reasonsr 
ble ;  and  that  they  did,  by  a  bye-law,  direct  that 
parcels  of  the  land  should  be  leased  to  the  bur- 
gesses at  certain  rents,  out  of  which  certain  annual 
payments  should  be  made  to  the  12  senior  burgess- 
es, but  that  no  benefit  should  enure  to  any  lessee, 
and  the  remainder  to  the  benefit  of  the  corporate 
body,  and  that  such  burgesses  should  receive 
their  portions,  to  be  paid  by  the  common  attorney 
of  the  borough  (an  office  extinguished  at  the 
passing  of  the  Municipal  Act)  ',  held,  that  such 
oye-Iaw  was  not  unreasonable,  and  gave  a  just 
foundation  for  an  action  by  the  parties  entitled  to 
receive  such  payments  against  the  corporation ; 
and,  sanhU,  the  Municipal  Act,  which  gives  the 
new  corporation  the  right  to  receive,  would  im- 
pose on  them  the  obligation  of  paying,  and  the 
action  be  therefore  now  maintainable  against 
the  corporation  at  large;  the  plea,  alleging 
that  the  defendants  haS  applied  all  the  rents 
of  the  lands  in  question,  and  of  others,  in  pay- 
meat  of  debts  due  and  owing  from  the  corpora- 
tion, and  payable  in  priority  and  preference  to  the 
payments  due  to  the  burgesses,  held  bad  on  spe- 
ciid  demurrer,  for  not  stating  that  the  payments 
by  the  corporation  were  ever  made  for  antecedent 
diebts,  ami  that  upon  the  true  construction  of  the 
Muiiioipal  Act  the  corporation  had  no  right  in 
prietity  to  the  claims  of  the  corporators  to  pay 
any  thing  more  than  the  interest  of  the  debts 
olmiged  oo  the  eorpoiate  peeperty.  Hopkins  o. 
Swansea  CkNrporation,  4  Mees.  ^  W.  (u.)  621. 


And  flse  Action;  AgreemmU;  Attanun;,  Ckar- 
ity;  Costs;  Covenant;  Mandamus;  Pleading y 
(c.  L.)  ;  Poor. 


COSTS. 

[A]   TiTtE  TO. 

[B]  Security  for. 

[C]  Suggestion  to  deprive  of. 
[U]  Enforcing — attachment. 

[A]  Title  to. 

1.  Where  in  case  for  obstructing  a  way,  claim- 
ed in  the  first  count  as  a  public,  and  in  the  second 
as  a  private  right  of  way,  the  first  of  which  was 
negatived  by  the  iury,  and  the  second  affirmed,  and 
a  verdict,  under  the  direction  of  the  Judge,  entered 
for  the  defendant,  but  a  new  trial  was  afterwards 
granted  on  the  issue  in  the  second  count  only,  but 
nothing  was  said  as  to  the  costs ;  held,  that  the  de- 
fendants were  entitled  to  costs  of  the  issue  found 
for  them  on  the  first  trial,  and  that  (he  Reg.  Hil.  2 
Will.  4,  s.  64,  did  not  apply  to  such  a  case. 
Bower  v.  Hill,  5  Dowl.  (p.  c.)  183. 

2.  In  assumpsit  for  work  and  labor,  goods  sold, 
&.C.,  pleas  as  to  part,  first,  nen  assumpsit;  sec- 
ondly, as  to  other  part,  payment ;  thirdly,  as  to 
another  part,  that  the  work  was  done  under  a 
contract,  and  special  damage  as  to  such  part,  by 
breach  of  contract ;  fourtiily,  a  set-oiF;  and,  lastly, 
payment  of  a  sum  into  court ;  the  action  was  re- 
ferred to  an  arbitrator,  who  was  to  say  how  the 
verdict  was  to  be  entered  on  the  issue  joined  in  the 
4  first  pleas,  who  awarded  for  the  plamtiff  on  the 

general  issue,  and  for  the  defendant  on  the  others  > 
eld,  that  the  pleas  covering  the  whole  of  the 
demand,  the  detendantwas  entitled  to  thegeneral 
costs,  rrobert  v.  Phillips,  2  Mees.  A  W.  (ex.) 
40;  and  5  Dowl.  (p.  c.)  473. 

3.  In  assumpsit  for  money  had,  dso.  pleas,  fint^ 

as  to  all  except Z.,  non  assumpsit ;  secondly, 

as  to  all  except  the  same  sum,  a  set-off,  and  as  to 
that  sum,  payment  into  court ;  replication,  admit- 
ting the  set-off,  that  he  would  not  further  prose- 
cute except  as  to  the  said  sum,  and  that  he  took 
out  of  court;  held,  that  the  plaintiff  was  entitled 
to  costs  as  to  that  part  of  the  cause  of  action  in 
respect  of  which  the  money  was  paid  into  court, 
and  the  defendant  to  tiie  costs  of  tne  other  issues. 
Goodee  v.  Goldsmith,  2  Mees.  A,  W.  (ex.)  208; 
and  5  Dowl.  (p.  c.)  288. 

4.  Where  two  defendants  in  trespass  severed  in 
pleading,  all  the  pleas  going  to  the  whole  action, 
and  one  suoceeded  on  one  issue,  sjid  the  other  on 
all ;  held,  that  they  were  entiUed  to  separate  eosts 
eacii  upon  the  issues  found  for  them ;  but  the  at^ 
toraiee  being  partners  in  the  same  firm,  and  the 
Mister  having  taxed  as  if  they  had  appeased  hr 
the  same  attorney,  the  Comrt  refbsea  to  distoro 
the  taxation.  Gambrello.  Earl  of  Falmouth,  5  Ad. 
&  EU.  (K.  B.)  403. 

5.  Where  there  being  issues  in  &ct  aad  in  law, 
the  plaintiff  took  down  the  fi>rmer  to  trial,  which 
was  found  for  him :  aAerwards,  the  issoe  in  law 


2744 


[COSTS] 


foand  for  the  defendant,  oo  that  on  the  whole 
record  it  appeared  that  the  plaintifF  had  no  cause 
of  action ;  held,  that  he  was  nevertheless  entitled 
to  the  costs  on  the  issae  found  for  him,  including 
costs  of  the  trial ;  and  that  it  was  no  objection 
that  the  plaintiff  should  not  have  taken  down  the 
issue  for  trial  until  after  judgment  on  the  demur- 
rer. Bird  V.  Higginson,  5  Ad.  &  £11.  (k.  b.)  83; 
reriewing  the  cases  and  overruling  Cooko  v.  Sav- 
er, 3  Burr.  753 ;  2  Wils.  85. 

6.  Where  afler  a  new  trial  granted,  on  the 
ground  of  the  reception  of  improper  evidence,  and 
a  special  jury  moved  for,  the  defendant  withdrew 
his  plea,  and  suffered  judgment  by  default,  and 
damages  were  assessed  ;  held,  that  the  rule  for  a 
new  trial  being  silent  as  to  costs,  the  plaintiff  was 
not  entitled  to  the  costs  of  the  first  trial.  Peacock 
V.  Harris,  1  Nev.  &  P.  (k.  b.)  240. 

7.  Where  afler  the  defendant  had  obtained  a 
rule  for  a  new  trial,  (without  mention  of  costs,) 
which  was  drawn  up,  it  was  afterwards  abandon- 
ed by  him,  the  Court  directed  {he  plaintiff  to  have 
ihepasUa  delivered  to  him,  and  to  have  the  costs 
of  the  trial,  but  refused  the  costs  of  the  rule,  and 
application  for  the  postea  and  costs  to  plaintiff. 
De  Rutzer  r.  Lloyd,  5  Add.  &.  £11.  (k.  b.)  463. 

8.  On  a  repleader  awarded,  neither  party  is  en- 
titled to  costs.  Plummer  v.  Lee,  2  Mees.  &  W. 
(■X.)  501 ;  and  5  Dowl.  (p.  c.)  755. 

9.  Where  the  defendant  had  surrendered  and 
put  in  a  plea,  obtained  a  rule  to  stay  proceed- 
ing|B,  but  niiling  to  pay  the  debt  and  costs,  the 
plaintiff  signed  judgment,  and  the  defendant  was 
afterwards  superseded ;  held,  that  the  plaintiff  in 
an  action  on  the  judgment  was  not  entitled  to  the 
costs  under  43  Geo.  3,  c.  46,  s.  4,  and  the  Court 
could  not  separate  the  costs  of  the  false  plea. 
Hall  V.  Pierce,  5  Dowl.  (p.  c.)  603. 

10.  Where  the  plaintiff  discontinued  before  any 
notice  of  trial ;  held,  that  the  defendant  was  not 
entitled  to  the  costs  of  the  drafts  of  briefs.  Doe  v. 
Neale,  2  Mees.  &  W.  (ex.)  732. 

11.  Where  the  plaintiffs,  immediately  after  issue 
joined,  made  up  and  passed  the  record ;  held,  that 
it  was  in  the  discretion  of  the  Master  to  allow  the 
costs  of  passing  it,  and  an  order  having  been  ob- 
tained for  payment  of  debt  and  costs,  the  Court  re- 
fused to  interfere.  M'Keene  v.  Smith,  2  Mees.  & 
W.  (EX.)  85  j  and  5  Dowl.  (p.  c.)  206. 

12.  In  an  action  against  parish  officers  for  an 
act  done  under  the  13  Geo.  3,  c.  78,  (repealed  by 
&  A6  Will.  4,  c.  50,)  the  plaintiff  having  been 
nonsuited  before  the  latter  Act  took  effect,  al- 
tiiough  judgment  was  signed  after ;  held,  that  the 
Court  could  not  award  treble  costs  under  the  for- 
mer. Charrington  v.  Meatheringham,  2  Mees.  & 
W.  (EX.)  288 ;  and  5  Dowl.  (p.  c.)  313, 464. 

13.  Where  after  the  Judge  had  certified  under 
the  statute  of  £liz.,  to  deprive  the  plaintiff  of  costs, 
bat  fiu^ts  were  afterwaros  at  chambers  shown  by 
affidavits,  which  did  not  appear  at  the  trial,  the 
certificate  ordered  to  be  annulled.  Anderson  v. 
Sherwin,  7  C.  dt  P.  (n.  p.)  527. 

14.  The  reduced  scale  of  Reg.  Hil.  Vac.,  4  Will. 
4,  Sbr  taxing  costs,  held,  not  to  apply  to  writs  of 


I  inquiry  in  actions  of  covenant  for  unliquidated 
damages.  Croft  v.  Miller,  3  Bing.  N.  8.  (c.  p.) 
975. 

15.  Where  the  defendantpaid  the  debt  and  costs 
indorsed  on  the  writ  and  55.  more,  which  was  de- 
manded ;  held,  that  as  he  paid  the  latter  sum  un- 
necessarily, it  could  not  be  included  in  the  taxa- 
tion, so  as  by  having  one-sixth  struck  off,  to  be 
entitled  to  the  costs  of  taxation.  Ward  v.  Gregg, 
5  Dowl.  Cp.  c.)  729. 

16.  Where  the  writ  issued  for  a  sum  above  20£., 
and  before  execution  the  plaintiff  ^ve  credit  for  a 
cross  demand,  not  pleaded,  and  Uiereby  reduced 
the  debt  below  that  sum  :  held,  that  tlie  Master 
was  to  tax  the  costs  upon  the  reduced  scale. 
(Fattcson,  J.  dissentient.)  Savage  v.  Lipscombe, 
5  Dowl.  (p.  c.)  385. 

17.  Interlocutory  costs  allowed  to  Im  set  off 
against  final  costs,  without  respect  to  the  lien  of 
the  attorney.  HoUiday  v.  Laws,  5  Dowl.  (p.  c.) 
636. 

18.  The  Court  refused  an  application  that  costs 
of  proceedings  in  the  Court  of  Bankruptcy  might 
be  set  off  a^inst  the  damages  and  costs  recovered 
in  a  suit  m  the  Common  Pleas.  Woodroffe  17. 
Wootton,  4  Sc.  (c.  p.)  364. 

19.  Where  money  paid  into  Court  is  at  first  re- 
fused, but  afterwards  taken  out,  it  is  to  be  taken 
prima  facie  as  vexatious,  and  the  plaintiff  liable  to 
the  subsequent  costs,  unless  good  cause  shown; 
where  the  defendant  subsequently  offered  a  larger 
sum,  the  Court  refused  a  rule  for  setting  off  his 
subsequent  costs.  Willis  r.  Darke,  1  Tyr.  &  Gr. 
(EX.)  503. 

20.  So,  where  the  amount  of  accruing  interest 
on  the  debt  was  not  tendered,  together  with  the 
amount  of  the  debt.  White  v.  Cobham,  1  Tyr.  & 
Gr.  (EX.)  507. 

21.  The  Court  cannot  award  costs  on  criminal 
proceedings  in  the  Court  below,  although  incurred 
oy  the  improperly  suing  out  a  certiorari,  afterwards 
quashed.  Rex  v.  Higgins,  Nev.  dt  P.  (k.  b.)  50 ; 
and  5  Dowl.  (p.  c.)  375;  overruling  Stacev v.  Ev- 
ans, ]3  Pri.  449;  and  Jones  v.  Davies,  1  B.  6^  Cr. 
143. 

And  see  Rez  r.  Passman,  1  Add.  &  Ell.  603. 

22.  A  habeas  corpus  may  issue  at  the  instance 
of  a  defendant,  for  costs,  against  a  plaintiff  in  cus- 
tody at  the  suit  of  others  ;  and  it  is  not  necessary 
that  there  should  be  any  affidavit  of  the  circum- 
stances under  which  the  writ  has  been  sued  out. 
Furnival  v.  Stringer,  3  Bing.  N.  S.  (c.  p.)  96;  3 
Sc.  55] ;  and  5  Dowl.  (p.  c.)  195. 

23.  Where  a  juror  was  withdrawn  and  the  cause 
re&rred,  but  no  award  made,  and  the  cause  again 
taken  down,  and  the  plaintiff  succeeded;  helonot 
entitled  to  costs  of  the  first  trial.  Thomas  v.  Lew- 
is, 5  Dowl.  (p.  c.)  395. 

24.  Where  the  sum  indorsed  on  the  process  was 
an  amount  recoverable  in  a  court  of  Requests, 
the  court  left  the  defendant  to  his  suggestion,  and 
refused  to  relieve  him  from  costs  of  U'ial  on  pay- 
ment of  that  sum  into  court.  King  v.  Myers,  5 
Dowl.  (p.  c.)  686. 


[COSTS] 


2746 


25.  The  pijle  reqairing  the  delivery  of  a  copy 
of  the  bill  of  costs  and  aiBdaTit  of  increase,  one 
day  previoas  to  the  time  of  taxing,  is  imperative, 
and  the  party  proceeding  to  tax  without  doing  so 
is  irregular.  Wilson  v.  Parkins,  5  Dowl.  (p. 
c.)  461. 

26.  Where  an  action  on  an  attorney's  bill,  afler 
being  partly  heard,  was  referred  to  the  Master, 
who  found  a  small  balance ;  held,  that  although 
the  judge  had  power  to  certify,  yet,  not  having 
done  so,  the  Master  had  properly  taxed  the  costs 
upon  the  reduced  scale,  rarker  v.  Serle,  6  Dowl. 
(p.  c.)  334. 

27.  Where  the  defendant  took  out  a  summons 
to  stay  proceedings,  on  payment  of  a  sum  and 
costs,  m  addition  to  the  set-ofT,  and  the  plaintiff 
refusing  to  accept  it,  the  defendant  pleaded  non 
assumpsit  and  a  set-off,  but  did  not  pay  the  sum 
offered  into  court ;  held,  that  the  plaintiff  could 
not  be  liable  to  tlie  subsequent  costs ;  aUter,  if 
the  sum  tendered  had  been  paid  into  court 
Gower  v.  Elkins,  6  Dowl.  (p.  c.)  335 ;  and  3  Mees. 
&  W.  (kx.)  216. 

28.  Upon  a  rule  obtained  for  a  new  trial,  on 
payment  of  costs,  held  that  the  costs  of  admitting 
documents  used  on  the  first  trial  were  costs  in 
the  cause,  there  being  no  necessity  for  fresh  ad- 
missions,  but  that  the  costs  of  preparing  briefs  and 
of  full  fees,  should  be  allowed  as  costs  of  the  trial, 
regard  being  had  by  the  Master  to  necessary 
amendments.  Lord  v.  Wardle,  6  Dowl.  (p.  c.) 
174 ;  and  3  Sc.  (c.  p.)  396. 

29.  Where,  aAer  an  offer  of  a  sum  which  the 
plaintiff  refused,  the  defendant  obtained  an  order 
to  pay  it  into  court,  but  did  not  do  so,  and  the 
plaintiff  being  afterwards  willing  to  accept  it, 
gave  notice  that,  unless  it  were  paid,  he  should 
proceed;  and  no  notice  being  taken,  he  filed  his 
declaration,  on  which  the  defendant  paid  in  the 
money,  and  the  plaintiff  took  it  out ;  held,  that 
he  was  only  entitled  to  costs  up  to  the  time  of  the 
order.  Parsons  v.  Pitcher,  4  Bing.  N.  S.  (c.  p.) 
306 ;  and  6  Dowl.  (p.  c.)  432. 

30.  Where  an  action  of  assumpsit  was  referred, 
and  a  less  sum  than  20^  awarded ;  held  to  be  a 
sum  recovered,  although  no  verdict  taken,  and  the 
costs  to  be  taxed  on  the  lower  scale.  Wallen  v. 
Smith,  6  Dowl.  (p.  c.)  103;  and  3  Mees.  &  W. 
(EX.)  138. 

31.  Where  the  action  against,  the  sheriff  was 
for  an  escape,  but  the  evidence  not  establishing 
that,  but  an  omission  to  arrest,  the  judge  had  re- 
fused to  allow  the  record  to  be  amended,  but  di- 
rected the  facts  to  be  indorsed,  and  the  court  sub- 
sequently gave  judgment  for  the  plaintiff,  accor- 
din^r  to  the  right  of  the  case ;  held,  that  he  was 
entitled  to  the  general  costs,  and  the  defendant 
to  the  costs  of  the  issues  found  for  him,  and  each 
to  bear  his  costs  of  the  motion  for  judgment. 
Guest  V.  Elwes,  2  Nev.  &  P.  (k.  b.)  230. 


other  not  being  disputed,  and  which  bein^  paid 
into  court,  the  plaintiff  took  out  in  satisfaction  of 
the  whole ;  held,  that  being  under  40«.,  and  the 
defendant  residing  within  a  local  jurisdiction,  the 
plaintiff  was  not  entitled  to  his  costs,  but  that  the 
defendant  not  having  put  himself  in  a  situation 
to  stay  the  proceedings  without  costs,  he  was  not 
entitled  to  them.  Thompson  v.  Gill,  6  Dowl.  (p. 
c.)  155. 

34.  The  circumstance  of  witnesses  not  being 
called  is  no  ground  for  disallowing  their  expen- 
ses if  the  Master  find  that  their  attendance  wae 
reasonably  necessary  ;  held  also,  that  peither  par- 
ty is  entitled  to  the  costs  of  a  bpecial  jury,  where 
one  issue  is  found  for  the  plaintiff  and  the  other 
for  the  defendant;  and  an  application  to  the 
judge  to  appoint  a  day  for  the  trial,  are  not  costs 
of  the  trial.  Morison  v.  Harmer,  5  Sc.  (c.  p.)  411. 

35.  Where  the  admission  of  documents  was 
refused,  and  the  judge  made  an  order  thereupon 
for  costs,  under  Reg.  Hil.  4  Will.  4,  c.  20,  upon 
the  certificate  indorsed  by  the  judge  at  the  trial ; 
held  that,  notwithstanding  the  verdict  set  aside, 
and  a  new  trial  granted  without  costs,  the  party 
producing  was  entitled  to  costs  of  proof.  Lewie 
Howell,  6  Ad.  &,  £11.  (k.  b.)  769;  the  judm  pre- 
siding  when  the  documents  are  proved  is  the  on- 
ly person  to  give  the  certificate. 

36.  Where  to  a  bill  filed  to  compel  a  party 
necessary  to  the  conveyance,  to  execute  it,  a. 
charge  of  fraud  was  set  up,  which  he  entirely  fail- 
ed to  support,  the  court  held  that  he  was  liable  to 
the  costs  of  suit,  and  that  it  was  not  necessarv  to 
direct  an  inquiry  as  to  the  fraud  alleged ;  held 
also,  that  a  married  woman  living  apart,  and  by 
whose  misconduct  the  suit  was  rendered  necessa- 
ry, was  not  entitled  to  costs.  Times  v.  Negus^ 
3  Tounge  Sl  G.  (ex.  sq.)  90. 

37.  Where  the  defendant  put  in  and  perfected 
special  bail,  without  bein^  actually  arrested,  held 
that  it  was  not  a  case  within  the  43  Geo.  3,  en- 
titling him  to  costs.  James  v.  Askew,  3  Nev.  d& 
P.  (q.  B.)  495. 

38.  The  fact  of  the  defendant  calling  no  wit- 
nesses in  an  action  on  an  1.  O.  U.  for  1,Q00Z.^ 
held  not  sufficient  ground  for  the  master's  dis- 
allowance of  two  counsel  and  the  presence  of 
the  country  attorney  and  of  consultation,  where 
so  much  depended  on  the  cross-examination  of 
the  plaintiff's  witnesses,  and  the  attorney  most 
cognisant  of  the  circumstances  of  the  case.  Mad- 
ison 9.  Bacon,  5  Bing.  N.  S.  (c.  p.)  246. 

39.  Costs  of  issues  include  also  the  costs  of 
trial,  and  costs  of  opposing  an  unsuccessful  ap- 
plication for  a  new  trial  are  costs  in  the  cause ;  if 
a  rule  for  taking  money  out  of  the  court  is  silent 
as  to  costs,  the  party  succeeding  is  entitled  to  the 
costs  of  the  application.  £yre  v.  Thorpe,  6  Dowl. 
(p.  c.)  768. 


32.  And  semh.,  where  the  jury  find  the  facts 
specially  under  3  <&  4  Will.  4,  c.  42,  s.  24,  the 
court  has  no  power  to  amend  the  record,    lb. 

33.  Where  the  writ  was  indorsed  for  one  only 


40.  "Where  some  issues  are  found  for  the  plain- 
tiff and  some  for  the  defendant,  the  latter  will  be 
entitled  to  the  costs  of  witnesses  called  exclusive- 
ly in  support  of  the  issues  found  for  him,  but  not 
of,  and  also  to  disprove,  the  issues  found  for  the 
plaintiff.    Crowther  v.  Elwell,  4  Mees.  &,  W,. 


of  two  demands  claimed  in  the  particuUurs,  the  (kx.)  71 ;  and  6  Dowl.  (p.  c.)  697. 


2746 


[COSTS] 


41.  The  eoart  cannot  make  an  order  as  to  coats 
against  an  indiTidual  who  is  not  party  to  the  re- 

•  cord,  although  he  may  be  interested  in  the  event 
or  the  real  party  in  the  suit.  Hayward  v.  Gif- 
fard,  4  Mces.  &  W.  (ex.)  194 ;  and  6  Dowl.  (p.  c.) 
699. 

42.  Where  the  plaintiiF,  in  an  action  for  mesne 

Srofits,  was  nonsuited,  with  leave  to  enter  a  ver- 
ict  for  nominal  damages,  and,  on  motion,  a  new 
trial  was  ordered,  bnt  the  plaintilT,  after  serving 
the  rule  absolute,  obtained  a  rule  to  discontinue 
on  payment  of  costs,  having  brought  another 
action  in  the  name  of  the  nominal  plaintiff; 
held,  that  he  was  not  liable  to  pav  the  costs  of 
the  former  trial.  JoUiffe  o.  Mundy,  4  Meee.  & 
W.  (ex.)  602  ;  and  7  Dowl.  (p.  c.)  225 ;  review- 
ing  the  cases  and  overruling  Sweeting  v.  Halse, 
9B.&Cr.369. 

43.  Where  the  defendant  being  entitled  to 
costs,  on  a  rule  of  the  plaintiff  being  discharged, 
part  whereof  was  paid,  but  the  residue  only 
claimed  without  a  formal  demand,  and  the  plain- 
tiff having  subsequently  signed  iudgment  for 
want  of  plea  and  taxed  his  costs,  tne  defendant, 
to  avoid  execution,  paid  the  debt  and  costs,  the 
court  aAerwards  made  a  rule  absolute  for  the  pay- 
ment of  the  residue  of  coste  due  to  him  by  the 
plaintiff.  Abernethy  v.  Paton,  5  fiing.  N.  S.  (c. 
p.)  276;  and6Sc.^. 

44.  In  case  of  injury  to  a  water  course,  stating 
various  wrongful  acts,  to  which  the  defendonte 

*'  pleaded  the  general  issue  and  various  pleas,  and 
the  verdict  was  found  for  the  delendante  on  the 
^general  issue,  and  for  the  plaintiff  on  the  other 
issues;  the  de&ndante  being  an  incorporated 
company,  and  entitled,  under  their  Act,  to  treble 
«costs  in  any  action  brought  against  them  for  any 
•thing  done  in  pursuance  of  the  Act;  held,  that 
they  were  only  entitled  to  treble  costs  on  the  is- 
sues raised  on  those  counts  in  respect  of  acts  done 
under  color  of  the  Act ;  held,  also,  that  the  course 

^  of  taxing  was  to  treble  the  defendant's  coste  and 
■then  to  deduct  those  of  the  plaintiff.  Wilson  v. 
River  Dun  Company,  7  Dowl.  (p.  c.)  360 ;  and  5 
Mees.  &  W.  (ex.)  89. 

45.  Where,  of  two  pleas  in  assumpsit^  one 
was  found  for  the  plaintiff  and  the  other  for  the 
defendant,  and  the  judge  certified  that  the  defen- 
<lant  had  probable  cause  to  plead  the  second 
j>lea ;  held,  that  the  Master  haa  properly  refused 
the  coste  of  the  second  issue  to  either  party ;  the 
new  rules,  Hil.  4  Will.  4,  were  not  intended  to 
repeal  the  4  Ann,  c.  16,  but  to  apply  to  such|pleas 
as  merely  vary  the  same  ground  of  defence. 
Bobinson  r.  Messenger,  3  Nev.  &  P.  (<^.  b.)  583. 

46.  Where  the  lessor  of  plaintiff  recovered  a 
verdict  and  taxed  his  coste  m  1834,  but  the  writ 
of  execution  was  never  returned  nor  the  judgment 
revived  by  sa./a.,  and  the  defendant  afterwards, 
in  1837,  obtained  a  rule  to  set  aside  the  writ  of 
possession  for  irregularity,  with  coste ;  held,  that 
the  plaintiff  was  not  entiUed  to  set  off  the  coste, 
as  iaterlociitory  coste,  against  the  coste  of  the 
cause.  Dm  d.  Btevens  v.  Lord,  1  Perr.  &.  Dav.  (q,. 

47.  Where  a  trial  was  postponed  on  terms  of 
paying  coste  of  the  day  to  the  plaintiff,  held,  that 
a  denuuid  by  the  attorney  was  sufficient  to  found 


I  the  motion  for  an  attachment  for  non-psniMBt 
I  Inman  v.  Hill,  4  Mees.  &,  W.  (ax.)  7 ;  i^  6  DowL 
(p.  c.)  666. 

48.  Where  both  plaintiff  and  defendant  took 
down  the  record  for  trial,  and  the  plaintiff  having 
withdrawn  his,  the  defendant  mi^ht  have  tried  the 
cause  bj^  proviso,  and  both  parties  having  agreed 
to  make  it  a  remanet^  neither  were  entitlea  to  coste 
of  the  day.  Blow  v.  Wyatt,  4  Mees.  6t  W.  («x.> 
407 ;  and  7  Dowl.  (p.  c.)  86. 

And  see  Reading  v.  Grafton,  cited,  lb. 

49.  Where  the  defendant,  in  ejectment,  having 
failed,  brought  trespass  against  the  lessor  of  the 
plaintiff  for  seizing  goods  on  the  premises,  and 
was  nonsuited,  but  obtained  a  rule  for  a  new  trial, 
the  Court  refused  to  stey  the  proceedings  on  soeh 
rule  until  the  coste  in  the  ejectmenthad  been 
paid.    Camaby  v.  Welby,  7  Dowl.  (p.  c.)  315. 

50.  Where  in  trespass  for  an  assault,  the  defen- 
dant pleaded  one  plea,  denying  the  assault,  which 
was  found  against  him,  and  a  justification  of  son 
asaottU  demesne,  which  was  found  for  him ;  held, 
that  he  was  liable  to  the  coste  on  the  former  issue. 
MuUins  0.  Scott,  5  Bing.  N.  S.  (c.  p.)  423. 

51.  Where  husband  and  wife  were  parties  to  the 
suit,  the  Court  would  only  grant  an  attechment 
for  nonpayment  of  the  coste  against  the  husband. 
Doe  V.  Caufield  and  Wife,  6  Dowl.  (p.  c.)  523. 

52.  Where  the  rule  required  the  coste  allowed 
by  the  Master  to  be  paid  to  the  dieriff,  who  hay- 
ing since  gone  out  of  office,  a  power  of  attoraey 
had  been  executed  by  the  undersheriff,  held  suffi- 
cient to  support  the  attachment.  Reg.  v.  Mattey, 
6  Dowl.  (p.  c.)  515. 

53.  No  coste  are  allowed  of  a  rule  to  refer  back 
for  a  review  of  the  taxation  by  the  Master.  Par- 
sons V.  Pitehcr,  6  Dowl.  (p.  c.)  600. 

54.  The  coste  of  settling  a  bill  of  exceptionsi 
held  to  be  coste  texable  in  the  Court  of  Error* 
Doe  V.  Francis,  7  Dowl.  (p.  c.)  193;  and  4  Mees> 
&  W.  (EX.)  331. 

55.  The  Court  refused  prospectively  to  direct 
their  officer  in  what  manner  to  tax  particular 
coste.  Roe  V.  Cobham,  6  Sc.  (c.  p.)  146 ;  and  6 
Dowl.  (p.  c.)  628. 

56.  Where  afler  plea  of  set  off,  the  plaintiff  ob- 
tained leave  to  amend  by  increasing  the  amount 
of  damages,  and  the  defendant  afterwards  having 
paid  money  into  Court,  one  of  his  pleas  became 
unavailable ;  held,  that  having  become  so  by  his 
own  act,  he  was  not  entitled  to  the  coste  of  sadi 
plea.  Gould  v.  Oliver,  5  Bing.  N.  S.  (c.  p.  )  115; 
and  6  Se.  884. 

57.  Where  the  declaration  conteined  nine 
counts,  and  the  plaintiff  recovered  on  two,  which 
were  the  material  issues  on  which  the  verdict 
was  entered  for  him,  and  for  the  defendant  on  the 
others ;  held,  the  coste  of  those  counte  might  be 
set  off  against  the  coste  of  the  issues  found  fi>r 
the  plaintiff.  Newton  v.  Harland,  6  Dowl.  (p.  c.) 
644. 

58.  Where  the  defendant  agreed  to  withdraw 
his  picas,  and  judgment  be  signed  for  a  sum  un- 
der 20/.,  and  that  on  payment  thereof,  with  coste 


[COSTS] 


W47 


to  be  taxed,  prooeedtnge  abonld  be  stayed;  beM, 
that  the  costs  were  to  be  taxed  oo  the  reduced 
•cak  applicable  to  that  amount.  Cooke  e.  Hunt, 
5Mee8.d^  W.^Ex.)161. 

59.  Where  a  cause  was  leferred,  but  no  power 
^ven  to  the  arbitrator  to  certify  that  the  cause 
was  fit  to  be  tried  at  nisi  |wtttf ,  and  the  sum  award- 
ed was  under  2(tf. ;  held,  that  the  Master  had 
properly  taxed  the  costs  on  the  reduced  scale. 
Wjlen  V.  Smith,  5  Mees.  Sl  W.  (ex.)  159 ;  7 
Duwl.  394. 

60.  Where  the  cause  was  referred  at  niapriua, 
but  the  award  afterwards  set  aside,  and  the  cause 
was  tried  again,  held  to  be  analogous  to  the  case 
of  a  vmUre  de  novo^  and  the  party  ultimately  suc- 
ceeding not  entitled  to  the  costs  of  the  first  trial. 
Wood  V.  Duncan,  5  Mees.  &  W.  (ex.)  67. 

61.  Where  an  order  to  change  the  venue  was 
drawn  up,  ^*on  payment  of  the  costs  bona  fide  in- 
curred, and  rendered  useless  by  that  rule ;"  held, 
that  it  was  conditional  only,  and  not  of  obligation ; 
and  the  rule  being  afterwards  abandoned,  the 
costs  of  witnesses  who  attended  at  the  trial, 
which  but  for  the  rule  would  have  been  tried, 
were  only  costs  in  the  cause,  {diss.  Maule,  B.) 
Pugh  tr.Kerr,  3  Mees.  &  W.  (ex.)  164. 

62.  In  case  for  infringement  of  a  patent,  the 
defendant  havinf  obtained  a  Tordict  on  one  issue, 
going  to  the  whole  cause  of  action ;  held,  that  he 
was  entitled  to  the  costs  of  that  issue,  and  of  the 
general  costs,  after  deducting  the  costs  of  the  is- 
sues found  for  the  plaintiff:  the  notice  of  objec- 
tions delivered  with  the  pleas,  under  5  &  6  Will. 
4,  c.  83,  s.  5,  does  not  interfere  with  the  practice 
of  taxation  in  other  respects.  Losche  v.  Hague, 
7  Dowl.  (p.  0.)  495. 

63.  The  Judge  who  tries  the  cause  can  only 

E'ye  the  certificate  to  entitle  the  plaintiff  to  have 
s  costs  taxed  on  the  higher  scale,  where  the 
verdict  is  under  80{. ;  where  he  died  before  the 
application,  the  plaintiff  held  to  be  without  rem- 
edy.   Bouthwell  r.  Bird,  7  Dowl.  (p.  c.)  557. 

64.  in  case  for  disturbing  plaintiff  in  the  use  o^ 
a  well,  the  right  being  in  issue,  held  to  be  an  in- 
tesest  in  land,  and  the  plaintiff  obtainin|f  a  nom- 
inal verdict,  entitled  to  full  costs,  notwithstand- 
ing the  certificate  of  the  Judge  to  deprive  him  of 
costs,  under  43  Eliz.,  c.  6.  Tyler  v.  Bennett,  6  Nev. 
A  M.  (K.  B.)  826. 

And  see  Award ;  Bankrupt ;  Ejectment  ;  Ex- 
ecutor;  Infomuttion;  Justices;  label',  Manda- 
mus; Practice  (xq.)  (c.  l.);  Que  Warranto; 
Sheriff;  Trespass, 


[B]    BXCVRITT  FOR. 

1.  Where  a  foreign  sovereign  was  suing  in  this 

country ;  held,  that  residing  abroad,  he  could  not 

be  distinguished  from  any  other  suitor.     Brazil, 

Emperor  of,  v.  Robinson,  1  Nev.  &  P.  (k.  b.)  817; 

&  5  Dowl.  (p.  c.)  522. 

2.  Where  a  plaintiff  gives  a  false  description  of 
his  place  of  residence  in  his  bill,  he  will  be 
made  to  give  security.  Calvert  v.  Day,  2 
Younge,  (ex.  bq.)  217. 

Vol.  IV.  60 


3.  Se,  where  the  plaioliff  had  aiifdaKribed 
his  residenoe  in  the  bill,  ordered  to  find  eecotity* 
Sandys  e.  Long,  7  Sim.  (ch.)  140. 

.  4.  The  court  will  grant  a  rule  nisi  for  security, 
although  the  affidaviu  do  not  show  in  what  stage 
the  cause  is.  Cole  e.  Perry,  1  Tyx.  &,  Gr.  (bx.) 
1000. 

5.  The  court  refused  to  add  -to  a  rule  for  giv- 
ing security,  the  alternative  that  the  defenoant 
might  be  at  liberty  to  sign  judgment  as  in  case  of 
a  nonsuit  absolute.  Kelly  v.  Brown,  5  Dowl. 
(p.  c.)  264. 

6.  Afler  an  order  for  securitv,  and  that  the  de- 
fendant have  seven  days  to  plead  afler  security 
given,  before  which  the  defendant  craved  oyer ; 
held,  that  the  time  of  pleading  ran  from  the  grant- 
ing oyer,  if  subsequent  to  the  giving  security  or 
rescinding  the  order,  and  not  m  that  case  from 
the  time  when  such  security  given  or  order  res- 
cinded. Cahill  V.  Macdonaldj  4  Ad.  &  £11. 
(k.  b.)  1004. 

7.  It  is  only  necessary  to  make  a  demand  where 
it  is  also  part  of  the  rule  that  proceedings  be  stay- 
ed in  the  meantime.  Fountain  «.  Slsele,  6 
Dowl.  (p.  c.)  331. 

8.  On  an  application  for  a  rule  nisi  for  security, 
it  is  not  necessuT  to  show  in  what  stage  the  pro- 
ceedings are.    dole  o.  Beard,  5  Dowl.  (p.  c.)  161. 

9.  Where  proceedings  on  the  bail-bond  are 

Emdinff,  the  defendant  cannot  apply  for  security, 
onnetor  v.  Russell,  5  Dowl.  (p.  o.)  555. 

10.  Where,  after  joinder  in  demurrer,  tbeplaiii- 
tiff  became  bankrupt,  and  his  assignees  refused  to 
interfere,  the  court  refused  the  application  for  se- 
curity. Beckham  v.  Knight,  4  Bing.  N.  8.  (c. 
p.)  74 ;  2  So.  336;  and  6  Dowl.  (p.  c.)  227. 

11.  Where  the  affidavit  onljr  stated  that  it  ^  be- 
lieved" the  plaintiff  was  resident  abroad ;  held 
insufficient,  but  the  court  would  call  on  the  attor- 
ney by  rule  to  state  the  residence  of  his  client. 
Sandys  v.  Hohler,  6  Dowl.  (p.  c.)  274. 

12.  A  foreign  sovereign,  suing  in  this  country 
to  enforce  a  contract,  is  liable  to  give  security  for 
costs,  and  the  defendant  held  not  precluded  by 
having  pleaded  to  the  original  declaration,  where 
he  applied  promptly  ai\er  it  had  been  materially 
amended;  where  no  previous  application  ha^ 
been  made  by  the  defendant,  and  tJie  rule  for  se- 
curity was  not  drawn  up  with  a  stay  of  proceed- 
ings, the  court  made  the  rule  absolute,  without 
payment  of  costs  by  the  defendant  Greece,  King 
of,  t>.  Wright,  6  Dowl.  (p.  c.)  12. 

13.  Where  there  is  no  false  description,  the  mere 
circumstance  of  the  plaintiff  being  m  the  habit  <^ 
moviuff  from  place  to  place,  is  not  a  sufficient 

? round  for  giving  security.    Fraser  v.  Palmer,  3 
ounge  &  C.  (ex.  bq.)  279. 

14.  The  mere  notice  of  application  for  security 
does  not  dispense  with  the  necessity  of  makings 
previous  demand ;  and  the  affidavit,  on  the  motion 
for  security,  must  show  the  stage  in  which  the 
proceedings  are.  Huntly  v.  Bulmer,6  Sc.  (c.  p.) 
247. 

1.^.  Where  an  action  of  trespass  was  brought 
against  justices,  for  turning  out  the  defenoant 


3748 


[COSTS] 


from  premiaeB  claimed  by  the  parish  as  part  of  the 
poor-house,  upon  a  warrant  under  59  €reo.  3,  c.  12, 
B.  24,  the  Court  refused  to  call  on  the  plaintiff  for 
security,  on  the  ground  that  he  was  instigated  by 
a  party  who  had  petitioned  the  House  of  Lords  on 
the  subject,  and  had  declared  that,  on  public 

f  rounds,  he  would   see   the  plaintiff  reinstated, 
[earsey  v.  Pechell,  5  fiing.  N.  S.  (c.  p.)  466 ;  and 
7  Dowl.  (p.  0.)  437. 

16.  The  lessor  of  plaintiff  in  ejectment  having 
become  bankrupt,  and  uncertificated,  held  not  a 

'  ground  for  compelling  him  to  give  security,  al- 
though the  assignees  had  declined  to  proceed  in 
the  action,  and  it  was  carried  on  for  his  benefit. 
Doe  d.  Colnaghi  v.  Blick,  5  Sc.  (c.  p.)  714. 

17.  The  Court  refused,  in  an  action  of  libel,  to 
increase  theamount  of  security,  on  the  ground  of 
the  sum  ordered  (4002.)  being  madequate  to  cover 
the  expected  expense  of  foreign  witnesses,  ^c. 
Pizana  v.  Lawson,  5  Sc.  (c.  p.)  418. 

18.  8o  in  in  actioii  on  a  note,  on  the  ground 
that  the  expected  amount  of  costs  would  exceed 
the  sum  fixed.    Kent  v.  Poole,  7  Dowl.  (r.  c.)  572. 

19.  Where  a  rule  was  made  for  security  for 
costs,  the  Court  refused  a  motion  by  the  surety  to 
eancel  the  bond  on  affidavits  showing  that  the 

£Iaintiff  had  returned  to  this  country,     fiadnali  v. 
[all,  7  Dowl.  (p.  c.)  19;  and  4  Mees.  &  W.  (ex.) 
535. 

20.  Where  the  lessor  of  plaintiff  was  an  infant, 
and  a  pauper,  the  Court  requi  red  the  father  to  be 
substituted  for  John  Doe.  Doe  v,  Roberts,  6 
Dowl.^(p.  c.)  556. 

21.  Three  days'  notice  of  intention  to  apply  for 
security,  held  not  equivalent  to  a  demand  and  re- 
fusal, to  entitle  the  defendant  thereto.  Huntlej 
V,  Bulmer,  6  Dowl.  (p.  c.)  633. 

22.  Where  the  plaintiffs  resided  out  of  the  juris- 
diction, held  to  be  no  answer  to  tlie  application 
that  there  was  no  deience  to  the  action,  the  defen- 
dant having  admitted  the  debt ;  nor  that  the  plain- 
tifis  had  property  in  the  country,  as  Exchequer 
bills ;  nordid  the  agreement  by  the  defendant,  sen> 
erally  to  take  short  notice  of  trial,  preclude  him 
from  applying  for  security.  Edinburgh  and  Leith 
Company  v.  Dawson,  7  Dowl.  (p.  c.)  573. 

23.  Where  the  plaintiff  was  a  lieutenant  in  the 
navy,  and  employed  as  harbor-master  in  an  Eng- 
lish colony,  the  Court  would  intend  that  he  was 
not  a  foreigner,  and  the  rule  disciiargcd  with  costs. 
Evering  v.  Chiffendcn,  7  Dowl.    (p.  c.)   536. 

And  see  Attorney  ;  Infant ;  Informalion  ;  Pau- 
per; Requests. 


[C]  Suggestion  to  deprive  of. 

1.  Where  the  arrest  was  for  20/.  25.  Ic/.,  and 
^or  want  of  proof  of  delivery  the  plaintiff  only  re- 
covered 102.,  the  substantial  issue  being  the  defen- 
dant's infancy  ;  the  court,  notwithstanding  the 
whole  of  the  goods  were  sworn  to  have  been  de- 
livered, allowed  costs  imder43  Greo.  3,c.46,  the 
damages  recovered  being /^inut/actc  evidence  of 


the  sum  doe.    BaUantine  v.  Taylor,  1  Ner.  dk  P. 
(a.  B.)  219. 

2.  Where  the  defendant  had  been  arrested  on 
an  attorney's  bill  for  200/.,  which  was  by  an  order 
referred  to  be  taxed,  upon  the  terms  of  being  at 
liberty  to  sign  judgment  for  the  amount  taxed, 
and  an  undertaking  to  pav  that  amount  and  the 
costs  of  the  action ;  the  Master  having  redaoed 
the  bill  to  149/.,  by  disallowing  certain  expenses 
imprudently  incurred  .  held,  that  there  was  proba« 
ble  cause  for  the  arrest,  and  that  the  defendant  was 
estopped  by  the  order  froifi  complaining  of  the  ar> 
rest.  Watkins  v.  Mahon,  1  Mees.  &,  W.  (xx.) 
722 ;  and  5  Dowl.  (p.  c.)  178. 

3.  Where  the  plaintiff  had  actually  disbursed 
money  for  the  defendant,  his  client,  which  the 
Master  on  a  reference  had  disallowed  him,  and 
which  made  up  the  difference  between  the  sum 
for  which  the  arrest  had  been  made  and  that 
found  to  be  due ;  held,  that  no  stipulation  having 
been  made  as  to  costs  on  account  of  the  arrest,  he 
was  estopped  from  complaining  of  it  by  the  order. 
Watkins  v.  Mason,  1  Tyr.  &  Gr.  (ex.)  1023. 

4.  The  rule  as  to  costs  of  taxation,  where  one- 
sixth  is  taken  off,  does  not  apply  when  the  tax- 
ation is  applied  for  after  action  brought,  lb. 

5.  In  assumpsit  by  indorsee  against  acceptor, 
plea,  that  by  agreement  between  the  defendant 
and  the  drawer  the  note  was  not  to  be  enforced 
except  on  certain  terms,  which  had  not  been  com- 
plied with,  and  that  the  plaintiff  received  the  note 
without  consideration ;  the  plaintiff  entered  unoiU 
pros,  except  as  to  part,  for  which  he  obtained  a 
verdict;  held,  that  in  the  absence  of  proof  of  the 
plaintiff's  knowledge  of  such  agreement,  it  was 
not  an  arrest  for  want  of  probate  eanse  for  the 
whole  amount,  entitling  the  defendant  to  a  sq£- 
gestion  for  costs  under  43  Geo.  3,  c.  46,  s.  3 ; 
qiutre,  if  the  defendant  be  discharged  from  the 
arrest  in  consequence  of  a  defect  in  the  affidavit 
of  bail,  he  cannot  be  said  to  have  been  "  arrested 
and  held  to  bail"  within  the  meaning  of  the  statute. 
Edwards  v.  Jones,  2  Mees.  &  W.  (ex.)  414 ;  and 
5  Dowl.  (P.O.)  584. 

6.  The  court  has  no  power  to  deprive  a  plaintiff 
of  costs  on  atrial  before  the  sheriff,  where  lees 
than  40s.  is  recovered,  although  the  sheriff  has  no 
power  to  certify  with  that  view.  Slory  v.  Hodson^ 
5  Dowl.  (p.  c.)  558. 

7.  Where  the  verdict  was  reduced  under  405. 
by  the  court,  on  the  ground  of  the  plaintiff  not 
being  entitled  to  recover  part  of  the  demand,  not 
being  a  duly  licensed  apothecary,  and  so  to  be 
taken  as  if  no  debt,  the  defendant  was  entitled  to 
enter  a  suggestion  under  the  Middlesex  Court  of 
Requests  Act.  Wells  v.  Langridge,  5  Dowl. 
(p.  c.)  509 ;  and  (per  JitilMale^  J.),  such  sugges. 
tion  might  be  made  by  the  court  where  the  trial 
had  been  before  the  sheriff. 

8.  Where  the  verdict  on  a  writ  of  trial  before 
the  sheriff,  or  a  judge  of  an  inferior  court,  is 
under  40^.,  he  has  no  power  to  certify  under  43 
Eliz.,  c.  6,  B.  2,  to  deprive  the  plaintiff  of  his  costs; 
if  the  action  is  brought  to  recover  less  than  that 
sum,  that  should  be  shown  for  cause,  on  applica- 
tion to  have  the  cause  so  tried.  Jones  v.  Bames, 
2  Mees.  6l  W.  (sx.)  3ia 


[COSTS] 


2749 


9.  The  BOffgefition  may  be  made  under  31  Geo. 
2,  c.  23.  (W.  H.  IJrixton  Court  of  Requesla), 
where  the  debt  is  under  52.,  and  the  plaintiff 
need  not  be  reaident  within  the  jurisdiction ;  it  is 
sufficient  if  the  defendant  were  so  at  the  time  of 
the  suit  being  commenced.  Haraley  v.  Hutton, 
5  Dowl.  (p.  c.)  332;  S.  P.  as  to  the  County 
Court;  Pritchardv.  Macgill,  lb.  731. 

10.  Where  upon  a  writ  of  inquiry,  the  damages 
having  been  assessed  under  202.,  this  Master  had 
taxed  the  costs  as  in  cases  tried  before  the  sheriff, 
which  was  stated  by  the  officer  to  be  the  practice, 
the  court  refused  to  interfere.     Hooppell  v.  Leigh, 

3  Sc.  (c.  F.)  188 ;  and  5  Dow1.^(p.  c.)  40. 

11.  Where  afler  final  judgment,  and  execution 
issued,  the  defendant  applied  to  enters  suggestion, 
and  it  appeared  that  delay  arose  from  his  having 
applied  to  a  Judge  at  chambers,  who  had  refused 
to  interfere,  the  court  allowed  the  application. 
King  r.  Erie,  5  Dowl.  (p.  c.)  595. 

12.  The  court  will  not  be  guided  alone  by  the 
amount  of  the  verdict.  Graham  v.  Beaumont,  3 
So.  (c.  p.)  287;  and  5  Dowl.  (p.  c.)  49. 

13.  The  defendant  held  not  to  preclude  himself 
from  the  benefit  of  entering  a  suggestion  under 
the  Birmingham  Court  of  Requests  Act,  by  plea 
of  payment  into  court,  or  having  consented  to 
an  or«er  for  trial  before  the  under-sheriff.  Turner 
V.  Barnard,  5  Dowl.  (p.  c.)  170. 

14.  Where,  afler  refusal  to  accept  the  arrears, 
in  an  action  for  salary  due  on  a  wrongful  dismis- 
sal, the  plaintiff  afterwards  having  obtained  a 
more  lucrative  employment,  took  the  money  out 
of  court;  held, that  as  such  acceptance  might 
operate  in  leduction  of  damages,  it  was  sufficient 
to  rebut  a  veiatioua  refusal  of  the  sum  tendered, 
and  the  defendant  not  entitled  to  costs  Cum- 
ming  V.  Columbine,  6  Dowl.  (p.  c.)  373. 

15.  Where,  after  an  arrest  for  282.,  and  plea  of 
the  statute  of  Limitations  as  to  11/.,  the  plaintiff 
recovered  only  17/.,  but  the  defendant  was  pro- 
ved to  have  promised  oralljr  to  i)ay  the  former 
Bum ;  held  that,  as  the  plaintiff  might  reasonably 
have  presumed  the  statute  would  not  have  been 
pleaded,  the  defendant  was  not  entitled  to  costs 
under  43  Geo.  3.  White  v.  Prickett,  4  Bing.  N. 
S.  (c.  p.)  237;  and  6  Dowl.  (p.  c.)  445. 

16.  Where  the  plaintiff  knows,  from  the  nature 
of  his  claim,  that  he  cannot  sustain  it  by  legal  ev- 
idence to  the  extent  for  which  the  arrest  is  made, 
the  defendant  will  be  entitled  to  his  costs  under 
63  Geo.  3,  c.  46,  s.  3.    Robinson  v.  Whitehead, 

4  Dowl.  (p.  c.)  292. 

17.  On  an  exception  in  the  local  court  of  Re- 
qoestfl  Act,  of  case  where  the  action  is  brought 
for  the  balance  of  an  account  originally  exceedmg 
6L :  held,  not  to  apply  to  a  running  account, 
where  payments  having  been  made  from  time  to 
time,  there  was  at  no  time  so  much  as  5/.  due. 
Pope  V.  Banyard,  3  Meee.  &  W.  (m.)  424. 

18.  Where  one  of  several  chests  was,  after  de- 
livery, found  to  be  damaged,  and  an  allowance 
for  the  ropposed  amount,  and  the  affidavits  were 


contradictory  as  to  whether  such  reduction  had 
been  agreed  to  be  made  or  the  chest  returned,  and 
the  jury  gave  a  less  sum,  upon  the  understanding 
hat  the  plaintiff  was  to  have  back  the  damaged 
chest ;  held,  not  a  case  witliin  the  statute  enti- 
tling the  defendant  to  costs.  Clare  r.  Cooke,  4 
Bing.  N.  S.  (c.  p.)  269. 

19.  In  an  action  on  a  judgment  the  application 
for  costs  under  43  Geo.  3,  c.  46,  s.  4,  most  be 
made  by  the  plaintiff  either  to  a  Judge  at  Cham- 
bers or  the  Court,  and  not  at  Nisi  Prius.  Jones 
V.  Lake,  8  C.  &  P.  (n.  p.)  395. 

20.  In  an  action  for  an  architect's  commission, 
which  having  been  referred,  a  less  sum  was  award- 
ed than  that  for  which  the  defendant  had  been  held 
to  bail,  there  being  a  diflference  of  opinion  as  to 
the  estimates  of  the  expense,  and  the  defendant 
not  showing  the  actual  amount ;  held,  that  it  was 
not  a  case  of  want  of  probable  cause,  entitling 
him  to  costs  under  43  Geo.  3,  c.  46.  Day  v.  Clarke, 
2  Bing.  N.S.  (c.  p.)  117;  7  Dowl.  (p.  c.)  147; 
and  6  Sc.  886. 

21.  Although,  semble^  a  Judge  has  power  to 
revoke  his  certificate,  he  must  do  it  within  a  rea- 
sonable time.    Whalley  v.  Williamson,  5  Bing.  N. 

5.  (c.  p.)  200 ;  and  7  Dowl.  (p.  c.)  253. 

22.  To  entitle  a  defendant  to  the  suggestion 
under  the  Westminster  Act,  6  &  7  Will.  4,  c.  137, 

6.  86,  he  must  swear  distinctly  and  in  terms,  that 
he  was  at  the  time  of  the  commencement  of  the 
action  residing  or  inhabiting  within  the  jurisdic- 
Uon.    White  v.  Seffert,  5  Sc.  (c.  p.)  744. 

23.  There  is  no  distinction  since  3  &  4  Will.  4, 
c.  42,  s.  18,  between  trials  before  the  sheriff  and 
at  nisiprius,  and  a  suggestion  may  be  entered  after 
execution  issued  in  vacation  in  the  following 
term,  without  any  previous  motion  to  stay  the 
execution.    Jolmson  v.  Veal,  7  Dowl.  (p.  c.)  487. 

24  Where  the  plainiff  sued  for  2/.  15^.,  the  bal- 
ance'of  a  demand  of  5/.  15a.,  but  which  the  jury 
found  to  have  been  originally  under  5/.,  and  ob- 
tained  a  verdict  for  ir  2s.  &/.,  the  local  court 
of  Requests  Act  (Blackheath)  having  jurisdiction 
over  demands  not  exceeding  5Z.,  not  being  the  bal- 
ance of  any  account  originally  exceeding  that  sum, 
and  a  subsequent  Act  gave  the  superior  courts 
concurrent  jurisdiction,  where  the  sum  sought  to  be 
recovered  was  40*. :  held,  that  those  words  were 
to  be  taken  to  mean  the  sum  which  the  plaintitt 
actually  recovers,  and  that  the  plaintiff  having 
no  right  to  sue  in  the  superior  court,  the  defen- 
dant was  entitled  to  a  suggestion  for  his  costs. 
Cross  V.  Collins,  5  Bing.  N.  S.  (c.  p.)  194. 

And  see  Arrest ;  Requests. 


[D]  Enforcing— ATTicHMBNT. 

1  Where  an  order  for  taxing  the  attorney's  bill, 
and  delivering  up  deeds,  &c.,  was  «'  upon  pay- 
ment," &C-;  held  not  to  amount  to  a  direction  or 
undertaking  to  pay,  and  the  usual  undertaking 
filed  at  chambers  not  having  been  made  a  rule  of 


3760 


[COSTS— COVENANT] 


Coarty  no  Atttchment  couM  iMHr.    Price  v.  Phi^ 
ooz,  7  Dowl.  (p.  c.)  559. 

2.  A  demand  by  the  attorney  of  a  Pftrty  enti- 
tled to  receive  costs  under  an  order,  held  sumcient, 
without  an  express  power  of  attorney.  Mason  v. 
l^hitehou8e,4  B'mg.  N.  S.  (c.  v.)  692 ;  6  So.  246. 
575;  and  6  Dowl.  (p.  c.)  602. 

3.  Where  the  Act  directed  that  no  judgment 
should  be  entered  on  the  verdict  where  the  suit 
was  commenced  in  the  superior  court,  held,  that 
advantage  could  only  be  taken  of  the  Act  by  plea, 
and  not  by  suggestion.  Jack  man  v.  Cother,  5 
Mees.  <&  W.  (sx.)  147. 


COVENANT. 

1.  Ckirenant  by  L  ,  the  lessee  of  a  term  if  C. 
ihotild  so  long  live,  with  the  assignee  that  not- 
withstanding any  act  done  by  him  the  lease  was 
good  and  e^ctua!  at  tlie  time  of  the  assignment, 
and  the  term  in  no  wise  forfeited,  surrendered, 
determined.  Ac,  otherwise  than  by  effluxion  of 
time,  and  tnat  be  had  full  power  to  assi^,  Ac.  ] 
before  the  assignment  0.  had  died,  which  L. 
knew ;  held,  that  the  whole  covenant  was  to  be  res- 
tricted to  any  acts  done  by  L.«  and  that  he  was  not 
liable  on  the  covenant  on  an  eviction  of  the  as- 
signee by  the  party  entitled  afler  C.'s  death ; 
held  also  that  payment  of  rent  by  L.  to  such 
party  after  C.'s  death  did  not  amount  to  an  act 
done  by  L.  affecting  the  lease,  as  converting  it 
into  a  yearly  tenancy,  the  lease  having  already 
expired.  .  ^nnard  v.  Forbes,  1  Nev.  &  r.  (k.  b.) 
ftS3. 

2.  Where  a  party,  in  consideration  of  love  pud 
affection,  by  release,  conveyed  a  specific  freehold 
house,  ana  assigned  a  particular  leasehold,  and 
'*  all  other  the  property,  real  or  personal,  to  which 
he  might  be  then  entitled,  upon  trust  for  his 
sisters^  be  beinc  at  the  time  seised  of  a  share  in 
another  freehola  house,  of  which  no  mention 
was  made  in  the  release  ;  held,  that  the  general 
words  being,  from  the  tenor  of  the  deed,  only  ap- 

{>licable  to  leasehold  and  personal  estate,  the 
atter  freehold  did  not  pass  by  them,  and  that  the 
release  did  not  operate  as  a  covenant  to  stand 
seised.  Donngsworth  v,  Blair,  1  K.  (ch.)  795. 

3.  Upon  a  covenant  in  a  lease  of  mines  to  work 
them  not  bd&w  the  lertl  of  the  bottom  of  the  mine 
it  a  particular  point ;  held,  tliat  evidence  of  the 
meaning  of  the  covenant  according  to  the  custom 
and  unaetstanding  of  miners,  was  admissible,  and 
tibat  it  was  forthelury  to  decide  on  its  effect,  and 
to  say  what  was  the  contract  between  the  parties ; 
and  upon  a  reference  as  to  the  meaning  of  the 
term  levd,  the  arbitrator  having  found  it  according 
to  the  custom,  Ac.  of  miners  **•  throughout  that 
district,"  the  court  could  not  take  upon  themselves 
to  say  thai  the  parties  used  it  in  the  sense  attach- 
ed to  it  within  the  particular  district,  but  it  was 
to  be  determined  by  a  jury,  and  a  new  trial  grant- 
ed. ClayioB  v.  Crregson,  6  Nev.  A  M.  (k.  b.) 
604. 

4.  WhcTe  under  a  local  navigation  Act,  au- 
tiurKxing  iKs  u*vlert«kers  to  raise  money  on  the 


security  of  the  cant]  and  does,  the  mBe  were  as- 
signed by  deed,  in  the  form  prescribed  hj  the  Act, 
to  the  lenders,  as  a  security  for  the  money  lent, 
the  interest  on  which  was  "  to  be  paid  half-yearly  •" 
held,  not  to  amount  to  a  personal  covenmnt  oa 
the  part  of  the  proprietors,  rendering  them  per- 
sonally liable  to  an  action  of  covenant.  Pootet  v. 
Basingstoke  Canal  Company,  3  Bing.  N.  S.  (c.  r.) 
433  ;  and  4  Sc.  137. 

5.  Where  upon  the  sale  of  the  bosincM  of  a 
carrier,  the  plaintiff'  covenanted  that  he  would 
serve  the  defendant  in  such  trade,  and  would  not 
exercise  it  during  his  life,  except  as  assisting  the 
defendant,  in  oonsideratiun  whereof  the  defendant 
covenanted  to  pay  him  a  weekly  salary  for  life ; 
held,  that  the  covenant  to  serve  for  liie  was  not 
void  as  in  restraint  of  trade,  being  made  on  suffi- 
cient consideration,  and  securing  some  public 
benefit.  Wallts  v.  Day,  2  Mees.  A  W.  (ex.) 
273. 

And  8ee^b  Vin.  Abr.  323.  tit.  Master  and  Ser- 
vant, (N.)  5. 

6.  In  covenant  by  the  assignee  of  the  reversion 
against  lessee,  plea,  not  denying  that  it  was  the 
plaintiff^s  deed,  but  alleging  that  the  intended 
lessor  bad  not  executed  the  lease,  nor  was  it  sigBr 
ed  by  any  agent  lawfully  anthorixed,  in  writing ; 
it  appeared  that  J.  H.,  being  seised  in  fee,  by 
deed  executed  by  the  defendant,  demised  the  pre- 
mises for  a  term  of  eleven  years,  under  which 
the  defendant  entered  and  was  possessed  thereof; 
J.  H.,  by  will|  devised  the  estate  to  his  widow 
for  life,  remainder  to  the  plaintiff  for  life ;  the 
declaration  alleged  the  death  of  J.  H.  and  of  the 
widow,  whereby  he  became  and  was  seised  of  the 
reversion  for  the  term  of  his  life;  held,  that  the 
covenants  being  annexed  to  a  mere  tenancy  at 
will,  (the  only  interest  that  passed  upon  the  as- 
sent of  J.  H.  to  the  lease),  and  which  tenancy 
determined  on  his  death,  the  subsequent  occupa- 
tion for  more  than  a  year  created  a  different  ten- 
ancy to  which  the  covenants  were  annexed,  and 
that  the  plaintiff  could  not  maintain  the  action. 
Cardwell  v.  Lucas,  2  Mees.  A  W.  (xx.)  111. 

7.  Where  L.  and  S.,  the  fathers  of  the  intended 
husband  and  wife,  mutually  covenanted  by  the 

marriage  articles,  viz.  L.  to  pay L,  and 

convey  estates,  upon  the  marriage,  and  S.  to  pay 
^,  and  convey  estates,  upon  the  wife  at- 
taining 21 ;  held,  that  although  in  terms  the 
covenants  were  made  to  depend  upon  the  perfor- 
manoe  by  the  other,  yet  the  intention  being  clear, 
they  were  not  to  be  construed  as  conditioud,  bat 
on  the  marriage  taking  place  the  liability  attached, 
and  that  the  liability  of^L.  to  convey  was  not  ra* 
moved  by  the  failure  of  S.  to  perform  his  cov- 
enant. (Supporting  the  decision  of  the  Vioe- 
Chancellor).  Lloyd  v.  Lloyd,  2  Myl.  A  Cr.  (ch.) 
192. 

8.  In  marriage  contracts  there  can  be  no  re- 
sistance on  the  part  of  one  because  the  other  con- 
tracting party  fails  to  perform  his  part  of  the 
agreement.    lb.  . 

9.  Upon  a  covenant  in  articles  between  the 
captain  and  owners  of  a  South  Sea  whaler,  inter 
aUa,  that  he  would  proceed  to  the  fishery,  and 
procure  a  cargo  or  as  great  a  proportion  w  might 


[COVENANT] 


5?751 


under  all  eircmnstaDees  be  obtained,  wonld  obey 
inetmctions,  and  take  proper  care  of  stores,  &c., 
consideration  whereof  the   defendants  cove- 


m 


Banted  to  pay  him  a  certain  proportion  of  the  net 
proceeds  ;  held,  that  the  covenants  were  indepen- 
dent, and  that  the  owners'  remedy  was  in  Jam-. 
ages  on  the  covenants  for  any  loss  occasioned  by 
the  breach  thereof.  Staven  p.  Curling,  3  Bing. 
N.  S.(c.  p.),355;  and  3  Sc.  740. 

And  see  Ritchie  v.  Atkinson,  10  East,  295; 
Boone  v.  £yre,  1  H.  Bl.  273  n. 

10.  Upon  a  lease  of  premises  to  L.,  reciting  that 
the  defendant  agreed  to  enter  into  the  covenant 
for  securing  tlie  payment  of  the  rent ;  and  the 
lease  then  stated  the  agreement  to  demise  to  be 
in  consideration  of  the  covenants  by  L.,  and  of 
the  covenant  entered  into  by  the  defendant,  and 
then  followed  the  usual  covenant ;  held,  to  amount 
to  a  joint  covenant  that  both  should  pay  the  rent, 
and  that  L.  should  keep  the  premises  in  repair, 
and  that  the  defendant  was  jointly  liable  with  L. 
to  repairas  well  as  to  pay  rent.  Copeland  v.  La- 
porte,  3  Ad.  &  £11.  (k.  b.)  517. 

1 1 .  In  covenant  for  payment  of  rent,  the  breach 
assigned  being,  that  auring  the  term,  to  wit,  on 

25th   March,  jC- was  due,  for  two  quarters 

ending  the  day  aforesaid  ;  plea,  that  no  quarter's 
rent,  ending  on  25th  March  became  due  in  man- 
ner and  form,  &c.  held  bad ;  the  substantial  alle- 

fation  of  the  breach  being  that  the  rent  became 
ae  during  the  term,  and  Hens  in  arriere  is  no 
plea  to  a  covenant  for  payment  of  rent  on  a  par- 
ticular day.  Baden  v.  Flight,  3  Bing.  N.  S.  (c. 
p.)  685 ;  and  4  Sc.  412. 

12.  Under  a  covenant  to  keep  and  leave  a  mes- 
snage  in  repair ;  held,  that  it  is  satisfied  by  sub- 
stantial repair,  and  that  in  order  to  ascertam  the 
relative  sufficiency,  the  jury  may  be  directed  to 
inquire  whether  at  the  time  of  the  demise  the 
house  were  new  or  old.  Stanley  v.  Towgood, 
3  Bing.  N.  S.  (c.  p.)  4  ;  and  3  Sc.  313. 

13.  Where,  upon  the  sale  of  copyhold  lands  by 
K.  to  M.,  with  covenants  to  surrender,  and  for  ti- 
tle, and  the  surrender  made,  M.  afterwards  sold 
in  like  manner  to  B.  and  surrendered  to  him ; 
held,  that  the  original  covenants,  being  to  be  ta- 
ken as  one  assurance,  might  be  enforced  by  B. 
against  K.,  either  as  running  with  the  land,  or 
by  suit  in  M.'s  name.  Riddell  v.  Riddell,  7  Sim. 
(CB.)  529. 

14.  Covenant  lies  for  rent  reserved  on  a  lease' 
aoeraing  before  entry  for  a  forfeiture,  although 
tlie  lessor  was  thereby  to  have  the  premises  af  ain, 
aa  if  the  indenture  had  never  been  made.  Harts- 
horneiy.  Watson,  4  Bing.  N.  S.  (c.  p.)  178;  and 
6  Dowl.  (p.  c.)  404. 

15.  Where,  by  a  covenant  on  a  demise  for 
lives,  a  forfeiture  was  to  take  place  in  case  the 
leasee  did  not  produce  one  of  the  lives  named  (liv- 
ing abroad)  or  otherwise  make  it  appear  by  a 
good  and  sufficient  certificate  that  he  was  living ; 
held,  that  an  affidavit,  showing  by  circumstances 
that  he  was  alive  within  seven  years,  was  not  a 
sufficient  compliance  with  the  terms  of  the  cov- 
enant.   Randle  v.  Lory,  6  Ad.  d&  £11.  (k.  b.)  218. 

16.  Where  a  fether,  by  agreement,  covenanted 


with  his  son  to  transfer  a  sum  to  trustees  for  the 
benefit  of  four  natural  daughters,  and  the  son  co- 
venanted to  pay  the  father  s  debts  ;  the  son  hav- 
ing paid  8ome  of  the  latter,  died  before  perfor- 
mance of  the  agreement  by  the  father,  having  be- 
queathed the  whole  of  his  property  to  bis  father, 
who  was  also  his  sole  representative ;  on  a  bill 
filed  by  one  of  the  daughters  to  have  the  agree- 
ment carried  into  effect  as  against  the  estates  of 
the  father  and  son ;  held  on  demurrer,  that  how- 
ever the  one  of  them  might  have  enforced  the 
covenant  of  the  other,  the  plaintiff,  a  mere  stran- 

?;er,  had  no  right  to  enforce  it  against  the  two. 
}oleyear  v.  Countess  of  Mnlgrave,2  Keene  (cu.) 

ol. 

17.  Where  a  testator,  by  a  voluntary  deed,  cov- 
enanted for  payment  by  his  executors  of  a  sum  to 
be  mvested  in  the  corporate  names  of  the  vicar,  of 
the  churchwardens,  and  of  the  arohdeaoon,  upon 
certain  charitable  trusts ;  held,  that  it  was  no 
answer  on  the  part  of  the  executors  that  they 
could  not  so  invest,  because  the  parties  named  as 
trustees  were  not  corporations  for  such  purpose, 
it  not  appearing  that  the  covenant  was  impossible, 
nor  that  the  Bank  had  refused  to  allow  the  in- 
vestment. Tufnell  r.  Constable,  3  Nev.  &  F. 
(q.  b.)  47. 

18.  In  covenant  for  not  keeping  in  tenantable 
repair ;  held,  that  the  defendant  might  ask  gen- 
erally as  to  the  state  of  the  buildings  at  the  com- 
mencement of  the  term,  but  could  not  go  into  de- 
tail as  to  particular  parts.  Mantz  v.  Qoring,  4 
Bing.  N.  S.  (c.  p.)  451. 

19.  In  covenant  for  not  keeping  the  premises 
in  sufficient  repair,  the  jury  may  take  into  con- 
sideration the  condition  at  the  commencement  of 
the  demise.  Burdett  r.  Withers,  2  Nev.  &  P. 
(KB.)  122. 

20.  Where  the  declaration  contained  breaches 
on  several  covenants,  the  assignments  of  which 
would  have  been  bad  on  demurrer,  but  the  defen- 
dant, amongst  others,  pleaded  payment  of  £ 

into  court,  and  that  the  plaintiff  had  sustained  no 
greater  damages  in  respect  of  the  causes  of  action 
m  tbe  declaration  mentioned;  held,  that  such 
plea  must  be  taken  to  admit  some  damage  upon 
every  part  of  the  breach  of  covenants  in  the  dec- 
laration, and  that  the  defects  in  the  allegations 
were  thereby  waived.  Wright  v.  Goddard,  3  Nev. 
&  P.  (q.  B.)  361. 

The  Judgment  in  the  case  of  Pitt  v.  Wil- 
liams, (2  Ad.  &  £11.  419;  and  4  Nev.  &M.  412) 
reversed ;  5  Ad.  <&  £11.  885. 

21.  Upon  an  agreement  between  the  plaintiff 
on  the  one  part,  and  the  defendant  with  ouiers  on 
the  second  part,  for  the  execution  of  a  lease,  with 
the  usual  covenants,  and  for  the  performance 
each  of  the  parties  did  bind  himself  m  a  penalty, 
to  be  recovered  as  liquidated  damages ;  held,  that, 
on  default,  that  sum  was  to  be  deemed  a  penaJty, 
and  not  liquidated  damages ;  and  the  declaration 
describing  it  as  an  agreement  between  the  plain- 
tiff and  defendant,  who  had  alone  executed  it, 
held,  that  the  variance,  whether  fatal  or  not,  was 
one  which  the  court,  under  3  &  4  Will.  4,  c.  42» 
s.  23,  might  amend,  as  it  would  not  vary  the  sub- 
stantial defence  to  Che  action.    Boys  v.  Ancell,  & 
Bing.  N.  S.  (c.  p.)  390. 


2753 


[COVENANT— COUNTY  RATE] 


22.  The  eeneralitj  of  the  corenant  in  law  con- 
tained in  the  word  demise,  is  restraiDed  by  a  sab- 
scquent  express  covenant  for  quiet  enjoyment. 
Line  r.  Stephenson,  4  Bing.  N.  S.  (c.  p.)  678;  6 
Sc.  447  ;  and  affirmed  in  Exchequer  Court,  5 
Bing.  N.  S.  (c.  p.)  183. 

And  see  Noke's  Case,  4  Rep.  80,  b. 

23.  Where  the  crown  lessee  of  duchy  lands 
had  underlet  on  a  building  lease,  with  a  covenant 
that  he  would  apply  for  and  do  his  utmost  to  pro- 
cure a  renewal,  but  his  offer  was  only  of  a  fine 
to  the  amount  of  two  years*  rack-rent,  paid  by 
the  occupiers,  the  crown  requiring  as  a  fine  a  sum 
short  of  ihree^  years  annual  value  of  the  prem- 
ises ;  held,  that  the  covenant  was  to  be  construed 
to  impose  on  the  covenantor  no  more  than  to  pay 
a  reasonable  fine,  but  that  the  fine  so  claimed  by 
the  crown  being  found  by  the  jury  as  reasonable, 
and  that  the  covenantor  having  declined  to  renew 
on  those  terms,  could  not  be  said  to  have  done  his 
utmost  endeavor  to  obtain  a  renewal  within  the 
meaning  of  the  covenant.  Simpson  r.  Clayton, 
4  Bing.  N.   S.(c.  p.)  758;  and  6  Sc.  469. 

24.  On  an  agreement  for  relinquishment  of  a 
trade  for  a  consideration,  and  covenant  against 
exercising  at  any  time  thereafler  the  trade  of  a 
common  carrier  to  and  from  certain  places ;  held, 
that  the  court  could  not  enter  into  the  reasonable- 
ness of  the  restraint  in  respect  of  the  considera- 
tion, nor  declare  the  covenant  void  by  reason  of 
the  restriction  being  unlimited.  Archer  v.  Marsh, 
6  Ad.  &,  £U.  (Q.  B.)  U59 ;  and  2  Nev.  &  P.  562. 

And  see  Hitchcox  v.  Coker,  lb.  438 ;  overrul- 
ing Homer  v.  Graves,  7  Bing.  735. 

25.  Where  the  lessee  of  premises,  demised  as 
a  public-house,  covenanted  that  he  would  use  his 
best  endeavors  to  keep  it  open  as  a  licenced  house, 
and  it  having  been  underlet  to  several  tenants,  at 
length,  through  the  misconduct  of  one,  the  li- 
cense was  refused  by  the  magistrates ;  held,  that 
it  lay  on  the  defendant  to  show  that  aflcr  the 
withdrawal  of  it,  he  did  some  act  to  obtain  the  re- 
newal of  the  license,  but  that  it  was  for  the  iury 
to  say  whether  the  plaintiff,  in  never  having  him- 
self taken  any  steps  to  obtain  the  grant  of  the 
license,  had  sustained  any  substantial  damage, 
and  if  not,  that  he  was  entitled  only  to  nominal 
damages.    Linder  v.  Pryor,  8  C.  &  r.  (n.  p.)  518. 

26.  Where  the  contract  for  the  purchase  of 
leasehold  premises  amounted  only  to  an  equitable 
agreement  and  there  was  no  legal  assignment, 
held  that,  being  equitable  assignee  of  the  whole 
interest,  the  obligation  was  co-extensive  with 
that  interest,  and  that  he  was  liable  to  indemnify 
the  plaintiff,  the  equitable  ajsignor,  against  all 
damages  incurred  by  reason  of  breaches  of  cove- 
nant on  the  lease  subsequent  to  the  date  of  the 
agreement  Close  v.  Wilberforee,  1  Beav.  (ch.) 
112. 

27.  Where  in  covenant  for  quiet  enjoyment, 
the  declaration  alleging  the  eviction,  left  it  un- 
certain whether  the  party  claiming  title  might  not 
have  come  in  under  the  plaintiff  himself;  held, 
bad.  Brookes  v.  Humphreys,  5  Bing.  N.  S.  (c. 
p.)  55 ;  6  Sc.  756;  and  7  Dowl.  (p.  c.)  118. 

And  see  2  Saond.  180  c. 


28.  In  covenant  by  lessor  against  the  executor 
of  the  assignee  of  the  lessee,  become  insolvent, 
for  rent  accruing  subsequently  to  the  death  of 
such  assignee ;  held,  that  if  the  latter  assented  to 
the  assignment  made  under  the  7th  Geo.  4,  c.  57, 
and  acted  as  tenant  of  the  premises,  his  execator 
was  liable  as  representing  the  assignee ;  held,  also, 
that  the  husband  of  a  party  entitled  to  an  annuity 
settled  to  her  separate  use  and  charged  upon  tfale 
premises,  which  were  vested  in  the  plaintiffs  as 
trustees,  was  a  competent  witness  for  them,  his 
interest,  if  any,  being  too  remote.  Abercrombie 
V.  Hickman,  3  Nev.  &  P.  (k.  b.)  676. 

29.  In  covenant  for  non-repair,  the  defendant 
may  examine  the  plaintiff's  witnesses  generally 
as  to  the  state  of  the  premises  at  the  time  of  tfae 
demise,  but  not  as  to  particular  defects,  and  when 
they  arose.    Toung  v.  Mantz,  6  Sc.  (c.  p.)  227. 

And  see  Stanley  v.  Towgood,  3  Sc.  313 ;  and 
3  Bing.  N.  S.  4. 

And  see  Accord  ;  Annuity;  Assumpsit ;  Costs  ; 
Deed;  Fraud;  Farfnture;  Joint  Stock  Compeuiy ; 
Lease;  Ship;  Trade. 


COUNTY  CLERKS. 

Custody  of  documents  deposited  with  the  clerk 
of  the  peace  under  the  Standing  Orders  of  the 
House  of  Commons  regulated  by  1  Vict.  83. 


COUNTY  COURT. 

1.  Entries  in  the  sheriff's  county  court  book, 
being  only  notes  of  the  various  times  of  proceed- 
ings in  the  court  below,  allowed  to  be  amended 
by  completing  them  fully,  or  certifying  the  prac- 
tice of  the  court,  and  what  was  intended  by  such 
entries.  Overton  v.  Swettenham,  3  Bing.  N.  8. 
(c.  p.)  786 ;  and  5  Dowl.  (p.  c.)  641. 

2.  A  bill  of  exceptions  held  to  lie  to  a  county 
court,  and  in  a  case  of  nonsuit  Strother  v.  Hut- 
chinson, 4  Bing.  N.  S.  (c.  p.)  83;  6  Dowl.  238; 
and  3  Sc.  346. 

3.  A  return  to  a  writ  of  false  judgment  in  the 
county  court,  that  the  plaintiff  m  error  has  not 
given  security  for  costs,  held  bad,  the  19  Geo.  3, 
c.  70,  s.  6,  applying  only  to  causes  removed  before 
judgment.  Crookes  v.  Longden,  5  Bing.  N.  S. 
(c.  p.)  410. 

And  see  Sheriff, 

COUNTY  RATE. 

Under  12  Geo.  2,  c.  29,  s.  8,  the  right  of  in- 
specting and  of  taking  copies  of  county  rates, 
and  oroers  for  expenditure  thereof,  and  orders  of 
cession  made  thereon,  and  documents  relating 
thereto,  when  deposited  with  the  county  records 
with  the  clerk  of  the  peace,  is  confined  to  the 
justices  of  the  peace  for  the  county,  and  the  rate- 
payers have,  neither  at  common  law  nor  by  stat* 
ute,  such  right ;  and  a  mandamus  to  the  justices 
and  clerk  of  the  peace  to  permit  such  inspec- 
tion, &c.,  refused.  Rex  r.  Stafford  Joatices,  1 
Nev.  &  P.  (K.  B.)  260. 

And  see  Borotih, 


[COURTS— CUSTOM] 


2753 


COURTS. 

The  Courts  empowered  to  sit  it  Banco  in  vaca- 
tion, by  1  &  2  Vict.  c.  32. 


CREDITORS. 

Fitzgerald  v.  Stewart,  2  Sim.  333;  affirmed,  1 
Ru9s.  &  M.  (cH.)  457. 

And  see  Practice^  (xi^.)  ;   Partner. 


CREDITORS'  SUIT. 

1.  On  a  bill  filed  by  a  creditor  for  the  common 
benefit  of  all  creditors,  the  interest  of  the  general 
body  is  administered  bj^  the  court  in  the  same 
manner  as  when  administered  by  one  of  its  ovux 
officers ;  where  there  had  been  •  great  delay,  not 
duly  accounted  for,  both  in  the  completion  of 
■ales  and  payment  of  monies  received  into  court, 
a  reference  directed  to  the  Master  to  appoint  a 
proper  person,  the  Court  rejectiog  a  creditor  pro- 
posed who  appeared  to  be  acting  as  solicitor  for 
one  of  the  accounting  parties.  Price  r.  North,  2 
Tounge  &  C.  (kx.  sq.)  628. 

3.  "Where,  in  a  creditor's  snit^  bond  creditors 
had  been  allowed  and  received  lor  principal  and 
interest  an  apportionment  to  the  extent  of  the 
penalties,  held  that,  upon  further  funds  becoming 
available,  they  were  entitled,  until  the  penalty 
was  exhausted,  to  calculate  interest  on  the  sum  in 
the  condition,  and  not  on  the  remainder  of  tlie 
penalty  unsatisfied.  Walters  v,  Meredith,  3 
Younge  &  C.  (ex.  sq.)  264. 

3.  In  a  suit  on  behalf  of  specialty  creditors,  it 
appearing  that  the  debtor  had  covenanted  with 
certain  specialty  creditors  scheduled  for  payment, 
and  be  thereby  engaged,  in  the  event  of  non-pay- 
ment at  a  stated  time,  ^*  to  sell  so  much  of  his 
real  estate  as  should  be  necessary ;"  held  not  to 
create  a  lien  on  the  estate,  but  to  amount  to  a 
mere  personal  undertaking,  and  not  to  entitle 
those  creditors  to  come  in  pari  passu  with  judg- 
ment creditors ;  and  in  such  a  suit  bond  creditors 
held  not  entitled  to  come  in  pari  passu  with  judg- 
ment creditors,  merely  because  tne  bill  was  filed 
on  behalf  of  all  specialty  creditors,  and  assets 
had  been  distributed  part  passu  in  the  behalf  of 
them,  not  being  a  deficiency.  Berrington  v. 
Evans,  3  Younge  &.  C.  (ex.  k<^.)  384. 

And  see  Bond;  Practice^  (ci^.) 
And  see  2  &  3  Vict.  c.  39. 


CROWN  DEBT. 

Where  a  crown  debtor  dies  insolvent  after  an 
extent  issued,  the  writ  of  ditm  clausU  extrtmum 
is  absolute  in  the  first  instance.  Rez  v.  Lord 
Crewels  Dowl.  (p.  c.)  156. 


CROWN  GRANT. 

1 .  Where  a  manor  and  lands  were  ^ranted  in 
tail  by  the  crown,  in  consideration  of  love  and 
affection  to  an  illegitimate  child,  held  that,  not- 
withstanding the  34  Hen.  8,  c.  20,  the  entail  was 
well  barred  by  a  bargain  and  sale  enrolled  under 
3  &  4  Will.  4,  c.  74,8.  15.  Grafton,  Duke  of,  v. 
London  and  Birmingham  Railway  Company,  5 
Bing.  N.  S  (c.  p.)  27 ;  and  6  Sc.  719. 

2.  Where  at  the  date  of  the  letters  patent  mine* 
were  granted  within  the  province  of  N.  S.^ 
held  to  pass  all  mines  in  B.,  which,  before  that 
date,  had  become  a  part  of  the  province  of  N.  S. 
Taylori?.  Attorney-general,  8  Sim.  (ch.)  413. 

And  see  Grant. 


CUSTOM. 

1.  A  custom  toxaU  victuallers  to  erect  booths 
on  a  fair,  from  a  certain  day  to  a  certain  other  day, 
paying  ^M.  to  the  lord,  held  good.  Tyson  v. 
Smith,  1  Nev.  &.  M.  (k.  b.)  784. 

2.  Where  the  existence  of  a  custom  alleged  by 
the  defendant  was  the  substantial  question  to  bo 
tried  ;  held,  to  entitle  him  to  begin,  although  the 
plaintifi'alleged  that  he  went  for  damages ;  a  cus- 
tom for  the  stanners  of  Devon  to  divert  water- 
courses into  their  streams,  and  for  that  purpose 
to  dig  trenches  over  private  lands ;  held,  not  sus- 
tained. Bastard  v.  Smith,  2  M.  &.  Rob.  (n.  p.) 
129. 

3.  A  custom  for  the  deputy  day  oyster  metera 
of  London  to  have  the  exclusive  right  of  shovel- 
ling, unloading,  and  delivering  all  oysters  brought 
in  any  vessel  along  the  Thames  within  the  port 
of  London,  and  to  have,  as  compensation,  8^.  tn 
score  for  the  first  100  bushels  (double  measure),, 
and  49.  a  score  for  the  remainder  of  the  cargo; 
held  reasonable  by  the  jury;  held,  also,  that  the 
meters  are  liable  to  do  all  the  labor  of  shovelling, 
<&c.  and  are  also  liable  to  an  action  if  the^  do  not 
provide  men  for  the  work,  and  the  parties  may 
nave  it  done  by  other  workmen.  Layburn  v.  Crisp^ 
8  C.  &  P.  (w.  p.)  397. 

4.  It  is  no  part  of  a  meter's  duty,  as  such,  to 
put  the  goods  into  the  measure,  but  only  to  finci 
the  measures.    lb. 

5.  A  custom  (pleaded  in  justification  of  tres** 
pass  for  entering  the  plaintiff's  house),  on  occa* 
sion  of  perambmating  parish  boundaries,  to  enter 
a  particular  house  neither  on  the  boundary  line> 
nor  in  any  manner  required  in  the  course  of  per- 
ambulation, cannot  be  supported.  Taylor  v. 
Devey,  7  Ad.  &  £11.  (q.  b.)  400;  and  2  Nev.  &,  P. 
469. 

6.  And,  semb.y  entries  in  parish  books,  record- 
ing the  fact  that  parish  perambulations  had  taken 
a  particuhir  line,  would  be  inadmissible.  Taylor 
V.  Devers,  7  Ad.  &  Ell.  (q.  b.)  400;  and  2  Nev. 
&  P. 469. 

7.  The  judgment  in  Tyson  v.  Smith,  6  Ad.  Sa 
£11.  745,  affirmed  in  error;  1  Perr.  &  Dav.  (q.  b.) 
307. 


9754 


[CUSTOM— DEBTS] 


And  wet  CapMUi ;  Catmami;  Lmdon  ;  Mamar  ; 
Mandamus  ;  Quo  Warramlo. 


CUSTOMa 

Lfcences  to  cmtofn-house  aflents,  and  bends 
ibr  the  inthful  performance  oithe  dotiea  to  the 
coramiflsionera,  under  6  Geo.  4,  e.  107,  s.  139, 
held  to  be  continnmg  and  in  force  ander  3  A.  4. 
Wiil.  4,c.  53,8.144,  although  the  former  Act 
was  repealed  by  3  A,  4  Will.  4,  c.  50.  Rex  p. 
Atkins,  8  Mees.  &  W.  (xx.)  289. 


DEBT,  ACTION  OF. 

1.  In  the  action  of  ie6(,  where  there  is  no 
inquiry  of  damages,  if  there  be  no  plea  of  pay- 
ment,  it  cannot  be  given  in  evidence  in  reduction 
of  damages.  Belbin  v.  Butt,  2  Mees.  &  W.  (xx.) 
422 ;  and  5  Dowl.  (p.  c.)  G04. 

S.  Where  the  defendant's  answer  to  the  plain- 
tiff's demand,  to  transfer  shares  agreed  to  be 
bought,  admitted  his  inability  to  do  so,  and  re- 
quested time  to  arrange  matters ;  held,  that  no 
tender  of  the  price  was  necessary;  and  stmb. 
a  tender  to  the  broker  employed  in  the  sale  would 
be  good.  Jackson  v.  Jacob,  3  Bing.  N.  S.  (c.  p.) 
S69. 

3.  On  plea  in  debt^  of  payment,  the  defendant 
not  appearing  to  support  his  plea,  seTitb,  the  plain- 
tiff must  prove  the  amount  of  his  debt,  as  well  as 
in  assumpsit.  Mackintosh  v.  Weillcr,  1  M.  & 
llob.  (N.  p.)  505. 

4.  in  debt  for  work  and  labor  as  on  attorney, 
iield,  that  under  the  plea  nunq.  indeb.,  the  die- 
pendant  might  show  a  contract  under  which  he 
^ould  be  liable  to  a  portion  of  the  demand,  and 
Ihat  he  w«s  not  precluded  by  plea  of  payment 
into  court  of  part,  from  showing  a  contract  diffe- 
rent from  that  alleged  in  the  declaration.  Jones 
9.  R6ade,5  Dowl.  (p.  c.)  217. 

5.  Interlocutory  judgment  signed  in  debt,  held 
not  irregular.  Mackenzie  v.  Gayford,  5  Dowl. 
(p.  c.)  403. 

6.  Under  a  plea  of  nunq.  ituUb.^  or  set-off  in 
^obt,  the  defendant  is  not  entitled  to  give  in  evi- 
•dence  money  payments  to  the  plaintiff,  which  are 
prima  facte  to  be  taken  as  paid  in  satisfaction  of 
the  debt  due  from  the  party  paying.  Cooper  v. 
^lorecrafl,  3  Mees.  A;  W.  (ex.)  500. 


DEBTS. 

1.  A  direction  to  executors  to  pay  debts  is 
jmima  fade  evidence  of  intention  that  they  are 
io  be  paid  out  of  funds  coming  to  them  as  execu- 
tors. WaMe  V.  Heslington,  3  Myl.  &  K.  (ch.) 
496. 

2.  Where  after  general  words  in  the  com- 
mencement of  the  will,  which  by  implication 
would  eonstitute  a  charge  of  debts  on  the  real 
estate,  the  testator  afterwards  gave  to  a  legatee, 


itUer  aUa^  the  rents  aad  prufils  of  his  freehold  and 
leasehold  premises  up  to  a  quarter-day  next  after 
his  decease,  adding,  *'  whicn  rents  and  profits  I 
charge  with  the  payment  of  my  said  debts,'* 
&^.  ;  held,  that  the  general  charge  by  implica- 
tion was  controlled  by  the  specific  charge  in  the 
subsequent  part  of  the  will.  Palmer  v.  &raves,  1 
K.  (cH.)  54o. 

3.  Where  testator,  after  directing  payment  of 
his  debts,  devised  all  his  freehold,  leasehold  and 
personal  estate  (furniture  excepted,  which  he  be. 
queathed  to  his  widow  for  life),  in  trust  for  the 
pavment  of  certain  legacies  and  annuities,  and, 
subject  thereto,  for  his  daughter  for  life,  remain- 
der  to  her  children,  and  in  certain  events  he  be- 
queathed his  freehold,  copyhold,  leasehold  and 
personal  estate,  to  different  persons ;  held,  that 
the  personal  estate  not  specifically  bequeathed, 
was  to  be  first  applied  in  payment  of  simple  con- 
tract debts,  and  the  surplus  of  those  debts  to  fall 
proportionally  on  the  *  fieehold  estate  and  on  the 
furniture  given  to  the  widow :  that  a  freehold 
descended  after  the  will  was  liable  to  the  speoaal- 
ty  debts  and  mortgage  debts,  and  the  surplus  of 
those  debts  to  fiUl  on  the  estates  devised.  Irviii 
V.  iremonger,  2  Rnss.  A  M.  (ch.)  631. 

4.  Where  the  testator  bequeathed  to  his  wife 
several  specific  articles  of  personal  estate,  and 
also  a  portion  of  his  real  estate,  freed  from 
any  mortgage  aflfecting  the  same,  and  directed 
that  she  uiould  have  the  benefit  of  certain  con- 
tracts entered  into  for  the  purchase  of  other  ml 
estates,  and  devised  the  residue  subject  to  his 
debts,  mortgaees,  and  the  contracts ;  held,  that 
it  was  clearly  his  intention  that  the  widow  should 
take  the  personal  gifts,  exonerated  from  bis  debts. 
Blount  V.  Hipkins,  7  Sim.  (ch.)  43. 

5.  And  the  testator,  having  subscribed  for 
shares  in  a  projected  rail  road,  and  paid  up  some 
of  the  instalments,  and  at  his  deatn  the  sharec 
were  at  a  premium,  and  no  further  instalment  had 
been  called  for ;  held,  that  the  widow,  to  whom 
he  had  given  his  personal  estate,  exonerated  from 
debt,  was  entitled  to  have  the  unpaid  instalraonts 
paid  out  of  the  real  estates,  lb. 

6.  Where  a  fiither,  a  partner  in  a  banking  fiim, 
advanced  a  sum  to  his  son,  who  assigned  as  a  se- 
curity his  interest  on  a  fund  in  court,  in  tmst  to 
apply  the  same  in  discharge  of  the  loan,  and 
of  other  sums  due  to  the  father,  and,  subject 
thereto,  in  trust  for  himself;  he  shortly  after- 
wards died,  being  indebted  to  the  banking  firniy 
and  also  largely  to  the  crown;  and  the  firm 
treating  the  debt  as  bad,  the  share  of  the  loss 
was  carried  to  the  fiither's  account  with  the  part- 
nership ;  the  father  also  paid  under  crown  pro- 
cess further  sums  as  surety  for  the  son ;  held,  that 
the  father's  esUte  was  entitled  to  the  benefit  of  the 
fund  in  court  to  the  extent  of  the  debt  due  at  the 
date  of  the  assignment,  and  also  of  the  sums  paid 
to  the  crown,  but  not  in  respect  of  the  sum  esti- 
mated as  the  share  of  the  loss  on  the  partnership 
debt,  although  no  notice  had  been  given  of  the 
assignment  to  the  trustees  of  the  fund.  Foster 
V.  ifargreaves,  1  K.  (cb.)  281. 

7.  Where  trustees  were,  by  the  wiU,  under 
an  obligation  to  invest  a  portion  of  the  acKts, 


[DEBTS] 


9755 


and,  by  deed  poll,  one  of  tbem  teknowledged  to 
have  leceived  111108  under  that  obligation ;  held, 
that  the  money  was  to  be  taken  as  a  speeialty 
debt  to  the  parties  entitled  to  the  fond.  Tom- 
er V.  Wardle,  7  Sim.  (ch.)  80. 

8.  Where  the  traniaetion  amounted,  not  to  an 
anignmentofan  oriffinal  mortgage,  with  an  ad- 
ditional eecttrity  by  She  covenant  of  the  asaijgnee, 
b«t  to  a  releaae  or  the  lands  from  the  original 
mortgage,  and  a  new  mortgage,  at  a  new  interest, 
and  new  equity  of  redemption ;  held,  to  oonsti* 
tnte  a  personal  debt  of  the  new  mortgagee,  and 
that  his  personal  assets  were  to  be  first  applied  in 
payment  of  the  mortgage  debt  Barham  v.  Earl 
ofThanet,  3  Myl.  &  K.  (ch.)  607. 

9.  Where  the  settlor,  on  his  marriage,  convey- 
ed to  trustees,  in  trust  to  himself  for  life,  and 
afterwards  in  trust  to  raise  terms  to  raise  a  joint- 
ure for  the  wife,  and  portions  for  younger  child- 
ren, with  remainder  in  strict  settlement  on  the 
sons,  remainder  to  the  settlor  in  fee,  with  provt^ 
BO,  that  the  lands  conveyed  should  in  the  first 
place  stand  charged  with  sums  due  as  portions 
to  the  settlor's  brothers,  and  anoth:^r  sum  due  on 
judgments  and  bonds  m  the  schedule  annexed ; 
there  was  also  a  covenant  against  incumbrances, 
except  as  stated,  and  for  further  assurance,  with 
the  like  exception ;  part  of  the  debts,  and  por- 
tions were  paid  by  tLe  settlor  in  his  life-time ; 
held  that  the  debts  in  the  schedule  reported  un- 
paid were  a  burthen  on  the  setUed  estates,  and 
that  the  settior's  personal  estate  in  the  hands  of 
the  executors  was  exonerated  therefkom ;  (revera- 
kig  the  judgment  below).  Vandeleurv.  Van- 
deleur,  2  CI.  A  Fi.  (p).  82 ;  and  9  Bli.  N.  S.  157. 

10.  Where  the  testator,  after  directing  payment 
of  his  debts,  legacies,  &lc.  as  soon  as  might  be 
•onveniendy  done,  afterwards  devised  a  partie- 
«lar  estate  to  tmsteea  to  bo  sold,  and  the  proceeds 
applied  in  aid  of  his  personal  estate,  and  devised 
tne  residue  of  his  estates  in  strict  settlement; 
held,  that  the  preliminary  direction  creating  a 
•hargey  the  subseouent  provision  did  not  operate 
to  releaae  the  whole  of  the  real  estate  from  being 
charged  with  his  debts.  Graves  v.  Graves,  6 
Sim.  (cu.)  43. 

11.  Act  for  abolition  of  arrest  amended,  and 
remedies  of  erediton  extended,  and  Insolvent 
Acta  amended  by  2  ft  3  Vict  a.  39. 

IS.  The  1  Will.  4,  e.  47,  for  payment  of  debts 
otxt  of  real  estate,  does  not  authorize  the  mort- 
snage  of  the  infant  heir's  estate  for  that  purpose. 
Bmethurst  v.  Longworth,  2  Keene,  (ch.)  G03. 

13.  Where  a  mortgage  sum  of  2,0001.  was 
clearly  established  to  be  the  debt  of  the  testator, 
and  by  his  will  he  gave  certain  specified  premises, 
subject  to  one  mortgage,  without  any  direction 
that  they  should  bear  the  mortgage,  and  he  ^ve 
other  mortgaged  premises  with  an  express  direc- 
tion that  the  personal  estate  should  not  be  called 
upon  to  pay  tnem,  and  he  gave  the  residue  of  his 
personal  estate,  subject  to  the  payment  of  his 
debta,  except  such  as  were  therein  excepted; 
iMld  to  anomit  to  a  deelanrtioii  that  the  penonal 

Vol.  IV.  61 


estate  should  bear  atl  suefa  debts  as  were  not  spe- 
cifically excepted,  and  that  it  was  therefore  sub- 
ject to  the  payment  of  Uie  mortgaged  debt  of 
2,0002.  as  the  primary  fund.  Bickham  v.  Crutwell, 
3  Myl.  &Cr.  (cH.)763. 

And  see  Noel  v.  Lord  Henley,  7  Pri.  242;  1 
Dan.  211. 

14.  The  provisions  of  11  Geo.  4,  and  1  Will.  4, 
c.  47,  extended  to  authorise  the  mortgage  as  well 
as  sale  of  estates ;  2  &  3  Vict  e.  60. 

15.  Payment  of,  out  of  real  estate,  provisions 
for  by  2  &  3  Vict  c.  60. 

16.  Upon  a  bill  filed  by  simple  contract  creditors, 
to  have  their  debbi  satisfied  out  of  the  personal 
estate,  and  if  insufficient,  then  out  of  the  real  estate 
under  3  &  4  Will.  4,  c.  104,  the  executora  admit- 
ting the  debts,  there  being  infants  interested,  a  de- 
cree made  directing  accounts  of  the  debts  and  per- 
scmal  estate  and  proof  of  the  will.  Nash  v.  Ben- 
ton, 1  Coop.  (en.  c.)  192. 

17.  Where,  on  a  loan  to  R.  by  the  plaintiff  on 
mortgage,  the  defendant  was  a  party  to  the  deed, 
which  contained  a  covenant  by  the  defendant 
and  R.  that  for  the  better  security  Ac.  they  did 
covenant  to  well  and  truly  pay  the  sum,  witn  in- 
terest, on  a  given  day ;  held,  to  be  an  absolute  cov- 
enant, and  on  which  the  action  of  debt  would  lie. 
Evans  v.  Jones,  7  Dowl.  (p.  c.)  482i 

18.  Where  an  annuity  was  secured  by  an  en- 
feoffment of  lands  to  defendant  and  another,  with 
a  covenant  by  the  defendant  for  the  pajment ; 
held,  that  debt  was  not  maintainable  for  arreara 
of  the  annuity ;  but  that  the  proper  remedy  was 
in  covenant  Randall  v.  Rigby,  4  Mees.  4k.  W. 
(ax.)  130. 

19.  In  debt,  for  work  and  labor  as  a  performer 
at  the  defendant's  theatre,  a  letter,  l^that  the 
plaintiff  must  be  contented  with  his  present  saMuy 
until  1  know  what  turn  the  season  takes ;"  held, 
an  admission  of  the  plaintiff  being  in  his  service, 
and  not  requiring  any  stamp  as  an  agreement ;  it 
appearing  that  the  plaintiff  was  to  be  paid  for  cer- 
tain niflrhts,  although  no  performance,  held  that 
he  should  have  declared  for  arrears  of  salary  as  a 
hired  performer,  but  the  Judge  would  permit  the 
declaration  to  be  amended ;  and  payments  havi  ng 
been  made  without  express  appropriation,  the  plain 
tiff  was  at  liberty  to  apply  it  to  parts  of  his  de- 
mand really  due,  and  to  recover  for  the  rest  of  his 
claim.    Frazier  v.  Bunn,  8  C.  d^  P.  (n.  p.)  704. 

20.  It  being  no  longer  necessary  in  the  action 
of  debt  to  consider  the  plaintiff's  demand  as  a 
precise  sum,  and  a  defendant  being  in  the  same 
condition,  as  to  pleas  of  set-off,  &c.  in  debt,  as  in 
assumpsit;  helo,  that  under  a  plea  of  set-off 
to  the  whole  declaration,  where  the  defendant 
proves  a  less  sum  to  be  due  to  him  from  the  plain- 
tiff than  the  latter  has  established,  he  is  not  enti- 
tied  to  have  the  verdict  on  the  issue  found  for 
him  as  to  the  part  which  he  has  proved,  but  he  is 
only  so  entitied  where  the  sum  proved  under  the 
plea  of  set-off  covers  all  that  is  not  met  by  the 
other  pleas.  Tuck  v.  Tuck,  5  Mees.  db  W.  (ex.) 
109 ;  and  7  Oowl.  (p.  c.)  373. 


9706 


[DEBTS— DEEDS] 


And  Ma  Comi  o.  Faddon,  2  Cr.  M.  &R.547. 

And    tM   Bend;    Heir:   Ltgofff;  PUading 
('c.  L.^  Taxu;  TVtaiu, 


; 


DE  CX)NTUMACE  CAPIENDO. 

1.  The  writ  it  eomtwmaee  eapiemdo  must  be  ad- 
dreiacd  to  the  sheriff  of  the  county  of  which  the 
party  is  described  in  the  ttgnifieamt^  or  the  writ 
will  be  quashed.  R.  v.  Ricketts,  1  Nev.  <5c  P.  (k. 
B.)680. 

S.  Held  also,  that  the  writ,  lecitini^  a  ng- 
njficaw'C  by  two  judges,  of  disobedience  to  the 
ooaamands  of  three,  is  bad,  and  may  be  quashed 
on  motion.  lb.  685. 

3.  Where  the  writ  lecited  the  signifieAvit,  de- 
scribing the  defendant  as  ^  now  or  heretofore  of 
the  panah  of  O.,  in  the  county  of,"  &c.,  such 
writ  might  be  qnasheo  on  motion  before  the 
ratam-dav,  and  the  defendant,  if  arrested  thereon, 
need  not  be  brouffht  into  court  by  habta»  corpus. 
R.  9.  Hewitt,!  rier.  &,  P.  ('k.  b.)  6B9;  and  5 
Dowl.  (p.  c.)  646. 

4.  Where  a  party  in  contempt  in  the  Ecclesi- 
astical Coort,  was  in  custody  under  a  writ  de 
amtmiiactcapiendoy  issued  in  puisuanoe  of  53  Geo. 
3,  e.  127,  s.  1,  the  court  of  King's  Bench  refused 
a  writ  of  hob.  carp,  for  the  purpose  of  bringing  the 
party  up  before  tne  Ecclesiastical  Court,  with  the 
view  of  clearing  the  contempt;  but  semb.  the 
eourt  of  King's  Bench  has  a  concurrent  juris- 
diction with  the  court  of  Chancery.  Strong  ex 
parte,  5  Dowl.  (p.  c.)  213. 

5.  Where  the  writ  set  Ibrth  the  sentence  of  the 
Spiritual  Court,  and  awarded  costs  to  be  paid,  the 
court  refused  to  quash  the  writ,  on  a  suggestion 
that  the  sentence  was  invalid  in  part ;  the  latter 
part,  as  to  costs,  being  dear  and  definite,  and  the 
party  in  contempt  for  non-payment  Kington  v. 
back,  3  Not.  A  P.  {q,.  b.)  3. 

6.  Where  it  appeared  on  the  ftee  of  the  writ  of 
curias  atm  prodam.  that  an  entire  term  had  inter- 
Tened  between  its  teste  and  the  term  in  which  the 
writ  ds  eoniumaee  was  returnable,  being  a  dis- 
eontinnance,  the  court  quashed  the  former  writ 
R.  V.  Ricketts,  1  Perr.  A,  D.  (q.  b.)  150. 


DEEDS. 

[A]  COHSTBUCTIOH. 

[B]  Pb007 — PRODVCTIOR  OF. 


[A]  COBBTBUCTIOB. 

1.  Upon  a  demise  of  a  mill  and  stream  of  water, 
excepting  so  much  as  should  be  sufficient  to 
supply  persons  with  whom  previous  contracts 
had  been  or  should  thereafler  be  made  for  water, 
with  a  proviso,  that  so  much  should  be  left  as 
should  be  sufficient  to  eopply  the  mill  for  twelve 


boon  a  day,  and  covenant  for  qmet  e^yment; 
there  was  no  evidence  of  any  act  done  sinee  the 
data  of  the  demise,  but  the  quantity  of  supply  had 
been  diminished  by  the  acts  of  tliie  persons  enti- 
tled under  prior  grants ;  held,  that  tne  covenant 
was  not  to  oe  construed  into  an  absolute  grant  of 
so  much  water  as  would  supply  the  mill  for  the 
twelve  hours  a  day,  and  that  the  proviso  was  only 
to  be  applied  as  a  limit  to  what  the  grentors 
should  do  in  future ;  and  no  distuibanoe  having 
been  occasioned  by  any  act  of  theirs,  an  aetiott 
was  not  maintainable.  Blatehford  v.  Blayor,  &e. 
of  Plymouth,  3  Bing.  N.  S.  (c.  p.)  691. 

2.  Where  a  fether  had  executed  a  conveyance, 
in  order  to  qualify  his  son,  which  the  attoniey  of 
the  former  prepared,  and  had  produced  it  on  be- 
half of  the  son  before  magistrates,  but  it  remain- 
ed in  his  custody  upon  an  alleged  sgreement  by 
the  son  that  he  should  hold  it  as  a  securi^  for 
the  general  bill  of  costs,  &c.,  due  irom  the  fk- 
ther ;  after  the  death  of  the  father,  the  son  paid 
for  the  costs  of  the  conveyance ;  in  trover  for 
the  deed,  held,  that  if  any  mterest  in  the  proper- 
ty were  intended  to  pass,  the  deed  belongea  to 
the  son,  and  the  father  could  not  give  a  lien 
thereon,  and  that  the  attorney  was  estopped  from 
saying  that  no  interest  passed ;  the  jury  having 
given  a  general  verdict  for  the  demoaant,  the 
court  granted  a  new  trial,  on  the  ground  of  mis- 
direction of  the  judge,  who  merely  left  it  to  the 
juiT  whether  the  deed  was  the  property  of  the 
father  or  son.  Lord  v.  Wardle,  3  Bing.  N.  S. 
(c.p.)680;  and  4  Sc.  402. 

3.  Where  the  settlor,  upon  his  marriage,  cove- 
nanted to  stand  seised  to  the  use  of  himself  fur 
life,  remainder  to  the  use  of  his  intended  wife 
for  life,  remainder  to  the  sons  and  daughters  of 
the  marriage,  remainder  to  the  use  of  the  oein  and 
assigns  of  the  wife  for  ever ;  there  was  no  issoe 
of  the  marriage,  and  the  wife  having  sorvtved, 
devised  the  premises  to  a  party,  who  levied  a 
fine,  and  died  seised  twelve  years  after;  upon  a 
case  sent  from  the  Master  of  the  Rolls,  held,  thai 
the  wife  of  the  settlor  became  seised  in  fee  under 
the  rule  in  Shelley's  case,  and  the  devise  good. 
Hood  T.  Pimm,  1  Tyr.  4l  Gr.  (ax.)  1118. 

4.  Where  a  mortgage  deed  recited  a  convey- 
ance by  A.,  the  tenant  in  fee,  for  a  term,  to  C. 
and  H.,  subject  to  redemption,  and  that  the  sul>- 
seqoent  mortgagee,  at  the  request  of  A.,  had  paid 
the  first  mortgagees,  and  advanced  to  A.  a  further 
sum,  and  in  consideration  thereof,  C  and  H.,  at 
the  request  of  A.,  assigned, and  A.  did  grant,  &c. 
the  premises  for  the  residue  of  the  term,  subject 
to  redemption ;  held,  that  A., having  been  proved 
aliunde  to  have  been  seised  in  fee,  the  latter  deed 
was  sufficient  evidence  of  title  to  the  possession 
in  the  representatives  of  ^e  second  mortgagse, 
the  recital,  if  taken  altogether,  showing  a  titC  to 
assign  in  C.  and  H.,  or,  if  rejected,  A.  being  ca- 
pable of  granting  a  term,  it  might  be  looked  at  to 
see  what  term  was  intended  to  pass.  Doe  d. 
Rogere  r.  Brooks,  3  Ad.  A  £11.  (k.  b.)  513. 

5.  Where  a  party  shortly  before  his  death,  exe- 
cuted an  irregular  deed  of  gift,  and  delivered  H 
before  the  attesting  witnesses  as  his  last  aet  and 
deed,  but  upon  it  being  suggested  that  if  deliver- 
ed to  the  putr  it  woQld  take  the  property  fiuna 
him  in  his  lifetime,  he  dewed  a  thiid  party  to 


[DEEDS] 


2767 


keep  it,  and  not  to  give  it  to  the  grantee  in  his 
lifetime;  held, that  Oie  deliyery  waa  complete; 
held,  also,  that  if  a  party  execute  a  deed,  auppos- 
ing  it  to  operate  in  one  way,  whereas  it  really 
operated  in  another,  such  instrument  would  be 
invalid.    Doe  v,  Bennett,  8  C.  &  P.  (n.   p.)  124. 

6.  Although  a  deed  poll  may  be  framed  so  as 
to  give  a  right  of  action  against  a  party  execut- 
i<>ff  <^  7®^  when  made  between  parties,  no  one 
can  bring  an  action  on  it,  except  a  party,  or  one 
claiming  through  him.  Gardner  p.  Lachlan,  8 
Sim.  (CH.)  126. 

7.  Where  an  insolvent,  whilst  in  prison,  with- 
out consideration  or  pressure,  executed  an  assign- 
ment of  all  his  property  to  trustees  for  the  benefit 
of  his  crediton  who  should  come  in  under  the 
deed ;  held  to  be  a  voluntary  deed,  and  void  with- 
in the  7  Geo.  4,  c.  57,  s.  32.  Binns  v.  Towsey,  3 
Nev.  «fe  P.  (q.  B.)  88. 

6.  In  debt  for  rent  of  a  mill  and  premises,  it 
appeared  that  the  lessee,  being  insolvent,  had  by 
deed,  reciting  his  insolvency,  assigned  all  his 
debts,  stock,  implements,  crops,  severed  as  well 
as  not,  and  all  other  his  personal  estate  and  effects 
whatsoever  and  wheresoever,  in  trust  to  pay  the 
rent  due  and  accruing  up  to ,and  after- 
wards to  distribute  amongst  his  crediton ;  held, 
that  the  assignees  having  been  found  by  the 
jury  to  have  accepted  it,  the  lease  of  the  mill 
would  pass  under  the  assignment.  Ringer  v. 
Cann,  3  Mees.  &  W.  (ex.)  343. 

9.  Where  the  settlor,  by  a  firat  deed,  limited 
leaseholds  and  stock  to  his  son  for  life  with  re- 
mainder to  his  children,  with  a  power  of  revo- 
cation, which,  by  a  subsequent  deed,  he  exercised, 
and  vested  the  funds  in  trustees  to  pay  the  income 
to  the  son's  wife  for  her  sole  use  and  tor  the  main- 
tenance of  the  children,  and  after  her  decease  or 
second  maOriage,  in  trust  for  the  children ;  held, 
that  there  being  no  way  of  construing  the  two 
deeds  so  as  to  give  full  efiect  to  all  the  words,  the 
second  must  be  construed  to  be  a  sutistitution  for 
the  first  deed  altogether,  and  alone  to  have  efiect. 
Angell  V.  Dawson,  3  Tonnge  &  C.  (kx.  e^.)  306. 

And  see  Assumpsit;  Charge;  Covenant;  £xe- 
emtor ;  Lease;  Marriage  Settlement;  Portions; 
Power;  Presumption;  Trespass;  Use  and  Oeeu- 
patUm  ;  Vendor  and  Purchaser  ;  Voluntary  Deed. 


[B]  Pftoor — PRODOCTioir  of. 

1.  Where  a  deed  executed  by  a  corporation 
contained  a  memorandum  written  on  the  paper  to 
which  the  seal  was  affixed,  purporting  that  it  was 
sealed  by  order  of,  &c.,  and  subscribed  **  A.  B., 
secretary;"  held  not  to  be  an  attestation,  but 
merely  a  memorandum,  that  the  act  was  done  by 
the  order,  &c.  Doe  d.  Bank  of  England  v.  Cham- 
ben,  4  Ad.  dL  £U.  (K.  B.)  410 ;  and  6  Nev.  &  M. 
539. 

3.  Where  the  validity  and  not  the  execution 
of  a  deed  is  questioned  w  the  suit,  it  may  be  prov- 
ed vwa  voce  at  the  hearing.  Attomey-Geiiera] 
V,  Peaisonf  7  Sim.  (cb.)  309. 


And  see  the  case  of  Atlorney-Geaenl  v. 
Shore,  lb.  309,  n. 

» 

3.  Where  one  of  the  two  eommissionen  before 
whom  the  acknowledgment  of  Sifeme  covert  was 
taken,  being  a  quaker  and  a  practising  attorney, 
verified  the  eommissionen'  certificate  by  his 
affirmation ;  held  sufficient.  Scholefield  in  re,  3 
Bing.  N.  S  (c.  p.)  283 ;  3  Sc.  657 ;  and  5  Dowl. 
(p.  c.)  363. 

4.  Where,  in  ejectment  by  mortgagee,  a  prior 
deed  of  settlement  was  produced,  found  amongst 
the  papen  of  the  mortgagor,  lately  deceased,  ne 
being  the  tenant  for  life  under  it ;  held,  that  the 
custody  was  sufficient  to  render  it  adraissibla 
without  proof  of  execution,  being  above  30  years 
old.    Doe  V.  Samples,  3  Nev.  d^  r.  (O-  b.)  S64. 

5.  Where  the  question  was  whether  the  defisn- 
dant's  liability  accrued  as  trustee  or  shareholder  : 
held,  that  it  was  essential  to  produce  the  deed 
creating  the  character  of  trustee,  and  that  it  was 
not  sufficient  to  dispense  with  tne  production  of 
it  in  evidence  that  the  plea  admitted  the  trust 
deed  referred  to  in  the  recital  of  the  deed  of  cove- 
nant   Gillett  V.  Abbott,  3  Nev.  d^  P.  («.  b.)  24. 

6.  Where  on  an  information  for  tin  dues  on 
the  part  of  the  Duke  of  Cornwall,  raising  the 
question  whether  certain  lands  were  part  of  man« 
orial  wastes,  it  appeared  that  the  defendant  being 
seised  of  an  ancient  tenement,  a  party,  tenant  in 
common  with  the  Duke,  conveyed  to  the  defen- 
dant by  indenture  his  share  of  all  quit  rents 
arising  within  the  manor,  reserving  tne  rights 
of  tin  and  of  shooting,  &c. ;  the  oefenduit  by 
his  answer  set  forth  a  portion  of  the  deed  of  con- 
veyance to  him,  and  that,  as  to  the  boundaries, 
they  would  appear  from  the  instrument;  held, 
that  the  defendant  was  bound  to  produce  the  in- 
denture, that  it  might  be  seen  wnether  the  an- 
swer set  it  forth  correctly,  and,  also,  because  the 
duchy  being  jointly  interested  with  the  party 
conveying  to  the  defendant,  might  take  advantage 
of  his  acts  of  ownenhip.  Attorney- General  «. 
tiambe,  3  Tounge  d^  C  (xx.  xq.)  102. 

7.  Where  the  excuse  for  not  making  profert  of 
a  deed  only  stated  that  it  had  been  dehvered  te 
the  plaintiff,  not  going  on  to  state  it  then  in  his 
possession ;  held  insu&ient.  Wallis  v.  Harrison. 
4  Mees.  &  W.  (xx.)  538. 

8.  Where  A.^  an  equitable  mortgagee,  gave  a 
schedule  of  the  deeds  deposited,  descnoing  one  as 
executed  by  B. ;  in  ejectment  by  the  mortgagee 
against  a  ^uty  coming  in  under  the  mortgagor ; 
held,  that  the  subscribing  witness  ought  to  be 
called.    Doe  v.  Penfold,  8  C.  &  P.  (s.  p.)  536. 

9.  Where  secondary  evidence,  by  proof  of  the 
copy  of  an  original  deed,  not  produced,  is  admit* 
ten  it  is  unnecessary  to  call  the  attesting  witness, 
although  the  origiiud  appean  to  have  oeen  sub- 
scribed by  one.  Poole  v.  Warren,  3  Nev.  A  P. 
(q.  B.)  603. 

And  see  Mortgage  ;  Pnutiet^  (s^  o.  l.) 


I 


2758 


[DEVISE] 


DEVISE. 

1.  On  a  devise  of  landi  to  be  purchased  with 
the  proceeds  of  estates  sold  by  the  testator, 
npon  trust  to  par  the  rents  and  profits  to  testa- 
tor's daughter  for  life,  and  ailerwards  for  such 
persons  and  estates  as  she  should  appoint,  and  for 
default  of  appointment  to  the  right  heirs  of  his 
daoghter,  he  also  directed,  that  as  to  such  part  of 
the  proceeds  as  should  not  be  laid  out  in  lands, 
his  trustees  should  pay  her  the  dividends  for  her 
life,  and  after  her  decease  to  such  persons  as  she 
should  by  will  appoint,  and  in  default  thereof  to 
transfer  and  assign  to  her  executors,  &c, ;  held, 
that  as  the  effect  of  the  limitation  of  the  proceeds, 
if  uninvested,  were  to  give  it  to  the  daughter 
absolutely,  the  intention  was  to  be  inferred  the 
same  whether  it  continued  in  the  shape  of  money 
or  was  invested  in  land,  the  words  of  limitation 
therefore,  in  the  latter  case,  to  the  daughter's 
right  heirs,  were  to  be  considered  not  as  words  of 
purpbase,  but  as  of  limitation,  and  that  she  might 
by  fine  extinguish  the  power,  and  make  a  good 
title  to  the  lands  purc))ascd.  Webb  v.  Earl  of 
ShaiUbury,  3  Myl.  &  K.  (cu.)  590. 

8.  Upon  a  devise  to  A.  Sl  B.  as  tenants  in 
common,  and  the  heirs  of  their  bodies,  and  if 
either  should  die  without  leaving  issue,  then  the 
share  to  the  survivor  of  them  the  said  A  and  B.^ 
and  the  heirs  of  his  body,  and  in  case  both  of 
them  should  die  without  issue,  then  over ;  held, 
that  the  limitation  to  the  survivor  of  the  devisees 
in  case  either  should  die  without  issue  was  good 
by  way  of  executory  devise,  and  that  by  the  word 
issue  m  the  succeeding  clause  was  to  be  intended, 
such  issue  as  were  to  take  under  the  prior  limita- 
tion over,  and  that  the  limitation  over  was  not  too 
remote.    Radford  v.  Radford,  1  K.  (ch.)  486. 

3.  Where  a  testator  devised  his  freehold  to  his 
wife  in  fee,  and  his  leasehold  estates  to  her  during 
the  lives  of  I.  and  S.,  and  if  they  should  survive 
beri  to  her  heirs ;  the  wife  devised,  but  without 
words  of  inheritance,  all  her  property  to  trustees 
on  certain  trusts,  and  also  the  lands  she  hold 
under  her  husband's  will,  to  pay  an  annuity  to 
D. ;  she  also  gave  a  legacy  to  W.,  and  certain 
yearly  sums  to  two  grandnieces,  until  and  during 
the  period  of  apprenticeship,  and  having  appoint- 
ed toe  trustees  her  executors,  directed  the  residue 
qf  her  real  and  personal  estate,  al\er  payment  of 
her  debts,  to  be  equally  divided  between  her  two 
grandnieces;  she  died  in  1799,  and  the  grand- 
fiieces  entered  into  possesfiion  of  the  rents,  &c., 
subject  to  the  annuity  to  D. ;  £.  J.,  one  of  them, 
married,  and  in  J814  died,  leaving  a  child,  who 
also  shortly  af^er  died,  and  upon  her  deatli  the  de- 
fendant entered  into  possession,  and  received  tho 
reqtfl  of  ber  moiety  ;  the  annuity  ceased  to  be 
payable  in  1804,  and  the  legacy  to  W.  was  paid  in 
1812.  Upop  ejcotinent  brought  by  the  httsband 
of  42.  J.  ior  her  moiety ;  held,  that  the  fee  passed 
under  the  will  of  the  testatrix  to  the  trustees, 
and  that  a  r?convevance  oould  not  be  presumed, 
and  th%t,  as  to  the  leasehold,  the  probability  was, 
that  it  was  not  for  lives,  no  title  to  recover  a  moie- 
ty was  made  out  Doe  r.  Williams,  2  Mees.  d^ 
W.  (Kx.)  749. 

4.  Where  testator,  an  illiterate  person,  af\er 
givijig  to  his  wife,  her  heirs  and  assigns,  all  the 


rssidae  of  his  penMmal  estate  (then  being  no  otb- 
er  legatee)  added,  and  I  do  iikewiee  make  ny 
wife  my  roll  and  sole  executrix  of  my  fieehokl 
house  in,  die. ;  held,  Uiat  the  will  appearing  to 
dispose  of  every  thing,  and  to  allude  to  no  other 
object  of  bounty  except  his  wife,  upon  the  ques- 
tion of  intention  clearly  to  give  the  treehold  to  his 
wife,  that  the  words  of  the  will  were  sufficient  to 
carry  that  intention  into  eflTect,  and  that  she  took 
the  fee.  ^Doe  v.  Haslewood,  1  Nev.  d^  P.  (k.  b.) 
352. 

5.  The  wife  having  remained  in  possession  for 
more  than  20  years  ailer  the  husMud's  death, 
might  not  be  deemed  adverse  except  as  against 
the  heir,  as  she  might  have  been  in  possession  in 
right  of  dower,  Jb. 

6.  So,  where  after  a  direction  to  the  execotor 
to  pay  debts  and  funeral  expenses,  the  testator  be- 
queathed annuities  to  his  sister  and  niece,  and  5«. 
to  his  heir  at  law,  and  then  ^*  I  appoint  W.  P.  my 
whole  and  sole  executor  of  all  my  houses  and 
land,  situate  at,"  &c. ;  held,  that  fV.  P.  took  an*  in- 
terest in  fee.  Doe  v.  Pratt,  1  Nev.  &  P.  (k.  b.) 
366. 


7.  Where  testator  by  bis  will  devised  his 
suages,  &c.,  called  P.,  to  J.  L.  for  life,  with  re- 
mainders over  in  tail,  and  his  messuage,  ^c.  cal- 
led C.  to  J,  P.  for  life,  with  like  remamders  over, 
in  other  parts  referring  to  his  P.  and  C  estates: 
by  a  codicil,  reciting  that  he  had  given  the  said  P. 
estate  to  J.  L.,  he  thereby  revoked  and  bequeath- 
ed the  P.  estate  to  J.  P.,  and  reciting  also  that  he 
had  given  the  said  C.  estate  to  J.  P.,  he  revoked 
the  said  bequest,  and  gave  the  said  C.  estate  to 
J.  L. ;  held,  that  the  limitations  in  the  will  were 
thereby  revoked,  and  that  the  said  devisees  took 
estates  in  fee  respectively.  Phillips  e.  Allen,  7 
Sim.  (cH.)  446. 

8.  Devise  of  lands  to  trustees  in  trust  to  permit 
his  wife  to  enjoy  them  for  life,  and  afterwards  on 
trust  out  of  the  rents  and  profits  to  pay  an  annui- 
ty to  testator's  brother  for years  if  he  should 

so  long  live,  and  also  certain  le^cies ;  held,  that 
the  trustees  took  only  a  chattel  mterest  until  the 
annuity  and  legacies  were  paid,  upon  which, 
being  satisfied,  their  estate  ceased.  Doe  v.  Needs, 
2  Mees.  A  W.  (ex.)  129. 

9.  Devise  to  trustees  '*  to  the  use  and  interest 
that  they  may  receive,  A^.,  and  pay  over  to  the 
testator's  son  for  his  life,  although  nothing  further 
was  to  be  done  by  them,  and  no  devise  to  support 
contingent  remainders ;  held  to  vest  the  legal  ee- 
tate  in  the  trustees.  Doe  v.  Homfray,  1  Nev.  d& 
P.  (K.  B.)  401. 

10.  \\  here  testator  devised  all  his  real  estate  to 
trustees,  and  empowered  them  to  carry  on  his 
business,  and  to  pay  the  profits,  or  if  they  should 
dispose  of  it,  to  invest  the  proceeds  and  pay  the 
interest  to  his  daiKrhter  for  life,  he  also  devised 
the  rental  and  profits  of  his  real  estate  to  her  for 
life,  and  afler  her  death  to  her  Keirs  as  tenants  in 
common,  but  if  she  should  die  without  »stt«,  then 
he  gave  certain  legacies,  and  directed  a  sum  to  be 
invested  for  an  annuity  for  the  husband ;  he  also 
directed  the  real  estatie  to  be  sold,  and  dispoeed 
of  the  residue ;  held,  that  the  daughter  iooK  an 
estate  tail  in  the  real  estate,  and  an  absolute  inter- 
est in  the  personal  estate,  and  that  the  kgnoiee 


[DEVISE] 


2760 


and  anncity  were  ebatfed  both  on  ml  and  per- 
Moal  estate,  and  were  to  be  borne  jpioportionally 
by  tlioee  funds.  Dunk  9.  Fenner,  2  Ruis.  dt  M. 
/CH.)567. 

11.  Devise  to  W,  F.  and  his  heirs  male  accord^ 
ing  to  their  seniority,  and  respectively  attaining 
SI  ;  the  elder  son  sarviving  of  W,  /.,  and  the 
heirs  male  of  his  body,  to  be  preferred  to  the  second 
or  yonnger  son,  and  in  case  of  failure  of  issue 
male  of  n.  F.  surviving  him,  or  dying,  without 
lawful  issue  male  attaining  21,  then  over;  held 
to  pass  an  estate  tail  to  W.  r.,  (affirming  the  judg- 
ment below.)  Featherston  v.  Featherston,  U  Bii. 
N.  S.  (p.)  237 ;  and  3  CI.  <&  Fi.  67. 

12.  Where  the  testator  directed  that  out  of  the 
rents  and  profits  of  his  estate  his  debts,  «&c.  should 
be  paid,  and  then  gave,  subject  to  the  keeping  in 
repair,  the  rents,  d:c.  to  C.  V.  for  life,  and,  ailer 
his  death,  he  gave  ail  that  freehold  premises  situ- 
ate at,  &c.,  unto  his  three  nieces,  to  and  for  their 
own  uie  and  purposes  equally,  and  the  rest  and 
remainder  of  his  property,  &.c.,be  it  what  it  might, 
be  led  to  C.  V.',  held,  that  the  nieces  took  only  a 
life  estate.    Doe  v.  Eve,  5  Ad.  <&  Ell.  (k.  b)  313. 

13.  Bequest  of  a  house  to  J.,  the  son  of  George 
Gord,  another  to  G.  the  son  of  George  Gord, 
and  another  upon  the  expiration  of  certain  life 
estates  to  George  Gord,  the  sou  of  Gord ;  testator 
also  bequathed  various  legacies,  and,  inter  alia^ 
to  John  and  Geor^,  the  sons  of  Greorge  Gord, 
to  be  paid  on  itttaming  21 ;  held,  that  parol  evi- 
dence was  admissible  to  show  the  person  he  meant 
to  designate  by  George  Gord,  the  son  Gord. 
Doe  V.  Needs,  2  Mees.  <&  W.  (ex.)  129. 

14.  Upon  a  devise  of  mixed  estate  to  trustees, 
with  power  to  sell  the  real  at  their  discretion,  and 
add  the  same  to  his  personal  estate  ;  and  ader  a 
gift  to  his  wife  for  life,  and  of  an  estate  at  W.  in 
trust  for  G.  ff.,  and  a  sum  to  be  paid  at  21,  and  if 
he  should  die  under  21,  that  both  should  sink  into 
the  residue ;  and  gave  the  residue  of  all  his  per- 
sonal estate,  after  payment  of  his  debts,  manage- 
ment and  repairs  of  nis  real  estate,  to  invest  the 
overplus,  and  the  resulting  income  to  be  accumu- 
latea  until  J.  C,  should  arrive  at  the  age  of  24, 
and  then  upon  trust  to  convey  and  assign  all  the 
legal  estate  and  interest  in  his  freehold,  copyhold 
and  leasehold  premises,  and  all  his  personal  estate, 
with  a  limitation  over  in  the  event  of  J.  C.  dying 
before  attaining  that  age ;  held,  that  the  rents  of 
the  real  estate,  until  /.  C,  attained  that  age,  did 
not  result  to  the  heir  at  law,  but  passed  to  J.  C.  as 
Dart  of  the  trust  fund.  Ackers  v.  Phipps,  9  Bli. 
rl.  8.  (p.)  430.    (Reversing  the  judgment  below.) 

15.  Devise  of  all  such  propertv  of  whatever  de- 
scription, or  wherever  situatecf,  as  the  testator 
should  die  possessed  of,  for  all  his  estate  and  in- 
terest therein  to  his  wife,  her  heirs,  and  for  her 
use  and  benefit,  and  to  be  disposed  of  by  her  by 
deed  or  will  as  she  should  thmk  fit;  held  that  a 
freehold  estate  of  which  the  testator  was  seised  as 
a  trustee  passed  by  the  will.  Shaw,  ex  parte, 
8  Sim.  (CB.)  159. 

16.  Where  a  testator,  after  giving  a  moiety  of 
the  estate  to  his  son  for  life,  and  the  other  to  his 
wife  for  ber  life  or  widowhood,  provided  that 


upon  her  death  or  marriage,  her  moiety  should  go 
to  the  son  in  like  manner  as  that  dfivised  to  him ; 
and  in  case  of  his  dying  before  her,  leaving  issue, 
to  such  issue ;  but  if  the  son  died  without,  issue, 
the  whole  to  the  wife  for  her  life,  subject  to  an  an- 
nuity ;  "  and  in  case  of  the  marriage  or  death 
of  my  wife,  my  son  being  dead,  and  leaving  no 
issue,'' .  then  over ;  the  event  was,  that  the  son 
survived  the  mother  unmarried  and  intestate; 
held,  that  the  contingency  on  which  the  devise 
over  was  to  take  eifect,  viz.  the  marriage  or  death 
of  the  widow  at  a  time  when  the  son  was  dead, 
leaving  no  lawful  issue,  not  having  arisen,  the 
devise  over  failed,  and  the  heir  of  the  testator 
was  entitled.  Dicken  v.  Clarke,  2  Younge  &> 
C.  (ex.  £q.)  573. 

17.  On  a  devise  of  lands  to  testator's  brothers, 
A.  and  P  ,  one-third  part  each,  share  and  share 
alike,  and- the  other  remaining  third  to  his  sisters, 
M.  and  L.,  share  and  share  alike,  bein^  one-sixth 
part  to  each ;  **  and  in  case  of  their  demise, 
their  respective  shares  to  be  equally  divided 
amongst  their  children  or  lawful  heirs;"  and  he 
bequeathed  the  whole  of  his  personal  estate  to 
his  brother  P. ;  held,  that  the  words,  **  in  case  of 
their  demise,"  applied  only  to  the  devise  to  the 
sisters,  and  there  being  no  words  of  inheritance 
in  the  devise  to  P.,  that  he  took  an  estate  for 
life  only  in  one-third  part ;  tliat  as  to  the  devise  to 
the  sisters,  those  words  were  to  be  construed  as 
"  after  their  demise,"  and  that  the  efiect  was  to 
give  them  an  estate  only  for  life,  with  remain- 
der to  their  children  in  fee  as  tenants  in  common, 
and  as  to  one  of  them,  not  married,  her  share 
not  being  disposed  of,  would,  in  the  event  of  her 
not  having  any  child,  descend  to  the  heir  at  law. 
Bowen  v.  Scowcroft,  2  Younge  &  C.  (kx.  x^.) 
640. 

18.  Where  a  testator  devised  to  his  son.  J.  S. 
(being  his  heir)  copyhold  estate,  there  being  no 
custom  of  entail,  in  the  terms  "  to  J.  S.  his  heirs^ 
and  assigns  for  ever ;  but  if  it  should  happen 
that  he  should  die  without  leaving  any  child  or 
children,"  then  over  to  natural  children  of  the 
testator ;  held,  that  a  fi?e  simple  conditional  pass« 
ed  thereby  to  J.  S.,  and  having  merged  in  the 
possibility  of  reverter,  which  descended  on  him 
as  heir  of  the  devisor,  he  became  seised  of  a  fee 
simple  absolute.  Doe  r.  Simpson,  4  Bing.  N.  S* 
(c.  r.)  333. 

19.  The  direction  in  Davies  dem.,  Lowndee 
ten.,  1  Binsr.  N.  S.  620,  on  bill  of  exceptions,  held 
wrong,  ana  a  venire  de  novo  awarded ;  4  Bing«. 

N.  S.  (c.  p.)  478. 

20.  Where  a  party,  interested  only  as  tenant 
for  life,  contracted  to  sell  the  estate  m  fee,  held^ 
that  the  purchaser  having  no  devisable  interest 
at  the  date  of  his  will,  the  subsequent  acquire- 
ment of  the  fee  by  the  vendor's  conveyance  to  the 
purchaser  did  not  enure  to  make  the  fee  pass  by 
the  devise.    Duckle  o.  Baines,  8  Sim.  (ch.)  525. 

21.  Devise  of  *'all  my  money,  securities  for 
money,  goods,  chattels,  and  egtaU  and  efifects  of 
what  nature  or  kind  soever,  and  wheresoever  the 
the  same  may  or  shall  be  at  the  time  of  my  death ;" 
held,  that  all  the  other  words  of  the  clause  apply- 
ing exclusively  to  personal  property,  and  including 
every  speoies  of  it,  the  word  estate  was  to  be  held 


2760 


[DEVISE— DISCLAIMER] 


to  apply  to  any  other  property  the  testator  was 
poeaesaed  of,  and  to  pass  real  estate.  Doe  v.  Ev- 
an8,|l  Perr.  &  Dav.  (q.  b.)  472. 

23.  Upon  a  devise  of  leasehold  and  copyhold  for 
life,  and  afterwards  to  be  sold  and  divided  into 
five  parts  one  to  be  paid  to  each  of  the  testator's 
four  sons  living  at  the  decease  of  the  tenant  for 
life,  **  and  in  case  of  either  of  their  deaths,  his 
share  to  be  paid  to  his  issue,  and  in  case 
either  shoold  die  without  issue,  his  share  to 
be  divided  amongst  the  surviving  children  ;"  one 
of  the  sons  died  in  the  testator's  lifetime,  leaving  a 
child,  and  held  entitled  to  such  share  as  the  pa- 
rent would  have  been  entitled  to  if  he  had  surviv- 
ed the  tenant  for  life.  Le  Jeune  v.  Le  Jeune,  2 
Keene,  (ch.)  701. 

23i  Devise  in  trust  to  permit  and  suffer  the  tes- 
tator's widow  to  receive  the  net  rents  and  profits, 
subject  nevertheless  to  certain  charges;  held, 
that  such  word  being  only  contradistinguisfaable 
from  gross  rents,  and  implying  that  the  trustees 
were  first  to  pay  land-tax,  and  any  other  charges 
on  the  estate,  and  then  hand  over  the  net 
rents  to  the  tenant  for  life,  they  took  the  legal 
estate :  so,  wherever  the  meaning  of  the  testator 
appears  to  be  that  the  trustees  are  in  any  way  to 
interfere  in  the  execution  of  the  trusts,  and  cer- 
tain duties  are  cast  upon  them,  they  take  the  le- 
gal estate,  what  ever  words  may  be  used.  Barker 
9.  Greenwood,  4  Mees.  &  W.  (xx.)  421. 

24.  Upon  a  devise  of  estates  charged  to  A.  for 
lifb,  remainder  to  B.  for  life,  and  the  testator  di- 
rected that  if  A.  did  not,  within  18  months  afler 
he  should  come  into  possession  of  certain  other 
property,  sell  the  same,  and  pay  off  the  charges 
on  the  devised  estates,  that  the  devise  to  him 
ahoald  cease  and  determine  as  if  he  were  dead  : 
A. ,  upon  coming  into  possession  of  the  latter  es- 
tates, failed  to  comply  with  the  direction,  and  un- 
der an  arrangement  with  B.,  incurred  the  forfeit- 
ure, B.  undertaking  to  re-grant  the  devised  estates 
to  him  daring  their  joint  lives,  at  a  stated  rent : 
by  the  will  of  the  mother  of  A.  and  B.,  she  gave 
certain  interests  to  B.  and  his  sisters,  but  that  on 
either  of  them  coming  into  possession  of  the  first 
devised  estates,  such  mterest  should  cease  :  held, 
that  B.  was  to  be  deemed  in  possession  of  them 
within  the  meaning  of  the  condition  of  his  mother's 
will,  and  had  forfeited  the  interest  given  him 
thereby.    Wynne  v.  Wynne,  2  Keene,  (ch.)  778. 

25.  Devise  of  two  houses  to  testator's  wife  for 
life,  remainder  to  all  and  everv  his  children, 
equally  to  be  divided  between  them  in  tail,  and 
he  afterwards,  without  words  of  limitation,  gave  to 
one  daughter  one  house,  and  the  other  house  to  the 
other ;  held,  that  the  effect  was  to  give  to  each 
daughter,  subject  to  the  life  estate  of  the  widow,  an 
estate  for  life,  in  severalty,  with  remainder  in  both 
to  the  two,  as  tenants  in  common  in  tail.  Doe  d. 
Amlot  V,  Davies,  4  Mees.  6t  W.  (ex.)  599. 

26.  On  a  direct  devise  of  real  and  personal  es- 
tate to  the  plaintiff  (a  feme  covert)  for  life,  for  her 
independent  use  and  benefit,  and  anerwards  to  her 
husband  for  life,  remainder  to  the  use  of  the  heirs 
of  the  body  of  the  wife  in  tail,  with  remainders 
over,  and  <feciaration  that  all  the  limitations  were 
ule&ded  to  be  in  striet  flettlement,  with  ultimate 


remainders  to  the  testator's  right  heirs :  held,  tlwt 
subject  to  the  prior  estate  for  life,  the  wife  was 
entitled  to  an  estate  tail  in  the  real  estate,  and  an 
absolute  interest  in  the  personalty.  Doaglaa  v. 
Congreve,  I  Beav.  (ch.)  59. 

27.  On  a  devise,  after  estates  for  lives,  totes ' 
tator's  nieces,  **  equally  between  them  to  take  as 
joint  tenants,  and  their  several  and  respective 
heirs  and  assigns,  for  ever ;"  held,  that  they  took 
as  tenants  in  common  in  fee,  subject  to  an  estate 
for  their  joint  lives  and  the  life  of  the  survivor. 
Doe  d.  Littlewood  v.  Green,  4  Mees.  &  W.  (ex.) 
229. 

28.  Devise  to  testator's  widow  for  life,  remain- 
der to  trustees,  to  divide  the  rents,  &c.  amonj^ 
all  his  brothers  and  sisters  who  shooJd  be  living 
at  the  time  of  her  death,  ^and  to  their  isme, 
male  and  female^*  and  afler  the  respective  deaths 
of  his  brothers  and  sisters,  for  ever,  to  be  divided 
equally  between  them ;  held,  that  those  words 
were  to  be  construed  as  words  of  limitation,  and 
not  of  purchase,  and  that  the  children  of  a  sister 
dying  in  the  lifetime  of  the  widow,  took  no  inte- 
rest in  the  testator's  estate.  Tate  v.  Clarke,  1 
Beav.  (ch.)  104. 

29.  Upon  a  devise  for  lives,  remainder  to  the 
second  son  of  J.  K.  in  fee ;  at  the  date  of  the  will^ 
J.  K.  had  had  three  sons,  but  J.,  the  third,  only 
was  living,  two  other  sons  were  born  after  the 
date  of  the  will,  one  only  of  whom  survived  the 
testatrix ;  and  held,  that  the  will  was  to  be  con- 
strued according  to  the  state  of  circumstances 
at  the  time  ot  the  testatrix's  death,  and  'that 
J.  was  therefore  entitled.  King  v.  Bennett,  3 
Mees.  &  W.  (xx.)  89. 

And  see  Lomax  v.  Holmeden,  1  Ves.,  sen.  294. 

30.  Devise  of  lands  to  A.  for  life,  and  after  her 
death  to  be  sold  by  her  executors  in  trust.  See. } 
held  to  give  them  a  power  only.  Doe  v.  Shotter, 
I  Perr.  JSl  Dav.  (q.  b.)  124. 

31.  The  construction  of  the  devise  in  the  ease 
of  Cursham  v.  Newland,  (2  Bing.  N.  S.  58;  2 
Sc.  105;  and  An.  Dig.  1835,75,)  confirmed  in 
the  Exchequer,  4  Mees.  &  W.  (xx.)  101. 

And  see  Charity;  Condition;  Estate ;  Foreign 
States;  Heir;  Intrusion;  Legacy;  limitation; 
Power;  Remainder;  Tmatee;  WasU;  WiU. 


DISCLAIMKR. 

1.  Where  a  party,  in  entire  ignorance  of  his  le- 
gal right,  and  on  a  representation  of  a  state  of 
things  which  there  was  reason  to  believe  was 
known  to  be  very  different  by  the  party  making 
it,  renounced  all  right  to  interfere  with  or  reserve 
money  legally  due  to  him  ;  held,  that  his  repre- 
sentative was  not  bound  thereby.  M'Carthy 
e.  Decaix,  2  Russ.  6l  M.  (ch.)  614.  (Reversing 
the  judgment  below.) 

2.  It  is  dearly  estshlished  that  a  foreign  divorce 
cannot  dissolve  an  English  marriage.    /6. 

3.  Where  a  tenant  from  year  to  vear,  by  mem- 
orandum, agreed  to  become  the  parehaser,  and  the 
landlord  to  let  the  price  lie,  by  paying  foor  per 


[DISCLAIMER— DISCOVERY] 


2761 


cent,  and  %  depMJt  wms  pud,  bat  neither  rent  nor 
interest  being  paid,  the  landlord  demanded  the 
poMeMion,  when  the  tenant  said  he  had  bought 
the  property  and  would  keep  it ;  held,  that  in  the 
absence  of  any  conveyance,  and  it  being  uncer- 
tain whether  the  estate  would  ever  be  transferred, 
the  subsequent  holding  was  not  to  be  deemed  a 
surrender  of  the  interest  as  yearly  tenant,  and  the 
holding  as  merely  at  will,  and  a  notice  to  quit 
therefore  necessary ;  held,  also,  that  the  declara- 
tion of  the  tenant  being  no  more  than  an  avowal 
that  he  should  insist  on  the  contract  of  purchase, 
and  that  he  was  ready  to  perform  it,  and  not  be- 
ing inconsistent  with  the  continuance  of  the  year- 
ly tenancy,  did  not  amount  to  a  disclaimer,  so  as 
to  supersede  the  necessity  of  such  notice.  Doe  d. 
Gray  v.  Stanion,  1  Mees.  &  W.  (ex.)  695;  and  1 
Tyr.  &  Gr.  1065. 

4.  Where  the  defendants,  having  paid  rent  to 
the  lessors  of  the  plaintiff  (as  executors  of  the  ori- 

Sinal  former  landlord),  before  the  day  laid  in  the 
emise,  attorned  to  another;  held  a  sufficient  dis- 
claimer, and  that  an  admission  of  such  attornment 
made  after  the  action  brought  was  sufficient  evi- 
dence of  disclaimer,  as  against  them.  Doe  d.  Ince 
V.  Letherlin,  6  Nev.  &  M.  (k.  b.)  313 ;  and  4  Ad. 
A  £U.  784. 

5.  In  a  suit  against  trustees  by  a  party  entitled 
to  the  fund,  in  which  had  been  joined  parties  who 
had  once  given  notice  to  the  trustees  not  to  part 
with  it,  wno  by  their  answer  simply  stated  that 
they  did  not  now,  nor  ever  had  claimed ;  held, 
upon  exceptions,  that  not  having  answered  the 
allegations  by  which  the  plaintiff  supported  his 
title  and  sought  to  fix  the  defendants  with  costs, 
it  was  insufficient  Graham  v.  Coape,  3  Myl.  & 
Cr.  (ch.)  636. 

And  see  Baron  ajtd  I^eme. 


DISCONTINUANCE. 

1.  Where  a  plaintiff  has  been  incorrectly  join- 
ed, it  must  be  shown  that  the  mistake  did  not  arise 
from  negligence,  but  was  induced  by  the  defen- 
dant's conduct  leading  to  a  belief  that  the  party 
had  entered  into  the  contract  with  both.  Poens- 
gen  V.  Chanter,  6  8c.  (c.  p.)  300. 

2.  Afler  plea  of  bankruptcy  and  certificate,  puis 
dorr,  cont.^  the  defendant  cannot  force  the  plain- 
tiff to  reply,  but  the  latter  is  entitled  to  discontin- 
ue, without  payment  of  costs.  Wollen  v.  Smith, 
1  Ferr.  ^  Dav.  (d.  b.)  374. 

And  see  Bankrupt ;  Costs, 


DISCOVERY. 

1.  A  bill  of  discovery  cannot  be  maintained  in 
aid  of  an  action  for  a  mere  personal  torf,  demurrer 
therefrom  allowed  where  the  whole  object  was  to 
obtain  a  discovery  of  the  fact,  that  by  the  order 
of  the  defendant  the  plaintiff  was  illegally  assault- 
ed and  imprisoned.  Glynn  v.  Houstoun,  1 K. 
CH.)  3S29. 


2.  The  protection  of  a  defendant  from  the  pro- 
duction of^  statements  for  the  opinion  of  eounsel, 
held  to  extend  not  exclusively  with  reference  to 
the  defendant's  proceedings  a^inst  the  plaintiff, 
but  with  reference  to  them  in  connection  with 
proceedings  contemplated  against  other  parties ; 
out  not  to  letters  addressed  to  the  defendant  per- 
sonally, with  whom  it  did  not  appear  that  he  stood 
in  any  confidential  relation  whatever.  Storey  v. 
Lennox,  Lord  G.,  1  K.  (cu.)  341 ;  and  affirmed, 
1  Myl.  &  Cr.  525. 

3.  Where  the  answer  to  a  bill  of  discovery,  in 
aid  of  an  action  at  law,  and  for  inspection  of  pa- 
pers, &^c.,  in  effect  admitted  that  the  paper  descri- 
bed related  to  the  subject-matter  of  the  bill,  and 
were  in  the  defendant's  possession,  but  went  on  to 
alle^  a  belief  that  other  suits  were  about  to  be 
instituted,  and  that  the  producing  such  documents 
or  permitting  the  plaintiffs  to  inspect  them,  might 
disclose  the  names  of  witnesses  intended  to  be  ex- 
amined, and  evidence  intended  to  be  examined  in 
the  action  pending  between  the  plaintiff  and  de- 
fendant and  in  the  other  actions  and  Anihe^tsent 
suit;  held,  that  such  admission  was  sufficient,  a9 
under  the  ordinary  rule,  to  entitle  the  plaintiff  to 
inspect,  and  that  the  possible  effect  of  the  discov- 
ery was  not  a  sufficient  ground  for  withholding  it. 
Storey  v.  Lennox,  1  My!.  &,  Cr.  (ch.)  525. 

4.  QtoBrs,  if  the  protection  of  producing  pa- 
pers, on  the  ground  of  professional  confidence,  can 
arise  from  the  fact  of  tneir  having  come  into  exis- 
tence after  litigation  was  contemplated.  The 
court  afterwards  suspended  the  execution  of  the 
order  pending  an  aopeal  to  the  House  of  Lords, 
which  would  oe  renaered  useless,  if  the  order  were 
executed,  and  the  effect  being  a  delay  of  the  party 
himself;  but  the  court  would  impose  conditions 
of  the  order,  to  prevent  the  delay  occasioning  ir- 
reparable loss.  Storey  v,  Lennox,  1  Myl.  &  Cr. 
(cH.)  685. 

5.  Upon  a  bill  for  discovery,  whether  an  I.  O. 
U.  was  given  for  money  lent  for  the  purpose  of 
gaming ;  held,  that  the  defendant  was  bound  to 
answer  whether  it  was  so  lent ;  and  mare,  if  such 
an  instrument  be  a  security  within  the  9  Anne,  e. 
14,  and  whether  monev  lent  for  such  purpose  is 
recoverable  at  law.  Wilkinson  v.  L'£augier,  2 
Younge  (ex.  xq.)  366. 

6.  A  bill  not  good  for  equitable  relief  is  not  good 
for  discovery  in  aid  of  the  defence  to  an  action  at 
law.  Jones  v.  Maund,  3  Younge  A  C.  (xx.  x^.^ 
347. 

7.  Upon  an  agreement  for  the  purchase  of  a  se- 
cret in  a  manufacturing  process,  which  was  not  to 
be  divulged,  and  bill  to  be  relieved  from  the  con- 
tract, alleging  fraud,  and  that  defendant  possess- 
ed no  such  secret ;  the  defendant  having  demurred 
to  such  interrogatories  as  sought  a  discovery  of 
the  secret,  and  answered  as  to  the  remainder  of 
the  bill,  denying  fraud,  and  asserting  the  exis- 
tence of  the  secret ;  held,  that  he  was  bound  to 
discover  the  nature  of  it.  Carter  v.  Goetze,  2 
Keene,  (gh.)  581. 

8.  Where  statements  in  the  answer  to  a  bill  of 
discovery  are  suspicious  as  to  parts  not  disclosed, 
and  inconsistent  with  each  other9  the  court  will 


27G2 


[DISCOVERY— DISTRESS] 


sdopt  that  which  it  most  favorable  to  the  plaintiff, 
and  where  the  parts  disoloaed  contradict  the  an- 
■wer  as  to  oilier  parts,  it  will  order  an  inspection 
of  the  latter.  Bowes  r.  Fimie,  3  My],  &.  Cr. 
(CR.)  632. 

9.  Where  C,  the  customer  of  the  platntifSi,  in 
the  country,  accepted  in  payment  for  goods  a  bill 
payable  at  G.  A  Co.'s,  bankers  in  town,  who  were 
agents  of  the  defendant's  baniiers  in  the  country, 
and  he  had  deposited  a  bill  with  them,  and  a  note 
directing  them  to  advise  the  plaintifTs  bill  due 
at  the  bankers  in  town,  which  they  omitted 
to  do,  and  they  received  the  proceeds,  and  ap- 
plied it  to  their  account,  and  the  acceptance 
of  C.  was  dishonored,  and  he  subsequently  be- 
came bankrupt :  the  plaintiffs  having  brought 
an  action  against  the  defendants  for  Ihe  amouiit 
■o  directed  by  C.  to  meet  his  acceptance,  but  C. 
dying,  the  plaintiffs  were  unable  to  proceed  to 
trial,  and  the  defendants  were  about  to  take  the 
cause  down  by  proviso  :  held,  that  it  being  a  pro- 
per question  to  try  whether  the  action  was  main- 
tainable or  not,  the  plaintiffs  were  entitled  to  sus- 
tain a  bill  for  a  discovery,  and  to  stay  the  proceed- 
ings in  the  action  ;  and  upon  such  a  bill,  unless 
the  case  is  very  clear,  the  court  will  not  decide 
upon  the  legal  rights  of  the  party  seeking  the 
discovery.    Thomas  v.  Tyler,  3  Younge  6l  C.  (ex. 

Aod  wee  Attorney ;  Evidence;  Patent, 


DISTRESS. 

1.  Where  a  party  seised  in  fee  granted  a  lease 
to  B.  for  61  years,  and  afterwards  granted  a  lease 
IB  feversion,  to  commence  at  the  expiration  of  the 
iicst  lease ;  held,  that  he  did  not  thereby  part  with 
his  reversion,  so  as  to  preclode  his  right  of  dis- 
training for  rent  under  the  first  lease.  Smith  v. 
Day,  2  Mees.  &  W.  (ex.)  684. 

2.  Where  the  notice  of  distress  for  paving  rates 
stated  the  amount  and  cause  of  distress  truly,  but 
jBJsrecited  the  Local  Act  under  which  made,  and 
jm  action  having  been  brought  was  afterwards 
4iseontiaued ;  held,  that  the  plaintiff'  was  not  pre- 
cluded from  saying  that  he  was  really  acting  un- 
der the  statute  authorizing  the  distress,  and  was 
therefore  entitled  to  treble  costs.  Debney  v.  Cor- 
bet, 5  Dowl.  (p.  c.)  704.  ' 

3.  In  case  for  an  irregular  distress,  held,  that 
the  landlord  not  personally  interfering,  is  not  lia- 
ble for  the  omission  of  the  broker  to  give  a  copy  of 
his  charges  under  57  Greo.  3,  c.  i)3,  s.  6.  Hart  v. 
Xieach,  1  Meea.  &  W.  (ex.)  560;  and  1  Tyr.  ik 
Gr.  1010. 

4.  Where,  in  case  for  an  excessive  distress,  the 
defendant  pleaded  that  the  whole  sum  distrained 
lor  was  due  and  in  arrear,  held,  that  ha  was  not 
preelnded  from  taking  into  the  account  arrears  of 
rest  antecedent  to  a  prior  distress,  although  the 
notice  under  such  prior  distress  stated  it  to  be  for 
rent  due  up  to  a  certain  period,  and  the  notice 
under  the  latter  distress  stated  it  to  be  for  rent 
accrued  since  the  former  distress.  Gambrell  v. 
Falmouth,  Earl  of,  4  Ad.  &  £11.  (k.  b.)  73. 

5.  In  case  for  not  leaving  the  overplus,  after 
aak  of  distzws,  in  the  hanoB  of  the  aherifT,  held 


that  opon  the  2  W.  &  M.  c.  5,  e.  2,  the  overpln 
was  to  be  taken  to  mean  after  satisfying  the  rent 
and  the  reasonable  charges  of  the  distress,  and 
that  in  snch  action  the  plaintiff  might  raise  the 
question  of  the  reasonableness  of  such  charges;, 
whether  accepting  the  balance  and  giving  a  re* 
ceipt  by  the  tenant  to  the  broker,  is  to  be  taken 
as  a  satisfaction,  is  for  the  jnry,  and  whether  or 
not  an  admission  that  such  was  the  real  balance. 
Lyon  V.  Tomkies,  1  Mees.  &  W.  (ex.)  603 ;  and 
1  Tyr.  Sl  Gr.  810. 

6.  Where  the  landlord  was  sued  for  an  irregn- 
lar  distress  and  obtained  a  verdict ;  held,  that  he 
was  not  precluded  from  double  costs  under  11  G. 
2,  c.  19,  s.  21,  by  having  pleaded  specially.  Gnm> 
brell  V.  £arl  of  Fahuouth,  5  Ad.  d^  EIL  (k.  b.) 

4o:l 


7.  Where  the  warrant  of 
overseer  for  not  paying  over  the  ha  Is  nee  in  ha 
hands,  omitted  to  set  out  the  sttmaioiis,  '"■■■^ng 
and  refusal  to  pay,  held  good,  and  the  inagistmtes 
and  officers  executing  it,  held  liable  in  tieepasn. 
Harris  e.  Stuart  and  others,  7  C.  dk  P.  (x.  p.) 
779;  questioning  the  form  in  Barn's  Justice,  ed. 
26. 

8.  Justices  have  jurisdiction  to  inquire  into 
and  adjudicate  on  an  infbrmation  for  fraadnient 
removal,  under  11  Greo.  2,  c.  19,  ■.  4,  notwith- 
standing the  title  to  the  premises  is  in  dispate, 
and  the  rent  has  been  paid  to  one  of  the  claim- 
ants; and  where  the  commitment  for  non-pay- 
ment of  the  penalty  adjudicated,  and  no  sufficient 
distress,  referred  to  the  order  for  payment,  which 
stated  the  value  of  the  goods  removed  to  have 
been  under  50/.,  and  found  the  value  of  the  goods 
removed  to  be  20Z. ;  held,  sufficient,  and  that  the 
justices  were  not  liable  in  trespass ;  whether  the 
removal  is  bona  fide  or  frauaulent,  is  for  their 
determination.  Coster  e.  Wilson,  3  Mees.  A  W. 
(EX.)  411. 

9.  The  collector  of  land-tax  cannot  break  open 
a  house,  without  the  pieaence  of  a  constable,  to 
make  a  distress,  the  provision  overruling  the 
whole  of  sect.  17  of  38  Geo.  3,  c.  5.  Foes  v. 
Raine,  4  Mees.  &  W.  (xx.)  419;  7  Dowl.  (r.  c.) 
53 ;  and  8  C.  &  F.  (v.  p.)  699. 

10.  Distrainers  of  cattle,  damage  feasant,  are 
bound  to  provide  a  proper  pound,  and  held  liable 
for  injury  caused  by  the  state  of  it ;  when  the 
replication  alleged  tnat  the  pound  was  tken  wet, 
and  wholly  unfit,  and  whereby,  dec,  held,  that 
the  issue  raised  expressly  its  state  at  the  time  of 
impounding,  and  not  whether  generally  sufficient. 
Wdder  r.  Speer,  3  Nev.  &  P.  (q.  b.)  536. 

11.  Where,  on  the  expiration  of  the  term,  the 
tenant  quitted,  and  the  new  tenant  entered,  but 
part  of  the  old  tenant's  stock  remained  on  the 
premises ;  held,  that  the  landlord  could  not  dis- 
train, the  mere  fiiet  of  leaving  the  stock,  unac- 
companied by  any  claim,  not  showing  a  continu- 
ance of  possession.  Taylersone.  Peten^n,7Ad. 
dit  £11.  (d.  B.)  110 ;  and  2  Nev.  &  P.  622. 

12.  In  ease  for  wrongfully  refusing  to  permit 
the  plaintiff  to  appraise  goods  distrained,  a  plea 
that  the  goodaweie  taun  for  arraan  of  lent, 


[DISTRESS— ECCLESIASTICAL  COURT] 


2763 


held   an  iMaable  plea,  ai  ffnng  to  the  merili. 
Sealey  v.  Harris,  7  Dowl.  (p.  c.)  197. 

13.  In  trespass  for  seizing  goods  for  highway 
and  poor-rates,  but  no  notice  of  action  given,  the 
defendant  being  entitled  to  it  under  the  ilighway 
ActB ',  held  that  the  action  was  maintainable  in 
respect  of  the  goods  wrongfully  taken  for  the 
poop-rate.  Lament  v.  Southall,  7  Dowl.  (p.  g.) 
469. 

14.  Where  goods  were  seized  (ander  a  warrant 
of  distress,  for  ch^rchrates,  admitted  to  be  irregu- 
lar,) on  the  27th  October,  but  not  sold  until  the 
Ist  and  2d  November,  and  the  action  was  brought 
on  the  3(Hh  January ;  held,  that  as  the  seizure 
was  only  conditional,  if  the  amount  were  not  paid, 
and  the  sobs^uent  sale  the  real  grievance,  the  ac- 
tion was  in  time ;  and  where  the  demand  of  peru- 
sal and  copy  of  the  warrant  required  it  to  be  with- 
in three  days,  although  by  24  Geo.  2,  c.  44,  no 
action  can  be  brought  until  afler  refusal  of  such 
copy,  and  in  six  days  after  demand,  held  that  the 
right  of  action  was  not  affected  thereby.  Collins 
V.  Rose,  5  Mees.  &  W.  (ex.)  194. 


lands  to  be  held  in  dower  were 
no  estate  therein.    Brown  v.  Me 
(CH.)  627. 


pshehtd 
itfa,  2  Keene, 


And  see   Annuity ;  Agent;  Lease;  Replemn; 
Trespau  ;  Friendly  Society, 


DONATIO  CAUSA  MORTIS. 

Where  the  obligee  of  a  bond,  five  days  before 
death,  gave  it  to  a  niece  and  signed  a  memoran- 
dum amoonting  to  an  immediate  and  absolute 
assignment  of  i^  held,  that  in  the  absence  of  evi- 
dence of  how  it  came  into  the  donee's  possession 
and  the  assignment  unconditional,  and  nothing 
importing  its  restoration  if  the  donor  should 
recover,  it  was  not  to  be  deemed  a  donatio  eatua 
mortiSf  and  a  bill  prayinj;  that  the  donor  might 
be  declared  entitled,  dismissed.  Edwards  v. 
Jones,  7  Sim.  (ch.)  325. 


DOWER. 

1.  Where  the  tenant  in  a  writ  of  dower  took 
the  lands  oonveved  bv  the  assignees  of  a  bank- 
rupt, and  which  in  the  deed  were  described  as 
freehold ;  held,    that  he  was  not  estopped  from 

roving  them  to    be  leasehold  only.   Gaunt  v. 

"ainman,  3  Bing.  N.  S.  (c.  p.)  69,  3  Sc.  413. 


W 

2.  Where  testator  devised  the  rents  and  profits 
of  his  freeholds  and  copyholds  in  tmst  for  the 
maintenance  of  his  children,  until  the  youngest 
should  attain  21,  charged  with  an  annuity  to  his 
widow  during  widowhood,  and  he  also  gave  her 
his  furniture,  &c.,  so  long  as  she  should  con- 
tinue his  widow;  held,  Uiat  she  was  not  ex- 
eluded  from  her  dower.  Dowson  v.  Bell,  1  K. 
(cH.)  761 ;  S.  P.  Harrison  v.  Harrison,  1  K.  (ch.) 
766. 

3.  Where  the  husband  assigned  all  the  debts, 
legacies,  and  other  the  estate  and  interest  of  what 
kind  soever  he  might  be  entitled  to  in  right  of  his 
wife ;  held,  that  it  did  not  pass  her  claim  to  dower 
•ot  of  the  estate  of  a  former  husband ',  until  the 

Vol.  IV.  62 


DOWNING  COLLEGE. 

Under  the  charter  and  statutes,  a  clerical 
fellow  held  not  ineligible  to  the  mastership,  if 
otherwise  qualified  :  and  a  party,  intended  to  be 
a  clerical  fellow,  having  been  elected  in  the  room 
of  one  of  the  three  originally  appointed ;  held, 
that  his  election  was  good,  slthongh  the  neriod 
for  filling  up  the  remaining  number  of  the  lellow- 
ships  by  the  crown,  upon  the  completion  of  the 
buildings,  &c.,  had  not  arrived.  Downing  Col- 
lege, in  re,  2  Myl.  A,  Cr.  (ch.)  642. 


DRAMATIC  PERFORMANCE. 

Dramatic  performanees  within  20  miles  of 
London  or  Westminster,  and  not  in  the  latter,  or 
the  place  of  the  crown'a  residence,  cannot  be 
rendered  le(^,  and  a  sessions  licence,  under  26 
Geo.  2  (which  is  confined  to  music  and  dancing), 
held  not  to  apply  to  dramatic  representations,  and 
the  Lord  Chamberlain's  licence  under  10  Qeo.  8, 
c.  28,  can  only  be  granted  within  the  local  situap 
tion  and  limits  prescribed.  Levy  v.  Tates,  3  Nev. 
A  P.  («.  B.)  249. 


EAST  INDIA  DOCK  DUES. 

The  mumber  of  voyages  permitted  to  and  firom 
the  East  Indies,  being  by  43  Geo.  3,  c.  63,  s.  2, 
extended  beyond  six,  the  number,  according  to 
the  nrage  of  the  trade,  at  the  passing  the  43d  Geo. 
3,  c.  12d,  entitling  the  company  to  a  return  of  dues 
in  case  of  any  ship  '*  having  completed  her  reg- 
ular number  of  voyages ;"  lield,  that  it  applied 
only  to  the  last  voyage  of  ships  taken  up  for  more 
than  six  voyages.  East  India  Company  v.  Baker, 
3  Bing.  N.  S.  (c.  r.)  860. 


ECCLESIASTICAL  COURT. 

1.  No  appeal  lies  before  final  sentence ;  where 
therefore  a  cause  had  been  set  down  in  the  Pre- 
rogative Court  for  sentence  on  the  second  as- 
signation, held,  that  it  was  not  competent  to  either 
party  to  interpose  an  appeal ',  whatever  is  done 
after  the  cause  is  concluded  and  comes  on  for 
hearing,  until  the  final  judgment  is  pronounced, 
is  to  be  deemed  part  of  the  hearing,  and  as  one 
continuous  act.  Barry  v.  Butlin,  1  Moore  (p.  c.) 
96. 

2.  In  criminal  suits,  the  party  prosecuting 
is  entitled  to  appeal,  as  well  as  the  defendant. 
Millar  o.  Palmer,  1  Curt,  (coks.)  550. 

3.  The  credit  of  a  witness  cannot  be  impeached 
by  articles  entirely  foreign  to  the  issue  and  in 


3764 


[ECCLESIASTICAL  COURT— EJECTMENT] 


eontradMtion  thereto ;  and  such  therefore  lejeeted, 
and  judgment  affirmed  on  appeal.  Trevanion  v. 
Trevanioji,  1  Curt,  (arches)  406.  486 ;  and  re- 
▼iewing)[the  caaes. 

And  see  Marriage. 


ECCLEIASTXCAL  PERSONS. 

1.  Where  an  ofifer  being  made  for  the  renewal 
of  a  lease,  the  dean  and  chapter,  at  a  meeting, 
a^eed  to  accept  it,  and  an  entry  was  made  and 
signed  bj  a  majority  of  the  members,  the  fine  to 
be  paid  by  a  day  stated  ;  held,  that  on  a  contract 
entered  into  with  a  fluctuating  body,  time  was 
of  the  essence  of  the  contract,  and  the  money 
not  being  paid  by  the  time  stipulated,  bill  for  a 
specific  performance  dismissed :  held  also,  that 
such  entry  did  not  constitute  an  agreement  bind- 
iziff  upon  the  corporation.  Carter  v.  Dean,  &c. 
of  Bly,  7  Sim.  (ch.)  211. 

2.  In  assumpsit  by  a  curate  against  his  rector 
for  salary,  &c.,  held,  that  the  57  Geo.  3,  c.  99,  s. 
53,  (givmff  summary  jurisdiction  to  the  bishop) 
was  properly  pleadable  in  bar,  and  not  to  the  ju- 
risdiction; the  jurisdiction  of  the  common  law 
oourtfl  being  entire^  taken  awa^  (a.  74) ;  and 
that  it  was  not  necessary  to  specif  the  nature  of 
the  disputes,  but  only  that  they  existed.  West 
V.  Turner,    1  Nev.  &,  P.  (k.  b.)  612. 

And  see  Parker  v.  Eldmg,  1  East,  352 ;  3  T. 
R.  452 ;  Metcalfe  v.  Archbishop  of  York,  6  Sim. 
224  ;  affirmed  by  Lord  Chancellor,  1  Myl.  &  Cr. 
(CH.)  547. 

3.  The  trade  of  a  banker  held,  within  the 
meaning  of  57  Geo.  3,  c.  99,  and  a  plea  that 
spiritual  persons  holding  benefices  were  partners 
in  the  banking  company,  (the  plaintiffs  being  the 
indorsers  of  tlie  bill,)  and  the  promise  laid  in  the 
declaration  void  in  law  as  ag^ainst  the  statute,  held 
good.    Hall  V.  Franklin,  3  Mees.  &  W.  (ex.)  259. 

4.  Contracts  by  banking  firms  to  be  valid,  al- 
though any  spiritual  persons  may  be  partners. 
By  1  &;  2  Viet.  c.  10. 

5.  On  articles  against  a  clergyman  for  brawl- 
ing and  disrespecuul  conduct  towards  his  arch- 
deaoon,  at  a  visitation,  a  part  only  being  proved, 
the  partv  monished,  and  condemned  in  It.  expen- 
ses ;  held  also,  that  a  visitation  is  not  to  be  con- 
sidered in  the  light  of  a  vestry,  as  allowing  great- 
er latitude  of  expression,  and  that  the  Ecclesias- 
tical Court  has  iusrisdiction  to  protect  the  sanc- 
tity of  the  ahurcli,  not  only  under  9  Edw.  6,  c. 
4,  but  also  under  the  general  law ;  held  also,  that 
letters  of  request  from  tlic  commissary  were 
properly  addressed  in  the  first  instance  to  the  Ar- 
ches Court,  and  not  to  that  of  the  chancellor  of 
the  diocese.  Taylor  v.  Morley,  1  Curt,  (arches) 
470. 

6.  Where  after  satisfying  a  sequestration,  a 
surplus  renained.  which  would  have  been  pay- 
able to  the  rector  since  deceased,  and  who  had 
been  discharged  under  the  Insolvent  Act ;  held, 
that  the  succeeding  inciunbent  could  only  come 


in  as  a  creditor  fat  any  dilapidationa,  and  titat 
it  could  only  be  paid  to  the  aasignee.  Little 
Hallingbuxy,  in  re,  1  Cnrt.  (coirs.)  557. 

7.  Apportionment  of  spiritual  duties  in  pariafacs 
having  more  than  one  cure ;  by  2  ^3  Vict,  c 
30. 

And  aee  Anmaty  ;  Lease* 


EJECTMENT. 

[A]  Where  ^iaiiitaihable-^cohsset  mjui — 

REGOGfflZAHCBS   Iff. 

[B]  Declaration — notice — sertics  op. 

[C]   JUDGMEKT— costs   Iff. 


[A]  Where   MAiffTAiflABLE— -coitseht    rule 

— ^RECOGNIZAffCES  Iff. 

1.  Where  a  lease  contained  a  covenant  Ibr  repair, 
and  that  upon  notice  of  defects  the  lessor  migbt 
within  two  months  enter  and  do  repairs,  and  if 
the  expenses  not  paid  by  the  lessee,  that  the  lessor 
might  distrain  for  them ;  there  was  also  a  power 
of  re-entry  upon  any  breach  of  covenant ;  the 
lessor  afterwards  gave  notice  that  he  should  do 
certain  repairs  at  the  end  of  six  months  and 
charge  the  lessee  with  the  expense,  and  upon 
the  six  months  having  elapsed,  the  lessor  gav^ 
notice  to  the  lessee  that  it  he  did  not  comply 
with  certain  terms  within  three  days  be  should 
hold  him  to  the  covenants ',  held  that  upon  the 
lessee  not  complying,  the  lessor  could  not  main- 
tain ejectment  for  the  forfeiture ;  having  elected 
the  remedy  for  non-repair,  the  general  power  to 
re-enter  did  not  revive  by  the  three  days'  notice. 
Doe  d.  Rutzen  v.  Lewis,  5  Ad.  &,  £11.  (k.  b.)  277. 

2.  Where  the  reversion  descends  to  coparcenerB) 
one  alone  cannot  mitintain  ejectment  for  breacii 
of  covenant,  lb. 

3.  Where  from  payments  of  interest  on  the 
mortgage  money,  the  possession  of  the  mtMrtgagee 
was  not  adverse  within  twenty  years  befoie  the 
passing  of  3  dt  4  Will.  4,  c.  27,  and  the  jury 
nad  found  that  the  mortgage  had  not  been  paid ; 
on  ejectment  by  the  heir  of  the  mortgagee, 
brought  within  five  years  after  the  Act,  held  uiat  he 
was  not  barred  by  s.  2.  Doe  d.  Jones  v.  Williams, 
5  Ad.  &,  EU.  (K.  b)  291. 

4.  In  ejectment  by  mortgagor  against  the  widoir 
of  tlie  mortgagee  who  died  in  possession  of  the 
premises,  which  were  copyhold,  the  only  evidence 
of  the  title  of  the  plaintiff  being  by  a  common 
conveyance  of  lease  and  release,  and  there  had 
been  no  surrender ;  held,  that  having  an  equitable 
interest  only,  he  cuuld  not  maintain  the  action  of 
ejectment.  Doe  v.  Webber,  3  BUig.  N.  S.  (c.  r.) 
922. 

5.  Where  the  premises  had  been  purchased  by 
F.  in  the  defendant's  name,  and  who  had  been 
let  in   Id  defend  under  the  commjb  oonaant 


(EJECTMENT] 


2765 


rale,  bat  who^  it  was  sworn  and  not  denied,  was 
a  pauper ;  held,  that  the  court  bad  power  to  in- 
terpoee  if  it  appeared  that  the  consent  rule  had 
been  the  means  of  committing  a  fraud,  and  that 
the  lessors  of  plaintiff  were  not  prevented  by  it 
from  applying  to  the  court  bj  an  order  for  delive- 
ry of  a  particular  of  the  breaches  for  which 
the  forfeiture  was  incurred,  with  a  stay  of  proceed- 
ings ;  but  that  it  being  positivelj  sworn  that  F. 
was  really  acting  on  the  hehalf  and  as  agent  for 
the  defendant,  it  could  not  compel  him  to  be  a 
party  to  the  consent  rule.  Doe  r.  Jordan,  4  So. 
(c.  p  J  370. 

6.  As  the  rule  for  bail  in  ejectment  can  only  be 
made  on  production  of  the  agreement  or  counter- 
part thereof,  unless  the  instrument  be  properly 
stamped  at  the  time,  the  foundation  of  the  rule 
fails,  and  it  is  not  enough  that  it  is  stamped  l>efore 
cause  shown.  Doe  d.  Caulfield  v.  Roe,  3  Bing. 
N.  S.  (c.  p.)  339;  and  5  Dowl.  (p.  c.)  365. 

7.  On  an  application  under  1  Geo.  4,  c.  87,  it  is 
immaterial  that  the  lessor  of  the  plaintiff  was  origi- 
nal lessee,  and  the  defendant  his  sub-lessee.  Doe 
d.  Watte  V.  Roe,  5  Dowl.  (p.  o.)  213. 

8.  The  affidavit  for  the  rule  under  1  Geo.  4,  c. 
87,  s.  1,  must  slate  the  name  of  the  lessor  in  the 
title.    Doe  d.  Watson  «.  Roe,  5  Dowl.  (p.  c.)  389. 

9.  Where  the  widow  continued  to  occupy  for 
above  twenty  years  premises  which  her  husband 
had  enjoyed  for  seventeen  years ;  held,  that  the 
heir  was  barred,  unless  the  jury  were  satisfied 
that  the  mother  occupied  by  permission  and  not 
adversely,  and  her  declarations  as  to  repairs  were 
admissible  to  show  that  her  possession  was  not 
adverse ;  held,  also,  that  the  father  dying  seised, 
his  occupation  of  an  encroachment  would  not 

grevent  the  descent  to  his  heir.    Doe  v.  Jauncey, 
C.  «fc  P.  (n.  p.)  99. 

10.  Where  the  directors  of  a  company,  before 
they  were  enabled  to  sell  or  demise  lands  con- 
veyed to  them,  granted  a  lease  with  power  of  re- 
entry on  breaches  of  covenant,  and  afterwards  by 
an  Act  the  company  was  incorporated,  and  all 
ooBtracte  previously  entered  into  were  declared 
valid  and  eflfeetual  as  if  entered  into  with  the  in- 
eofporated  company ;  held,  that  they  might  sup- 
port ejectment  on  such  clause  of  re-entry.  Doe 
9.  Knebell,  3M.  A  Rob.  (h.  p.)  66. 

11.  In  ejectment  for  an  undivided  sixth  of 
premises  taken  by  some  of  the  defendants,  and 
converted  into  a  railway,  the  latter,  with  the 
other  tenante  in  common,  having  entered  into 
the  consent-rule,  and  defended  as  landlords ;  held, 
that  they  were  not  thereby  precluded  fromshow- 
ui|f  a  sub-tenancy  in  others  not  properly  deter- 
mined, as  showing  want  of  legal  title  to  the  pos- 
session in  the  lessor  of  the  plaintiff;  and  s&nb.^ 
the  purposes  to  which  the  land  had  been  con- 
verted by  the  company  e&ctually  excluding  the 
eo-tenante,  would  amount  to  an  actual  ouster. 
Doe  V.  Horn  and  others,  3  Mees.  &  W.  (ex.) 
333. 


out  of  possession  by  his  landlord,  havilig  no  in- 
terest in  the  land,  cannot  maintain  ejectment,  al- 
though he  may  trespass.  Doe  v.  Murrell,  6  C. 
&  P.  (!f.  p.)  l3o. 

13.  Where  the  tenancy  is  only  established  by 
payment  of  rent,  and  no  demise  is  shown,  or 
that  the  defendant  was  let  into  possession  by  the 
plaintiff,  it  is  competent  to  the  defendant  to  ex- 
plain the  payment,  and  show  on  whose  behalf  it 
was  received.  Doe  v.  Francis,  2  M.  ^  Rob.  (v. 
p.)  57. 

14.  On  argument  of  cross  bills  of  exceptions, 
held  that  where  a  party  had  not  been  heard  of  for 
seven  years,  no  rule  could  be  laid  down  that  the 
death  snould  be  presumed  to  have  taken  place  on 
the  last  day  of  the  seven  years ;  held  also,  that 
since  3  &  4  Will.  4,  the  doctrine  of  adverse  pos- 
session, except  in  cases  falling  within  s.  15,  and 
of  non-adverse  possession,  is  done  away  with.: 
(he  court  deciding  the  direction  of  the  Judge  tft 
the  trial  to  have  been  correct,  and  the  verdict 
wrongly  entered  for  the  lessor  of  plaintiff,  a  ve- 
nirB  de  novo  awarded.  Doe  d.  Wright  v.  Nepean, 
3  Mees.  &  W.  (bx.)  804.  S.  C.  5  B.  &  Ad.  86  ; 
2  Nev.  A  M.  219.    An.  Dig.  1834. 

15.  Where  the  lessor  had  demised  mining 
premises,  &c.  to  a  company,  of  which  he  was 
also  a  partner,  and  who  had  paid  rent  to  him ; 
held,  that  the  company  were  estopped  from  disput- 
ing his  title,  althougn  in  an  answer  to  a  bill  in 
Chancery,  which  was  in  evidence,  he  had  admit- 
ted that  he  had  no  legal  title  ;  and  that  his  being 
a  partner  was  no  objection  to  his  maintaining  the 
ejectment.  Francis  v.  Doe,  4  Mees.  6l  W.  (kx.  c.) 
331. 

16.  Where  the  jury  found  that  the  father  of  the 
lessor  of  plaintiff,  his  son  and  heir,  had  been  in 
possession  for  upwards  of  20  years  before  his 
death,  as  tenant  at  will  to  the  grandfather  of  the 
lessor  of  plaintiff;  held,  that  no  right  descended, 
under  3  &  4  Will.  4,  c.  27,  s.  27,  upon  the  heir  to 
enable  him  to  maintain  ejectment  even  against  a 
stranger.  Doe  v.  Thompson,  2  Nev.  d&  P.  (q.  b.) 
656. 

And  see  S.  C.  1  Nev.  A  P.  215. 

17.  Where  two  parties,  H.  and  W.,  occupied  a 
cottage  divided,  from  1808  till  1821  (as  servante 
of  C,  and  without  paying  any  rent),  a  year  or 
two  before  whose  death  H.  having  taken  L.  to 
live  with  him,  by  will  devised  the  moiety  occu- 
pied by  him  to  W.,  and  L.  after  the  death  of  H. 
continued  in  possession :  upon  ejectment  by  W., 
the  defendante  oominff  in  to  derand  as  landlords 
of  L.,  held,  that  as  L.  came  in  under  H.,  who 
might  have  maintained  ejectment  against  him, 
W.,  who  claimed  under  H.,  had  a  sufficient  ^rtma 
fade  title,  and  that  as  the  defendante  eame  in  to 
defend  L.'s  possession,  the  latter  was  not  a  com- 
petent witness  to  dispute  the  title  either  of  H.  or 
W.  Doe  V,  Birchmore,  1  Perr.  A  Day.  (•.  b.) 
448. 


IS.  A  mere  tnant  at  snffinraiiee  iMing  tamed       18.  To  a  bill  to  restrain  an  ejeetment  the  tewMit 


arm 


[EJECTMENT] 


iDiMiC  b0  made  a  iwrtj,  except  where  the  landlord 
has  been  admitted  to  defend  the  action.  Poole  v» 
Marah,  8  Sim.  (ch.)  528. 

IS).  Where,  on  a  former  ejectment  by  the  de- 
fendant affainat  the  plaintiff,  who  haa  become 
tenant  under  a  part^  tenant  in  tail,  and  aince  de- 
ceaaed,  the  latter  foiled  in  hia  defence,  being  held 
estopped  fVom  contesting  the  title  of  his  land- 
lord, and  he  afterwards  brought  an  ejectment 
to  recover  a  different  part  of  the  estate,  but 
held  under  the  same  title ;  held,  that  it  was 
within  the  mle  that  the  coeta  of  the  former  eject- 
ment most  be  first  paid  before  proceeding  with 
hia  own  cause.  Doe  v.  Shadwell,  7  Dowl.  (p. 
c.)627. 

90.  Where  the  attorney  for  the  tenant  waa  alao 
the  attesting  witness  to  the  lease,  held  that  he 
might  be  compelled  to  make  the  affidavit  neees- 
aarj  to  found  the  application  for  the  landlord's 
mle  under  1  Geo.  4,  c.  87,  s.  1.  Doe  d.  Avery 
V.  Roe,  6  Dowl.  (p.  c.)  519. 

And  see  Avuwd;  Landlord  and  Tenant;  lim- 
itmtioni  Stmt,  of;  Marigage. 


[B]  DSCLARATION-T-HOTICV — lERVlCE   OP. 


1.  Where  the  declaration  was  by  mistake  of  a 
term  in  the  wrong  ^ear  of  the  King,  but  the  no- 
tice right,  held  sufficient.     Doe  d.  Phillips  r.  Roe, 

4  So.  (c.  p.)  359. 

3.  Upon  a  declaration  containing  joint  and  aev- 
eral  demises,  on  motion  for  judgment  as  on  the 
several  demise  of  all  the  Jessors,  it  is  sufficient  if 
the  names  of  all  are  in  the  title,  without  showing 
which  are  Joint  and  which  sevenl.  Doe  d.  Barles 
V.  Roe,  5  Dowl.  (p.  c.)  447. 

3.  The  Court  allowed  the  names  of  certain  les- 
sors to  be  struck  out,  the  tenants  appearing  to 
claim  under  them,  and  the  action  brought  to  pro- 
tect their  interests  against  the  other  lessors,  al- 
though alleged  to  to  merely  trustees,  and  in- 
demnity offered.  Doe  v.  Cliflon,  4  Ad.  A  £11. 
(K.  B.)  609. 

4.  Declaration,  entitled  6  Will.  4,  instead  of  7 
Will.  4,  held  irregular.    Doe  d.  Oowland  v.  Roe, 

5  Dowl.  (p.  c.)  273. 

5.  fiut  where  intituled  8th,  instead  of  7th«  and 
the  tenant  must  be  aware  from  the  date  of  the  no- 
tice, and  could  not  be  misled,  the  mle  granted. 
Doe  d.  Wills  v.  Roe,  lb.  380. 

6.  In  etectment  on  demises  of  A.  and  B  ,  the 
plaintiff  having  tendered  evidence  in  support  of 
the  title  uf  both,  and  the  defendant  having  also  of- 
fered evidence  admissible  only  against  the  title  of 
one  ;  held,  that  the  plaintiff  might  abandon  that 
demise,  and  that  such  evidence  was  not  admissi- 
ble Co  impeach  the  title  of  the  other.  Doe  v. 
Wainwright,  5  Ad.  &  Ell.  (k.  b.)  520. 

7»  The  title  of  the  declaration  is  considered  im- 
material, and  a  mistake  is  immaterial  if  it  conveys 
sufficient  information  to  the  tenant  Doe  d. 
Evans  v.  Roe,  5  Dowl.  (p.  c.)  508. 

8.  Where  the  declaration  was  regular  but  had 


two  noticea  annexed,  one  to  appaar  and  the  other 
to  enter  into  reoogniaanees,  pursuant  to  the  stat- 
ute ;  held,  that  the  latter  might  be  treated  as  sur- 
plusage. Doe  d.  Roberts  e.  R^,  5  Dowl.(p.  c.)508. 

9.  Where  the  notice  required  the  defendant  to 
appear,  by  mistake,  in  Easter  Term,  instead  of 
Trinity  Term,  but  the  tenant  could  not  miatake ; 
held  sufficient  for  a  rule  nist.  Doe  d.  Watts  v. 
Roe,  5  DowL  (p.  c.)  149. 

10.  Notice  to  appear  in  **  next  Eaater  Term," 
the  affidavit  showing  that  the  explanation  to  the 
tenant  was  to  require  him  to  appear  in  Trinity ; 
held  sufficient  for  a  rule  nisi.  Doe  d.  Symes  v. 
Roe,  5  Dowl.  (p.  c.)  6b7. 

11.  A  miatake  in  the  name  of  one  tenant  doee 
not  aff?ct  the  validity  of  the  service  on  another. 
Doe  d.  Meaaer  v.  Roe, 5  Dowl.  (p.  c.)  716. 

12.  The  affidavit  must  swear  to  the  service  on 
the  tenant,  and  mere  facts  tending  to  show  the 
party  to  be  such  is  insufficient.  Doe  d.  Jones  v. 
Roe,  5  Dowl.  (p.  c.)  226. 

13.  Service  on  a  party  in  possession  admitting 
hia  name  to  be  that  of  the  tenant,  although  he  de- 
nied that  he  was  so,  held  sufficient  Doe  d.  Hun- 
ter V.  Roe,  5  Dowl.  (p.  c.)  553. 

14.  In  ejectment  against  overseers  in  poeseaskm, 
service  on  one  held  insufficient  to  fbund  a  judg- 
ment against  alL  Doe  d.  Weeka  v.  Roe,  6  Dowl. 
(p.  c.)  405. 

15.  Service  on  one  being  a  aorviving  joiatrten- 
ant,  held  to  entitle  to  judgment  against  him  only. 
Doe  d.  Uewson  v.  Roe,  5  i)owl.  (p.  c.)  434. 

16.  Where  there  were  two  lenanta,  service  of 
the  declaration  directed  to  one  on  the  wife  of  the 
other,  on  the  premiaea,  held  inanffioient    Doe  d. 
Smith  V.  Roe,  5  Dowl.  (p.  c.)  254. 

17.  Where  the  affidavits  sUted  that  the  depo- 
nent had  **  dtiivered  the  declaration  to  the  wife  on 
the  premises,"  instead  of  served,  held  sufficient 
Doe  d.  Jenkins  v.  Roe,  5  Dowl.  (p.  c.)  155. 

18.  Service  by  delivery  to  a  servant  of  the  ten- 
ant in  possession,  lefl  in  the  care  of  the  premises, 
held  insufficient,  the  affidavit  not  going  on  to  show 
that  the  serYant  had  authority  to  receive  papers. 
Doc  d.  Read  v.  Roe,  1  Mees.  A  W.  (ex.)  6& ;  I 
Tyr.  &  Gr.  846 ;  and  5  Dowl.  (p.  c.)  85. 

19.  Service  on  a  servant  of  tlie  tenant  on  the 

K remises,  without  any  acknowledgment  of  his 
aving  received  it  before  the  term,  held  insuffi- 
cient even  for  a  mle  nut.  Doe  d.  Lord  Dinor- 
ben  V.  Roe,  2  Mees.  &.  W.  (ex.)  374. 

20.  Service  on  part  of  the  premises  on  the  clerk 
of  an  incorporated  company,  held  aaffieient  for  a 
rule  nUiy  although  not  empowered  to  be  sued  by 
their  clerk.  Doe  d.  Roes  v.  Roc,  5  Dowl.  (p.  c.) 
147. 

21.  Where  the  service  had  been  by  potting  un- 
der the  door,  the  tenant  shutting  himself  in  and 
refusing  to  open  the  door,  held  aufficient  for  a  role 
nisi.  Doe  d.  Lord  Summera  v.  Roe,  5  Dowl.  (p. 
c.)  652. 

22.  So,  where  the  tenant  waa  abroad,  and  it 


[EJECTMENT] 


2767 


wfM  anoertein  when  he  would  retarn,  service  on 
a  servant  on  the  premiees  held  sufficient  for  a  rule 
nisi.    Doe  d.  Mather  v.  Roe,  5  Oowl.  (r.  c.)  553. 

23.  The  acknowledgment  bj  the  tenant  of  the 
declaration  havioff  come  to  his  hands  after  the 
coininencement  of  the  term,  is  not  sufficient  for  a 
rule  nisi  ;  nor  of  the  wife  having  received  it  the 
day  before.  Doe  d.  Finch  v.  Roe,  5  Dowl.  (f.  c.) 
825. 

24.  Where  the  service  was  only  sworu  to  be  on 
the  person  last  in  possession,  held  insufficient. 
Doe  d.  Parker,  5  Dowl.  (p.  c.j  720. 

25.  Where  the  service  is  quite  regular,  no  ap- 
plication should  be  made  to  the  court.  Doe  d. 
Welchon  «.  Roe,  5  Dowl.  fp.  c.)  271. 

26.  It  is  no  objection  that  no  attorney's  name 
is  introduced  into  the  declaration.  Doe  d.  Simp- 
Bon  V.  Roe,  6  Dowl.  (p.  c.)  469. 

27.  Where  the  lands  were  stated  in  the  declara- 
tion only  as  **  in  the  coonty  of  S."  held  suffi- 
cient ;  Littledale,  J.  dub.  Doe  v.  Gunning,  2  Nev. 
&P.(k.b.)260. 

28.  Where  the  notice  at  the  foot  was  to  appear 
in  the  King*s  Bench,  which  it  was  at  the  time  of 
serving  the  declaration;  held,  that  it  was  not 
affi^cted  by  the  demise  of  the  crown,  l^  which  it 
Decame  the  Qu0en*s  Bench.  Doe  d.  Davies  v. 
Roe,  6  Dowl.  (p.  c.)  36. 

29.  In  ejectment,  the  plea,  with  the  consent- 
rale,  to  be  delivered  in  likie  manner  as  other  pleas, 
the  defendant's  appearance  being  first  entered . 
Reg.  Gen.  3  Nev.  <Si.  P.  (<i.  n.) ;  2  &  4  Bing.  N  . 
S.(c.p.)365. 

30.  Where  the  day  on  which  the  service  was 
made,  was  by  1  Will.  4,  c.  3,  s.  3,  part  of  Easter 
Term;  held,  not  safficient  to  entitle  the  plaintiff 
to  judgment  against  the  casual  ejector  as  of  that 
term.  Doe  d.  Frodsham  v.  Roe,  6  Dowl.  (p.  c.) 
479.  *  \       J 

31.  Where  in  a  case  of  four  tenants,  lessees  of 
adjoining  houses,  service  had  been  on  three  per- 
sonally, but  the  fourth  having  left  the  premises, 
the  service  was  by  affixing  to  the  door,  the  court 
granted  the  rule  Tim  for  judgment  against  the 
casual  ejector  to  be  served  in  the  same  way,  al- 
though the  landlord  might  have  proceeded  as  on 
a  vacant  possession.  Doe  d.  H  indie  v.  Roe,  3 
Mees.  &  W.  (k.)  279 ;  and  6  Dowl.  (p.  c.)  393. 

32.  Where  there  were  several  tenants,  and  each 
was  rightly  named  in  his  own  notice,  biit  there 
were  slight  mistakes  in  the  copies  served  on  the 
others;  it  being  sworn  that  the  same  persons 
were  referred  to,  held  sufficient.  Doe  d.  Peach  v. 
Roe,  6  Dowl.  (p.  c.)  68. 

33.  Service  on  one  of  several  joint-tenants 
held  sufficient.  Doe  d.  Clothier  v.  Roe,  6  Dowl. 
(p.  c.)  291. 

34.  Service  on  a  servant  of  the  tenant  in  pos- 
session of  a  dose,  ^  who  on  a  second  attempt  to 
serve  it  at  the  residence,  gave  contradictory  an- 
swers, held  sufficient  for  a  rule  nisi,  and  after- 
wards made  absolute  on  service  of  the  rule  on 
the  same  party  in  the  yard  of  the  dwelling-house 


adjoining  the  close.    Doe  d.  Wright  v.  Roe,  6 
Dowl.  (p.  c.)  456. 

35.  So  service  on  the  wife,  at  the  dwelling- 
house  of  the  tenant  in  possession  of  stables.  Doe 
d.  Graeff  v.  Roe,  6  Dowl.  (p.  c.)  456. 

36.  Service  on  the  messenger  in  possession  of 
the  premises,  and  on  the  official  assignee,  the 
tenant  being  bankrupt,  held  sufficient.  Doe  d. 
Baring  V.  Roe,  6  Dowl.  (p.  c.)  456. 

37.  Service  on  the  wife,  where  not  on  the 
premises,  nor  shown  to  be  living  with  her  hus- 
band, held  insufficient.  Doe  d.  Mingay  v.  Roe, 
6  Dowl.  (p.  c.)  182. 

38.  Service  on  the  daughter,  the  tenant  being 
in  a  lunatic  asylum,  held  insufficient.  Doe  d. 
Brown  o.  Roe,  6  Dowl.  (p.  c.)  270. 

39.  The  affidavit  for  calling  on  the  tenant  to 
enter  into  the  recognizance,  £.c.  under  1  Geo.  4, 
c.  87,  must  allege  that  a  regular  notice  to  quit 
has  been  given.  Doe  r.  Boast,  7  Dowl.  (p.  c.) 
487. 

40.  Where  the  affidavit  of  service  was  entitled, 
'*  Doe  on  the  demise  of  C",  there  being  several 
demises,  held  bad.  Doe  d.  Cousins  v.  Roe,  4 
Mees.  ^iL  W.  (ex.)  68 ;  and  7  Dowl.  (p.  c;  53. 

41.  Where  the  notice  served  required  the  defend-^ 
ant,  according  to  the  statute,  to  appear  in  Trinity 
Term  then  next  following,  and  not  on  the  first 
day  of  the  term,  held  bad,  and  that  the  statute 
puts  the  course  of  notices  under  1  Geo.  4,  c.  87,. 
s.  1,  on  the  same  footing :  sembley  if  the  agreement 
annexed  were  not  duly  stamped  at  the  time,  there 
would  be  no  sufficient  materials  to  ground  the 
motion.  Doe  d.  Holder  v.  Rush  worth,  4  Mees.. 
^k  W.  (IX.)  75 ;  and  6  Dowl.  (p.  c.)  712. 

42.  Where  it  was  sworn  that,  believing  the- 

5 arty  at  home,  the  part^  serving  got  up  to  a  win* 
ow  and  read  and  afnxed  the  copy  on  the  door, 
and  it  was  sworn  that    the  tenant  was  keeping' 
out  of  the  way  to  avoid  service,  a  rule  nisi  grant- 
ed.   Doe  d.  Colson  v.  Roe,  6  Dowl.  (p.  c^  765. 

43.  In  ejectment,  to  recover  possession  of  a  dis> 
senting  chapel,  service  on  the  surviving  lessees 
and  the  sextoness,  held  suffioient  Doe  d.  Kir^ 
schner  «.  Roe,  7  Dowl.  (p.  r.)  97. 

44.  So,  where  the  tenant  in  possession*  was: 
abroad,  service  on  the  party  who  had  the  keys  or 
the  chapel,  or  the  wife  of  the  tenant  and  his  ser> 
vant,  a  rule  absolute  for  judgment  in  the  first  in^ 
stance.  Doe  d.  Dickins  v.  Roe,  7  Dowl.  {p.  c.) 
121.  ^        ' 

45.  In  order  to  make  service  on  the  son  good,, 
it  must  be  shown  that  he  resides  with  his  father. 
Doe  d.  Emerson  «.  Roe,  6  Dowl.  (p.  c.)  736.. 

46.  But  where  served  on  the  son  on  the  prem- 
ises, and  he  afterwards  stated  that  his  father  had 
received,  rule  nisi  granted.  Doe  d.  Timmins  v. 
Roe,  lb.  765. 

47.  Service  on  the  wife  at  the  dwelling  of  the 
tenant  (not  the  premises  in  question),  if  it  ap- 
^ar  that  she  is  living  with  her  bnslwnd  at  the 

1  time,  is  sufficient    Doe  d.  BouUott  t?.  Roe.  7 
Dowl.  (p.  c.)  463.  ' 


2768 


[EJECTMENT] 


48.  Where,  afler  service  on  the  daughter  of 
the  tenant,  at  his  residence,  he  aflerwardi  called 
on  the  attorney  and  taid  the  time  was  coming 
when  something  must  be  done ;  held  sufficient 
for  the  rule  for  judgment.  Doe  d.  Agar  v.  Roe, 
6  Dowl.  (p.  c.)  &4. 

49.  Where  the  affidavit  only  stated  that  the 
deponent  personally  served  A.  B.,  &c.,the  tenants 
in  possession,  and  not  that  each  was  personally 
served,  held  insufficient.  Doe  d.  Levi  v.  Roe,  7 
Dowl.  (P.  c.)  103. 

50.  Personal  service  on  the  tenant,  although 
residing  abroad,  held  sufficient.  Doe  v,  Wood- 
roffe,  7  Dowl.  (p.  c.)  4JM. 


[C]  Judgment — costs  in. 

1.  Where  the  declaration  contained  counts  on 
two  demises,  on  the  first  of  which  found  for  the 
plaintiiF,  the  plaintiff,  with  leave,  took  out  imme- 
diate execution ;  held,  that  he  was  not  thereby 
precluded  from  moving  to  enter  a  verdict  on  the 
second  count,  for  which  liberty  had  been  eiven. 
Doe  d.  Bank  of  England  v.  Chambers,  4  Ad.  & 
£11.  (K.  B.)  410. 

2.  rio  appearance  need  be  entered  for  the  cas- 
ual ejector  previous  to  signing  judgment  by  de- 
fault against  him,  and  the  costs  of  doing  so  will 
not  be  allowed.  Doe  d.  Morgan  v.  Roe,  3  Mees. 
4t  W.  (xz.)  423;  and  5  DowL  (p.  c.)  605. 

3.  In  a  country  cause,  no  application  need  be 
made  to  sign  judgment  in  a  term  subsequent  to  that 
in  which  the  tenant  is  required  to  appear.  Doe  d. 
Wiggs  V.  Roe,  5  Dowl.  (r,  c.)  662. 

4.  Where  the  lessor  of  plaintiff*  had  been  non- 
suited for  want  of  defendant's  appearing  at  the 
trial  to  confess,  &.e. ;  held,  that  a  mortgagee  of 
the  defendant,  an  insolvent,  not  having  come  in 
to  defend  the  action^  could  not  oppose  we  plain- 
tiff's application  to  issue  execution.  Doe  d.  Mar- 

uis  ot  Westminster  v,  Suffield,  5  Dowl.  (p.  c.) 


6.  Where  after  two  verdicts  obtained  in  eject- 
ment bv  the  father  of  the  lessor,  but  in  a  third 
action  the  defendants  succeeded  upon  the  same 
title  and  taxed  the  costs,  which  had  never  been 
demanded  nor  paid,  and  the  son,  afler  his  Other's 
death,  commenoed  another  action  against  the 
same  defendants;  held,  that  they  were  within 
the  ordinary  rale,  and  entitled  to  a  sta^  of  pro- 
ceedings until  the  former  costs  were  paid.  Doe 
d.  Rees  «.  Thomas,  4  Ad.  &,  Ell.  (k.  b.)  348. 

6.  Where  no  cause  is  shown  against  making  a 
rule  nisi  absolute,  the  affidavit  of  service  on  a 
person  at  the  dwelling-house,  who  afterwards 
stated  that  it  had  been  delivered,  must  go  on  to 
allege  that  the  deponent  believes  such  statement 
to  be  true.  Doe  d.  Hungate  v.  Roe,  4  Ad.  &>  £11. 
(k.  b.)  83,  n. 

7.  Where  the  defendant  never  appeared,  bat 
the  tenant  obtained  an  order  for  a  particalar  of 
the  premises  sought  to  be  recovered,  and  also  an 
order  made  by  consent  that  the  defendant  should 
have  ten  days'  time  to  plead  after  its  delivery, 


notice  of  any  step  bein£  taken,  and  judgment 
having  been  signed  without,  it  was  irregulix. 
Doe  d,  Vernon  v.  Roe,  2  Nev.  &  P.  (k.  b.)  237. 

8.  Where  the  lessor  of  plaintiff,  a  mortgagee, 
suffered  more  than  a  year  to  elapse  after  obtaining 
judgment,  and  a  writ  of  possession  was  sued  ont 
without  any  A»./a.,  under  which  the  sheriff  gave 
possession,  but  the  writ  was  afterwards  set  aside, 
although  no  order  made  for  restoring  the  premi- 
ses ;  although  the  court  could  not  award  a  writ  of 
restitution,  yet  held  that  it  roi^ht  mould  the  rule 
so  as  to  give  restitution :  semUe^  a  party  who  has 
recovered  in  ejectment  cannot,  without  the  an- 
thority  of  the  court,  by  his  own  act,  enter  upon 
and  retain  possession  ef  the  lands  recovered. 
Do  e  I.  .ri,  6  Do    wl.  (p.  c.)  256. 

9.  In  a  country  ejectment,  notice  being  to  ap- 
pear in  one  term,  tlie  application  for  judgment 
may  be  made  in  *he  next,  without  a  rule  iitsc. 
Doe  d.  Croone  v.  Roe,  6  Dowl.  (p.  c.)  270. 

10.  Rule  niti  granted,  under  eireumstanees,  for 
judgment  against  the  casual  ejector  afler  the  first 
four  days  of  term.  Doe  d.  Davies  o.  Roe,  6 
Dowl.(p.  c.)461. 

11.  Motion  for  judgment  against  the  casual 
ejector  may  be  made  on  any  day  during  term. 
Reg.  Gen.  4  Ring.  N.  S.  (c.  p.)  366. 

12.  Judgment  against  the  casual  ejector  allow- 
ed, although  the  declaration  entitled  of  a  term  not 
arrived,  the  notice  as  to  the  time  to  appear  being 
right.    Doe  d.  Crooks  v.  Roe,  6  Dowl.  (p.  c.)  184. 

13.  Where  the  affidavit  for  judgment  against 
the  casual  eiector  stated  the  reading  over  the  dec- 
laration at  the  time  of  serving,  but  omitted  to  say 
that  it  had  been  explained,  held  insufficient 
Doe  d.  Warde  v.  Roe,  6  Dowl.  (p.  c)  61. 

14.  On  an  application  under  1  Geo.  4,  c.  87, 
for  the  landlord  s  rule,  it  is  not  indispensable  that 
the  attesting  witness  to  the  lease  should  make  the 
affidavit  of  execution.  Doe  d.  Gowland  v.  Roe, 
6  Dowl.  (p.  c.)  35. 

15.  Refused,  where  the  declaration  was  dated 
of  a  term  not  arrived,  nor  any  date  to  the  notiee, 
notwithstanding  personal  service  on  the  tenanL 
Doe  d.  Giles  v.  B^oe,  7  Dowl.  (p.  c.)  579. 

16.  Judgment  against  the  easual  ejector  allow- 
ed to  be  signed,  upon  terms,  although  not  mov- 
ed for  within  the  proper  time.  Doe  d.  Beavan  v. 
Roe,  5  So.  (c.  p.)  6l8. 

17.  Where  the  premises,  underlet  to  tenants, 
were  found  unoccupied  only  recently  berbre  the 
application,  and  the  inquiry  had  been  made  only 
as  to  the  lessee,  and  the  declaration  lefl  with  his 
servant,  not  on  the  premises,  the  Court  refused 
to  give  judgment  Doe  d.  Burrows  t;.  Roe,  7 
Dowl.  (P.O.)  326. 

18.  Rule  for  judgment  against  the  casasl 
ejector  allowed,  although  in  the  notice  served  qb 
two  of  the  tenants  the  Christian  name  of  ooe  of 

the  other  tenants  was  omitted.    Doe  d. 

Roe,  6  Dowl.  (p.  c.)  699. 


9. 


Id.  So,  wheraall  the  tenmlB  Imd  bent  penonBy 


[EJECTMENT— ELECTION  OF  M.  P.] 


2769 


serred,  held  immaterial  that  in  the  notices  two 
of  them  were  named  "Mrs.  M.,  Mrs.  G."  Doe 
d.  Smith  V.  Roe,  6  Dowl.  (p   c.)  629. 

20.  In  a  country  ejectment,  served  before  the 
easoign  day  of  the  term,  in  which  the  tenant  was 
required  to  appear,  held  that  the  lessor  of  plaintiff 
was  entitled  to  move  for  judgment  in  the  following 
term.  0oe  d.  Barth  v.  Koe,  4  Bin^.  N.  8.  (e.  t.) 
&b;  and  6  8c.  443. 


KLECTION: 

1.  Where  the  intention  to  dispose  was  clearly 
expressed,  and  no  ambiguity  in  the  expressions 
used ;  held,  that  extrinsic  evidence  to  show  that  the 
party  bequeathed  property  as  her  own  which  did 
not  belong  to  her,  ana  intended  to  leave  a  consid- 
erable residue  for  charitable  purposes,  which  by 
leasoa  of  the  mistake  turned  out  much  less  than 
she  intended,  was  properly  rejected,  and  thatduch 
circumstances  would  not  raise  a  case  of  election. 
Clementaon  v.  Gandy,  1  K.  (ch.)  309. 

2.  Where  a  testatrix  gave  a  legacy  to  B.,  in 
satisfaction  of  all  claims  upon  the  estate,  he  hav- 
ing at  the  time  a  claim  upon  the  testatrix  in  res- 
pect of  a  legacy  under  the  will  of  C. ;  held,  that 
evidence  of  there  being  no  othbr  claim  by  B. 
aeainst  A.  was  inadmissible,  and  that  B.  was  not 
therefore  compellable  to  elect  between  the  benefit 
under  the  will  of  A.  and  that  of  C.  Dixon  «. 
Samson,  2  Younge  <&  C.  (icx.  x<i.}  5G6. 

And  aee' Baron  and  Feme. 


ELECTION  OF  MEMBERS  OF  PAR- 
LIAMENT. 

1.  In  debt  for  the  costs  of  a  frivolous  petition 
against  the  return  under  9  Geo.  4,  c.  28,  s.  63 ; 
held  that  the  omission  to  give  notice  to  the  re- 
turning officers  to  attend  at  the  bar  of  the  house 
on  the  striking  of  the  committee  was  of  a  matter 
directory  only,  and  not  essential  to  the  legal  con- 
stitation  of  the  committee,  the  officers  having  no 
power  of  interfering  in  the  choice  of  the  com- 
mittee ;  and  that  the  petition  being  silent  in  its 
prayer  as  to  any  claim  of  redress  against  the 
returning  officers  on  the  ground  of  misconduct, 
and  only  incidentally  complaining  of  impartiality 
and  misconduct,  they  were  not  to  be  deemed  par- 
ties to  the  petition,  and  the  report  therefore  not 
void  by  reason  of  omitting  to  notice  the  charge 
against  them;  held  also,  that  the  recognizance 
«'**jrf<l  into  being  in  the  prescribed  form,  it  was 
sufficient  that  one  of  several  petitioners  entered 
mto  it  in  that  form ;  and  lastly,  that  the  Speaker*s 
certificate  is  conclusive  as  to  the  amount  of  costs 
for  which  the  verdict  is  to  be  entered  up.  Ran- 
•OD  17,  Dondas,  3  Bing.  N.  S.  (c.  p.)  123;  3  Sc. 
429;  and  5  Dowl.  (p.  c.)  207,  4^9. 

2.  The  court  refused  to  allow  a  suggestion  of 
facts  to  be  entered  on  the  record,  the  Speaker  s 
cejtificate  haying  the  efSaei  of  a  warrant  to  enter 


judgment;  after  its  validity  had  been  established, 
the  court  could  not  interfere  by  any  inquiry  as  to 
preceding  facts.  3  Bing.  N.  S.  (c.  p.)  1^  ;  and 
3SC.497. 

3.  And  the  court  having  only  a  statutory 
power  to  enter  up  judgment,  they  must  strictly 
pursue  that  power,  and  can  therefore  only  direct 
the  judgment  to  be  entered  for  the  sum  specified 
in  the  Speaker's  certificate,  and  the  award  of  costs 
of  the  rule  for  entering  the  judgment  struck  out. 
Ranson  v.  Dundas,  3  Bing.  N.  S.  (c.  p.)  556;  1 
Sc.  429 ;  and  5  Dowl.  (p.  c.)  489. 

4.  Where  the  defendant  was  proved  to  have 
acted  as  chairman  of  the  committee  of  an  election 
candidate,  and  a  party  ofiering  his  services  to  the 
committee,  was  afterwards  at  a  meeting  of  the 
partizans  informed  that  his  duties  were  to  be  in  re 
gulating  the  supply  of  refreshmenU  at  the  difier- 
ent  public-houses,  and  he  was  furnished  with  a  list 
and  directions,  and  the  agent  arranged  with  the 
plaintiff's  testatrix  and  others,  but  he  could  not 
prove  that  the  defendant  was  present  at  such 
meeting,  although  he  afterwards  told  the  agent  if 
he  met  with  any  difficulty  to  come  to  him ;  held, 
that  to  fix  the  defendant  personally,  the  plaintiff* 
was  bound  to  prove  that  such  agent  was  either 
employed  by  the  defendant  alone,  or  by  the  defen- 
dant and  others,  to  give  such  inders,  and  that  the 
defendant  was  not  himself  actingr  as  agent  fbr 
others,  or  that  the  agent  was  a  pnncipal  jointly 
with  the  defendant  and  others,  and  that  it  was  im- 
material whether  the  plaintiff  considered  the  agent 
as  making  the  contract  on  behalf  of  the  candidate, 
if  he  was  not  in  fact  so  authorized.    Thomas  v, 
Edwards,  2  Mees.  &  W.  (ex.)  215 ;  and  I  Tvr. 
&Gr.872.  ^ 

5.  Where  the  declaration  for  penalties  under  5 
&  6  Will.  4,  c.  76,  (Municipal  Corporations) 
charged  the  offence  as  a  corrupting  the  voter,  and 
the  evidence  established  only  an  offering  to  cor- 
rupt ;  held  that  it  was  for  the  jury  to  say  whether 
it  was  an  offer  accepted  or  not,  as  in  the  former 
case  the  offence  would  have  been  committed,  but 
that  if  not,  and  the  voter  had  not  made  up  his 
mind,  than  the  offence  would  be  a  mere  o&t  to 
corrupt,  within  the  sect.  3  of  the  act.  Harding 
V.  Stokes,  2  Mees.  &,  W.  (xx.)  283. 

6.  In  an  action  ^bribery  at  an  election,  efiect- 
ed  by  the  defendant  giving  a  card  to  the  voter  in 
an  outer  room,  which  he  presented  to  a  person  in 
an  inner  room,  who  thereupon  gave  him  money ; 
held  to  support  an  allegation,  that  the  defendant 

Sive  the  money,  and  in  order  to  show  the  scienter 
at  he  gave  cards  to  other  persons,  who  also  re- 
ceived money  hj  the  like  course;  it  being  the 
regular  course  for  the  sheriff  to  return  to  the 
Crown-office  the  precept  annexed  to  the  inden- 
tures ;  held,  that  an  examined  copy  of  the  precept 
was  properly  received  in  evidence.  Webb  v. 
Smith,  4  Bing.  N.  S.  (c.  p.)  373. 

7.  Under  the  2  A  3  Will.  4,  c.  45,  (Reform  Act) 
to  entitle  a  party  on  the  register  to  vote,  the  iden- 
tity of  the  qualification  must  continue  ;  but  where 
the  voter  possessed  a  qualification  efusdem  generis^ 
which  he  had  changed  since  the  registry,  and  act- 
ed AoiU  fidSf  and  under  the  opinion  of  ethem 


2770 


[ELECTION  OF  M.  P.— ERROR] 


conTenant  with  law  ;  held,  that  he  could  not  be 
conyicted  of  the  misdemeanor.  Reg.  v.  Doda worth, 
8  C.  &  P.  (N.  p.)  218. 

8.  Where  the  name  of  a  freeman  of  a  borough 
had  been  struck  off  the  roll  of  electors  for  Mem- 
bers of  Parliament  by  the  revising  barrister,  not 
appearing  to  possess  any  corporate  property  ;  held, 
that  quo  toarranto  did  not  lie  against  him ;  the 
mere  unsaccessful  claim  to  the  iranchise,  or  pos- 
sibility that  it  might  be  renewed  with  success,  are 
not  equivalent  to  that  actual  usurped  possession 
which  the  information  on  a  quo  tcarranlo  sup- 
poses.    Reg.  V.  Pepper,  3  Nev.  &  P.  (q.  b.)  155. 

9.  Where,  from  the  default  of  the  petitioner 
appearing  on  the  day  of  hearing,  no  committee 
was  struck  for  determining  the  merits  of  the  peti- 
tion ;  held,  upon  the  construction  of  s.  GO  of  9 
Geo.  4,  e.  22,  that  the  Speaker  had  power  to 
direct  the  costs  to  be  taxed,  and  that  the  recog- 
nizance was  forfeited ;  and,  on  default  of  payment, 
he  might  certify  it  as  fbrfi*ited  into  the  court  of 
Queen  s  Bench,  and  that  the  power  of  the  speaker 
to  tax  costs  and  certify  into  the  Court  of  Ex- 
chequer was  not  confined  to  the  cases  only  where 
there  has  been  a  determination  of  the  merits  of 
the  petition,  but  in  every  case  where  a  petition  is 
presented  and  the  recognizances  entered  into. 
Scott,  in  re,  4  Mees.  A  W.  (ex.)  257;  and  7 
Dowl.  (P.  c.)  59. 

And  see  Brnyeres  «.  Halcomb,  3  Ad.  A  Ell. 
381. 

10.  Upon  the  construction  of  9  Geo.  4,  c.  22, 
«.  63,  it  la  in  the  election  of  the  party  entitled  to 
his  costs  nnderthe  Speaker*s  certificate  to  demand 
and  bring  his  action  against  any  one  of  the  per- 
sons made  liable  by  the  certificate ;  and  the  pow- 
er of  the  Speaker,  being  created  not  for  the  pur- 
pose of  imposing,  but  of  ascertaining,  the  amount 
of  the  costs  by  taxation  of  certain  officers,  is  to 
receive  a  favorable  construction  and  a  fair  intend- 
ment made  in  support  of  his  jurisdiction  :  held, 
-also,  that  the  certificate  is  conclusive  as  to  the 
amount  of  costs  specified  in  it.  Fector  v.  Bea- 
con, 5  Bing.  N.  S.  (c.  p.)  302 ;  and  7  Dowl.  (p.  c.) 

11.  Jurisdiction  for  trial  of  election  petitions 
amended  by  2  &  3  Vict.  c.  38. 

And  see  ,^lgreemeiU. 


ENCLOSURE. 

1.  Where  the  lessor  of  the  plaintiff  claimed  un- 
<]er  a  conveyance  from  a  commissioner  of  encloe- 
«ire  (not  executed  according  to  the  power)  and  he 
never  took  possession,  but  the  defendant  on  a  pro- 
posal of  exchange,  had  fenced  the  land  and  oc- 
cupied it  for  30  years ;  held,  that  the  plaintiff 
could  not  recover,  but  that  he  was  not  bound  to 
prove  that  the  commissioner  had  duly  qualified 
and  complied  with  the  requisites  of  the  Act  be- 
fore executing  the  conveyance.  Doe  d.iNauney, 
V,  Gore,  2  Mees.  &  W.  (ex.)  320. 

2.  Where  the  Act  provided  that  lands  awarded 


I  and  allotted  and  exchanged  should  immediately 
afler  such  allotment  and  exchanges  made,  be  and 
remain  and  enure  to  the  several  allottees  to  the 
same  uses,  estates ^  (Slc,  as  the  lands,  in  respect  of 
which  the  allotments  were  made,  were  held  by  ; 
held  that  an  allottee  became  seised  immediatrly 
afler  the  allotment  in  point  of  fact  was  made,  and 
not  when  the  award  was  completed.  Doe  o. 
Saunders,  1  Nev.  A  P.  (k.  b.)  119. 

3.  Where  the  commissioners  were  empowered 
to  exchange  new  allotments  and  old  enclosures, 
so  as  such  exchanges  should  be  ascertained  in  the 
award,  or  some  deed  executed  by  the  commis- 
sioners, and  with  the  consent  in  writing  of  the 
proprietors ;  the  commissioners  awarded  eertain 
allotments  to  A.  in  respect  of  certain  Unda,  and 
the  lands  late  A's  to  B.,  but  omitted  to  say  that 
they  were  in  exchange,  but  in  the  conclusion  of 
the  award  expressed  their  approbation  of  the  ez- 
chan^  between  A.  and  B.,  and  there  was  no  coo- 
sent  m  writing  of  A.  and  B.  thereto ;  the  parties 
remained  respectively  in  possession  firom  the  date 
of  the  award  in  1 798,  until  the  sale  of  the  lands  of 
A.  in  1813 ;  on  a  case  for  the  opinion  of  the  eoort, 
held,  that  the  vendors  could  not,  under  the  Act 
and  the  award,  make  a  good  title  thereto.  Cox  a. 
King,  3  Bing.  N.  S.  (c.  p.)  795. 

4.  Where  the  Act  expressly  reserved  ike  rigfal 
of  plaintifi  to  ingress  and  egress  to  and  from  a  eer- 
tain watercouTse,and  of  cleaning  it ;  held  that  it  was 
not  extinguished  by  the  defeniunt  having  made  a 
more  cirenitons  road  to  the  watereoorae,  aoootd- 
ing  to  the  direction  of  the  eommissionera,  and  for 
extinction  thereafter  of  all  public  roada:  h^d. 
also,  that  a  tenant  of  the  plaintiff's  land  afleelea 
by  the  watercourse  was  a  competent  witneas  in 
an  action  brought  by  his  landlord  iag  injury  to  his 
reversion  by  obstructing  the  way.  Adeane  v. 
MorUock,  5  Bing.  N.  S.  (c.  p.)  23& 

And' see  Highway  ;  Mortgage. 


ERROR. 

1.  It  is  no  ground  of  error  thai  the  writs  of  ve- 
nire fadas  and  distringas  have  only  one  panel  an- 
nexed to  the  two  writs.  Green  v.  Smith,  6  Dowl. 
(p.  c.)  174. 

2.  On  a  feigned  issue  to  try  the  existence  of  a 
custom  in  a  manor,  and  the  jury  had  found  (or 
the  plaintiffs,  subject  to  the  opinion  of  the  court, 
which  also  gave  judgment  in  nis  favor,  whereup- 
on the  defendant  brought  error  in  the  Exchequer 
Chamber,  on  the  ground  tliat  the  customs  stated 
in  tlie  declaration  were  not  legal ;  the  writ  quash- 
ed, on  the  ground  that  error  did  not  lie  on  a  feign- 
ed issue.  Snook  v.  Martocks,  5  Ad.  A  Ell.  (a.  s.) 
239 ;  sed  qwere  if  the  Exchequer  Chamber  has 
power  to  quash  such  writ. 

3.  Notice  of  the  allowance  of  a  writ  of  error 
precludes  the  charging  the  defendant  in  execu- 
tion, although  the  jTounds  of  error  are  not  disclo- 
sed. Marston  v.  Halls,  2  Mees.  A  W.  (ax.) GO; 
and  5  Dowl.  (p.  c.)  292. 

4.  The  writ  coram  vobis  is  a  supersedeas  from 
the  time  of  notice  of  its  being  sued  out,  and  not 


[ERROR— ESTATE] 


am 


from  that  of  allowanoe  onlj,  and  the  6  Qeo.  4,«. 
96,  ■.  1,  being  in  pari  materia  with  the  itatiite  of 
Jamee,  does  not  operate  to  reqahre  bail  on  error  in 
fiu;t  Leyi  v.  Price,  2  Meee.  A;  W.  (xx.)538; 
and  5  Oowl.  (p.  e.)  775. 

5.  The  plea,  the  eommon  joinder  in  error  need 
not  be  mgned  by  counsel ;  held  alaothat  the  sher- 
iff having  returned  the  vemire  fadas  and  disirini' 
gaSf  it  was  not  necessary  that  he  should  have  an- 
nexed two  distinct  panels,  but  that  he  miffht  an- 
nex the  same  panel  to  both  writs.  Archbold  v. 
Smith,  1  Mees.  &  W.  (ex.)  740:  and  1  Tyr.  & 
Gr.  949. 

6.  The  common  joinder  in  error  does  not  re- 
quire eounsers  signature.  Grant  v.  Smith,  5 
Dowl.  (p.  c.)  107. 

7.  Where  an  indictment,  upon  which  an  erro- 
neous judgment  had  been  given  by  the  sessions, 
had  been  removed  by  writ  of  error ;  held,  that  the 
court  of  K.  B.  had  no  authority  to  pronounce  a 
right  judgment,  or  to  remit  the  record  to  the  ses- 
sions.   Bourne  v.  Rex,  2  Nev.  At  P.  (k.  b.)  248. 

8.  The  court  has  no  power,  without  the  consent 
of  parties,  to  strike  out  issues  of  fact,  in  order  to 
enable  them  to  proceed  at  once  in  error  upon  the 
judgment  on  issues  in  law.  Garden  v.  wneral 
Cemetery  Company,  7  Dowl.  (p.  c.)  425.  S.  P. 
Beckham  v.  Knight,  7  Dowl.  (p.  c.)  409. 

9.  Judgment,  on  a  bill  of  exceptions,  being 
affirmed  on  error,  the  defendant  held  entitled  to 
double  costs  of  tlie  bill  of  exceptions ;  and  the 
plaintiff,  in  ejectment,  having  obtained  a  verdict, 
affirmed  on  error ;  held  entitled  to  double  costs  of 
the  writ  of  inquiry  of  mesne  profits.  Francis  v. 
Doe,  7  Dowl.  (p.  c.)  523. 

And  see  ludietmetU, 


ESCAPE. 

1.  In  an  action  for  an  escape  against  the  mar- 
shal, the  plaintiff  is  bound  to  fiiye  a  particular  of 
the  precise  day  of  the  escape  if  he  is  aware  of  it, 
and  if  not,  to  give  such  information  as  is  in  his 
power.    Davis  v.  Chapman,  I  Nev.  &  P.  (k.  b.) 

2.  Where,  in  an  action  for  an  escape,  the  mar- 
shal pleaded  that  the  prisoner  escaped  without 
hb  knowledge,  and  to  places  unknown,  and  after- 
wards and  TCfore  the  commencement  of  the  suit, 
voluntarily  returned  into  the  custody  of  the  de- 
fendant ;  neld  insufficient,  in  not  averring  that 
the  defendant  had  no  such  knowledge  during  any 

Srriod  of  his  absence,  but  leave  to  amend  given, 
avis  V.  Chapman,  5  Bing.  N.  8.  (c.  p.)  453 ;  and 
7  Dowl.  (p.  c.)  429. 

And  see  Arrest;  Sheriff. 


ESCHEAT. 

Wheie  an  illegitimate  became  the  purchaser  of 
lands,  which  descended  to  his  son,  who  died  with- 
out issne  and  intestate ;  held,  that  the  heirs  of  the 
party  last  seised  ez  parte  matemOj  were  not  enti- 
ced, bat  that  notwitlurtanding  the  3  &  4  WUl.  4, 

Vol.  IV.  63 


c.  106,  i.  8,  the  lands  escheated  to  the  CrowB. 
Doe  V.  Blaekbnm,  1  M.  &  Rob.  (r.  p.)  647. 

And  see  Copyhold. 

ESCROW, 
oee  Ueem. 


ESTATE, 

1.  Devise  of  real  estate  te  the  children  of  testa- 
tor's sister,  then  or  thereafter  to  be  born,  who 
should  attain  21,  and  the  issue  of  suoh  as  should 
die  under  that  ase,  leaving  issue,  and  their  heirs; 
and  if  no  child  of  his  sister  should  attain  21,  *'  or 
dying  without  leaving  issue,"  or  dying  under 
that  age,  should  not  leave  such  issue,  or  such  'nh 
sue  d^ing  under  age,  then  over ;  held,  that  the 
first  limitation,  creating  a  fee  in  a  child  who  aV 
tained  21,  was  not  eut  down  by  the  words,  ^'or 
dying  without  leaving  issue,"  which,  being  an 
interlineation,  appeared  to  have  been  mistakenly 
inserted.    Lunn  v.  Osborne,  7  Sim.  (ch.)  56. 

2.  Where  the  testator,  after  several  bequests  to 
relatives,  some  of  his  own  name,  devised  to  his 
wife  the  residue  in  fee ;  and  immediatelj  before 
executing  his  will,  added  a  clause,  devising  the 
house  in  which  he  lived,  and  going  on,  '*  I  also 
entail  my  land  to  the  S.  male  heir,  so  long  as  one 
shall  remain"  (S.  being  his  own  name);  held, 
that  the  residuary  bequest  was  not  affected  by  the 
subsequent  clauses,  not  being  inconsistent ;  and 
that  the  clause  of  entail  was  either  unintelligible 
or  inapplicable  to  the  specific  bequest  to  the  wife, 
so  as  to  cut  it  down  to  a  mere  life  estate.  Doe  d. 
Spencer  v.  Pedley,  1  Mees.  &  W.  (ex.)6G3;  and' 
1  Tyr.  &  Gr.  ^. 

3.  Devise  of  all  testator's  messuages,  lands, 
tenements,  hereditaments,  and  premises,  to  W.  L. 
and  wife  for  life,  and  after  their  decease  to  and 
among  such  of  the  children  of  the  said  W.  L.  and 
wife  as  shall  then  be  living,  share  and  share  alike ; 
held,  that  the  children  took  only  estates  for  life  as 
tenants  in  common,  and  not  the  foe.  Silvery  v. 
Howard,  1  Ncv.  &  P.  (k.  b.)  346. 

4.  Where  testator,  after  directing  his  debts  to 
be  paid  out  of  the  rents  and  profits  of  his  estate, 
devised  the  rents  to  C.  V.,  subject  to  the  keeping 
the  whole  premises  in  repair  during  his  life,  only 
after  his  death  he  gave  all  that  freehold  or  lease- 
hold situate  at  M.  unto  his  three  nieces,  to  and  for 
their  own  use  and  purpose  equally ;  and  he  ffave 
other  freehold  or  leasehold  premises,  and  plate, 
&c.,  and  the  rest  and  remainder  of  his  property, 
be  it  what  it  might,  to  C.  V.;  held,  that  the 
nieces  took  only  a  life  estate.  Doe  d.  Viner  v. 
Eve,  5  Ad.  d^  Ell.  (■.  b.)  317. 

5.  Where  testator  devised  ta  his  sons  A.  and 
B.  ^  my  estates  that  I  now  ooeupy,  with  the  fac- 
tory tliereon,  except  the  house  I  now  occupy, 
with  the  cottages  thereon,  which  1  givo  to  my 
daughters  M.  vid  N.  jointly,"  and  after  oharginf 
**  the  estate  heretofore  men  to  my  sons,"  with 
certain  payments,  he  suDsequently  save  his  son 
A.  an  estate,  which  he  held  under  lease,  during 
the  term ;  held,  that  the  exception  oat  of  the  gen- 
eral devise  to  his  sons,  by  necesasry  intendment, 
carried  the  same  quantity  of  estate  as  that  from 


^mn 


[ESTATE— EVIDENCE] 


which  it  was  excepted,  which  heing  an  estate  in 
fee,  the  daaghtera  took  also  an  eaute  in  fee  in 
the  house  and  cottages  devised  to  them.  Doe  v. 
Lawton,  4  Bing.  N.  S.  (c.  p.)  455. 

6.  Devise  of  all  the  testator's  real  and  person- 
al estate  to  trustees  in  trust,  afler  a  life-estate  to 
testator's  wife,  who  died  in  his  lifetime,  to  apply 
the  rents,  &c.  for  the  maintenance  of  his  daugh- 
ter, until  twehty-fiTe,  and  then  to  her  and  her 
heirs,  dkc.,  but  that  if  she  should  die  without  leav- 
ing lawful  issue,  then  over  to  the  trustees  in  fee 
as  tenants  in  common ;  and  he  empowered  the 
trustees  to  sell  in  fee  any  part  of  the  real  estate 
for  payment  of  debts,  &c.  if  his  personal  estate 
should  be  insufficient ;  held,  first,  that  the  daugh- 
ter took  an  equitable  estate  tail,  and  that  it  was 
vested  in  her  on  the  death  of  the  devisor ;  sec- 
ondlv,  that  the  trustees  took  an  estate  in  fee  sim- 
ple for  the  purposes  of  the  trust,  and  that  the  re- 
mainder over  dependant  on  the  preceding  estate- 
tail,  was  an  equitable  remainder,  and  barred  by  a 
recovery  sufiered  by  the  daughter,  although  under 
twenty-five.  Doe  d.  Cadogan  v.  Ewart,  3  Nev. 
&  P.  (a.  B.)  197.  Reviewing  the  cases ;  and  now 
as  to  tiie  construction  of  the  terms,  "  die  without 
issue,"  and  others  of  a  like  import,  see  7  Will.  4 
Scl  Vict.  c.  26,  B.  29. 

7.  Where  afler  a  devise  ef  lands  to  M.  for  life, 
i:emainder  to  the  use  of  the  heir  of  the  body  of  M. 
in  tail,  with  remainders  over  to  divers  parties  for 
life,  and  to  the  heirs  of  their  bodies  respectively 
in  tail,  the  testator  added,  "  the  aforesaid  limita- 
tions to  be  in  strict  settlement;"  held,  that  M. 
took  an  estate  in  tail  general  in  the  real  estates  of 
the  testator.  Douglas  v.  Congreve,  4  fiing.  N.  S. 
(c.  p.)  1 ;  and  3  Sc.  223. 

6.  Devise  of  all  testator's  real  and  personal  es- 
tate in  trust,  to  be  disposed  of  as  the  trustee  should 
think  best,  for  the  benefit  of  the  testator's  daugh- 
ter during  her  life,  with  liberty  to  will  the  same  to 
her  issue,  but  in  case  of  her  dying  without  issue, 
the  property  to  go  over ;  held,  that  the  daughter 
took  an  estate  tail  in  the  realty,  and  an  absolute 
interest  in  the  personalty.  Simmons  r.  Simmons, 
8  Sim.  (CH.)  22. 

9.  Devise  of  estates  to  the  wife  for  life,  and  af- 
ter her  decease  to  testator's  son,  to  be  enjoyed  by 
him  for  his  natural  life,  and  that  '^  if  he  should 
di£%fithout  issue,  not  leaving  any  children,"  then 
to  be  sold,  and  the  proceeds  divided  ;  held,  that 
those  words  were  to  be  taken  as  descriptive  of  dy- 
ing without  issue,  and  the  devisee  took  an  estate 
tau.    Machell  o.  Weeding,  8  Sim.  (ch.)  4. 

1  (^  Possession  is  prima  fade  evidence  of  a 
seisin  in  fee,  until  shown  that  the  party  has  a  less 
estate.    Doe  o.  Penfold,  8  C.  &  P.  (ir.  p.)  536. 

11.  Where  testator  devised  lands  to  his  two 
daughters  for  life,  remainder  to  his  sister  for  life, 
rertiainder  to  M.  and  N.  for  life ;  and  if  either  of 
them  should  die  witheut  leaving  issue  male,  the 
whole  to  the  survivor;  but  if  M.  should  die  af\er 
the  testator's  daughters  and  sisters,  and  before  N., 
leaving  issue  male,  then  a  moiety  to  the  first  and 
other  sons  of  M.,  in  tail  male,  and  in  default  of 
soah  issue  to  N.  for  life,  remainder  to  his  first  and 
other  sons  in  tail  male,  and  in  default  of  such 
issae  to  testator's  rig^t  hmn;  and  tlieie  was  a 


nke  limitation  as  to  a  moie^  in  case  of  N.  so  dy- 
ing ;  and  if  both  M.  and  N.  should  die  without 
issue  male,  or  such  issue  die  without  issue  male, 
the  estate  to  go  over  to  such  person  as  at  the 
death  of  the  survivor  should  be  the  testator's 
right  heir  ;  held,  that  upon  the  death  of  the  tes- 
tator's daughters  and  sister,  and  of  M.  without 
issue  in  the  lifetime  of  the  daughters,  N.  took 
an  estate  tail  in  the  whole.  Franks  v.  Price,  5 
Bing.  N.  S.  (c.  p.)  37;  and  6  Sc.  710. 

And  see  Croton  Grant ;  Deed  ;  Devise  ;  Will. 

ESTOPPEL. 
See  Landlord  and  Tenant. 


EVIDENCE. 

[A]  Legal  prockedisgs — public  docomehts. 

[B]  Private  writisqs — deeds. 

[C]  Second  ART — ^parol  to  seplaih — hahd- 

WRITIKG — REPUTATION. 

[D]  Declarations  —  admissions  —  confes- 

sions. 

[A]  Legal  proceedings — public  documents. 

1.  Where  a  party  having  executed  a  power  of 
appointing  funds  in  settlement  in  &vor  of  children, 
afler  the  death  of  one,  the  mother  and  the  survi- 
vors executed  a  voluntary  conveyance  in  &v«r 
of  children  of  the  deceased,  and  subsequently  cor- 
veyed  the  premises  to  a  purchaser,  who  filed  a 
bill  to  set  aside  the  voluntary  conveyance,  and  a 
bill  was  also  filed  to  establish  the  sale,  by  a  part- 
ner of  the  purchaser,  alleging  the  consideration 
to  have  been  paid  in  part  with  his  money,  and  a 
suit  was  afterwards  nlcd  against  the  two  latter 
parties  to  establish  the  conveyance,  and  set  a«de 
the  sale  as  fraudulent  and  collusive,  in  which  suit 
an  issue  was  directed  as  to  the  bona  fides  of  the 
sale,  and  payment  of  the  consideration ;  held, 
that  on  the  trial  the  depositions  taken  in  the  first 
suit  bv  the  purchaser  were  properly  rejected. 
Humphreys  o.  Pensam,  1  Myl.  &>  Cr.  (ch.)  580. 

2.  On  an  indictment  for  pejurv,  in  an  affidavit 
in  support  of  a  petition  in  the  Insolvent  Court, 
and  in  proof  of  its  materiality,  evidence  was  of- 
fered of  the  practice  of  the  Court ;  held,  tliat  a 
paper,  purporting  to  be  a  printed  copy  of  the  rules 
of  the  Court,  but  not  authenticated,  was  not  ad- 
missible as  proof  of  the  practice.  Rex  v.  Koops, 
1  Nev.  &  P.  (K.  B.)  828. 

3.  Depositions  of  witnesses  in  a  cause,  dying, 
ordered  to  be  read  on  the  trial  of  an  issue  in  the 
cause ;  and  where  the  plaintiff  dying,  appointed 
a  witness  his  executor,  who  revived  the  suit,  his 
deposition  ordered  to  be  read  on  such  trial.  An- 
drews V.  Beauchamp,  7  Sim.  (cb.)  65. 

4.  Upon  a  question  of  the  right  of  the  deputy 
oyster  meters  of  unloading,  &c.  all  oysters  brought 
within  the  port  of  London,  and  to  have  reasonable 
compensation ;  held,  that  a  decree  in  equity  opon 
the  same  ri^ht  was  admissible  in  evidence,  with- 
out putting  in  the  depositions,  although  referred  to 
in  the  decree,  but  that  when  the  decree  had  been 
put  in,  either  party  waa  eAitJed  to  raad  the  depo- 


[EVIDENeE] 


977S 


sitions;  held,  also,  that  after  th»  decree  had  been 
put  in  and  part  read,  it  was  too  late  to  object  to 
its  admissibility.  Laybarn  v.  Crisp,  8  C.  &  P. 
(N.  p.)  397. 

5.  Where  the  copy  of  the  proyisional  assign- 
ment, under  I  Geo.  4,  c.  119,  s.  7,  wa^  produced 
from  the  insolvent  Court,  and  offered  in  evidence 
under  7  Geo.  4,  c.  57,  s.  76 ;  held  admissible,  and 
that  it  was  not  necessary  to  go  on  to  show  that  the 
proceedings  under  the  ibrmer  Act  were  complete, 
and  the  prisoner  discharged.  Doe  v.  Hardy,  2 
Nev.  &  P.  (q.  B.)  402. 

6.  Where  on  an  issne  as  to  a  right  of  way,  ad- 
mitted to  have  been  used  by  the  public  for  thirty 
years,  the  defendants  put  in  a  document  forty 
years  old,  drawn  up  at  a  parish  meeting,  called 
to  resist  the  repairs  then  attenipted  to  be  thrown 
on  them,  stating  the  lane  to  be  private  property, 
subject  to  a  foot  and  bridle- way,  and  signed  bv 
thirteen  inhabitants,  twelve  of  whom  were  dead, 
and  the  other  called  as  a  witness ;  held  admissible 
evidence,  although  slight,  of  reputation ;  it  appear- 
ing also  that  twenty-two  years  before  the  action, 
an  agreement  had  been  made  between  the  owner 
of  the  soil  and  a  colliery  company,  to  allow  them 
the  use  of  the  road,  paying  Ss.  a  year,  and  sup- 
plying cinders  for  the  repair,  which  the  parish 
were  to  spread ;  held,  that  although  the  acts  of 
user,  taken  alone,  might  be  evidence  from  which 
to  infer  a  dedication,  yet  being  all  referable  to  the 
agreement,  it  amounted  only  to  a  licence,  upon 
compliance  with  the  terms  imposed ;  semb.  al- 
though there  cannot  be  a  conditional  dedication, 
yet,  to  constitute  a  dedication,  there  must  be  a 
clear  intention  to  dedicate.  Barracloagh  v.  John- 
Bon,  3  Nev.  &,  P.  (q.  b.)  233. 

7.  Upon  a  question  of  the  hctts  in  quo^  being 
parcel  of,  and  within  a  manor,  formerly  part  of 
the  Duchy  of  Lancaster,  a  document  produced 
from  the  Duchy-of&ce,  purporting  to  be  a  survey, 
temp.  Eliz.,  by  J.  N.,  deputy  to  the  surveyor-gen- 
eral, and  signed  by  persons  described  as  jurors  of 
the  court  of  Survey,  who  presented  the  bounda- 
ries, but  there  was  no  inquisition  nor  commission 
for  making  it,  although  there  appeared  an  order 
by  the  Queen  for  payment  for  making  it ;  held  in- 
admissible. Evans  v.  Taylor,  3  Nev.  &  P.  (q.  b.) 
174. 

8.  Where  by  the  practice  of  the  I^lesiastical 
Court  no  book  was  kept,  but  a  memorandum  only 
indorsed  or  entered  at  the  foot  of  the  original  will 
bj  the  officer  of  the  court;  held,  that  the  produc- 
tion of  the  will  with  such  memorandum  was  suf- 
ficient evidence  of  the  executor's  title  ;^held,  also, 
that  an  exemplification  of  several  letters  of  admin- 
istration relating  to  the  same  estate  on  one  parch- 
ment, with  one  32.  stamp,  was  sufficient.  Doe  v. 
Gunning,  2  Nev.  &  P.  (k.  b.)  260. 

9.  In  trover  for  goods  against  the  sheriff;  held, 
that  an  affidavit  made  by  the  sheriff's  officer  on  a 
motion  by  the  defendant  under  the  Interpleader 
Act,  was  admissible  to  prove  the  seizure  of  the 

foods  by  the  servant  of  the  sheriff,  having  full 
nowledge  of  its  contents,  and  using  it  for  his 
own  purposes.    Borick'ill  v.  Hulse,  2  Nev.  &.  P. 

(q.  B.)  426. 

•«» 

0.  Where  an  answer  in  Chancery  of  the  de- 


I  fendaflt  is  read,  he  is  entitled  to  have  the  whole 
'  bill  read  as  part  of  his  opponent's  case.    Pennell 
V.  Meyer,  2  M.  dc  Bob.  (r.  p.)  99. 

11.  The  depositions  taken  before  magistrates 
are  the  best  and  only  proper  evidence  of  the 
statements  made,  and  the  rule  applies  to  them  in 
all  proceedings  connected  therewith  in  which  it 
is  sought  to  adduce  the  statements  in  evidence. 
Leach  v.  Simpson  and  another,  7  Dowl.  (p.  c.) 
513. 

12.  The  schedule  of  an  insolvent,  showing  the 
date  of  his  petition  and  statement  of  his  liabilitiea, 
held  inadmissible  to  prove  that  a  previous  assign- 
ment was  executed  with  the  intention  of  so  peti> 
tioning.  Heacock  v.  Harris,  6  Nev.  &  M.  (k.  b.) 
854. 

13.  Where  an  Act  of  Parliament  constitutes  a 
court  with  a  seal,  held  that  it  was  not  necessary 
to  prove  the  seal,  but  the  court  would  take  judi- 
cial notice  of  it,  the  seal  itself  being  the  instru- 
ment of  proof.  Doe  v.  Edwards,  1  Perr.  &  Dav. 
(q.  B.)  408. 

14.  An  examined  copy  of  an  entry  in  the  Mid- 
dlesex registry  of  deeds  received  as  secondaiy 
evidence  of  the  original,  which  could  not  be  ob- 
tained {per  Tindal,  C.  J.)  Collins  v,  Maule,  8 
C.  &  P.  (If.  p.)  502. 

15.  So  entries  of  the  admission  of  a  party  to 
the  freedom  of  a  city  company,  duly  vouched  by 
other  freemen,  admitted,  not  on  the  ground  of 
hearsay,  but  as  of  an  act  done  by  the  company, 
viz.  receiving  the  party  as  of  a  certain  descrip- 
tion, who  and  what  he  was,  to  be  entitled  to  ad- 
mission,   lb. 

16.  Afi  entry  in  the  Journals  of  the  House  of 
Lords,  reciting  the  limitations  in  a  patent  of  peer- 
a|^,  admitted  by  the  Committee  of  Privileges, 
without  producing  the  patent  itself.  Lord  Duff- 
erin's  Case,  4  CI.  &,  Fi.  (p.)  568. 

And  see  Bankrupt ;  Boundari§8  ;  Bridges ;  Cor- 
poration; Election  of  M,  P,  ;  Gaol;  uuolverU; 
Poor;  Sessions. 


[BJ  Private  writiitos — deeds. 

1 .  Where  the  defendant  justified  breaking  flood- 
gates, as  lessee  of  the  Bishop  of  W.,  and  old  leases 
were  produced  from  the  rMrutry,  and  admit- 
ted ;  held,  that  a  map  of  the  bishop's  and  adjoin- 
ing lands  could  not  be  received  to  show  the  course 
of^the  stream  to  the  plaintiff's  mill.  Wakeman 
V.  West,  7  C.  &  P.  (R.  p.)  479. 

2.  The  only  case  where  a  ma^  is  receivable  in 
evidence,  is  where  at  the  time  it  was  made  the 
whole  property  belonged  to  the  person  from  whom 
both  parties  claim.  Doe  v.  L^kin,  7  C.  &  P.  (r. 
p.)  481. 

3.  Upon  a  question  touching  the  right  of  presen- 
tation by  the  bishop,  held,  that  a  case  stated  by 
a  former  bishop  for  counsel's  opinion,  and  found 
among  the  family  muniments  of  the  latter's  de- 
scendants, was  admissible  in  evidence  against  thd 
fonner ;  bvfi.  where  (he  plaintiff,  in  quote  mp9dkf 


2774 


[ETIDENCE] 


mtbtt  tnelaf  hw  title,  Midavefniif  the  deith  of  a 
pwtj,  a  joiat  tanant  with  him  far  a  tenn  of  irean 
m  the  adrowaoDf  allefed  thai  he  became  ana  waa 
pouMiBcd  thereof,  aa  of  an  advowaon  in  grooB  for 
the  remainder,  &c.,  and  the  hiahop  took  issue  in 
terms  of  tbe  trayerse  ;  held,  that  a  fine,  showing 
the  title  to  be  in  third  persons,  was  inadmissible, 
the  parties  to  the  suit  not  both  claiming  nnder  the 
parties  to  the  fine  ;  held  also,  that  the  10  Hen.  7, 
(passed  in  Ireland),  avoided  grants  of  adyowsons 
by  £dw.  4 ;  and  where  appendant  to  manors  be- 
fore the  grant,  had  the  effect  of  re-appendinf  them. 
Meatfa,  Bishop  r.  Marqais  of  Winchester,  3  Bing. 
N.  S.  (c.  r.)  183;  and3  Sc.  561. 

4.  Where  a  son,  on  his  ftther's  behalf,  entered 
into  an  execatorj  contract,  and  befine  its  comple- 
tion stated  that  his  father  was  going  to  receive 
money,  and  referred  in  »ach  conyersation  to  an  ad- 
Tertisement  in  a  proyincial  paper,  announcing 
fitcts  in  reference  to  the  father*8  supposed  title  to 
receive  it ;  held,  that  in  the  absence  of  any  other 
advertisement,  an  advertisement,  containing  a 
statement  of  all  those  facts,  was  admissible  in  ev- 
idence to  show  a  fraudulent  compact  between  the 
father  and  the  son,  although  afler  the  contract  en- 
tered into,  indocing  the  p&intiff  to  go  on  with  the 
contract  Lucas  v.  Godwin,  3  Bing.  N.  S.  (c.  p.) 
737;  and48c.301. 

5.  Where  on  the  sate  of  premises  to  the  defen- 
dant's lanlord,  a  feoffment  was  delivered  by  the 
vendor,  and  the  question  being  as  to  the  premises 
■oogfat  to  be  recovered  by  tlie  lessor  of  plaintiff 
being  parcel  of  the  premises  so  conveyed,  notice 
had  been  ffiven  to  produce  the  feoffment,  which 
not  bein|r  done,  an  abstract  thereof  was  tendered, 
there  bemcr  no  proof  of  any  copy  ever  having  ex- 
isted ;  held,  that  it  was  admissible  without  culing 
tfie  attesting  witness ;  and  that  it  not  bein^  nec- 
essary to  prove  the  feoffment,  neither  was  it  nec- 
essary to  prove  the  livery  of  seisin.  Doe  v.  Wain- 
wright,  1  Nev.  &  P.  (k.  b.)  8;  and  5  Ad.  &  £11. 
580. 

6.  Entries  in  a  religious  book  treated  b^  deceas- 
ed owneiB  aa  important  fkmily  memorials,  held 
admissible,  although  not  appearing  by  whom 
made.    Hood  v.  Beauchamp,  o  Sim.  (ch.)  26. 

7.  In  an  action  for  libel  of  plaintiff,  as  surseon 
of  a  poor-law  vnion,  ibr  Bcgleciing  patienta,  neld 
that  the  entries  which  the  plaintiff  was  required  to 
nake  by  sect  15  of  the  act  eoald  not  be  read  as 
eyidenoe  on  mn  iasoe  whether  the  plaintiff  neglec- 
ted those  patients.  Meyhck  e.  Wakley,  8  C.  & 
P.  (a.  r.)  283;  and  3  Mev.  &  P.  (h.  b.)  284. 

8.  Whme  a  trustee  conveyed  property  to  a  par- 
ty, entitled  as  a  child  of  a  particular  marriage,  by 
deed  reciting  that  be  was  such  child,  held,  that 
aa  aa  act  done  under  a  state  of  things  whicli,  if 
ferae,  the  trvatee  wonM  have  been  compellable  to 
do,  and  eoming  out  of  proper  custody,  the  deed 
was  admissible  on  a  question  of  pedigree,  al- 
though res  inter  alias  actOj  and  was  not  the  des- 
cription of  evidence  to  which  the  doctrine  of  lis 
moia  was  applicable ;  held,  also,  that  where  a  tes- 
tator bequeaths  a  le^^cy  to  a  penMn  designated  as 
a  **  relation,"  it  isto  faie  presumed  that  ne  was  a 
Imtimate  relation.  Slane  v.  Wade,  7  Sim.  (ch.) 
£95;  andaffinned  1  Myl. ^ Cr.  338. 


9l  Whnt  fetten  are  pat  is,  hearing  different 
dates,  held,  that  otheiB,  part  of  tlie  same  entro 
pondence,  aent  in  the  interval,  could  not  be  neeir* 
ed,  nnless  expressly  referred  to  in  those  whieb 
were  put  in.  Sturge  v.  Buchanan,  *2  M.  &,  Rolft. 
(a.  p.)  90. 

10.  The  Judge  refnaed  to  receive  a  Fleet  regis- 
ter of  marriages  for  any  purpose.  Doe  n.  Gata- 
ere,  6  C.  d^  P.  (a.  p.)  578, 

11.  Where  the  entry  of  a  deceased  steward 
showed  the  balance  in  his  own  favor,  held  that 
it  did  not  affect  the  admissibility  of  a  particular 
entry  charging  himaelf.  Williams  «.  <7reayea,  8 
C.  «&  P.  (a.  p.)  592. 

12.  Where,  on  a  former  reference  of  the  same 
cause,  the  defendant  had  consented  to  admit  in  evi- 
evidence  a  will  in  the  custody  of  B.,  a  party  who 
appeared  to  be  his  mortgagee  and  on  the  trial  after- 
wards the  plaintiffs  attorney  producing  the  will, 
admitted  that  he  had  received  it  from  B.,  held 
sufficient  nrinm  facie  evidence  of  proper  custodY 
to  render  it  admissible.  Doe  r.  Owen,  8  C.  &  r. 
(K.  P.)  751. 

13.  Production  of  the  will,  and  proof  by  a  niece, 
a  legatee,  of  having  received  a  le||racy  under  it, 
coupled  with  the  copy  of  an  entry  m  the  register 
of  burials,  held  sufficient  evidence  of  the  death. 
Doe  V.  Penfold,  8  C.  &  P.  (a.  p.)  536. 

14.  Notes  on  the  back  of  the  brief  of  counsel 
on  a  trial  at  law,  held  admissible  evidence  in  a 
suit  in  equity.  Cattell  9.  Corrall,  3  Younge  dt 
C.  (EX.  £q.)  413. 


[C]   SbCORDABT — PAROL  TO    BXPLAIB — HABn- 
M'UTIIfG RBPaTATIOB. 

1.  Where  the  warrant  to  the  officer  to  setae 
under  a  fi.  fa.  was  not  produced,  nor  any  notice 
given  to  produce,  and  it  appeared  to  have  been 

S'ven  to  the  eon  of  the  officer,  who  believed  he 
id  either  returned  it  to  his  father  or  to  the  sher- 
iff's office,  and  the  officer  stated  that  it  was  osnal 
to  deliver  it  to  the  auctioneer,  who  transmitted  it, 
with  the  auction  sheet,  to  the  £zciae  Office, 
through  the  district  supervisor,  and  proof  waa 
given  of  search  made  by  the  auctioneer  among 
his  own  papers,  and  at  the  sheriffs  office,  but  the 
supervisor  was  not  called,  nor  any  search  amongat 
his  papers  proved ;  held,  that  sufficient  diligence 
was  proved  to  let  in  secondary  evidence  of  the 
warrant  to  connect  the  officer  with  the  wananL 
MinshuU  v.  Lloyd,  2  Mees.  &,  W.  (ex.)  450. 

2.  Where  a  check  was  given  to  the  paying  clefk 
of  a  vestry,  and  a  corresponding  sum  appeared  tn 
have  been  paid  by  the  bankers  on  the  same  day« 
whose  custom  was  to  return  the  checks  to  the  pay- 
ing clerk,  who  deposited  them  in  a  room  in  toe 
work-house :  the  clerk  having  gone  out  of  office, 
and  application  made  to  his  successor  for  inspec« 
tion,  tne  clerk  produced  several  bundlea  in  which  it 
was  likely  to  be  found,  and  which  were  searched, 
but  it  was  not  found ;  held  to  be  such  reaaonable 
diligence  as  to  let  in  secondary  evidence  of  ite 
contents.  M'Gahey  v.  Alston,  2  Meea.  A  W. 
(bz.)  212. 


[EVIDENCE] 


2776 


S.  In  ^umimpnt  for  fi«igfat  on  a  eharter-party 
ezoooled  at  Java,  it  appearing  that  by  the  law  of 
HoUand  aoch  coatracta  are  made  by  a  notary, 
and  entered  in  his  book,  and  a  copy  ^iven  to  each 
party,  which  may  be  done  at  any  time,  sij^ned, 
sealed,  and  attested  by  him  ;  in  the  courts  ofHol- 
land,  these  copies  are  received  in  evidence  without 
further  proof,  but  in  Java  the  notary*s  book  must 
be  produced,  and  the  signature  of  the  notary  be 
proved ;  held,  that  such  copy  could  not  be  con- 
sidered as  the  original  binding  document,  nor  ad- 
mitted as  evidence  of  it  until  proved  to  be  an  ex- 
amined copy  according  to  the  law  of  evidence  in 
this  country.  Brown  v.  Thornton,  1  Nev.  <&  P. 
(K.  B.)  339. 

4.  Where  assignees  of  a  bankrupt  firm,  holding 
debentures  as  a  security  for  advances,  went  in 
and  claimed  under  a  decree  for  carrying  into  exe- 
cution the  trusts  of  a  deed  for  the  benefit  of 
creditors  holding  debentures,  and  the  Master  re- 
ported that  the  evidence  to  establish  the  right  of 
the  claimants  as  to  one  debenture,  was  insuffi- 
cient }  pending  which,  the  assignees  filed  a  bill 
in  England  for  the  administration  of  the  bank- 
rupt's estate,  and  a  bill  also  in  Ireland  for  the 
same  purpK)se,  and  for  execution  of  the  deed  of 
trusts,  in  which  suit  proof  was  given  of  tiie  ex- 
ecution and  assijznment  of  a  debenture,  of  the 
search  and  loss  of  the  original,  and  of  an  examin- 
ed copy,  upon  which  proof  a  decree  declaring  the 
right  was  made :  the  decree  affirmed  on  appeal. 
Donegal,  Marquis  of,  v.  Salt,  8  iili.  N.  S.  (p.) 
»54. 

5.  Where  a  testatrix,  by  a  codicil,  gave  specific 
stock,  ^'now  standing  in  my  name,"  and  was 
possessed  at  the  time  to  satisfy  the  bequest,  but 
not  satisfy  other  bequests  charged  on  the  same 
fiind ;  held  a  case  in  which  evidence  ought  to  be 
received  as  to  the  state  of  the  testatrix^  ftinded 
property,  and  considered  in  connexion  with  the 
context  of  the  several  testamentary  papers,  was 
to  be  construed  a  pecuniary  and  not  specific 
legacy.  Bojs  v.  Williams,  2  Russ.  &  M.  (ch.) 
(^;  reversmg  the  judgment  below.  S.  P.  Attor- 
ney-general V.  Grote,  lb.  699. 

6.  The  only  exceptions  to  the  mle  that  evid- 
ence of  hand- writing  by  comparison  is  inadmissi- 
ble, are  cases  of  necessity;  as  where  genuine 
documents  are  already  in  evidence  in  the  cause, 
or  are  ancient,  and  can  be  proved  in  no  other 


IT.  Doe  V.  Newton,  1  Nev.  &  P.  (k.  b.)  ;  and 
5  Ad.  &  £11.  351 ;  questioning  Allesbrook  v. 
Roach,  1  Esp.  (r.  p.)  351. 

7.  Upon  an  issue  whether  an  endorsement  was 
the  defendant's,  held  that  the  jury  could  not  be 
allowed  to  compare  other  writings  with  that  in 
dispnte,  they  can  only  do  so  with  documents 
which  are  otherwise  in  the  cause,  firomage  v. 
Rice,  7  C.  &  P.  (N.  p.)  548. 

8.  Where  a  will,  nnder  which  the  lessor  of 
plaintiff  daimed,  was  in  the  hands  of  a  mortgagee, 
who  was  snbpcenaed  to  produce  it,  but  refused  to 
do  Ml,  as  being  part  of  his  title ;  held,  that  secon- 
dary eridenoe  of  the  contents  was  inadmissible. 
(Per  Ahinger,  L.  O.  B.  denying  Mills  «.  Oddy,  6 
C.  A  P.  738,  to  be  kw.)  Dee  v.  Owen,  8  C.  4k 
P.  <a.  p.)  110. 


9.  Where  the  original  judgment  had  been  des- 
troyed  by  fire,  execution  aUowed  to  issue  on  « 
verified  copy.  Cheese wright  v,  Franks,  6  Dowl. 
(p.  c.)  471. 

10.  Where  the  plaintiff's  agent  wrote  to  a  wit 
ncsB  (living  abroad  and  examined  by  commis- 
sion), the  drafl  of  wliich  was  shown  to  and  ap- 
proved by  his  attorney  ;  held,  that  the  drail  was 
admissible  without  producing  the  original,  as 
evidence  of  an  act  done,  but  that  the  answer  of 
the  witness  to  the  agent  was  not  admissible. 
Rawlins  v.  Desborough,  8  C.  &  P.  (w.  p.)  321. 

11.  Entries  in  the  bill  of  a  deceased  attorney, 
subscribed  as  received  for  charges  of  engrossing 
and  attesting  the  execution  ofaeeds  of  release, 
held  admissible,  as  secondary  evidence  of  the  ex- 
ecution of  such  releases.  Shefiington  v.  White- 
hurst,  3  Younge  &  C.  (£x.  xq.)  24. 

12.  It  is  not  absolutely  necessary  tliat  the 
search  for  the  orisrinal  document  should  be  made 
for  the  purpose  of,  and  shortly  before  the  cause  : 
when  made  recently  after  the  death  of  the  party 
in  whose  possession  it  bad  been,  although  three 
years  before  the  action,  held  sufficient  to  let  in  the 
secondary  evidence.  Fitz  r.  Rabbits,  2  M.  dt 
Rob.  (N.  p.)  60. 

13.  Wherein  order  to  let  in  secondary  evidence 
of  a  lost  deed,  its  execution  was  sought  to  be 
proved  by  an  endorsement  on  a  draft  deed  in  the 
handwriting  of  one  of  the  defendants,  who  was 
at  that  time  a  clerk  in  the  attorney's  office  in 
which  the  draft  was  prepared ;  held  inadmissible. 
Doe  t>.  Whitefoot,  8  C.  &  P.  (n.  p.)  270. 

14.  Under  a  general  notice  to  produce  all  let 
ters,  &c.  relating  to  the  matter  in  dispute ;  held 
sufficient  to  let  in  as  secondary  evidence,  a  partic- 
ular letter,  although  not  specified  as  to  date« 
Jacob  V.  Lee,  2  M.  &  Rob.  {v.  p.)  33. 

15.  A  notice  to  produce  papers  in  a  town  cause^ 
served  the  evening  before  at  the  house  of  ^e  at- 
torney, too  late  to  conmiunicate  with  his  client, 
held  too  late  lo  let  in  secondary  evidence.  Byrne 
V.  Harvey,  2  M.  &  Rob.  (n.  p.)  69. 

16.  An  inquiry  of  the  servant  at  the  premises,, 
held  a  sufficient  inquiry  to  let  in  evidence  of  th& 
witness's  handwriting,  and  that  it  is  not  necessa-^ 
ry  to  show  that  he  is  kept  oat  of  the  way  by  col- 
lusion ;  and  belief  of  handwriting,  althougn  the 
witness  had  only  seen  the  party  write  once,  is  suf-^ 
ficient,  if  the  jury  are  satisfied  with  the  proof,  al- 
though slight  Wilknaa  v,  WonaU,  6  C.  &,F. 
(K.  p.)  380. 

17.  A  copy  of  a  mural  inscription  in  a  church, 
made  at  the  time  when,  by  repairing  the  church 
it  was  effaced,  in  pencil,  afterwards  traced  over 
with  ink  ;  held  admissible  on  a  question  of  pedi- 
gree.   Slaney  v.  Wade,  7  Sim.  (ch.)  595. 

18.  The  declarations  of  an  illegitimate  child 
held  not  within  the  rule  as  to  memMrsof  the  fiun- 
ily  of  his  reputed  fiither,  and  rejected  in  a  ques- 
tion of  pedigree,  as  evidence  of  reputation.  Doe 
V.  Barton,  2  M.  d&  Rob.  (ir.  p.)  28. 

And  vid.  ntprm. 


2776 


[EVIDENCE] 


19.  In  trover  for  eoods  lent  by  the  plaintiff  to 
the  defendant,  a  packer,  and  ezprewed  in  the  re- 
ceipt to  have  been  received  on  accoout  of  the 
plaintiff  for  M.,  the  party  to  whom  they  had  been 
sold ;  held,  that  evidence  of  the  usage  of  trade 
was  admissible  to  explain  the  meaning  of  ambigu- 
ous terms  in  such  receipt.  Bowman  «.  Uorsey, 
2  M.  &  Rob.  (».  p.)  85. 

20.  Where  premiaes  were  purchased  at  a  sale 
in  different  lots  by  plaintiff  and  defendant,  and  in 
their  deeds  the  premises  were  described  only  by 
reference  to  the  then  tenants ;  held,  that  a  hand- 
bill exhibited  at  the  sale  was  admissible,  not  as 
controlling,  but  explaining  and  applying  the  deed, 
and  showmg  what  was  then  in  the  tenants'  occu- 
pation. Murley  v.  M'Dermott,  3  Nev.  &.  P.  (q.  b.) 
366. 

21.  On  an  issue  that  the  acceptance  waa  not 
that  of  the  defendant,  held,  that  letters  written  by 
him  relating  to  the  transaction,  and  which  had 
been  read  in  evidence,  might  be  handed  to  the  ju- 
ry.   Eaton  V.  Jervis,  8  C.  &  P.  (n.  p.)  273. 

22.  Where  the  attesting  witness  to  a  will  swore 
to  his  attestation,  and  on  cross-examination,  de- 
positions in  the  Ecclesiastical  Court,  relating  to 
the  same  will  (but  not  evidence  in  the  cause,)  be- 
ing shown  to  him,  he  stated  that  he  believed  the 
signatures  to  be  his ;  in  order  to  show  the  will  a 
forgery,  and  disprove  the  genuineness  of  the  at- 
testation, a  bank  inspector,  having  no  knowledge 
of  the  witness's  handwriting,  except  from  having 
heard  his  admission  in  court,  being  called  to  speak 
to  the  genuineness  of  the  attestation  ;  held,  per 
Denman,  L.  C.  J.,  and  Williams,  J.,  that  his  evi- 
dence was  receivable;  Patteson  and  Coleridge, 
JJ.,  that  it  was  not.  Doe  d.  Mudd  v.  Suckermore, 
5  Ad.  &  Ell.  (K.  B.)  703 ;  and  2  Nev.  &  P.  16. 

23.  On  an  indictment  for  forcing  a  will,  writ- 
ten apparently  over  pencil  wriUng  before  rubbed 
out,  the  evidlence  of  an  ingraver,  in  the  habit  of 
looking  at  minute  lines  on  paper,  held  admissible 
•8  to  the  existence  of  such  pencil  marks,  which 
he  had  examined  with  a  microscope.  R.  v.  Wil- 
liams, 8  C.  dt  P.  (H.  r.)  434. 

24.  Where  a  receipt  was  given  by  one  of  sever- 
al partners,  without  the  knowledge  of  the  others ; 
in  an  action  to  recover  the  partnership  debt,  held, 
that  evidence  was  admissible  to  show  that  the  re- 
ceipt was  fraudulently  given  by  a  co-plaintiff:  in 
all  cases  a  receipt  is  only  prima  facie  evidence, 
which  admits  of  explanation.  Farrar  v.  Hutch- 
inson, 1  Perr.  (k,  Dav.  (q,.  b.)  437. 

,  25.  Where  the  copy  of  an  ancient  grant  in  the 
chartulary  of  an  Bbbej  had  been  received,  among 
other  documents,  to  establish  the  antiquity  of  a 
weir  on  a  public  river,  and  objection  was  made  to 
the  whole  class  of  evidence  which  was  afterwards 
held  to  have  been  properly  received,  and  the  ob- 
jection as  to  the  reception  of  the  copy,  no  search 
having  been  first  proved  to  have  been  made  for  the 
original,  was  not  particularly  pressed,  the  court 
would  not  allow  it  afterwaids  to  prevail,  it  being 
one  of  many  others  unquestionable,  and  its  rejec- 
tion not  sufficient  to  have  varied  the  verdict. 
Williams  v.  Wilcox,  3  Nev.  Sl  P.  (<(.  b.)  606. 

29.  In  trespui  for  ehootiog  a  dog,  the  Judge  re- 


ceived  a  copy  of  notice  on  a  board,  fixed  in  the 
plantations,  without  notice  to  produce  the  originaL 
Bartholomew  v.  Stephens,  8  C.  &  P.  (v.  p.)  728. 

27.  Where,  in  the  body  of  the  bill  it  appeared 
as  drawn  for  2001.,  but  the  figures  in  the  margin 
expressed  it  to  be  for  245Z. ;  held,  that  the  words 
in  the  body  must  be  taken  to  be  the  amount  to  be 
paid,and  that  the  ambiguity  being  patent  on  the  bill, 
evidence  could  not  be  received  to  explain  it  (diss, 
Coltman,  J.)  Saunderson  v.  Piper,  5  Bing.  N.  S. 
(c.  p.)  425. 

And  see  ^uetion;  Boundary;  Omtraet;  Csv- 
enarU;  Deeds;  Devise;  Landlord  and  Temmmt; 
Libel. 


[D]    Declarations — admissioks— cosfessiohs. 

1.  Probate  of  the  will  of  a  deceased  ancestor, 
held  inadmissible  as  evidence  of  a  declaration  by 
tlie  testator  of  matter  of  pedigree.  Doe  v.  Orme- 
rod,  1  M.  &  Rob.  (h.  p.)  4G6. 

2.  In  trespass,  the  plaintiff's  claim  extending 
to  the  whole  of  the  bed  of  a  river  between  bis  and 
the  defendant's  close ;  held,  that  evidence  of  acts 
of  ownership  by  the  plaintiff  as  to  adjoining  parts 
being  a  continuous  part  of  the  plaintiff's  estate  was 
admissible,  whatever  weight  the  jury  might  give 
to  such  acts.  Jones  v.  Williams,  3  Mees.  &.  W. 
(BX.)  327. 

And  see  Doe  v.  Kemp,  2  Bing.  N.  S.  102. 

3.  Where  letters  in  correspondence  between 
plaintift  and  defendant  were  o&red ;  held,  that 
the  latter  might  read  his  answer  to  the  plaintiffs 
last  letter,  dated  the  day  previous.  Roe  e.  Day, 
7  C.  &  P.  (N.  p.)  705. 

4.  Where,  on  an  order  for  changing  the  venue 
in  debt  on  bond,  the' term  was  imposed  of  admit- 
ting  the  hand-writing  of  the  attesting  witness, 
and  after  a  verdict  and  a  new  trial  obtained,  the 
plaintiff  was  allowed  to  amend  the  oyer,  by  set- 
ting out  the  condition,  whereupon  the  defendant 
pleaded  specially  that  the  bond  had  been  altered 
since  the  execution ;  held,  that  it  did  not  affect  the 
admission,  whether  used  on  the  first  or  second 
trial.  Langley  v.  Lord  Oxford,  1  Mees.  &  W. 
(EX.)  508 ;  and  1  lyr.  dt  Gr.  808. 

5.  Where  a  party  was  arrested,  and  subsequent- 
ly promised  the  attorney  to  pay  the  debt  if  no 
nrther  proceedings  were  taken,  and  by  letter  he 
informed  him  that  he  had  found  a  friend  to 
assist  him  "  in  paying  the  debt  you  sued  me  for ;" 
held,  that  it  was  for  the  jury  to  say  if  he  meant 
to  recognize  a  debt  or  the  particular  debt  indor- 
sed on  Uie  writ.  Rainbow  «.  Bishop,  7  C.  dt  P. 
(R.p.)591. 

6.  In  covenant  upon  a  mortgage,  upon  plea 
non  est  factum,  and  issue  whether  the  deed  had 
been  fraudulently  altered  by  H.  one  of  the  attest- 
ing witnesses,  who  was  dead,  the  other  witness 
doubting  his  own  signature  and  that  of  the  de- 
fendant, and  denying  all  knowledge  of  the  tran- 
saction ;  held  that  declarations  of  the  deeeased 
witneM  as  to  the  sappoeod  fraudulent  alteration 


[EVIDENCE— EXCHEaUER  COURT] 


2777 


were  inadmiBsible.    Stobart  v.  Dryden,  1  Mees. 
A  W.  (Ez.)  615 ',  and  1  Tyr.  &  Gr.  WQ. 

7.  Where  the  notice  to  admit  the  note  declared 
on,  in  setting  out  the  document  produced  before 
the  Judffe  mis-stated  the  date,  the  defendant,  afler 
first  refusing,  consented  to  admit  it ;  held,  that 
he  could  not  aflerwards  object  to  the  admission 
being  read  on  account  of  the  variance.  Field  v. 
Hemming,  7  0.  &  F.  (n.  p.)  619. 

8.  Where  an  Act  of  Parliament  establishes  a 
new  rule  of  evidence,  the  court  of  equity  adopts 
it ;  he]d,  therefore,  that  the  evidence  of  an  inter- 
ested witness  might  be  read  in  a  suit,  and  the 
entry  required  by  3  <&:  4  Will.  4,  c.  42,  s.  26  &27, 
made.     Wheat  r.  Graham,  7  Sim.  (cu.)  61. 

9.  Where  a  party  executed  a  deed  (for  raising 
money  on  an  annuity,)  reciting  a  will,  and  that 
tho  trustees  had  not  sold,  and  that  he  was  in  pos- 
session by  their  permission ;  held,  that  such  ad- 
mission was  evidence  to  show  that  he  was  not  the 
legal  owner  of  the  estate.  Doe  v.  Coulthred,  2 
Nev.  A  P.  (K.  B.)  165. 

10.  Where  in  assault,  a  letter  was  written  by 
the  defendant's  attorney,  containing  an  apology  ; 
held,  that  parts  of  it  extolling  his  client's  charac- 
ter for  respectability  could  not  be  read,  nor  at  all, 
if  expressed  to  be  written  *^  without  prejudice." 
Healey  v.  Thatcher,  8  C.  &  P.  (n.  p.)  38d. 

11.  Where  upon  the  trial  of  an  indictment  for 
obstructing  a  highway,  the  question  was,  whether 
the  road  was  puhlic  or  private ;  held,  that  the  de- 
claration of  a  deceased  occupier  at  the  time  of 
planting  an  alleged  boundary  willow,  was  inad- 
missible, either  as  a  declaration  accompanying  an 
act,  or  as  contrary  to  the  party's  interest,  or  as 
evidence  of  reputation.  Reg.  r.  Bliss,  2  Nev.  & 
P.  (q.  B.)  464. 

12.  On  an  indictment  for  murder  of  A.  by  poison, 
held,  that  the  dying  declarations  of  B.,  who  died 
also  of  the  same  cause,  were  admissible.  R.  v. 
Baker,  2  M.  &  Rob.  (m.  p.)  53. 

13.  In  ejectment  on  two  demises,  in  the  names 
of  a  trustee  in  fee  and  eeattdque  trust  for  lite,  and 
at  the  trial,  the  question  bein^  one  of  parcel  or 
no  parcel,  the  lessor  of  plaintiff  elected  to  aban- 
don the  latter  demise ',  held,  that  a  deed  executed 
by  the  cestui  que  trust,  not  clearly  and  unambig- 
uously against  her  interest,  although  an  advan- 
tage  was  obtained  under  it,  was  inadmissible  as 
a  aeclaration :  and  quttre  whether  in  an  action 
brought  by  a  trustee  in  respect  of  the  trust  prop- 
erty, the  admission  on  a  cestui  que  trust  whose 
interest  is  not  commensurate  with  his,  can  be 
evidence  against  him.'  Doe  v.  Wainwright,  3 
Nev.  &  P.  (q.  B.)  598. 

14.  Where  the  defendant's  son  was  alleged  to 
have  warranted  a  horse,  as  agent  to  the  defen- 
dant, and,  to  prove  the  authority,  evidence  was 
offered  of  the  son's  declaration  to  a  stranger,  held 
inadmissible,  as  not  made  in  the  course  of  any 
bargain  and  sale  for  the  horse.  Allen  v.  Den- 
stone,  8  0.  &  P.  (N.  p.)  760. 

15.  In  an  action  by  assignees,  upon  a  Question 
of  fraudulent  preference,  before  any  evidence  of 
the  bankruptcy  or  insolvenoy,  decUrations  of  the  | 


party,  showing  a  consciousness  of  his  being  in  in- 
solvent circumstances,  held  admissible,  the  fact 
of  insolvency  being  aflerwards  proved  aliunde,  al- 
though semlle  the  latter  fact  should  strictly  be 
first  proved.  Thomas  v.  Connell,  4  Mees.  &,  W. 
(XX.)  267. 

16-  Where  a  deceased  party,  the  grantee  of  an 
annuity,  anticipating  that  the  validity  of  it  might 
be  questioned,  through  nis  solicitor  submitted  a 
case  to  counsel,  and  the  papers  afterwards  came 
into  the  possession  of  his  son,  the  defendant  and 
assignee  of  the  annuity ;  held,  not  to  be  privileg- 
ed communications  nor  letters,  dec,  written  by 
the  defendant  to  his  father's  former  solicitor,  act- 
ing as  his  agent  and  friend  and  not  as  his  solicitor : 
the  privilege  of  the  client,  as  to  discovery,  is  not 
co-extensive  with  that  of  his  solicitor.  Green- 
law V.  King,  I  Beav.  (ch.)  137. 

17.  Where  the  defendant,  who  had  become 
guarantee  for  the  doe  accounting  of  a  party  em- 
ployed by  the  plaintiff  as  agent,  upon  having 
sent  to  him,  by  the  plaintiff  s  attorney,  a  letter 
enclosing  a  copy  of  the  account  for  which  he 
was  liable,  and,  m  his  reply,  he  promised  to  ob- 
tain the  share  of  his  cosurety  and  remit  it  with 
his  own  to  the  plaintiff,  and  having  notice  to  pro- 
duce at  the  trial,  the  account ;  held,  that  a  dupli- 
cate copy  might  be  proved,  and  the  admission 
that  the  defendant  said  it  was  correct,  without 
calling  the  agent.  Ward  r.  Suffield,  5  Bing.  N. 
S.  (c.  p.)  381. 

18.  Where  the  defendant  had  used  the  affidavit 
of  a  party,  stating  the  seizure  of  goods  by  him  as 
officer  of*^  the  defendant,  upon  a  motion  of  inter- 
pleader ;  held,  that  such  affidavit  was  admissible 
m  evidence  against  the  defendant  to  connect  the 
party  with  him,  although  the  latter  waB  in  court 
at  the  trial  and  might  have  been  himself  called. 
Brickell  v.  Uulse,  7  Ad.  &  £U.  (q.  b.)  454. 

19.  Where,  in  an  action  by  ana^ees  for  good* 
sold,  dec,  the  defendant  offered  in  evidence  an 
account  stated  and  settled,  showing  a  balance  to 
the  defendant,  and  which  was  dated  ^or  to  the 
bankruptcy ;  held,  that  it  was  to  be  presomed  to 
have  been  written  at  the  time  it  bore  date,  and 
properly  received  in  evidence ;  if  the  fact  were 
otherwise,  or  the  paper  a  fraudulent  contrivance^ 
it  was  open  for  the  plaintiff  to  show  it. 
V.  Baggaley,  4  Mees.  <&  W.  (xx.)  312^/V 

And  see  Indictment ;  Insolvents 


EXCHEQUER  B 
See  Trustee. 


EXCHEQUER  COU 

Power  of  taking  inquisition  of  pH 
ed  to  the  court  of  Exchequer ;  2  &  3 
1  Beay.  (oh.)  Ap.  xii. 


9778 


[EXECUTION— EXECUTOR] 


EXECUTION. 

1.  Where,  after  an  order  for  speedv  execution, 
the  defendant  paid  the  money,  and  afterwards 
moved  for  a  new  trial ;  the  court  refused  to  allow 
the  money  to  be  paid  into  court  whilst  the  rule 
pending.    Morton  v.  Bum,  5  Dowl.  (p.  c.)  421. 

2.  Where,  in  assumpsit  for  goods  sold,  and  on 
an  account  stated,  whichlast  count  was  demurred 
to,  the  plaintiff  obtained  a  verdict  on  the  first 
count ;  the  court,  on  his  undertaking  to  enter  a 
nolle  pros.,  allowed  speedy  execution.  AUsopp 
V.  Smjth,7  C.  &  P.  (N.  p.)  70S. 

3.  The  bishop  can  only  be  required  to  make  a 
return  of  what  has  been  levied  since  his  coming 
into  the  office,  and  when  the  attorney  has  been 
changed,  the  order  to  change  must  be  served 
with  the  order  to  return,  irhillips  v.  Berkeley, 
5  Dowl.  (p.  c.)  279. 

4.  The  plaintiff  having  obtained  judgment  for 
932.,  and  issued  Q.Ji.fa.  for  241.,  including  \l.,  the 
cost  of  the  writ ;  held,  that  a  tender  of  the  debt 
was  insufficient,  and  the  plaintiff  entitled  to  issue 
execution.  Bay  ley  v.  Potts,  3  Nev.  &  P.  (<i.  b.) 
365. 

5.  Writs  of,  new  forms  of,  pursuant  to  1  &.  2 
Vict  c.  110.    5  Bing.  N.  S.  (c.  r.)  366. 

6.  A  venditioni  exponas  is  not  a  process  distinct 
from  the  ji.  fa.,  but  a  part  of  it,  being  a  direction 
to  execute  it  in  a  particular  manner,  and  is  there- 
fore within  the  rule  of  Mich.  Term,  3  Will.  4,  s. 
13,  which  a  Judge  in  vacation,  has  power  to  order 
the  sheriff  to  return,  and  an  attachment  may 
issue  for  disobedience.  Hughes  v.  Rees,  4  Mees. 
A  W.  (ex.)  468 ;  and  7  Dowl.  (p.  c.)  56. 

7.  Where  a  verdict  had  been  obtained  against 
rthe  defendant,  as  a  nominal  defendant,  on  behalf 
<of  a  mining  company  of  which  he  was  a  director ; 
.held,  that  as  the  act  enabled  a  party  who  had  so 
iiecovered  judgment  to  levy  the  amount  on  the 
preserved  fund,  or  any  other  property  of  the  com- 
dpany,  he  was  not  personally  liable  to  execution. 
Harrison  v.  Timmins,  4  Mees.  &  W.  (kx.)  510 ; 
«and  7  Dowl.  (p.  c.)  28. 

8.  Where,  after  a  final  decree  in  the  Stannary 
Court  of  Cornwall,  the  defendant  removed  out  of 
tthe  jurisdiction,  held  that  the  court  could  not 
iissae  execution  on  the  equity  side  under  6  &  7 
WiU.  4,  c.  106.  Harvey  v.  Gilbard,  7  Dowl.  (p.  c.) 
£25. 

And  see  Judgment;  Lev.  Facias;  Sheriff; 
Prisoner. 


EXECUTOR. 
[A]  Duties    and    liabilitibs  of — wbkn   a 

TRUSTEE. 

[BJ  Privileges. 

[C]   ACTIARS     AND    SUITS,  BT    AND   AttAlVST— 

COSTS. 


[A]  Duties   and   liabilities   of — when  a, 

TRUSTEE. 

1.  An  executor  is  entitled  to  avail  hinaelf  of  s 
judgment  confessed,  and  plea  of  puis  darr.  cont.^ 
although  given  pending  an  action  against  him, 
referred.    Alder  v.  Park,  5  Dowl.  (p.  c.)  16. 

2.  Where  executors  and  trustees  allowed  a 
considerable  portion  of  the  assets  to  lie  more  than 
a  year  unproductive  in  the  hands  of  bankers, 
who  failed ;  held  to  be  chargeable  with  the  loss. 
Moyle  V.  Moyle,  2  Russ.  «&  M.  (cm.)  710. 

3.  Upon  the  bequest  of  residuary  estate  to  one 
of  two  executors  for  his  own  use  and  benefit, 
*'  trusting  to  his  honor  that  he  would  act  in  strict 
conformity  with  her  wishes,'*  and  testatrix  on  the 
same  day  executed  a  testamentary  paper  contain* 
ing  a  list  of  legacies ;  held,  that  tlie  executor 
was  to  be  deemed  only  a  trustee,  and  that  after 

f>ayment  of  the  debts  and  legacies,  the  residue  be- 
onged  to  the  next  of  kin.  Wood  v.  Cox,  1  K. 
(CH.)  317. 

4.  Where  a  legacy  was  given  afler  the  death  of 
testator's  wife  to  W.,  and  if  he  should  die  in  her 
life-time  to  such  person  as  he  should  appoint,  and 
in  default  thereof  to  his  executors,  &c.  absolute- 
ly ;  W.  died  without  making  any  appointment, 
but  appointed  an  executor  :  held,  that  the  latter 
took  no  beneficial  interest  in  the  legacy.  Stocks 
V.  Dodsley,  1  K.  (ch.)  325. 

5.  Where  the  defendant,  who  eventually  took 
out  letters  of  administration  to  his  mother,  bein^ 
abroad  at  the  time  of  her  death,  expressed  him- 
self, in  a  letter  to  the  person  ordering  the  ftine- 
ral,  satisfied  with  what  had  been  done ;  held  to 
have  been  properly  left  tu  the  jury  to  say  if  he 
had  not  ratified  the  orders,  and  was  liable  for  the 
amount.    Lucy  v.  Walrond,  3  Bing.  N.  S.  (c.  r.) 

6.  Upon  a  rule  calling  upon  ezecutors  to  ac- 
count for  legacy  duty,  the  court  directed  it  to 
form  part  of  the  rule,  that  if  any  duty  should  be 
found  payable,  the  ezecatois  should  pay  the  costs 


[EXECUTOR] 


S770 


of  tlM  erown,  to  1m  taied  in  the  ma«l  auinner. 
RobiMon,  in  the  goodg  of,  5  Dowl.  (f .  «.)  609. 

7.  Where  the  ezecator,  oiler  payment  of  debts 
and  leg&cief ,  invested  the  residue  in  the  funds, 
for  the  benefit  of  certain  legatees }  held,  upon 
plea  ffoM  administravitf  in  an  action  on  a  bond, 
of  wnich  thej  had  no  notice  until  15  jears  after 
the  testator's  death,  that  havinff  the  control  over 
part  of  the  testator's  estate  stul  in  their  hands, 
the  plea  could  not  be  sustained.  Smith  v.  Day, 
2  Mees.  4l  W.  (ei.)  634. 

8.  An  act  done  by  an  executor  is  valid,  provid- 
ed the  will  is  ultimately  proved,  although  the 
executor  doinf  the  act  die  without  proving  it. 
Braxier  v.  Hudson,  8  Sim.  (cb.)  67. 

9.  Where  the  executors  of  a  deceased  trustee 
admitted  assets,  after  pajrment  of  debts,  sufficient 
to  satisfv  a  breach  of  trust ;  held,  that  they  were 
liable,  although  ignorant  of  such  breach  of  trust, 
and  no  claim  made,  and  they  had  long  since  satis- 
fied the  lagacies,  and  distributed  the  surplus 
amongst  the  residuary  legatees.  Knatchbull  v. 
Fernhead,  3  Myl.  dit(>.  (ch.)  132. 

10.  The  pendency  of  a  suit  for  administration 
of  the  estate  bv  a  legatee,  held  no  answer  to  an 
application  under  the  42  (reo.  3,  e.  52,  by  the 
Commissioners  of  Stamps,  for  an  account  of  du- 
ties become  payable,  if  any.  Sammon,  in  re,  3 
Mees.  &  W.  (ex.)  381. 

11.  Bequest  of  an  annuity  to  the  executor  for 
hia  trouble,  until  a  final  settlement  of  his  afiairs 
should  take  place,  and  he  proved  and  acted,  but 
a  suit  was  subsequently  instituted  for  administer- 
ing the  estate ;  held,  that  until  shown  that  the 
trouble  of  the  executorship  had  ceased,  the  an- 
nuity was  payable.  Baker  v.  Martin,  8  Sim. 
(cH.)  25. 

13.  Where,  upon  administration  granted  to  A. 
and  fi.,  A.  being  a/«m«  coverte,  the  fund  was  in- 
vested in  the  names  of  B.  and  the  husband  of  A. 
at  a  banker's  to  be  paid  out  upon  their  joint 
checks ;  and  after  the  death  of  the  husband  of 
A.,  B.  drew  out  the  fund  and  absconded :  held, 
that  the  husband  of  the  administratrix  having, 
b^  snch  deposit,  put  it  out  of  her  control,  and  on 
his  d^ith  enabled  B.  to  appropriate  the  monej 
without  the  control  of  his  co-administratrix,  his 
estate  was  liable  to  make  the  fund  good.  Clough 
V.  Bond,  3  Myl.  6l  Cr.  (cb.)  490 ;  affirming  S. 
C.  8  Sim.  594. 

And  see  Adair  v.  Shaw,  1  Sch.  A  Lefir.  293. 

18l  Where  the  testatrix,  having  property  in 
several  counties,  appointed  persons  resident  in 
each,  executors,  ana  having  paid  all  the  debts 
and  specific  legacies,  apportioned  the  funds  and 
arranged  to  pay  the  legatees  respectively  in 
those  counties ;  one  having  made  default,  held 
that  the  other  was  responsible,  the  parties  enti- 
tled, and  in  no  fault,  not  being  to  be  injured  by 
such  arrangement  between  themselves,  and  the 
funds  not  being  handed  over  in  the  ordinary 
course  of  administration.  Moses  v.  Levi,  3  Tounge 
dk  C.  (ex.  xd.   359. 

14.  Where  a  party  is  equitably  interested  at  I 
the  time  of  filing  his  biU,  it  is  bq  objection  that  t 

Vol,  IV.  64 


at  the  time  of  filing  he  faasBol  taket  o«t  adaunis 
tration.    lb. 

15.  An  executor  ordered  to  pay  a  fund  into 
court,  held  not  to  be  prejudiced  thereby  as  to  his 
lien  thereon  for  his  costs.  Bienkinsop  v.  Foster, 
3  Younge  &  C.  (xz.  sq.)  207. 

16.  The  mere  ordering  the  funeral  and  appro- 
priating a  reasonable  sum  for  that  purpose,  doss 
not  mSke  the  party  an  executor  de  son  tart; 
where  the  defendant  had  received  a  debt  due  to 
the  deceased  and  applied  it  to  the  purpose  of  the 
funeral,  held  that  it  was  a  question  for  the  jury  to 
say  if  the  sum  were  more  than  was  reasonable 
for  that  purpose ;  as,  if  he  had  received  more,  he 
must  be  taken  to  have  paid  it  out  of  the  assets. 
Camden  v.  Fletcher,  4  Mees.  dc  W.  (xx.)  378. 

17.  Where  testator  directed  his  widow  to  cany 
on  his  business  until  the  youngest  child  should 
attain  21,  and  for  that  purpose  gave  her  **  the 
entire  use,  disposal,  and  management  of  the  capi- 
tal, stock,  and  efiects  in  the  trade,  and  authorized 
his  executors  to  augment  or  diminish  the  capital 
from  time  to  time  as  they  might  deem  proper :" 
the  executors  renounced,  and  the  widow  took  out 
administration :  held,  that  the  specified  proper^ 
was  only  liable  to  the  debts  incurred  by  the  wid- 
ow in  carrying  on  the  trade.  Cutbusn  v.  Cut- 
bush,  1  Beav.  (cH.)  184. 

18.  Upon  a  limitation  of  funds  in  a  settlementi 
*'  to  the  executors,  &c.  of  the  settlor,  to  and  for 
his  and  their  own  use  and  benefit ;"  held,  that 
the  executors  did  not  take  beneficially,  but  only 
in  their  representative  character,  names  v. 
Hames,  2  Keene  (ca.)  646. 

19.  An  executor  in  trust,  who  has  not  proved, 
is  not  liable  for  a  devastavit,  and  therefore  is  a 
competent  witness  to  increase  the  estate.  Hall «. 
Laver,  3  Tounge  A  C.  (xx.  xq.)  191. 

20.  Where  the  executor  of  the  urvivor  of  sev- 
eral trustees  declined  to  prove  the  will,  held  with- 
in the  1  Will.  4,  c  GO,  and  upon  the  usual  refer- 
ence new  trustees  appointed.  Hagger,  ex  parte, 
1  Beav.  (cB.)  98. 

21.  Where  the  estate  of  the  testator  consisted 
principally  in  book  debts,  which  were  very  numer- 
ous, the  executoTs,allowed  to  appoint  an  agent  with 
a  salary.    Hopkinsonv.  Roe,  1  Beav.  (cb.)  180. 

22.  But  extra  brokerage  for  transferring  stock 
from  the  name  of  the  testator  into  that  of  the  ex- 
ecutor not  allowed ;  the  sum  allowed  by  the  court 
is  one  guinea,    lb. 


[B]   PRIVILKOXS. 

1.  Where  a  balance  was  found  to  be  due  to  the 
estate  from  two  executors,  one  of  whom  was  a 
creditor,  held,  that  he  was  entitled  to  retain  his 
debt  out  of  the  assets  jointly  due  from  himself 
and  co-executor.  Kent  v.  Pickering,  2  Keene, 
(CB.)  1. 

2.  Where  a  party  employed  successively  the 
plaintiff  and  others  as  solicitors  in  a  suit  in  Chan* 
eery,  and  eventually  and  afler  her  death,  upon 


3780 


[EXECUTOR] 


reriTor,  the  tben  attomej  obtained  a  decree,  and 
an  order  for  the  Master  to  settle  the  costs  of  all 
parties,  which  when  settled  were  to  be  paid  as 
directed,  yiz.  the  costs  of  the  plaintiffs  to  their 
then  solicitor,  and  of  the  defendants  to  their  se- 
Teral  solicitors ;  the  plaintiff,  one  of  the  original 
solicitors,  having  received  a  part,  and  a  judgment 
of  assets  qttamw,  which,  on  proceeding  to  en- 
force, the  executor  induced  him  to  stay,  under- 
taking to  pay  the  residue  of  his  bill  out  of  the 
first  assets ;  upon  a  further  sum  being  awarded 
9nt  of  Chsjicery  in  the  suit  in  respect  of  the 
same  costs ;  held,  (per  Park  and  Alderson^  BB., 
contra  Lord  Jlbinger^  L.  C.  B.)  that  such  sum 
was  assets  within  the  meaning  of  tlie  undertak- 
ing.   Smedley  9.  Philpot,  3  Mees.  &  W.  (ex) 

'  o..  Where  a  party  at  the  time  of  his  becoming 
bankrupt,  was  mdebted  to  his  sister,  who  by  her 
will  gave  a  sum  to  trustees  in  trust,  to  pay  the 
interest  to  him  for  life,  free  from  debts,  and  with- 
out power  of  anticipation,  and  afler  his  death  to 
such  persons  as  he  should  appoint,  and  for  de- 
fault tnereof,  to  hia  executors  and  administrators, 
for  his  and  their  use  and  benefit ;  the  bankrupt 
died  without  ever  having  obtained  his  certificate 
or  mode  any  appointment ;  and  held,  that  the  ex- 
ecutors of  the  testatrix  could  not  set  off  the  debt 
against  the  legacy,  but  that  the  assignee  was  en- 
titled to  sue  for  it,  and  the  executors  to  prove, 
and  deduct  the  dividend  payable  on  the  proof 
from  the  amount  tliey  were  liable  to  pay.  Cher- 
ry  17.  Boultbee,  2  Keene  (ch.)  319. 

4.  Where  the  testator  deposited  with  the  party 
whom  he  made  his  executor,  a  policy,  as  security 
for  a  debt,  and  for  a  further  advance,  which  the 
office  refused  to  pay,  unless  a  receipt  was  given 
by  the  holder  **a8  executor,"  and  which  he  did  ; 
held,  that  upon  the  plea  jdene  adm,^  except,  6ic. 
that  the  executors  were  only  chargeable  for  the 
(i^rplus  as  assets  after  payment  of  the  debt.  Gla- 
holm  V.  Rowntree,  6  Ad.  4k  £11.  (x.  b.)  710. 

5.  Where  executors,  before  a  suit  for  adminis- 
tration commenced,  paid  several  creditors  in  part, 
held  that  the  latter  were  not  entitled  to  further 
payment  until  all  the  others  had  been  paid  pro- 
portionably.  Wilson  v.  Paul,  8  Sim.  (ch.)  63,  S. 
r. ;  Mitchelson  v.  Piper,  lb.,  64  -,  held,  also,  in  the 
latter  case,  that  tlie  executors  were  not  to  be  al- 
lowed payments  made  afler  the  decree,  but  the 
utmost  they  were  entitled  to  was  to  stand  in  the 
place  of  creditors  as  to  such  payments. 

6.  The  case  of  Wood  p.  Cox,  1  Keene,  317, 
reversed  on  appeal,  2  Myl.  &  Cr.  (ch.)  684. 

7.  The  case  of  Turner  v.  Hitchon,  (1  Keene, 
804)  affirmed  on  appeal,  2  Myl.  &  Cr.  (ch.)  710. 

And  wte  Bankrupt  J  Receiver. 


[C]  Actions  ahd  suits  by  ahp  aqainst — costs. 

1.  Executors  deriving  title  from  the  will,  and 
Bot  from  the  probate  ;  held,  that  all  might  join  in 
a  sci.'fa.  to  receive  a  judgmeut,  although  only  one 
had  taken  out  probate.  Soottv.  Briant,6  Nev.  (k 
M.  (K.  B.)  381. 


3.  Where  the  attorney  of  the  creditor,  at  the 
time  of  demand,  alleged  that  he  did  so  upon  the 
party's  individual  liability,  on  account  of  having 
paid  the  interest  from  time  to  time  on  the  debt; 
held,  not  to  amount  to  a  waiver  of  the  right  to 
sue  the  party  in  the  representative  character,  nor 
to  justify  the  payment  of  legncies  before  debts; 
held  also,  that  a  taking  possession  by  the  executor 
of  a  chattel  in  which  a  life  interest  was  given,  did 
not  amount  to  an  assent  to  the  bequest  to  the  par- 
ty in  remainder.  Richards  r.  Browne,  3  Bing.  N. 
S.  (c.  p.)493;  and  4  Sc.  262. 

3.  Where  the  executor  pleaded  to  the  action, 
and  not  plene  admi. ;  held,  that  judgment  against 
him  was  evidence  of  a  devastami^  and  a  return  of 
ntdla  bona  testatoris  to  a  sci.  fa.  quashed,  and  a 
new  writ  ordered.  Palmer  9.  Walter,  1  Mees. 
&  W.  (EX.)  689 ;  1  Tyr.  &  Gr.  1014 ;  and  5  Dowl. 
(p.  c.)  172. 

4.  Proof  of  furniture  bought  within  12  months, 
and  seen  in  the  intestate's  house  shortly  befbn 
his  death  ;  held,  a  prima  fade  case  of  evidence  of 
assets.  Britton  v.  Jones,  3  Bing.  S.  &.  (c.  f.) 
676;  and  4  Sc.  393. 

5.  Upon  the  usual  decree  against  an  executor 
to  account,  the  Master  cannot  go  into  disputed 
partnership  transactions  between  the  executor  and 
his  testator,  but  the  plaintiff  may  have  relief  by 
supplemental  bill,  without  interrogating  the  exe- 
cutor in  the  original  suit ;  and  where  one  of  two 
executors  was  partner  with  the  testator,  the  bill 
for  an  account  of  the  partnership  transaction  may 
be  sustained  against  both,  although  collusion  is 
neither  charged  nor  proved.  Cropper  v.  Knap- 
man,  2  Younge  (ex.  £<i.)  338. 

6.  Where  the  plaintiff  in  a  suit  for  an  account 
of  an  intestate's  estate  had,  through  the  conduct 
of  the  administratrix,  been  obliged  to  employ  an 
accountant,  the  court  ordered  the  defendant  to  pay 
the  expense  before  the  hearing  for  further  direc- 
tions.   Toner  v.  Thompson,  7  Sim.  (en.)  145. 

7.  Where  a  legatee  filed  a  bill  against  the  rep- 
resentative of  an  executor,  and  a  suit  was  subse- 
quently instituted  by  creditors  of  thf  executor, 
the  court  allowed  a  petition  to  abandon  his  suit, 
and  for  liberty  to  prove  for  his  legacy  and  costs 
of  his  suit,  and  or  tlie  petition  on  the  creditor's 
suit.    Turner  r.  Wardle,  7  Sim.  (ch.)  80. 

8.  On  a  sci.  fa.  to  revive  a  judgment  against  an 
executor ;  held,  that  a  plea  of  wnt  of  error  depen- 
ding on  the  judgment,  was  bad.  Snook  «.  Mat- 
tock, 5  Add.  &,  £11.  (K.  b.)  239. 

9.  On  a  bill  filed  for  an  acconnt  of  an  intestate's 
estate  against  an  executor  do  son  tarty  payments 
made  to  tho  party  who  took  out  administratiott, 
pending  the  suit,  disallowed.  Layfield  v.  Laj- 
field,  7  Sim.  (ch.)  172. 

10.  Where  an  executor  separated  from  the  tes- 
tator's propertvasum  bequeathed  to  him  on  trust, 
to  which  he  ior  some  time  applied  the  interest, 
and  afterwards  applied  the  fund  to  his  own  use  j 
held,  that  he  was  liable  as  a  trustee,  and  that  ths 
suit  against  hiiu  was  not  to  be  deemed  a  suit  for 
a  legacy,  nor  the  right  affected  by  the  late  Sta- 
tute of  Limitation,  3  <&.  4  WiU.  4,  c.  27,  s.  40. 
Phillipps  v.  Muunings,  2  Myl.  &  Cr.  (ch.)  309. 


[EXECUTOR— PAIR] 


9781 


11.  Where  in  an  action  bj  an  executor,  the  de- 
fendant craved  o^er  of  the  letters  testamentary, 
with  the  will  annexed,  held,  that  the  will  must 
also  be  set  out.  Daly  t7.  Mahon,  4  fiing.  N.  S. 
(c.  9.)  235 }  and  6  Dowl.  (p.  c;  305. 

12.  In  assumpsit  against  an  executor,  for  goods 
sdd  to  him  as  eiecutor,  and  for  work,  A.C.,  per- 
formed/or kim  at  his  request,  held  to  be  necessarily 
intended  for  debts  due  from  him  in  his  own  right, 
and  misjoined  with  counts  for  money  paid  to  his 
use  as  executor,  and  on  an  account  stated  and  a 
promise  by  him  as  executor  :  and  judgment  ar- 
rested. Corner  v.  Shaw,  3  Mees.  &  W.  (ex.)  350. 

And  vid.  supra. 

13.  Upon  a  bill  fifed  by  a  residuary  legatee 
against  the  personal  representative,  for  an  account 
and  payment  of  the  residue,  and  a  creditor,  on  a 
bond  above  20  years*  date  and  no  interest  thereon 
ever  paid,  subsequently  filed  a  creditor's  bill 
against  the  representative,  who,  by  his  answer, 
admitted  the  debt;  the  plaintiff,  in  the  former 
suit,  obtained  the  common  decree,  and  then  mov- 
ed and  obtained  an  order  that  all  proceedings  in 
the  second  suit  might  be  stayed;  the  Lord 
Chancellor,  on  appeal,  discharged  that  order,  and 
made  the  common  decree  in  the  second  suit,  and 
directed  the  report  to  be  made  in  both  causes. 
Budgen  v.  Sage,  3  Myl.  &  Cr.  (ch.)  683. 

14.  Where,  in  a.  suit  by  a  legatee,  the  executor 
denied  assets,  but  stated  fiicts  showing  that  he 
was  personally  liable  for  the  payment  oAhe  plain- 
tiff *s  legacy,  the  court  granted  an  order  for  im- 
mediate payment,  without  directing  the  accounts 
to  be  taken.  Rogers  v.  Sontten,  2  Keene  (ch.)  ; 
and  I  Coop.  (ch.  c.)  96. 

15.  Where,  afler  the  bill  had  been  dismissed, 
as  against  the  testator,  with  costs,  his  executor 
revived  the  suit,  intending,  as  he  alleged,  to  ap- 

Eeal,  but  which  he  did  not  prosecute ;  held,  that 
e  was  liable  to  the  costs.    Horlock  v.  Priestley, 
8  Sim.  (gh.)  621. 

16.  Where,  the  exeeutor  resident  abroad,  ad- 
ministration was  granted  to  M.,  his  attorney,  with 
the  will  annexed,  for  the  benefit  of  the  executor ; 
held,  that  upon  the  death  of  the  executor  the 
rrant  to  M.  was  at  an  end,  and  administration  de 
Amir  fum,  subsequently  granted  to  the  plaintiff", 
was  good ;  bat  that  he  could  not  recover  upon  a 
count  stating  the  promise  to  have  been  made  to 
the  executor.  Sewercrop  v.  Day,  3  Nev.  &  P. 
(<l.  B  )  670. 

17.  In  debt,  on  a  promissory  note,  payable  12 
months  afler  date,  by  the  defendant  (executrix) 
to  the  plaintiff",  plea,  that  W.  deceased,  intestate, 
was  at  the  time  of  his  death  indebted  to  the 
plaintiff*,  who  had  applied  to  the  defendant  for 
payment,  and  that  in  consideration  of  the  debt 
Demg  unpaid,  and  for  no  other  whatever,  the 
defendant,  at  the  request  of  the  plaintiff",  made 
and  delivered  the  note,  and  that  there  were  no 
executors,  nor  had  anyadministration  been  grants 
ed  to  the  estate  of  W. ;  replication,  de  injuria : 
held,  that  such  plea  was  bad,  as  not  negativing 
•asets,  and  in  the  event  of  the  defendant  afler^ 
wards  taking  adminiftntion,  Uw  note  would  ha^e 


the  efl^t  of  poitponing  the  payment  ef  the  debt 
for  12  months,  and  judgment  nan  obst.  vered; 
but  held  also,  that  the  defendant,  being  the  widow 
of  the  deceased,  a  hair-dresser,  continuing  to  live 
in  the  house,  and  opening  the  shop,  the  entrance 
to  the  house,  but  there  was  no  evidence  of  any 
sale  of  goods  by  her,  or  of  doing  more  than  giv- 
ing the  note,  and  of  having  the  goods  valued, 
preparatory  to  taking  out  administration,  were 
not  acts  sufficient  to  constitute  her  executrix  d^ 
son  tort.  Serle  v.  Water  worth,  4  Mees.  d&  W. 
(XX.)  9;. and  6  Dowl.  (p.  c.)  684  ;  but  judgment 
reversed  on  error,  4  Mees.  &,  W.  795. 

18.  Where  in  a  suit  for  administering  an  estate, 
certain  legatees  (charged  on  lands,  and  who  haa 
been  paid,^  were  made  defendants,  and  filed  dis- 
claimers ;  held,  that  the  plaintiff  was  not  charge- 
able with  their  costs.  West  v.  Cole,  3  Toonge 
&  C.  (EX.  xq.)  583. 

19.  In  a  suit  against  the  legal  personal  repre- 
sentative, praying  the  usual  accounts,  and  by 
the  decree  he  was  ordered  to  pay  a  sum  into 
court ;  held,  that  upon  his  death,  the  mere  order 
to  revive  was  not  sufficient,  but  that  there  must 
be  a  specific  direction  to  the  new  defendants  to  do 
the  specific  acts  their  testator  was  directed  to  do. 
Harries  v.  Johnson,  4  Younge  dk  C.  (ex.  xq.V 
583. 

And  see  Assumpsit;  Bills;  Bonds;  Limita- 
tions, Stat,  of. 


EXECUTORY  DEVISE. 

See  Legacy. 

EXONERATION. 
See  Debts. 


TACTOR. 

Where  a  factor  bad  goods  consigned  to  him, 
and  the  bills  of  lading  indorsed,  ancT  received  the 
dock  warrants  and  wharfinger's  certificates  in  his 
own  name,  which  he  pledged  for  advances  on  his 
own  account,  held,  that  Uie  6  Geo.  4,  o.  91,  did 
not  extend  to  documents  created  by  the  factor 
himself,  but  only  to  pledges  by  him  of  documents 
entrusted  to  him  by  the  owner;  and  it  would 
make  no  difference,  that  the  pledgee  knew  that 
the  goods  were  not  the  property  of  the  Ikctor. 
Close  9.  Hohnes,  2  M.  <&  Rob.  (if.  r.)  22. 


FAIR. 

Where  by  the  charter  granting  a  fair,  the  term* 
of  the  grant  were  cum  omnibus  Uberis  eonme- 
titdinibusj  dko.,  ad  fenam  perttnentibus ;  held, 
thalbthe  jadge  improper)|r ^u^eted the jorj, UmI 


9782 


[FAIR— FOREIGN  ATTACHMENT] 


thai  if  Um  durter  wt ts  one  sinplj  of  yrant, 
those  wordf  mi^ht  eignify  tolls;  temb,  dUter^  if 
the  charter  were  one  of  coofirmation,  and  sap> 
ported  by  immemorial  usage.  Egremont,  Earl 
of  V.  Saul,  6  Ad.  dt  Ell.  (q.  b.)  924. 


FALSE  JUDGMENT. 

The  19  Geo.  3,  e.  70,  semb.^  applies  only  to 
eourts  of  record ;  a  return  by  the  sheriff  to  a 
writ  of  false  judgment,  *'  that  the  plaintiff  in  er- 
ror had  not  given  securibr  to  prosecute  his  suit 
with  efiect,"  field  had.  Crookes  v.  Loagden,  7 
Dowl.  (p.  c.)  413. 

And  see  Ckntnty  Court, 


FINES  AND  RECOVERIES. 

1.  The  commissioners  for  taking  the  acknowl- 
edgments  of  married  women  hare  a  lien  on  the 
instmments  in  their  possession  for  fees  due  in  re- 
spect of  the  discharge  of  their  duty.  Grove,  ex 
parte,  3  Ring.  N.  8.  (c.  p.)  304 ;  3  Sc.  671 ;  and 
5  Dowl.  (p.  c.)  355. 

2.  'Wheke  the  object  of  the  recovery  was  to  bar 
the  issue  of  a  daughter  entitled  to  a  part  of  a  luna- 
tic's estate  in  remainder,  af\er  the  lunatic's  death 
without  issue,  in  order  to  enable  her  and  her  hus- 
band to  dispose  of  it,  the  court,  as  protector  under 
the  Fmesand  Recoveries  Act,  refused  to  concur  in 
barring  the  entail.  Newman,  in  re,  2  Myl.  dt  Cr. 
(CH.)  112. 

3.  The  court  allowed  the  attorney  for  taking 
the  acknowledgment,  being  also  one  of  Uie  com- 
missioners, to  verify  the  certificate.  Scholefield, 
in  re,  6  Dowl.  (p.  c.)  363. 

4.  The  affidavit  of  execution  of  the  deed  by 
married  women  in  foreign  parts,  although  not 
signed  by  the  parties,  allowed,  upon  proof  that 
it  was  not  usual  for  affidavits  there  to  be  siraed 
by  the  deponent.  Birch,  ex  parte,  4  Ring.  N.  S. 
(c.p.)394. 

6.  Where  copyhold  had  been  devised  to  the 
separate  use  or  the  wife,  and  the  husband  was 
living  abroad  separate  from  her,  the  court  idlowed 
a  oonveyance  by  her,  under  3  &  4  Will.  4,  c.  74, 
ss.  77.  91,  without  his  concurrence.  Shirley,  ex 
parte,  6  Ring.  N.  S.  (c.  p.)  226;  and  7  Dowl.  (p. 
c.)26d. 

6.  Affidavit  of  acknowledgment  of  9.  feme  eo- 
toerte  taken  by  a  judge  at  Illinois,  before  a  notary 
public,  held  sumeient  Mann,  ex  parte,  5  Bine. 
N.  8.  (c.  p.)  826. 

7.  Where  the  actual  proclamations  were  omit^ 
ted  to  be  indorsed  on  a  fine  which  had  been  levied 
at  the  Court  of  Great  Session  in  1830,  it  appear- 
ing to  have  been  the  practice  of  the  court  to  pro- 
claim all  fines,  whether  required  or  not;   the 


6.  Wherft  the  tenant  having  been  appointed, 
and  acted  as  receiver  during  10  years,  in  which 
he  also  cUiimed  title  as  devisee,  asainst  the  heir 
genera]  of  the  teBt|tor,  and  upon  the  final  decree 
m  his  favor,  had  received  the  accruing  rents,  and 
openly  taken   possession,  and  immediately,  in 
compliance  witn  the  directions  of  the  win,  as- 
sumed the  name  of  the  testator,  and  shortly  after 
levied  a  fine  in  that  name ;  held,  that  it  was  a 
sufficient  claim  of  the  freehold  and  levy  of  the 
fine  in  the  name  by  which  then  known  to  make 
the  fine  avulable,  and  a  bar  to  the  claim  of  a  sab- 
sequent  demandant.    Davies  v.  Lowndes,  5  Ring. 
N.  S.  (c.  p.)  161 ;  and  6  Sc.  738. 

9.  Where  an  entry  appeared  at  the  foot  of  the 
fine,  that  the  proclanuttions  had  been  made,  al- 
though by  misprision  of  the  clerk  of  the  Court  of 
Great  Sessions,  only  an  entry  of  the  seoond  had 
been  entered  on  the  roll ;  the  court  allowed  an 
entry  of  the  first  and  third  to  be  indoreed,  it  ap- 
pearing that  they  had  in  fact  been  made.  U^d 
dem.,  r^icholas  def.,  4  Ring.  N.  S.  (c.  p.)  6^ ; 
and  68c.  355. 

10.  Acknowledgment  of  a  married  woman, 
taken  at  Hamburffh,  allowed  to  be  filed,  althoof^ 
the  affidavit  verifying  the  due  taking  thereof,  m 
the  (German  language,  was  sworn  betm  the  pro- 
per officer,  but  not  signed  bv  the  deponent,  it  not 
being  the  practice  of  the  foreign  law  to  do  so. 
Birch,  in  re,  6  Sc.  (c.  p.)  185. 

11 .  Where  the  acknow ledgment  is  taken  abroad, 
the  affidavit  verifying  the  certificate  need  not 
state  the  place  where  taken.  Shuffiebottom,  in  re, 
6  Sc.  (c.  p.)  896. 

12.  The  proclamations  allowed  to  be  indorsed 
by  the  clerk  of  peace  into  whose  custody  the 
proceedingB  had  come,  and  which  had  been  omit- 
ted to  be  done  by  the  late  deputv  prothonotary  of 
the  Court  of  Great  Sessions,  althou^  after  eject- 
ment brought.  Evans  dem.,  Davies  defl,  oSe* 
(c.  p.)  373 ;  and  7  Dowl.  (p.  c.)  259. 

13.  Under  3  dt  4  Will.  4,  c.  74,  the  Chanoellor 
is  not  protector  of  the  settlement  in  the  place  of 
a  lunatic,  who  is  at  the  time  a  tenant  in  tail  im 
possession ;  and^sm^.,  if  the  estate  of  the  limatie 
were  such  as  constituted  the  Chancellor  prolse- 
tor,  and  the  lunatic  were  seised  of  the  temainder 
in  fee,  subject  only  to  an  intervening  estate  tail, 
the  Chanoellor  would  not  concur  in  baniag  it. 
Wood,  in  re,  3  Milne  6b  Cr.  (ch.)  266. 

And  see  JSUomey;  CopykM;  Lkwitic ;  Reoh 
very. 


FIXTURES. 
See  jfroMT. 


FOREIGN  ATTACHMENT. 
I.  Where  the  plaintiffii,  as  aasignees,  had  instiUi- 


amendment,  by  indorsing  them,  allowed.     Evans,  |  ted  a  suit  in  the  Mayor's  court  for  the  very 

dem.,  Davies  aod  Wife,  def ,  5  Ring.  N.  S.  (c.  p.)   debt,  and  mdgment  been  given  against  then, 
229 ;  and  7  Dowl.  (p.  o.)  259.  >  held,  that  they  could  not  fifi  a  biU  for  the  ame 


[FOREIGN  ATTACHMENT— FORFEITURE] 


278$ 


DUfttter,  there  being*  no  alle^tion  of  want  of  ju- 
risdiction, irregularity,  nor  incompetency  in  the 
court  below  to  do  justice,  and  plea  of  verdict  and 
judgment  there  allowed.  Behiens  v.  Pauls,  1  K. 
(cH.)  456. 

2.  Plea  in  asswnpsU  for  money  had,  a  recoyery 
by  foreign  attachment  by  a  creditor  of  the  plain- 
tiff, and  that  such  creditor  had  execution  thereof; 
replication,  no  execution  executed,  pursuant  to 
the  custom,  and  issue  thereon :  held,  Ist,  that  an 
nllegation  that  the  plaintiff  had  no  notice  of  the 
pro^edings  in  the  foreign  attachment  was  no 
answer  to  the  plea,  the  custom  being  found  not 
to  require  that  any  notice  should  be  ffiyen  to  the 
defendant  in  the  attachment ;  2dly,  tnat  the  cus- 
tom alleged  in  the  plea,  that  after  execution  had 
and  executed,  the  garnishee  should  be  discharged, 
and  it  being  expressly  found  that  no  writs  of  exe- 
cution were  issued  on  the  defendant  or  garnishee, 
the  plaintiff  was  entitled  to  judgment  on  that 
issue ;  that  the  defendant,  by  taking  issue  on  that 
replication,  was  not  precluded  fh>m  proving,  and 
the  jury  from  finding,  according  to  the  fact ;  and 
that  the  attorney  of  the  garnishee  was  not  incom- 

Eitent  to  prove  custom.    Magrath  v.  Hardy,  4 
ing.  N.  S.  (c.  p.)  782;  6  Sc.^7;  and  6  Dowl. 
(p.  c.)  749. 

And  see  Certioraru 


FOREIGN  COURTS. 

1.  In  a  suit  in  a  foreii^  court  for  the  distribu- 
tion of  personal  estate  of  a  party  domiciled  out  of 
the  country,  held,  that  it  is  bound  to  adopt,  in  the 
interpretation  of  testamentary  instruments,  the 
rules  of  construction  which  would  prevail  in  the 
country  where  the  party  was  domiciled,  but  that 
they  are  not  bound  to  adopt  the  foreign  rules  of 
evidence,  every  court  being  governed  by  its  own 
rules  of  procedure.  Tates  v.  Thompson,  3  CI.  & 
Fi.  (p.)  545. 

2.  Where  a  party  domiciled  in  Eneland,  but 
poesessed  of  real  estate  in  Scotland,  died  intestate, 
Icia^  indebted  on  bonds  which  were  paid  by  the 
heir  out  of  the  proceeds  of  the  real  estate  in  Scot- 
land ;  held,  that  the  right  which  the  heir  in  Scot^ 
land  paying  movable  debts  has  there  against  the 

C^rsonal  estate,  may  be  made  available  in  Eng- 
nd,  where  the  personal  estate  isprimarily  liable 
for  the  payment  of  all  debts.  Winchelsea,  Earl 
of,  V.  Gvatty,  2  Keene  (cb.)  293. 


FOREIGN  JUDGMENT. 

Plea  of  judgment  recovered  for  the  same  cause 
of  action  m  the  Vice-Admiralty  Court  of  Sierra 
Leone,  not  a  court  of  record,  and  the  judgment 
being  only  evidence  of  the  cause  of  action,  and 
not  shown  to  be  binding  and  conclusive  on  the 
defendant,  held  not  a  bar  to  a  count  on  the  origi- 
nal ground  of  action.  Smith  v.  Nicholls,  5  Bing. 
N.  B.  (c.  p.)  208 ;  and  7  Dowl.  (p.  c.)  283. 


FOREIGN  LAWS. 

Although  a  general  stoppage  of  payments  by 
a  foreign  trader  necessarily  amounts  to  a  refusal 
at  the  time  of  such  stoppage,  yet  where  the  sus- 
pension arose  from  the  stoppage  of  the  house  of 
agency  in  this  country,  the  Judicial  Committee- 
held  that  it  established  only  the  ouverture  de  la 
failUte  from  the  time  of  actual  stoppage  abroad ;  a 
mere  refusal,  not  followed  by  a  cessation  of  pay- 
ment, held  not  to  establish  such  ouverture  de  la 
faUlite  within  the  Art.  441  of  the  Code  de  Com- 
merce of  France.  D*Epinay  v.  Saunders,  1 
Moore,  (p.  c.)  103. 

And  see  Pleadings  (e.  l.) 


FOREIGN  STATES. 

1.  Where  this  country  introduced  its'  own  mu- 
nicipal law  into  a  conquered  or  ceded  country,  not 
in  ail  its  branches,  but  only  sub  modo  ;  held,  that 
it  did  not  draw  with  it  the  law  incapacitating 
aliens  from  holding  and  transmitting  real  estate; 
and  semb,,  the  Mortmain  Act  does  not  extend  to 
East  India  British  possessions.  Lyons,  Mayor^ 
&c.,  V.  East  India  Co.,  1  Moore  (pr.  co.)  388. 

3.  Devise  by  a  putv,  bom  in  France,  but  hold- 
ing military  rank  m  the  English  service  in  India^ 
and  resident  at  the  court  of  a  native  prince  ther«, 
of  real  and  personal  estate,  in  trust,  for  setting 
apart  sums  for  liberating  prisoners  confined  for 
debt,  and  for  the  endowment  of  a  college  at  and 
in  the  dominions  of  the  prince  wherein  the  testa- 
tor was  residing ;  upon  a  reference  in  a  suit  at 
Calcutta  for  carrying  the  will  into  effect,  to  in- 
quire whether  the  bequest  as  to  the  relief  of  pris- 
oners, could  be  carried  into  efiect,  as  to  which  it 
was  reported  in  the  negative ;  and  3dly,  whether 
the  governor-general  in  council  had  the  power  of 
giving  efiect  to  the  bequest  for  the  college  at  L.^ 
as  to  which  it  was  reported,  that  the  governor  wan 
willing  to  receive  the  funds,  but  did  not  state 
whether  he  had  the  means  of  giving  efiect  to  it^ 
whereupon  the  court  decreed  payment  of  the 
funds  to  the  governor,  or  to  such  person  as  he 
should  direct ;  upon  appeal,  the  latter  part  of  the 
decree  reversed,  the  report  of  the  Master  being  in- 
formal, and  the  objection,  if  taken  at  the  time,  fa« 
tal.  lb.  175.  ' 

3.  A  foreign  prince  becoming  a  suitor  volua-^ 
tarily  in  a  court  of  law  in  this  country,  becomee 
subject,  as  to  all  matters  connected  with  that  suit» 
to  the  jurisdiction  of  the  court  of  equity ;  and  a 
discovery  being  necessary  to  the  plaintiff's  de« 
fence  at  law,  demurrer,  for  that  as  against  a  sove- 
reign the  suit  was  not  maintaina^,  overruled. 
Rothschild  v.  Queen  of  Portugal,  3  Tounge  A 
C.  (EX.  Eq.)  594. 

And  see  Costs,  [B] ;  Habeas  Corpus. 


FORFEITURE, 

1.  Where  a  lease  was  to  become  voidable  in 
case  the  tenant  should  become  bankrupt  or  ineol. 


2784 


[FORFEITURE- FRAUDS,  STATUTE  OF] 


rent,  and  after  his  discharge  under  the  Insolvent 
Act,  the  landlord  received  rent  subsequently  ac- 
cruing, held  to  amount  to  a  waiver  of  the  forfeit- 
ure, and  that  the  non-payment  of  the  rent  speci- 
fied to  be  due  in  the  schedule,  did  not  amount  to 
a  continuing  insolvency,  as  to  create  a  new  cause 
of  forfeiture.  Doe  v,  Aees,  4  Bing.  N.  S.  (c.  p.) 
384. 

2.  In  ejectment  for  forfeiture  for  breach  of  co- 
venants for  insuring,  and  also  to  repair;  held, 
that  the  plaintiff  was  bound  to  show  that  the 
forfeiture  nad  been  committed,  and  that  the  refu- 
sal of  the  defendant  to  produce  the  policy  was 
not  of  itself  evidence  that  he  had  not  insured, 
but  merely  let  in  secondary  evidence.  Doe  d. 
Bridger  v.  Whitehead,  3  Nev.  &  P.  {q,.  b.)  557. 

And  see  Bankrupt;  Devise;  Ejectment. 


FORMEDON. 

Where  a  writ  of  petit  cape  issued  afler  a  gen- 
eral •  imparlance  and  view  demanded  by  the 
tenant,  and  no  default  committed  by  him,  held 
irtegular ;  and  semble^  if  such  demand  of  view 
were  irregular,  the  objection  could  be  taken 
otberwiae  than  by  demurrer  or  counterplea. 
Tolson  V.  Watson,  3  Bing.  N.  S.  (c.  p.)  770. 
And  the  demand  of  view  allowed  to  be  withdrawn 
on  payment  of  coaUi.    lb.  783. 


FRAUD. 

1.  Where  the  solicitor  employed  both  by  mort- 
affOT  and  mortgagee,  obtained  the  execution  of 
ue  deed  in  such  an  irregular  and  informal  man- 
ner as,  if  he  had  been  an  innocent  person,  ought 
to  have  excited  his  suspicion,  and  to  have  put 
him  upon  making  inquiries ;  held  to  amount  to 
constructive  notice  to  his  client  of  the  fraud  by 
which  it  was  obtained,  and  a  re-assignment 
decreed ;  and  affirmed^  upon  appeal,  but  without 
costs.  Kennedy  o.  Green,  3  Myl.  &  K.  (ch.) 
699. 

2.  The  court,  acting  on  the  principle  of  trans- 
actions between  attorney  and  client,  granted  an 
injunction  aeainst  enforcing  an  agreement  obtain- 
ed by  a  medical  man  from  an  aged  patient,  for 
the  payment  of  a  large  sum  on  his  death,  in  con- 
sideration of  past  services  and  future  attendance  ; 
and  semble^  such  an  i  strument  is  void  in  law,  as 
holding  out  temptations  to  do  the  very  act  which 
by  the  agreement  it  was  the  duty  of  the  party  ac- 
cepting it  to  do.  Dent  v.  Bennett,  7  Sim.  (ch.) 
639. 

3.  Where  an  attorney  being  employed  to  reco- 
Ter  possession  of  estates,  an  agreement  was  enter- 
ed into  between  him  and  his  client,  that  he  should 
have  possession  delivered  upon  giving  an  indem- 
nity against  costs,  and  that  the  contract  should  be 
complete  upon  p^ment  of  a  certain  sum  within  a 
stated  period  afVer  the  delivery  of  possession; 
held,  that  such  contract  was  void  and  contrary  to 
public  policy ;  an  tcoount  of  the  dealingi  botveem 


the  attorney  and  client  having  been  decreed,  held, 
that  the  former  was  bound  to  prove  the  consider- 
ation for  which  securities  were  given.  Jones  «. 
Thomas,  2  Younge  &  C.  (zx.  E<i.)  498. 

And  see  Heir;  Injunction;  Insolvent;  Mori" 
gage ;  Joint  Stock  Company  ;  Vendor  and  Fur. ; 

WtU. 


FRAUDS,  STATUTE  OF. 

1.  Where  the  plaintiff's  traveler  took  the  de- 
fendant's order  for  hops,  the  terms  of  which  the 
latter  entered  in  his  own  sample  book,  containing' 
his  own  name,  and  which  the  traveler  signed  on 
behalf  of  the  plaintiff;  held  a  sufficient  memoran* 
dum  of  the  contract  within  the  statute.  Johnson 
V.  Dodgson,  2  Mees.  &,  W.  (ex.)  653. 

2.  In  assumpsit  for  not  complelinff  an  agree- 
ment to  assign  a  lease  of  premises,  held,  first,  that 
the  day  stated  in  the  contract  for  completing  the 
purchase  of  an  interest  in  land,  could  not  be 
varied  by  parol,  as  being  a  contravention  of  the 
Statute  of  Frauds ;  but,  secondly,  that  the  fail- 
ure to  procure  a  licence  to  assign,  or  to  register 
previous  assignments  before  the  day  stipulated  for 
such  completion  of  the  contract,  being  imperfec- 
tions capable  of  being  removed,  were  not  breaches 
of  the  agreement.  Stowell  v.  Robinson,  3  Bing. 
N.  S.  (c.  p.)  928. 

3.  Where  the  defendant  had  taken  the  stock  of 
a  party,  and  undertaken  to  satisfy  the  creditors, 
the  plaintiff  agreeing  to  withdraw  his  execution 
which  he  had  issued ;  held  to  be  an  original  and 
not  a  collateral  undertaking  for  the  debt  of  an- 
other within  the  statute.  Bird  v.  Grammon,  3 
Bing.  N.  S.  (c.  p.)  883. 

4.  Where  an  agreement  for  a  lease  contained 
a  stipulation  for  a  mode  of  valuation ;  held  that 
it  was  to  be  taken  to  be  and  continue  entire,  and 
that  such  stipulation  could  not  be  waived  by 
parol.  Harvey  v.  Grabham,  5  Ad.  &  £11.  (k.  b.) 
73. 


5.  Where  a  joint  order  for  distinct  articles 
given,  and  part  received,  but  objections  were 
made  to  the  other  being  according  to  order ;  held, 
that  if  the  articles  were  furnished  according  to 
that  contract,  and  such  as  ouffht  to  have  been  de- 
livered pursuant  to  it,  the  defendant  was  respon- 
sible upon  the  joint  contract  for  both,  by  the  ac- 
ceptance of  one,  and  that  such  part  acceptance 
was  sufficient  to  satisfy  the  Statute  of  Fraoda. 
Elliott  V.  Thomas,  3  Mees.  6l  W.  (bx.)  170. 

6.  The  defence,  no  contract  in  writing,  need 
not  be  specially  pleaded  where  the  contract  is  ex- 
ecutory, and  relating  to  an  interest  in  land.  But- 
termere  v.  Hayes,  7  Dowl.  (p.  c.)  489. 

7.  A  contract  by  parol  to  purchase,  at  2s.  per 
sack,  potatoes,  then  growing  (June),  to  have  them 
at  digging-time  (October),  and  to  find  dig^rs ; 
held,  not  a  contract  for  an  interest  in  land  within 
the  statute.  Sainsbury  v.  Matthews,  4  Mees.  ik 
W.  (EX.)  343. 

And  see  Stamp;  WHH, 


[FRIENDLY  SOCIETY— GUARANTEE] 


2785 


FRIENDLY  SOCIETY. 

1.  An  order  of  Justices  requiring^  the  officer  of  a 
friendly  society  to  pay  money  to  a  member,  must 
ezpresslv  find  that  such  party  is  a  member  enti- 
tled to  toe  money,  and  that  the  party  on  whom  the 
order  is  made  is  at  the  time  an  officer  of  the  so- 
ciety ;  and  held,  that  the  order  being  directed  to 
him,  describing  him  as  *<  steward,  &c.,'*  nor  was 
the  recital  of  the  complaint  on  oath,  stating  him 
such  officer,  sufficient ;  nor  was  such  recital  by 
the  claimant,  stating  himself  a  member  and  enti- 
tled, and  the  money  due  sufficient  to  dispense 
with  such  finding,  nor  the  direction  to  pay  the 
amount  **  so  due  and  owing  as  aforesaid ;'  and 
a  distress  founded  upon  an  order  so  deficient 
being  bad,  the  Justices  held  liable  in  trespass. 
Day  V.  King,  5  Ad.  d&  £11.  (k.  b.)  359. 

2.  Where  the  original  rules  had  been  enrolled, 
but  the  society  had  for  30  years  acted  on  new 
rules,  which  had  not  been  enrolled,  held,  that  it 
ceased  to  be  withm  the  protection  of  33  Geo.  3,  c. 
54,  s.  2,  and  a  mandamus  to  justices  to  hear  the 
complaint  of  a  member  refused.  R.  v.  Lord  Go- 
dolphin,  3  Nev.  &  P.  (q.  b.)  488. 

And  see  Bankrupt, 


GAME. 

The  information  for  trespassinir  in  pursuit  of 

Eime,  under  1  &  2  Will.  4,  c.  91^  s.  30,  may  be 
id  by  a  p&rty  having  no  interest  in  the  land. 
Middleton  r.  Gale,  3  Nev.  &.  P.  (q.  b.)  372. 

And  see  Indictment. 


GAMING. 

See  Actum;  Assumpsit;  Bankrupt;  Bill;  Dis- 
covery; Wager. 


GAOL. 

On  mn  indictment  against  the  keeper  of  New- 
gate for  refusing  to  receive  parties  committed  by 
Middlesex  iostices  on  misdemeanors,  held  that 
the  Court  of  Aldermen  had  no  power  under  4  Geo. 
4,  o.  64,  s.  13,  to  make  sn  order,  limiting  the  appro- 
priation of  that  gaol  to  felons,  excluding  parties  so 
committed  for  misdemeanors ;  and  that  returns 
made  by  previous  keepers,  and  returns  made  by 
the  Court  of  Aldermen  under  that  statute,  were 
admissible  to  show  how  that  prison  had  been 
used ;  but  held,  that  a  refusal  to  receive  a  party 
committed  by  order  or  warrant,  departing  from 
the  usual  form,  was  not  a  wilful  and  contempt- 
uoos  disobedience,  within  the  words  of  the  indict- 
ment :  where  it  was  the  course  of  business  of  the 
office  of  the  city  solicitor  to  indorse  notices  and 
orders  when  served,  the  Judge  (although  there 
I  were  no  corroborating  circumstances)  received 
the  iDdoraements  as  evidence   of  service,  the 


solicitor,  the  clerk  and  the  keeper  being  all  dead. 
R.  V.  Cope,  7  C.  &  P.  (n.  p.)  720. 


GIFT. 


See  Bankrupt;  Bond, 


GRANT. 

1.  Where  the  crown  in  a  lease  of  lot  and  cope 
granted  also  to  the  same  lessee  the  office  of  bar- 
master  or  steward  of  the  barmote  court,  a  judi- 
cial officer,  regulating  amongst  other  thinfirs  the 
measure  to  be  rendered  by  the  miners  to  the  les- 
see ;  held,  that  the  grant  of  the  office  being  to  a 
party  who  was  incapable  of  holding  it,  on  the 
ground  of  his  peculiar  interest,  was  void.  Ark- 
wright  V,  Cantrell,  2  Nev.  &  P.  (<i.  b.)  -562;  and 
7  Ad.  6l  EU.  565. 

2.  Where,  in  consideration  of  ft  pftrty  permit- 
ting the  defendant  to  hold  the  office  of  steward 
of  a  manor,  at  the  will  of  the  grantor,  the  defen- 
dant promised,  out  of  the  fees,  to  pay  an  annuity 
to  a  party,  the  former  steward,  so  long  as  he 
shoula  hold  the  office,  and  the  lord  aflerwatde 
appointed  the  defendant  for  life ;  held,  that  it  was 
not  competent  to  him  to  contend  that  he  did  not 
hold  at  tbe  will  of  the  lord,  and  avoid  the  pay- 
ment of  the  annuity.  Mattock  v.  Kinglake,  1 
Perr.  (Sl  Dav.  (((.  b.)  46. 

And  see  Assumpsit]^  Crown  Grant ;  Fair ; 
Mines, 


GUARANTEE. 

L  Where  the  plaintiff  acted  as  attorney  for  a 
party,  plaintiff  in  a  Chancery  suit,  which  wa« 
agreed  to  be  put  an  end  to,  the  defendant  (being 
the  defendant  in  the  Chancery  suit)  undertaking  to 
pay  the  costs  of  the  plaintiffs  attorney;  heldy 
that  it  being  originally  the  debt  of  another,  and 
for  which  the  original  debtor  was  still  liable,  the 
promise  not  being  in  writing,  the  action  was  not 
maintainable.  Tomlinson  v.  Gell,  I  Nev.  ^  P. 
(k.  b.)  588. 

2.  In  assumpsit^  on  a  gnanntee  in  the  terms  "  1 
hereby  undertake  to  secure  you  the  payment  of 
any  sums  of  money  you  have  or  may  nereafter 
advance  to  D.  and  v.,  on  their  account  with 
you;"  held,  1st,  that  it  not  appearing  from  the 
terms  of  the  instrument  that  the  future  advances 
were  the  consideration  for  guaranteeing  tbe  past 
advances,  the  actual  consideration  was  left  too 
uncertain  to  render  the  guarantee  sufficient  with- 
in the  Statute  of  Frauds ;  2dly,  that  under  the 
general  issue,  the  defendant  might  show  that  the 
consideration  alleged  in  the  declaration  was  not 
the  actual  one,  without  pleading  it  specially ;  and, 
lastly,  that  the  creditor  having  proved  against  the 
estate  of  the  principal  to  a  larger  amount  than 
that  covered  by  the  guarantee,  Uie  de^ndant  had 
a  right  to  deduct  the  dividends  from  the  amoont 


S7S8 


[GU  A  RANTEE— HIGHWAY  J 


claimed  nnder  the  gnarantee.    Raikee  v.  Todd,  1 
Perr.  &>  Day.  (q.  b.)  13d. 

And  see  Action;  Contract;  Frauds^  Statute  of; 
Set'Off ;  Surety. 


GUARDIAN. 

1.  Where  the  father  by  his  will  appointed 
guardians  to  his  children,  the  court,  on  habeas 
corpus,  made  an  order  for  them  to  be  taken  from 
the  custody  of  the  grandmother,  and  delivered  to 
the  guardians,  notwithstanding  a  bill  filed  in 
equity  against  the  guardians  for  an  account,  and 
for  placing  the  children  under  the  protection  of 
that  court.     R..  v.  Isley,  5  Ad.  &.  £11.  (k.  b.)  441 . 

And  infra. 

2.  Where*a  female  apppointed  guardian  mar- 
ries, it  is  of  course  to  appoint  a  new  one.  Anon. 
6  Sim.  (CH.)  346. 


HABEAS  CORPUS. 

1 .  Where  a  habeas  corpus  had  been  reeoprnized 
fnd  executed  according  to  the  process  of  a  for- 
eign state,  where  the  defendant  was,  but  not 
obeyed,  the  court  refused  a  rule  for  an  attachment 
absolute  in  the  first  instance  against  the  party, 
who  had  returned  within  the  jurisdiction;  nor 
could  the  court  issue  its  warrant  for  the  disobe- 
dience, under  the  56  Geo.  3,  c.  100,  s.  2,  where 
it  appeared  that  the  child  sought  to  be  restored 
to  the  applicant  was  detained  in  France.  Wyatt, 
ex  parte,  5  Dowl.  (r.  c.)  389. 

2.  Where  the  commitment  of  a  bankrupt  by 
commissioners  wbb  right,  and  upon  notice  of  his 
being  ready  and  willing  to  make  full  answer,  the 
eommissioneiB  were  ready  to  appoint  a  sitting  for 
that  purpose  upon  his  paying  the  costs  of  such 
sittmg,  the  court  refused  a  habeas  corpus  for  the 
purpose  of  discharging  htm,  although  on  affidavit 
of  his  inability  to  pay.  Stockwin,  in  re,  5  Ad.  & 
eiL  (K.  b.)  266. 

3.  A  rale  nisi  granted  for  a  habeas  corpus  to 
bring  up  a  prisoner  committed  on  a  charge  of 
embezzlement,  as  a  witness  before  an  election 
4Sommittee  of  the  House  of  Commons,  sed  quare. 
In  re  Pilgrim,  5  Ad.  A,  £1L  (x.  b.)  485. 

4.  An  affidavit  is  absolutely  necessary,  either 
from  the  party  who  claimes  the  writ,  or  from 
some  other  person,  to  satisfy  the  court  that  there 
is  such  coercion  as  renders  him  unable  to  make 
it  Canadian  Prisoners'  Case,  5  Mees.  &  W. 
<£Z.)  33,  and  7  Dowl.  (p.  c.)  208. 

5.  Where  the  return  showed  in  substance  that 
the  party  was  in  custody  of  the  gaoler  of  L., 
where  he  had  been  brought  from  a  colony,  C, 
after  being  indicted  for  treason,  and  a  pardon 
granted,  on  terms  of  his  being  transported  to  the 
colony  of  V.  D.,  for  life,  to  which  condition  he 
had  consented,  and  that  in  order  to  carry  the  con- 
dition into  effisct,  he  had  been  brought  to  L.,  and 
delivered  into  the  oMlody  of  the  gaoler  theiei 


until  he  could  be  taken  to  V.  D.,  there  being  no 
means  of  transporting  him  at  once  from  C.  to  V. 
D.,  the  court  refused  to  discharge  him ;  if  the 
condition  were  not  lawfiil,  or  no  assent  given,  the 
party  being  still  liable  to  be  tried  for  the  treason 
here,  and  detained  in  custody  until  he  could  he 
dealt  with  according  to  law.  Canadian  Prisoner^ 
Case,  5  Mees.  &,  W.  (kz.)  32. 

6.  Where  the  party  was  in  custody  under  an 
order  of  the  Lords  of  the  Admiralty ;  held,  that 
the  court  had  no  power  to  change  the  custody,  to 
char^re  him  in  execution,  which  can  only  be  when 
in  civil  custody,  and  the  writ  refused.  Jones  v. 
Dan  vers,  7  Dowl.  (p.  c.)  394 ;  and  5  Mees.  &  W. 
(ex.)  234. 

And  eee  Bankrupt ;  Be  Contumacs  capiendo  i 
Costs, 


HAWKERS. 

Where  a  timber  merchant,  residing  at  A.  pur- 
chased logs  of  mahoganv  at  B.  which  he  sent  to 
C,  and  then  sold  them  by  auction }  held  to  be  a 
hawker  within  the  Act,  and  requiring  a  license. 
R.  V.  Pease,  5  M.  &  Ry.  (k.  b.)  507. 


H£IR. 

1.  Where  at  the  time  of  executing  a  deed  of 
grant  of  a  perpetual  rent-charge  of  500£.,  the 
grantor  was  entitled  for  the  joint  lives  of  himself 
and  his  father,  to  a  rent-charge  of  that  amount, 
charged  on  an  estate  of  which  the  father  was 
tenant  for  life,  remainder  to  himeelf  in  fee ;  held, 
that  as  he  had  the  power  of  securing  such  rent- 
charge  by  assignment  of  his  life  estate,  and  of 
his  reversion  in  fee  expectant,  it  was  not  to  be 
considered  as  a  sale  of  an  interest  in  reversion|; 
held  also,  that  in  determining  the  adequacy  of 
value,  the  market  value,  and  not  the  estimate  of 
an  actuary,  ought  to  be  regarded.  Wardle  v. 
Carter,  7  Sim.  (ch.)  490. 

2.  The  1  WiU.  4,  c.  60,  as  to  infimt  heira  being 
trustees  on  agreements  of  purchase,  held  not  to 
apply  to  the  cases  of  exchanges  of  land,  nor  of 
an  exchange  of  lands,  where  money  alto  formed 
part  of  the  consideration,  by  way  of  eqnaliH^  oi 
exchange.    Tnmey  v.  Edgell,  1  &.  (ch.)  5QSf. 

3.  An  heir  of  entail  being  also  heir  of  the  line, 
is  bound  by  the  law  of  Scotland  to  collate  ot 
bring  into  account  the  value  of  the  real  estate  to 
which  he  has  succeeded,  before  being  entitled  to 
claim  the  share  of  the  personaltv  of  Uie  deceased. 
Anstruther  v.  Anstrutner,  4  C9.  &  Fi.  (p.)  33; 
affirming  the  decree  below ;  and  supporting  the 
ease  of  Little  Gihnoor ;  13  Dec.  1809,  Fac.  Coll. 

And  see  ConditUm  ;  h^unetion  ;  Praetice  (^^)  ; 
Pleading  f  i^.;  ;  Writ  cf  Right 


HIGHWAY. 
1.  ChurchwardonB  and  oveneera,  althoogfa  en- 


[  HIGH  WAY— INCUMBRANCE] 


2787 


titled  under  the  Highway  Acts  to  the  custody 
of  the  books,  &c.,  of  the  waywarden,  yet,  unless 
furnished  and  paid  forb^  them,  have  no  property 
in  them,  so  as  to  maintain  trover  against  a  party 
detaining  them.  Addison  v.  Round,  6  Nev.  & 
M.  (K.  B.)  422 ;  and  4  Ad.  &  £11. 799. 

2.  Where  an  Enclosure  Act  directed  that  allot- 
ments U^  be  made  in  respect  of  certain  messuages 
should  be  deemed   parcel  of  the    townships  in 
which  such  messuages  were   situated,  and  the 
commissioners  were  directed  to  set  out  roads,  and 
to  declare  in  what  parish  or  township  such  roads 
roads  were  situate,  and  by  whom  to  be  repaired ; 
«ne  of  the  roads  directed  oy  them  passed  between 
allotments  which  were  declared  to  be  in  different 
townships,  but  the  road,  which  was  an  ancient 
one,  had  previous  to  the  inclosure  been  in  one 
township,  and  the  award  omitted  to  declare  in 
what  townships  the  allotments  were  situate,  or  by 
whom  the  road  was  to  be  repaired ;  held,  that  the 
Act  did  not,  by  changing  the  parochial  locality 
as  to  such  allotments,  affect  that  of  the  roaa, 
which,  in  the  absence  of  any  declaration  by  the 
commissioners,  was  to  be  still  deemed  in  the  orig^ 
inal  township ;  held  also,  that  to  subject  the  in- 
habitants of  the  district  to  repair,  an  old  road  con- 
tinued, as  well  as  roads  newly  set  out  and  made, 
must  be  first  declared  by  Justices  in  Sessions 
to  be  fuUy  completed  and  repaired  ;  held  also,  (per 
Oenman,  L.  C.  J.)  that  although  the  herbage  of 
a  road  becomes  vested  in  the  owners  of  the  ad- 
joining allotments,  under  41  Geo.  3,  c.  109,  s.  11, 
no  presumption  arises  that  the  soil  belongs  to 
them.    R.  v.  Hatfield,  4  Ad.  &  Ell.  (k.  b.)  156. 

3.  On  an  indictment  against  a  parish  for  non- 
repair of  a  highway  within  it,  ollej^mg  the  liability 
of  the  parish  at  large,  ptea,  alleging  that  a  town- 
ship had  always  been  accustomed,  and  of  right 
ought  to  repair,  traversing  the  liability  of  the  parish 
at  urge  to  repair,  and  issue  on  the  custom,  found 
for  the  defendants ;  held,  first,  that  the  custom  be- 
ing in  favor  of  the  defendants,  judgment  for  the 
crown  could  not  be  entered  jum  obst,  vered. ;  and, 
secondly,  that  the  plea  was  bad,  for  not  averring 
in  direct  terms  that  the  parish  would  have  been 
liable  but  for  the  custom,  and  judgment  arrested. 
R.  V.  Eastington,  1  Nev.  &  P.  (k.  b.)  193. 

4.  Where  the  local  Act  recited  the  benefit  in- 
tended by  making  the  main  line  and  branch  roads, 
held,  that  it  was  an  entire  undertaking,  and  that 
the  trustees  must  complete  both  before  they  could 
burthen  the  public  with  the  repair  of  any  part ; 
such  acts  are  a  species  of  bargain,  and  perform- 
ance by  the  trustees  of  all  they  have  engaged  to 
do,  is  a  condition  precedent  to  the  liabiliW  of  the 
pabUc.  R.  V.  Cumberworth,  1  Nev.  d^P.  (k.  b.) 
197;  and4Ad.&£ll.  731. 

And  see  S.  C.  3  B.  &  Ad.  108;  and  R.  v.  Edge 
Lane,  6  Nev.  dk  M.  81. 

5.  Where  the  road  stopped  up  was,  as  to  part, 
wholly  situate  in  one  parish,  and  as  to  another 
part,  running  between  two  parishes,  partly  in  one 
and  partly  in  another  parish ;  held,  that  the  order 
stopping  up  so  much  as  lay  in  one  parish,  was  in- 
Talio  ;  and  that  one  order  cannot  be  made  for 
stopping  up  separate  and  distinct  roads,  but  there 

Vol.  IV.  66 


must  be  a  separate  order  for  each.    R.  v.  Milver- 
ton,  1  Nev.  &  P.  (a.  b.)  179. 

And  see  Davison  o.  Gill,  1  East,  64 ;  and  R. 
V.  Kent  Justices,  10  B.  &,  Or.  477. 

6.  The  period  of  six  months  given  for  remov- 
ing an  order  for  stopping  up  a  public  footway, 
confirmed  by  an  order  of  sessions,  is  to  be  calcu- 
lated from  the  latter  order ;  held  also,  that  two 
separate  orders  are  requisite,  for  diverting  and 
stopping  up.  R.  o.  Middlesex  Justices,  1  iGv.  dk 
P.  (a.  B.)  92. 

7.  Where  the  only  ground  for  removing  an  in- 
dictment for  obstruction  of  a  highway,  by  build- 
ing thereon ;  as  a  question  of  tact  only,  and  no 
suggestion  of  specific  difficulty  in  law  suggested, 
a  certiorari  was  refused.  R.  v.  Jowl,  l%v.  d& 
P.  (K.  B.)  28 ;  and  5  Dowl.  (p.  c.)  435. 

8.  Where  on  an  indictment  a^inst  the  inhabi- 
tants of  a  township  for  non-repair,  the  defendante 
relied  on  an  agreement,  in  1591,  between  the 
owners  of  the  soil  of  that  and  another  township, 
to  repair  the  roads  in  the  former  township,  with  a 
clause  that  a  competent  lawyer  should  prepare 
and  make  all  necessary  asmranoe,  and  tM  same 
had  been  repaired,  up  to  a  short  time  before  the 
indictment,  by  the  inhabitants  of  such  township ; 
held,  that  a  judge  was  not  bound  on  such  evi- 
dence to  direct  the  jury  to  presume  suoh  oonvey- 
ances,  in  the  absence  of  anj  vestige  that  thej 
ever  existed.  R.  d.  Bcaresbriok,  1  I^y.  dk  P.  (k. 
B.)  688. 

9.  The  court  will  not  discharge  a  parish  from 
an  indictment  for  non-repair ofa  highway,  re- 
moved by  ctrtiorm^  merely  on  the  certificate 
of  its  being  in  repair,  until  by  a  winter's  wear  it 
appears  to  have  been  substantially  done.  R.  v. 
Witney,  5  Dowl.  (p.  c.)  728. 

10.  Where  a  presentment  under  13  Geo.  3,  o. 
78,  s.  24,  had  been  removed  into  K.  B.,  and  be- 
fore judgment  that  Act  was  repealed  by  5  dk  6 
Will.  4,  c.  50,  held,  that  the  Court  could  not  give 
judgment  thereon.  R.  v.  Mawgan  in  Mraeage. 
3  Nev.  dk  P.  (<i.  B.)  502. 

11.  The  5  dk  6  Will.  4,  consolidation  of  High- 
way Acts,  amended  by  2  dk  3  Vict.  c.  45. 

And  see  Evidence, 


ILLEGITIMATE. 
8ee£MA«a<. 


INCUMBRANCE. 

1.  Where  of  two  incumbrances  of  an  equitable 
interest,  the  latter  gave  notice  to  the  trustees, 
which  the  former  neglected  to  do ;  held,  that  the 
notice  gave  the  second  incumbrance  a  prior  right. 
Foster  v.  Cockerell,  9  Bli.  N.  S.  (p.)  332;  affirm- 
ing the  judgment  below. 

And  see  Ryal  v.  Rowles,  MS.  lb.  n. 


3788 


[INCUMBRANCE— INDICTMENT] 


2.  Whete  lands  were  eonveved  by  C.  as  a  se- 
carity  for  annuities  Ui  J.,  witn  a  proviso  for  re- 
parchase,  upon  ffiving  12  months'  notice;  the 
jrrantor  ailerwards  agreed  to  sell  the  lands  to  B., 
subject  to  the  incumbrances,  and  the  purchaser 
entered  into  possession  and  paid  the  annuities, 
and  subseauenllj  C.  eranted  the  same  to  J.,  in 
trust  to  sell  and  pay  off  tlie  charges,  and  agreed 
to  give  J.  a  charge  upon  tlie  premises  and  pur- 
chase-money, to  secure  the  payment  of  the  an- 
nuities and  arrears  and  interest  tliereon  ;  and  an 
account  having  been  stated,  he  assigned  the  ba- 
lance due  from  B.  under  the  contract,  and  subject 
to  inoumbrances,  to  be  applied  in  payment  of  the 
amount  so  found  due ;  the  solicitors  of  B.  after- 
wards went  to  the  residence  of  J.  for  the  purpose 
of  tendering  the  consideration  money  for  tlie  an- 
nuities and  arrears,  ^^c.  with  deeds  of  transfer  of 
the  annuities  for  the  execution  of  J.,  and  he  being 
absent,  a  wtitten  notice  to  the  same  effect  was 
left ;  held,  (reversing  the  judgment  below)  that 
it  did  not  operate  as  an  equivSent  to  payment, 
ner  determine  the  annuities ;  and  an  inquiry  di- 
rected as  to  whether  J .  bad  any  and  what  lien  or 
elaim  to  any  portion  of  the  purchase- money  pay- 
able by  B.  to  C.    Birch  v.  Joy.  10  Bli.  N.  S.  (f.) 

aoi. 

3.  Where  A.,  one  of  several  executors,  alone 
Meted  and  took  an  assignment  from  his  son  of  his 
interest  in  the  residue,  without  any  notice  to  the 
co-executors,  and  after  the  death  of  A.,  and  a 
suit  instituted  for  the  administration  of  the  es- 
tate, the  son  assigned  the  same  interest,  for  val- 
uable consideration,  to  the  petitioner,  who  gave 
notice  thereof  to  the  executors ,  held,  that  the 
knowledge  of  tlie  assignment  by  A.,  who  was 
interested,  without  communicatmg  that  knowl- 
edge to  his  co-e^ecotors,  was  not  sufficient  notice 
of  the  prior  incumbrance  to  give  him  priority 
over  the  subsequent  assignee.  Timson  v.  Rams- 
bottom,  2  Keene  (cu.)  35. 

4.  Where  by  a  Railway  Act,  the  costs  and  ex- 
penses of  investing  money  in  lands  to  the  like 
uses,  were  directed  to  be  paid  by  the  company  ; 
held,  that  the  meaning  of  the  Act  was  to  give 
such  costs  in  cases  where  the  money  was  to  be 
applied  in  discharge  of  incumbrances.  Trafford, 
ex  parte,  2  Youn^  d&  C.  (xx.  x^.)  522 ;  and  see 
ex  parte  Northwick,  1  Younge  &.  C.  166. 

5.  Where  a  mortgagee  took  under  the  exercise 
of  a  general  power  of  appointment,  held,  that 
taking  it  as  if  it  had  been  limited  by  the  deed  cre- 
ating the  power,  it  was  not  affected  by  the  lien,  of 
a  judgment  duly  docketed  and  registered,  and  of 
which  the  mortgagee  had  notice.  Skeeles  v. 
Shirley,  8  Sim.  (ch.)  153 ;  and  affirmed  on  ap- 
peal, 3  Myl.  &  Cr.  112. 

6.  Upon  a  petition,  by  an  incumbrancer,  to 
have  the  debt  liquidated  out  of  the  dividends  of 
the  fund,  held,  in  a  contested  case,  that  the  only 
relief  ^e  was  in  strictness  entitled  to  was  to 
restrain  the  transfer  of  the  fund  and  payment  of 
the  dividends,  and  to  file  a  bill  for  any  ulterior 
relief    Cook  v.  Collingridge,  1  Coop,  (ch.)  255. 

And  see  Interest ;  Matwr ;  Merger  ;  Mortgage, 


INDICTMENT. 
[A]  Ofpehces  aoatust  thx  public  pbacx- 

PUBLIC  JUSTICE — SERVICE. 


(a) 
(t») 

(c) 
(d) 

(0 
(g) 

I 

8' 


Coifdnff. 
Conspiracy, 

False  Preienees. 
J^tdsances. 
Perjury. 
Bigamy. 
Post-office. 
Unnatural  offences. 
Relating  to  Stamps, 
Election  of  Members  of  ParliammU. 


[B]  Offxrces  agairst  the  persoh. 


(a)  Murder — concealment. 

(b)  ManMaughter. 

(c)  Rape. 

(d)  Maliciously  euttingj  ^^. 

(e)  Robbery. 

(f)  Threatening  letta-s. 


[C]  Offevces  aoaihst  property. 

(a)  Ijirceny^  uhat\ 
(M  Arson. 

(c)  Burglary — housebreaking. 

(d)  EmSezzlement. 

(e)  Poaching. 

(f  )  Malicious  injuries. 
(g)  Misdemeanors. 


i 


)  Sheep  stealing. 
i)  Forcible  Entry. 


[D]  Indictment. 

(a)  Sufficiency  of '■^enue — CesUral  Court. 
(bS  Plea — autrefois  acquit. 

(c)  Trial^ury — examination  of 

reply-^postponemBOtof. 

(d)  EvidencO'-^coirfessions — depositUms. 

(e)  Judgment — restitution. 


[A]  Offences  against  the  public  peace — 

PUBLIC    justice — service. 

(a)  Coining. 

1 .  Where  two  parties  eommitted  distinct  atter- 
ings,  when  separate,  and  it  was  not  shown  thai 
they  were  near  enough  to  give  any  assistance,  or 
to  be  acting  in  concert;  held,  that  the  sepaiaie 
utterings  could  not  be  received  as  evidence  of 
joint  utterings  ;  a  general  privity,  or  community 
of  purpose,  is  not  sufficient.  R.  v.  Manners,  7 
C.  «t  P.  (N.  p.)  801. 

2.  On  an  indictment  for  selling  plate,  with  the 
King's  mark  forged,  knowing,  6lc.  ;  held,  thai 
judgment  of  transportation,  under  11  Geo.  4  &  1 
Win.  4,  c.  66,  could  only  be  passed.  R.  v.  Har- 
ris, 1  Ry.  &  M.  (c.  c.)  396. 


[INDICTMENT] 


8789 


3.  On  an  indictment  upon  2  Will.  4,  e.  34,  •. 
10,  for  having  moulds  in  nis  possession,  the  jury 
must  believe  that  the  moulds  had  at  the  time  of 
the  prisoner's  possession,  the  entire  of  the  obverse 
or  reverse  part  of  the  coin  impressed,  and  not 
merely  a  part.  R.  v.  Foster,  7  C.  &  P.  (k.  p.) 
494. 

4.  But  upon  a  count  for  making  a  mould, 
which  was  intended  to  make  and  impress  the 
fiffure  and  apparent  resemblance  of  the  obverse 
Bide  of  a  shilling ;  held,  that  it  need  not  be  prov- 
ed that  he  had  completed  the  entire  impression. 
lb. 

5.  The  giving  a  counterfeit  piece  of  monv  in 
charity,  nothing  being  received  in  exchange,  held 
not  an  uttering  within  the  statute,  as  no  intention 
to  defraud  any  one  appeared.  R.  v.  Page,  8  C.  & 
P.  (w.  p.)  122. 

6.  Where  husband  and  wife  were  engaged  to- 
gether in  uttering  counterfeit  money,  held  that 
she  was  entitled  to  acquittal ;  and  sernb.^  there  is 
no  distinction,  as  to  coercion,  between  felonies 
and  misdemeanors  committed  by  her  in  his  pre- 
sence.   R.  V.  Price  &  Uz.  8  C.  d^  P.  {n.  p.)  19. 


(b)  Conspiracy. 

On  an  indictment  for  a  conspiracy  to  resist 
the  nay  men  t  of  church-rates,  held,  that  a  witness 
mignt  be  asked,  on  cross-examination,  as  to  any 
appeals  having  been  made  against  the  rates,  but 
not  as  to  what  the  trustees  had  done  in  reference 
theretd,  their  proceedings  beinff  required  by  the 
Local  Act  to  be  entered,  and  allowed  to  be  read 
in  evidence  in  all  cases ;  2dly,  that  acts  of  dis- 
tinct individuals  may  be  first  proved,  and  then  it 

'  may  be  shown  that  those  acts  prove  a  conspira- 
cy oetween  them ;  3dly ,  that  a  witness  cannot  be 
asked,  for  the  purpose  of  trying  his  credit, 
whether  he  has  not  himself,  in  certain  publica- 

^  tioBSy  used  slanderous  expressions  of  the  defen- 
dants; 4thly,  that  a  warrant  of  distress  having 
been  put  in,  the  broker  may  be  asked  if  he  did 
not  distrain  under  it  without  producing  the  notice 
of  distress;  5th]y,  that  there  is  no  distinction  be- 
tween civil  and  criminal  eases,  as  to  cross  examin- 
ing, with  the  judge's  leave,  a  party's  own  witness, 
wKen  unwillmg ;  6thly,  that  a  witness  may  be 
asked  the  circumstances  on  which  he  founds  a 
particnfcur  belief ;  TthJy,  that  he  may  be  asked  if 
ne  received  bills  similar  to  those  produced ;  held, 
also,  that  upon  a  charge  of  conspiracy,  the  jurv 
most  be  satisfied  that  the  acts  were  done  with 
eommon  concert  and  design  between  the  parties, 
Irat  for  that  purpose  it  is  not  necessary  to  show 
tiiey  came  together  to  concert  them;  and  it  is 
sufficient,  if  by  their  acts  they  pursue  the  same 
object  by  the  same  means,  though  each  may  per- 
form separate  parts  of  an  act.  R.  v.  Murphy,  8 
C.  A  P.  (H.  F.)  297. 


(c)  Forgery, 
1.  Forging  a  magistrate's  order,  upon  a  gaoler 


to  discharge  a  prisoner,  kelA  indictable,  as  forgery 
at  common  law.  R.  v.  Harris,  1  Ry.  &  M.  (c.  c.) 
393. 

2.  Altering  a  regimental  receipt  for  the  sabsis- 
tence  money,  held  to  be  properly  charged  as  a 
forgery  of  a  receipt  for  monev,  although  the  in- 
strument, in  its  effect,  might  be  used  and  operate 
as  an  order  for  payment.  R.  v.  Hope,  1  Ky.  & 
M.  (c.  c.)  414. 

3.  An  orddir  to  pay  a  sum  as  an  advance  of 
wages  on  an  intended  voyage,  as  per  agreement^ 
and  containing  a  memorandum  subjoined,  that  on 
receiving  such  check  he  agreed  to  sail,  and  be  on 
board  within  sixteen  hours  from  the  date ;  he|l 
to  be  properly  charged  as  a  forged  oipder  for  pay- 
ment of  money,  li.  v.  Bamfield,  1  K^.  St  M.  (o. 
c.)  416. 

4.  Where  the  prisoner  gave  his  employer  a  biN^ 
subscribed  with  a  receipt  Tor  the  amount  of  jeoods, 
and  the  jury  found  that  it  was  uttered  tor  the 
purpose  of  deceiving  into  a  belief  that  money 
^iven  bad  been  applied  to  the  purpose  for  whica 
it  had  been  obtained,  being  a  mere  pretence  and 
fraud ;  held,  that  he  was  properly  convicted  of 
uttering  the  forged  receipt,  with  intent  to  defraud. 
R.  V.  Martin,  f  Ry.  &  M.  (c.  c.)  483;  and  7  C. 
&  P.  (H.  P.)  549. 

5.  Where  the  prisoner  obtained  the  prosecu- 
tor's acceptance  to  a  bill  in  blank,  as  for  a  small- 
er sum  marked  in  pencil  in  the  margin,  and  he 
afler wards  inserted  a  larger  one ;  held  to' amount 
to  a  forgery.  R.  v.  Hart,  I'Ry.  &  M.  (c.  c.)  485 ; 
and  7  C.  it  P.  652. 

6.  Where  in  an  indictment  for  forcing  an  or- 
der of  relief  and  pass  route  to  a  discbar^d  prls^ 
oner,  the  instrument  set  out  varied  from  tho 
form  in  the  Act,  and  was  in  many  parts  uneram- 
matical ;  held,  that  it  could  not  be  supported.  R. 
V.  Donnelly,  1  Ry.  &  M.  (c.  c.)  438. 


7.  A  foreign  bill  of  exchange,  for 


pounds 


sterling,  hem  properly  so  described,  although  it 
contained  no  word  of  payment,  and  that  the  term 
livres  meant  pounds.  R.  v.  Szudburskie,  1  Ry. 
<&  M.  (c.  c.)  429. 

6.  Where  the  prisoner  having  received  from 
the  prosecutor  a  bill,  dated  at  three  months,  and 
afterwards  alleging  that  he  could  not  get  one  for 
so  large  an  amount  discounted,  prevailed  on  the 
prosecutor  to  accept  one  for  a  smaller  sum,  and 
pretending  to  destroy  the  former  one,  afterwards 
altered  it  to  a  date  of  twelve  months ;  held  to 
be  a  forgery,  with  intent  to  defraud  the  v  prose- 
cutor.   R.  V,  Atkinson,  7  C.  &  P.  (n.  p.)  669. 

9.  Where  the  prisoner  represented  that  a  rela- 
tive had  died  and  left  him  money,  which  was  in 
the  hands  of  C,  and  that  he  wanted  mourning, 
and  afterwards  produced  a  letter  as  from  C,  in 
the  terms,  <<  Please  to  let  W.  T.  (the  prisoner) 
have  such  things  as  he  wants.  I  have  got  ^e 
amount  of  27/.  for  C.  in  my  hands  these  mainy 
years ;"  held,  that  it  was  a  forged  request,  within 
11  Geo.  4,  &  1  W.4,  c.  66,s.  10 ;  althoufirh  semb. 
the  case  might  have  been  considered  as  mlse  pre? 
tences.    R.  v.  Thomas,  7  C.  &  P.  (n.  p.)  851'. 


SSTW 


[INDICTMENT] 


10.  Wheve  the  mdiotmeDt  chared  the  uttering 
a  fomd  bill  of  exchange  ;  held  not  supported  by 
proof  of  the  acceptance  only  being  forged,  which 
IS  a  distinct  offence.  R.  v.  Horwell,  I  Ry.  Hl 
M.  (CO.)  405. 

11.  Under  2  &  3  Will.  4,  c.  123,  it  is  sufficient 
to  allege  that  the  prisoners  forged  a  promissory 

note  for  £ ,  without  stating  the  date.    But 

where  the  forgery  is  on  a  joint  stock  bank,  quetref 
if  the  intent  most  be  laid  to  defraud  the  parties 
returned  under  7  Geo.  4,  c.  46,  to  the  Stamp 
office,  and  such  return  be  produced.    R.  v.  Bur- 

fiss,  7C.Sc  P.  (N.  p.)  490.    S.  P.  R.  v.  James, 
b.653. 

12.  Whether  the  prisoner  by  the  forgery  in- 
tended to  defraud  bankers  with  whom  he  had  de- 
posited guarantees  to  a  large  amount,  held  to  be 
a  question  for  a  jury.  R.  v.  James,  7  C.  &  P. 
(N.  p.)  557. 

And  vid.  if\fr. 

13.  On  an  indictment  for  forging  an  instru- 
ment in  the  terms,  ^*  twenty-one  days  aAer  date 

pay  (without  acceptance)  to  the  order  of , 

J^ — ,"  held  that  it  was  properly  described  as  a 
bill  of  exchange.  R.  v.  Kmnear,  2  M.  d&  Rob.  (n. 
p.)  117. 

14.  Where  the  prisoner  wrote  the  acceptance 
of  a  party  on  a  bill,  with  whom  he  had  formerly 
been  in  partnership,  aud  subsequently  been  given 
accommodation  acceptances,  neld,  that  if  he 
signed  the  name  with  a  bona  fide  belief  that  he 
had  authority  so  to  do,  it  would  not  be  a  forffery ; 
and  such  authority  need  not  be  expressed,  but 
may  be  implied  from  acts ;  held  also,  that  pay- 
ment of  the  bill  into  a  provincial  bank,  and 
drawing  checks  on  the  credit  of  it,  would  be  a 
■ufficient  uttering :  the  7  Geo.  4,  o.  46,  does  not 
make  it  necessary  that  all  the  partners  should  le- 
aide  in  England.  Reg.  v.  Beara,  6  C.  &  P.  (n.  p.) 

15.  Where  the  prisoner  obtained  goods  on  a 
note,  signed  by  a  customer  of  the  prosecutor,  in 
the  terms:  "  r lease  let  bearer,  W.  G.,  have  a 
shovel  and  grafting  tool  for  me,"  signed  ;  held  to 
be  a  forged  request  for  the  delivery  of  goods  with- 
in the  11  Geo.  4  &  1  Will.  4,  c.  66,  s.  11.  R.  v. 
James,  8  C.  &  P.  (n.  p.)  202. 

16.  Where  from  previous  dealings  a  party  has 
used  the  name  of  another  on  bills,  under  a  btma 

jSifs  belief  that  he  had  authority  to  do  so,  and  with- 
ont  intention  to  defraud,  the  jury  ought  to  acquit 
him.    R.  V.  Parish,  SC.&P.  (if.  p.)  04. 

And  see  R.  v.  Forbes,  7  C.  &  P.  224. 

17.  On  an  indictment  for  uttering  a  forged  copy 
of  an  entry  in  a  marriage  registry,  held  that  the 
inttmment  need  not  be  set  out,  but  that  it  was 
sufficient  to  state  it  as  if  it  had  been  an  indictment 
for  stealing  the  instrument,  although  it  might 
not  be  the  subject  of  larceny ;  and  that  the  court 
would  take  judicial  notice  that  the  parish  of 
Seiffhfbrd,  in  the  county  of  Stafford,  was  a  parish 
in  filmland.    R.  r.  Sharpe,  8  C.  &  P.  (n.  p.)  4%. 

18.  Iftbe  jury  find  that  the  prisoner  uttered  a 
bill  as  true,  meaning  it  to  be  taken  as  such,  and 
that  at  the  time  he  knew  it  to  be  forged,  held  that 
they  ought  to  find,  as  a  necessary  conAequence, 


an  intent  to  defraud.  R. «.  Hill,  8  C.  Ab  P.  (v.  p.) 
274. 

10.  Where  the  prisoner,  acting  for  his  father, 
an  overseer,  received  a  receipt  for  a  county-rate 
from  the  high  constable,  for  toe  sum  of  21.  5«.  9d, 
which,  on  payment,  the  constable  subscribed  *'  re- 
ceived the  above  rate,"  and  the  prisoner  after- 
wards inserted  a  figure  I  before  the  5*.,  held  to 
be  a  forgery  of  the  receipt,  and  that  the  instru- 
ment  might  be  described  in  the  same  way  as  if 
the  subject  of  larceny.  R.  v.  Vaoghan,  8  C .  & 
P.  (».  p.)  277. 

20.  Where  the  prisoner,  a  servant,  having  re- 
ceived the  amount  of  a  trsLilesman^s  bill  from  her 
mistress,  brought  back  the  bill  with  the  word  paid, 
and  the  name  of  the  tradesman  subscribed,  held 
to  be  forgery  of  an  acquittance,  with  intent  to 
defraud.  Reg.  v.  Houseman,  8  C.  &  P.  (k.  f.) 
180. 

21.  The  forging  an  instniment  in  the  form  of 
a  promissory  note  for  100/.,  or  such  other  sum  not 
exceeding  that  sum  as  the  payee  might  incur,  by 
reason  of  becoming  surety  to  the  sheriff  for  his 
officer,  held,  to  be  a  forging  an  undertaking  for 
the  payment  of  money,  within  1  Will.  4,  c.  6S,  ■. 
3.    R.  V.  Reed,  8  C.  &  P.  (n.  p.)  G23. 

22.  A  forged  letter  of  credit,  in  the  name  of  a 
party  having  funds  in  the  hands  of  the  party  to 
whom  it  was  addressed,  held  a  warrant  for  the 
cMiyment  of  money  within  1  Will.  4,  c.  66,  s.  3. 
R.  V.  Raake,  6  C.  &  P.  (n.  p.)  625. 

23.  The  writing  an  acceptance  of  an  existing 
person  without  authority,  or  of  a  non-existing 
firm  or  person,  with  intent  to  detraud,  is  forgery. 
R.  V.  Rogers,  8  C.  &  P.  (n.  p.)  629. 

24.  Where  the  prisoner  deposited  a  forged  ae- 
ceptance  with  bankers,  which  ne  hoped  would  be 
a  security  for  what  he  owed,  to  which  the  mana- 
ger replied  that  it  would  depend  on  the  result  of 
inquiries  as  to  the  acceptor}  held  a  sufficient 
uttering ;  and  where  a  part^  utters  what  he  knows 
to  be  a  forged  instrument,  it  is  a  consequence  that 
he  intends  to  defraud  the  party  to  whom  he  utters 
it :  held,  also,  that  the  writing  an  acceptance  on 
a  blank  stamp,  which  is  afterwards  filled  up  by 
another,  would  not  amount  to  a  fomry  of  the 
acceptance  of  a  bill.  R.  v.  Cooke,  8  0.  &  P. 
(ir.  p.)  582. 

25.  And^semb.  where  the  prisoner  was  himself  a 
partner  in  the  bank,  the  count  laying  the  intent  to 
defraud  A.  and  others  could  not  be  supported.  lb. 

26.  So,  where  the  witness  for  the  proeecution 
had  sworn  that  he  had  received  a  forged  bill  from 
the  prisoner,  and  on  cross-examination  added  that 
be  took  a  blank  stamp  to  the  prosecutor,  and  that 
he  returned  it  with  nis  name  upon  it,  the  judge 
would  not  allow  him  to  be  cross-examined  by  the 
prosecutor,  nor  to  show  tbe  latter  statement  to  be 
untrue,  and  that  the  witness  had  made  different 
statements  to  other  persons.  R.  v.  Farr,  8  C.  & 
P.  (N.  p.)  767. 

27.  Where  the  same  attorney  acted  for  the  pris- 
oner, (the  mortgagor,)  and  also  for  the  mortgagee, 
and  received  from  the  prisoner,  as  part  of  his  title 
deeds,  a  forged  will ;  neld  not  a  priyileged 


[INDICTMENT] 


97»1 


nnmicatioii,  and  that  the  attorney  waa  bound  to 
produce  the  will  on  the  trial  of  an  indictment  ibr 
the  forgery ;  held  aleo,  that  the  1  Will.  4,  c.  66,  a. 
3,  applied  to  the  forging  the  will  of  a  non-exist- 
ing person,  as  well  as  of  false  making  of  the  will 
of  a  living  person.  R.  v.  Avery,  8  C.  &  P.  (k.  p.) 
596 ',  denying  the  case  of  R.  v.  Smitli,  1  Phillipps' 
£v.  c.  6. 

28.  An  inatrument  in  the  form  of  a  promiHory 
note  for  payment  of  10(M.,  or  any  other  sum  not 
exceeding  the  sum  which  the  party  might  become 
liable  to  as  surety  for  a  sheriff's  officer ;  held  an 
undertaking  for  the  payment  of  money  within  1 
Will.  4,  c  66,  8.  3.  R,  v.  Reed,  8  C.  &  P.  (n.  p.) 
623. 


(d)  False  Pretences. 

1.  Where  the  prisoner,  on  a  purchase  of  goods, 
drew  a  check  on  bankers  with  whom  he  rep- 
resented he  had  an  account,  and  one  count  of  the 
indictment  alleged  that  he  pretended  it  to  be  a 

**  good  and  genume  order,  of  tne  value  of  £ ," 

and  by  means  of  which  he  obtained  the  goods,  he 
having  no  account  or  funds  at  the  time  with  the 
bankers ;  held,  that  he  was  properly  convicted 
upon  that  count.  R.  v.  Parker,  7  C.  &.  P.  (ff.  p.) 
825 ',  and  confirmed  by  the  Twelve  Judges. 

2.  Where  the  prisoner  went  into  a  shop,  wear- 
ing the  academic  dress,  and  stating  that  he  be- 
longed to  M.  College,  and  obtained  goods }  held  a 
false  pretence,  and  would  have  been  so,  although 
no  words  had  been  used.  R.  v.  Barnard,  7  C.  & 
P.  (a.  p.)  784. 

3.  Where  the  prisoner  was  charged  with  ob- 
taining money,  by  falsely  pretending  that  if  the 
prosecutor  would  give  him  a  sovereign,  he  would 
tell  him  where  a  horse  and  mare,  which  had  been 
stolen  then  were ;  held  insufficient,  the  pretence 
being  ^al  he  knew  where  they  were.  R.  v.  Doug- 
las, I  Ry.  A,  M.  (c.  c.)  462. 

4.  Where  the  indictment  alleged  that  the  pris- 
oner had  an  iron  weight  of  281bs.  and  no  more, 
and  pretended  to  aell  the  prosecutor  16cwt.  of 
of  coala,  worth  20s.,  and  that  the  said  weight  was 
561be,  with  intent  to  defraud  the  jirosecutor  of 
lOt. ;  held,  that  there  was  no  allegation  connect- 
ing the  sale  of  the  coals  with  the  false  weight, 
and  that  the  statements  were  merely  false ;  and 
the  conviction  on  such  indictment  was  wrong. 
R.  V.  Reed,  7  C.  &  P.  {n,  p.)  848. 

5.  Where  the  prisoner,  having  accepted  a  bill 
drawn  by  the  prosecutor,  had  stated  that  he  could 
raise  all  the  amount  for  teking  it  up  except  300Z., 
which  the  prosecutor  consented  to  advance,  but 
the  prisoner  applied  itto  his  own  use,  and  suffer- 
ed the  bill  to  be  dishonored;  held,  that  the  Act 
embraced  every  mode  of  obtaining  money  by  fiilse 
pretences,  by  loan  as  well  as  by  transfer;  and 
that  if  the  jury  were  satisfied  that  he  was  stating 
a  deliberate  falsehood  to  obtain  the  money,  and 
that  he  knew  at  the  time  he  had  not  the  funds  to 
take  it  up,  and  meant  all  the  time  to  apply  the 
2001.  to  hia  own  use,  the  offence  was  complete. 
R.  9.  CrowOey,  2  M.  d&  Rob.  (a.  p.)  17. 


6.  An  indictment  for  obtaining  money  under 
false  pretences,  held  insufficient,  where  it  omitted 
to  allege  that  the  money  obteined  was  the  proper- 
ty of  the  party  intended  to  be  defrauded.  Heg.  v. 
Norton,  8  C.  &  P.  (v.  p.)  196. 

7.  Where  the  indictment  for  obtaining  goods 
by  false  pretences,  omitted  to  steto  the  person 
from  whom  obtained,  held  bad,  and  not  cured  by 
7  Geo.  4,  c.  64,  a.  21.  R.  v.  Martin,  3Nev.  A  P. 
(q.  a.)  472. 


(e)  Jfuisanees. 

1.  Upon  an  indictment  for  a  nuisance  in  a  pub- 
tic  harbor,  by  erecting  piles,  and  thereby  obstruct- 
ing and  rendering  it  insecure,  the  verdict  finding 
that,  by  the  defendant's  works,  the  harbor  was, 
in  some  extreme  cases,  rendered  less  secure ; 
held,  that  the  court  could  not  necessarily  infer  that 
the  works  must  be  a  nuisance  for  which  the  de- 
fendants were  criminally  responsible.  R.  v,  Tin- 
dall,lNev.  &P.(K.  B.)719. 


(f)  Perjury. 

1.  In  perjurv,  assigned  on  an  affidavit  to  set  aside 
a  judgment,a]leged  to  have  been  entered  up  "  in  or 
as"  of  Trin.  Term  ;  held  bad,  and  an  amendment 
under  9  Greo.  4,  c.  15,  refused  ;  but  the  allegation 
of  the  warrant  of  attorney  having  been  directed  to 

_, "  then  and  still  bein^  attomies  of  K.  B. ;" 

held  to  be  sufficiently  admitted  by  the  party  exe- 
cuting it.    R.  V.  Cooke,  7  C.  &  P.  (r.  p.)  5o9. 

2.  Upon  an  assignment  of  perjury  in  an  answer 
in  Chancery,  by  me  defendant,  it  being  material 
whether  an  annuity  payable  to  the  defendant  or 
B.  his  trustee,  had  been  paid ;  held,  that  the  clerk 
of  B.  might  be  asked,  *^  at  the  time  he  received 
money  from  B.  to  pay  in  at  his  bankers,  what  did 
he  say  about  the  money  .^"  held,  that  the  answer 
was  receivable  as  a  declaration  made  bv  an  agent, 
acting  at  the  time  within  the  scope  of'^his  author- 
ity.   R. ».  HaU,  8  C.  &  P.  (H.  p.)  358. 

3.  Where  the  indictment  for  perjury,  on  a 
charge  of  felony,  merely  stated  that  the  defendant 
went  before  justices,  and  deposed  (setting  out  the 
deposition  of  the  party  having  done  so  and  so, 
amounting  to  felony),  and  assigning  perjury  there- 
on, but  mere  was  no  allegation  that  any  churge 
of  felony  had  been  made,  or  any  judicial  prooeed- 
ing  pending  before  the  justices,  held  bad.  Beg, 
«.  Pearson,  8  C.  A  P.  (h.  p.)  119. 

4.  On  an  indictment  for  perjury,  on  an  informa- 
tion under  the  Beer  Act,  before  two  justiqes, 
held  that  it  was  necessary  to  aver  that  the  jus- 
tices were  acting  in  and  for  the  division  or  plaoe 
within  which  the  house  was  situate,  but  that  it 
need  not  allege  them  to  have  been  acting  in  petty- 
session,  nor  sembU^  that  there  was  a  written  in- 
formation.   R.  V.  Rawlins,  8  C.  &  P.  (if .  p.)  439. 

5.  Where  the  witness  gave  contradictory  evi- 
dence in  his  deposition  before  the  magiatrate,  and 
on  the  trial  at  the  sessions,  on  whiSi  latter  the 


27W 


[INDICTMENT] 


periiiiy  wu  assigned ;  held,  that  it  would  not  be 
flumciently  shown  to  be  false  by  the  mere  fact  of 
his  having;  sworn  the  contrary  at  another  time ; 
bat  the  jury  must  consider  whether  there  was 
such  confirmatory  evidence  of  the  facts  stated  in 
the  deposilion  as  proved  that  given  at  the  sessions 
to  be  false.  R.  v.  Wheatland,  8  C.  &  P.  (n.  p.) 
238. 

And  see  R.  v,  Harris,  5  B.  A  A.  926. 

6.  On  an  indictment  for  perjury,  in  a  charge, 
before  justices,  of  beastiality,  and  that  the  party 
had  the  flap  of  his  trowsers  unbuttoned,  the  two 
witnesses  to  disprove  bemg  the  party  and  his 
brother,  who  swore  that  his  brother  was  not  ab- 
sent from  htm  on  the  alleged  occasion  more  than 
three  minutes,  and  that  the  trowsers  he  then 
wore  had  no  flap:  held,  that  the  corroborative 
evidence  was  sufficient  to  go  to  the  jury,  and  the 
averment  of  the  materiality  of  the  state  of  the 
dress  was  sufficient :  held,  also,  that  the  indict- 
ment sufficiently  stated  it  as  a  judicial  proceeding 
pending  before  the  magistrate.  R.  v.  Gardiner, 
8  C.  &  P.  (H.  p.)  737. 

7.  The  court  refused  to  allow  the  chairman  of 
the  quarter  sessions,  as  a  Judge  of  a  court  of  re- 
cord, to  be  examined  as  to  a  party^s  statement  in 
order  to  support  a  charge  of  perjury.  R.  v.  Gaz- 
ard,  8  C.  &  P.  (ir.  p.)  595. 

8.  In  a  criminal  case  the  court  will  not  allow 
the  formal  proofs  to  be  admitted  unless  made  at 
the  trial  by  the  prisoner  or  his  counsel.  R.  v. 
ThornhiU,  8  C.  dt  P.  (r.  p.)  575. 

And  see  IjuUvent. 


(g)  Bigamy, 

Where  the  offence  was  committed  in  a  differ- 
ent county  from  that  in  which  the  bill  was  found 
and  tried;  held,  that  the  indictment  ought  to 
have  stated  the  latter  facts.  R.  v.  Fraaer,  1  Ry. 
4t  M.  (c.  G.)  407. 


(&)  Pott-qfficB. 

Laws  relating  to  offences  against  the  Post-office 
consolidated,  and  new  provisions  relating  thereto, 
by  1  Vict.  c.  36. 

And  see  Highway, 


(i)  Unnatural  offences, 

1.  The  7  Will.  4  &  1  Vict.  c.  85,  aUowing  the 
Jury  who  aoc^aitof  a  felony  to  convict  of  assault, 
wbiere  the  crime  charged  shall  include  an  assault 
against  the  person,  held  not  to  apply  to  charges 
ofbeBtiality,Datthe  prisoner  might  be  detained, 
and  indioled  for  the  attempt  to  commit  the  crime. 
R.  V.  £aton,  SCSlY.  (h.  p.)  417. 

2.  On  a  charge  bv  a  wife  of  an  unnatural  of- 
fence by  her  humnd,  unless  by  violent  resistance 
the  inference  of  oouont  is  ezcLiided,  being  other- 


wise an  aceoroplioe,  she  must  be  eenfifnied,  or 
the  jury  are  bound  to  acquit.  R.  v.  Jeilrman,  8 
C.  dk  P.  (N.  p.)  604. 

3.  An  indictment  for  assaulting,  and  indecently 
exposing  the  person,  with  intent  to  incite  a  party 
to  commit  an  unnatural  crime  ;  held  not  tobe  ''a 
wilful  and  indecent  exposure"  within  the  7  Geo. 
4,  c.  64,  s.  Sf4,  enabling  the  court  to  give  costs  to 

the  prosecutor.    Reg.  v, ,  3  Nev.  A  P.  (9. 

B.)e37. 


(k)  Relating  to  tUanps. 

Where  a  stamp  distributer,  on  renewing  a  post- 
horse  licence,  altered  the  former  as  to  the  date  of 
the  year,  held,  that  it  was  a  question  for  the  jury 
if  fraudulently  done,  although  by  the  words  of  the 
sUtute,  2  dt  3  Will.  4,  c.  120,  fraud  waa  not  made 
an  ingredient  in  the  felony,  yet,  tliat  to  make  it 
such,  there  must  have  been  a  guilty  intention. 
Reg.  V.  Allday,  8  C.  &  P.  (n.  p.)  13a 


(1)  Electum  of  Members  of  ParliamenL 

Where  the  defendant,  indicted  on  3  Will.  4,  e. 
45,  s.  58,  (Reform  Act)  for  a  false  statement  at 
the  poll,  that  he  had  the  same  qualification  for 
which  his  name  was  originally  inserted  on  the 
register,  and  it  appeared  uiat  he  had  ceased  to  oc- 
cupy that  tenement,  but  did  at  the  time  of  the  poU 
occupy  another  of  the  same  value  ',  held,  that  he 
had  ceased  thereby  to  have  the  right  to  vote,  hut 
that  the  term,  **  same  qualification,"  being  eqaiv- 
ocal,  the  jury,  in  order  to  convict  the  party,  must 
be  satisfied  that  he  was  stating  what  ne  knew  to 
be  false.    R.  v.  Dodsworth,  2  M.  (k.  Rob.  (n.  p.) 

And  see  Eleetion  of  Members  ofPaHiamenL 


[B]  Offancbs  AOAINST  THS  PBRSOir. 


(a) 


1.  Where  the  wound  was  stated  by  the  miiveoB 
to  have  been  partly  cut  and  partly  torn,  and  done 
by  an  instrument  not  sharp  j  held  sufficient  to 
support  the  indictment,  which  alleged  it  to  have 
been  "  with  a  certain  sharp  instrument,*'  the  de- 
gree of  sharpness  being  immateriaL  R.  v.  Gromi- 
sell,  7  C.  &  P.  (If.  p.)  788. 


2.  Where  the  indictment  for  murder  by  1 
ffling  averred  that  the  prisoner  did  brin^^  toe  child 
forth  of  her  body  alive ;  held  that  the  jury  must 
be  satisfied  that  the  child  was  entirely  bom  be- 
fore the  act  committed  by  the  prisoner ;  semb.  if 
so,  although  still  attached  by  tne  umbilical  oord, 
the  prisoner  might  be  convicted  of  murder.  R.  v. 
Cratehley,  7  C.  dk  P.  (h .  p.)  814. 

3.  And  that  it  was  actually  and  entirely  bom 
in  a  living  state,  proof  of  having  breathed  is  not 
decisive  wat  it  was  bom  alive,  ft.  9.  Ellisy  7  C. 
A  P.  (R.  p.)  850. 


[INDICTMENT] 


2703 


4.  Tbe  mother  may  be  found  ffuilty  of  conceal- 
mg  the  birth,  alUioueh  she  may  have  before  com- 
municated the  fiict  o?  pregnancy.    R.  v,  Douglas, 

1  Ry.  &  M.  (c.  c.)480;  and  7  C.  <&  P.  644. 

5.  Coats  of  prosecution  in  cases  of  conceal- 
ment of  birth.     By  1  Vict.  c.  44. 

6.  Where  the  prisoner  undertook  the  care  of  an 
aged  and  imbecile  person,  and  by  keeping  her  in 
a  confined  and  unhealthy  place,  and  neglect  to 

EroTide  proper  food,  A.c.  occasioned  her  death ; 
eld,  that  if  the  jury  were  satisfied,  from  the  ffross 
and  wilful  neglect,  the  prisoner  contemplated  the 
death  of  the  party,  he  would  be  guilty  of  murder  ; 
and  if  guilty  of  such  neglect,  although  he  did  not 
contemplate  death,  he  would  be  guilty  of  man- 
slaughter.   R.  V.  Marriott,  6  C.  &  F.  (k.  p.)  425. 

7.  Where  the  father  of  a  party  with  whom  the 
prisoner  had  been  detected  in  the  commission  of 
an  unnatural  offence,  two  days  after,  meeting  the 
prisoner,  whom  he  had  been  seeking,  stabbed  him ; 
neld  not  to  amount  to  a  sufficient  provocation  to 
reduce  the  ofience  to  manslaughter.  Reg  v.  Fish- 
er, 8  C.  &  P.  (n.  p.)  182. 

8.  To  reduce  the  offence  to  that  of  manslaugh- 
ter, by  showing  previous  provocation,  the  jury 
must  be  satisfied  that  the  act  was  done  in  conse- 
quence of  such  provocation,  and  not  of  previous 
malice.    Reg.  v.  Kirkham,  8  C.  &  P.  (n.  p.)  15. 

9.  Where  two  agree  to  commit  suicide,  and  the 
means  used  only  take  effect  on  one,  held  that  the 
survivor  may  be  convicted  of  murder.  R.  v.  Al- 
ison, 8  C.  <&  P.  (it.  p.)  418. 

10.  Where  the  prisoner  was  only  in  the  act 
of  proceeding  with  the  child  towards  the  place  of 
intended  concealment,  but  stopped  before  the  act 
was  complete,  held  insufficient  to  constitute  the 
offence  under  9  Greo.  4,  c.  31,  s.  14.    R.  r.  Snell, 

2  M.  &  Rob.  (R.  p.)  44. 

11.  Indictment  for  child  murder,  alle^ng  the 
offence  as  upon  an  infant  male  child  of  tender 
age,  to  wit,  of  six  weeks,  and  not  baptised  ^  held 
insufficient,  for  not  stating  a  name,  or  that  it  was 
to  the  jurors  unknown ;  and  affirmed  afterwards 
by  the  15  Judges.  R.  v.  Biss,  8  C.  &  P.  (n.  p.) 
773. 

12.  On  a  charge  of  murder,  the  evidence  show- 
ing the  body  to  to  of  a  different  party  ;  held,  that 
until  proof  of  the  actual  death  of  the  party  al- 
leged to  have  been  killed,  the  prisoner  could  not 
be  called  on  to  give  any  account.  R.  v.  Hopkins, 
8  C.  &  P.  (N.  p.)  591. 

13.  Where  an  indictment  against  the  prisoner 
for  the  murder  of  her  husband  describeo  her  as 
**  the  wifii  of,"  &c.,  the  Judge  directed  the  de- 
scription to  be  amended,  by  describing  her  as 
"  widow."    R.  r.  Orchard,  8  C.  &  P.  (n.  p.)  565. 

14.  Where  parties  were  charged  as  accessories 
to  murder,  the  principal  being  insane  ;  held,  that 
they  could  not  be  convicted  on  that  count,  but  if, 
aware  of  the  malignant  purpose  of  such  insane 
party,  they  entertain  it,  and  share  in  that  purpose 
with  him,  and  are  present  aiding  and  abetting, 
and  assisting  him  in  the  commission  of  acts  fatal 
to  life,  they  are  guilty  as  principals  for  what  » 


done  by  his  hand.    R.  v.  Tyler  and  others,  8  C  d& 
P.  (».  p.)  616. 

15.  To  constitute  the  offence  of  concealment, 
under  9  Greo.  4,  c  31,  s.  14,  it  is  essential  that 
some  act  have  been  done  by  the  prisoner  towards 
disposal  of  the  body  ;  as,  where  it  slipt  from  the 
mother  whilst  on  the  privy,  held  not  enough,  al- 
though the  prisoner  denied  the  birth.  R.  v.Tum- 
er,  8  C.  i&  P.  (N.  p.)  755. 


(b)  Manslaughter. 

1.  Where  the  prisoner  had  been  acquitted  on 
a  charge  of  aiding  and  abetting  murder ;  held  to 
be  no  bar  to  an  indictment  charging  her  as  an  ac- 
cessory before  the  fact  R.  v.  Birchenough,  1 
Ry.  &  M.  (c.  c.)  477. 

2.  Where  the  death  was  occasioned  by  the  pri- 
soner, a  boy,  having  pulled  out  the  trapstick  of  a 
cart,  in  a  frolic;  held  guilty  of  manslaughter. 
R.  V.  Sullivan,  7  C.  &  P.  (n.  p.)  641. 

3.  If  the  driver,  by  racing  with  another  car- 
riage, loses  the  control  of  his  own  horses,  and  a 
party  is  killed  by  the  upsetting  of  his  own  car- 
riage, it  is  manslaughter  in  the  driver.  R.  «. 
Timmins,  7  C.  &  P.  (w.  p.)  499. 

4.  On  a  charge  of  manslaughter  against  the  cap> 
tain  and  mate,  by  ill  treatment  of  a  sailor  on  boards 
who  was  proved  to  have  been  in  a  diseased  state, 
but  which  they  alleged  to  be  skulking ;  held,  that 
the  question  was  whether  the  indications  of  dis- 
ease were  such  as  to  have  excited  the  atten^on  of 
reasonable  and  humane  men,  and  the  party  hav-' 
ing  come  from  an  hospital,  that  it  was  their  duty 
to  nave  inquired  of  the  surgeon  whether  the  party 
was  in  a  state  to  perform  his  duties.  Reg.  v»  Leg^ 
gett,  8  C.  &  P.  (m .  p.;  190. 

5.  An  iron-founder  having  furnished  cannon, 
one  of  which  being  imperfect  and  returned,  he 
had  filled  the  flaw  with  lead  and  returned  it,  and 
upon  being  fired,  it  burst  and  killed  a  man ;  held 
to  be  manslaughter.  R.  v.  Carr,  8  C.  &  P.  (k.  p.) 
163. 

6.  A  medical  man,  though  duly  qualified  to 
practice,  yet  if  by  gro^s  unskilfulness  he  occa« 
sions  death,  will  be  guilty  of  manslaughter.  R« 
V.  Spilling,  2  M.  &  Rob.  (h.  p.)  107. 

7.  Where  a  partv  enters  into  a  contest,  being 
armed  with  a  deadly  weapon,  with  intent  to  use 
it,  it  will  be  murder  in  case  of  death  ensuing;  but 
if  used  in  the  heat  of  provocation,  without  such 
previous  intent,  it  will  only  amount  to  man* 
slaughter ;  if  used  in  the  necessary  defence  of  his 
own  life,  it  would  be  justifiable  homicide.  Reg. 
V.  Smith,  8  C.  &  P.  (n.  p.)  161. 

8.  The  master  of  an  apprentice  held  bound  to 
provide  medical  attendance  during  sickness,  and 
held  liable  where  the  death  was  occasioned  by  the 
want  of  such  assistance :  in  the  case  of  a  servant, 
the  master  is  not  bound  by  law  to  provide  such. 
Reg.  v^  Smith,  8  C.  &  P.  (ff.  p.)  153. 

9.  Where  the  evidence  of  the  death  having  been 


5r794 


[INDICTMENT] 


occasioned  by  the  act  of  the  prisoner  arose  from 
his  own  statements,  and  there  was  no  proof  of  its 
beinfir  accidental ;  held,  that  the  jury  could  not 
legafiy  infer  it.    R.  v.  Morrison,  8  C.  &  P.  (k.  p.) 

10.  So,  where  the  death  is  shown  to  have  been 
occasioned  by  the  hand  of  the  prisoner,  it  lies  on 
him  to  show  by  evidence,  or  inference  from  cir- 
cumstances, that  the  offence  does  not  amount  to 
murder.    R.  v.  Greenacre,  8  C.  &  P.  (k.  p.)  35. 


(c)  Rape, 

1.  The  old  presumption  that  a  party  under  14 
years  of  age  is  incapable  of  committing  a  rape  is 
not  affected  by  the  9  Geo.  4,  c.  31,  s.  16,  ]7.  R. 
V.  Groombridge,  7  C.  &  P.  (h.  p.)  582. 

2.  Where  the  female  consented,  believini;  the 
prisoner  to  be  her  husband,  held  that  the  offence 
did  not  amount  to  rape,  but  that  he  might  under  1 
Vict.  c.  85,  s.  11,  be  convicted  of  assault,  and  sen- 
tenced to  imprisonment  and  hard  labor.  R  v. 
Saunders,  8  C.  &  P.  (n.  p.)  265 ;  S.  P.  R.  r.  Wil- 
liams, lb.  286. 

3.  Although  it  is  not  necessary  that  the  hymen 
should  be  ruptured  where  penetration  is  proved, 
yet  the  jury  may  hesitate  to  conclude  the  latter, 
where  the  rupture  is  not  proved.  R.  v.  M'Rue, 
8C.  &P.  (K.  p.)641. 

4.  Upon  an  indictment  for  a  rape  on  a  child 
ander  10  years;  held,  that  the  offence  did  not 
include  an  assault  under  1  Vict.  c.  83,  but  that 
the  prisoner  could  only  be  found  guilty  of  the 
whole  charge,  or  be  acquitted.  R.  v.  Banks,  8  C. 
&  P.  (H.  p.)  574. 

5.  So,  where  the  par^  was  between  the  ages 
of  10  and  12,  and  the  offence  a  misdemeanor  on- 
ly ;  held,  that  the  consent  would  put  the  charge 
of  assault  out  of  the  question;  and  altliough 
every  attempt  to  commit  a  misdemeanor  is  a  mis- 
demeanor, yet  the  attempt  must  be  by  an  illegal 
act.    R.  «.  Meredith,  8  C.  db  P.  (h.  p.)  589. 

6.  Where  the  prisoner  charged  with  an  assault, 
with  an  attempt  to  commit  a  rape,  was  himself 
cinder  14  ;  held,  that  he  could  not  be  convicted, 
nor  was  evidence  admissible  to  show  that  he  was 
capable  of  committing  the  o&nce  of  rape.  R. 
Philips,  8  C.  ^t  P.  (v.  p.)  736. 


(d)  Maliciously  cutiingf  ^.—-shooting. 

1.  Where  the  prisoner  had  previously  declared 
that  if  any  man  struck  him  he  would  make  him 
repent  it,  and  armed  himself  with  a  sword-stick, 
with  the  blade  open,  and  the  prosecntor  coming 
in,  and  perceiving  the  prisoner  creating  a  disturb- 
ance, struck  him  with  his  fist,  upon  which  the 
prisoner  stabbed  him ;  held,  that  it  was  for  the 
jury  to  say  if  he  used  the  words  as  an  idle  threat, 
or  with  the  deliberate  purpose  of  doing  so,  as 
such  intention  would  constitute  the  tnalus  animus 
which  the  law  terms  ** malice;"  and  although 
dninkenneiB  would  form  no  excuse,  it  might  oe 


taken  into  consideration  upon  the  question  of 
provocation  in  cases  were  the  act  may  be  attribu- 
ted to  passion  excited  by  such  provocation.  R. 
V.  Thomas,  7  C.  &  P.  (n.  p.)  817. 

2.  Where  the  prosecutor,  having  on  a  hat  with 
a  hard  rim,  was  struck  several  times  on  the  bead 
by  the  prisoner  with  an  air  gun,  and  received  a 
contuseo  wound,  which  was  said  to  have  been 
caused  by  the  rim  of  the  hat;  held,  and  confirm- 
ed by  the  judges,  that  it  was  a  wounding  within 
the  stetute.    R.  v.  Sheard,  7  C  d^  P.  (h.  p.)  846. 

3.  Where  the  prisoner,  being  taken  by  warrant 
before  a  justice  on  a  charge  of  assault,  was  orders 
ed  to  find  bail,  and  on  his  refusal,  whilst  his  com- 
mitment was  making  out,  he  escaped,  and  the 
prosecutor  was  ordered  verballv  by  the  justice  to 
pursue  and  apprehend  him,  and,  in  the  attempt  to 
do  so,  was  cut  by  the  prisoner ;  held,  (per  G§m' 
lee,  J.)  that  the  original  warrant  continued  in 
force,  and  that  the  apprehension  was  lawfal ;  and 
the  conviction  held  right  R.  v.  Williams,  1  Ry. 
&  M.  (c.  c.)  387. 

4.  But  where  the  prisoner,  after  apprehension 
under  the  Vagrant  Act,  had  escaped,  and  was 
several  hours  afterwards  attempted  to  be  retaken, 
without  warrant  by  the  constable,  in  the  resisting 
which  he  wounded  the  officer;  held,  that  the 
conviction  for  stabbindr  with  intent  to  resist  law- 
ful apprehension,  could  not  be  supported.  R.  v. 
Gardener,  1  Ry.  dt  M.  (c.  c.)  390. 

5.  Where  the  party  in  pursuit  of  the  prisoner 
to  apprehend  him  was  distant  a  quarter  of  a  mile 
from  the  officer  who  had  the  warrant,  and  was 
stabbed  with  a  knife  which  the  prisoner  had  in 
his  hand  at  the  time  ;  held,  that  as  the  arrest  was 
illegal,  if  death  had  ensued  in  resisting,  it  would 
have  been  manslaughter  only  :  but  if  the  prison- 
er had  taken  out  the  knife  on  seeing  the  prosecu- 
tor come  up,  it  might  have  been  evidence  of  pre- 
vious malice.  R.  v.  Patience,  7  C.  &  P.  (s.  p.) 
775. 

6.  A  count  charging  the  wounding  with  intent 
to  resist  lawful  apprehensicm  by  a  metropolitan 
police-officer,  to  wit,  for  committing  damage  and 
mjury  to  certain  plants  and  roots  in  a  garden, 
&c.,  held  good.  R.  v.  Fraser,  1  Ry.  &  M.  (c.c.) 
419. 

7.  Where  the  wound  inflicted  in  attempting  to 
cut  the  throat  amounted  onlv  to  a  slight  scratch, 
and  wounds  inflicted  on  the  nands,  although  deep 
cuts,  were  inflicted  by  the  prosecutor's  attemf^ 
to  defend  himself;  held  not  to  be  within  the  stat- 
ute.   R.  V.  Beckett,  1  M.  <&  Rob.  (0.  p.)  526- 

6.  Where  the  wounding  was  by  biting  the 
hand,  held  not  a  wounding  within  the  stat.,  which 
requires  that  an  instrument  be  used.  R.  9.  Ste- 
vens, 1  Ry.  &  M.  (c.  c.)  409. 

9.  So,  the  throwiujg  vitriol  over  the  prosecutor's 
fiice  with  intent  to  disfigure,  held  not  a  woundinc 
within  the  statute.  R.  v.  Munow,  1  Ry.  dk  Bf. 
(c.  c.)  456. 

10.  Where  the  indictment  alleged  the  act  to 
have  been  done  <*  feloniouslv,  wilfully,  and  mali- 
ciously," and  not "  unlawfully,"  the  word  used  in 
the  statute,  held  insufficient  R.  v.  Ryan,  7  C. 
dk  P.  (N.  p.)  854. 


[INDICrrMENT] 


27B6 


11.  Wbne  the  priioner  ahot  at  H.,  mistaking 
him  for  L.,  with  intent  to  kill  the  latter,  and  the 
indictment  contained  counts  with  intent  to  kill 
H.  and  others,  laying  the  intent  to  kill  L.,  held 
that,  being  one  act  of  shooting,  the  joinder  was 
proper,  but  the  jury  negatiring  the  intent  to  in- 
jbre  H.,  an  acquittal  directed ;  in  such  case,  the 
grand  jury  bein^  discharged,  the  judge  refused 
to  detain  the  prisoner  until  articles  or  the  peace 
could  be  prepared.  R.  v.  Holt,  7  C.  &  P.  (n.  p.) 
518. 

12.  Although  by  7  Will.  4  <&  1  Vict  c.  85,  ss. 
2.  4,  the  wounding  with  intent  to  murder,  and 
to  maim,  or  do  bodily  harm,  be  subject  to  different 
jodgments,  it  is  no  objection  that  counts  laying 
the  wounding  with  dinerent  intents  be  joined  in 
the  same  indictment.  Reg.  v.  Strange,  8  C.  &  P. 
(n.  p.)  172. 

13b  A  blow  with  an  iron  hammer,  whereby  the 
jaw  of  the  prosecutor  was  broken,  and  the  skin 
broken  internally,  held,  a  wounding  within  the 
■Utute.    Reg.  V.  Smith,  8  C.  &  P.  (n,  p.)  173. 

14.  Where  the  prisoner,  whilst  taking  away 
ashes,  was  detained  on  being  charged  with  taking 
away  part  of  a  kettle,  and  in  the  scuffle  wounded 
the  prosecutor ;  held,  that  if  the  jury  were  satis- 
fied that  the  prisoner  had  stolen  the  article,  the 
pronecutor  had  a  right  to  detain  him,  and  the 
wounding  would  be  felony.  R.  v.  Price,  8  C.  & 
F.  (H.  p.)  282. 

15.  Under  7  Will.  4  &  1  Vict  c.  85,  where  the 
wounding  was  under  such  circumstances  as,  if 
death  haa  ensued,  the  offence  would  only  have 
amounted  to  manslaughter ;  held,  that  if  the  jury 
were  satisfied  of  the  malice  and  intent,  the  prison- 
er might  be  convicted  of  felony.  By  the  term 
malice,  is  not  intended  malice  aforethought  R. 
V.  Griffiths,  8  C.  &  P.  (m.  p.)  248. 

16.  Where  a  policeman  ordered  a  street  musi- 
cian, who  had  collected  at  night  a  number  of  dis- 
orderly persons  around  him,  to  move  on,  and  on 
his  refusal  laid  his  hand  on  his  shoulder  to  remove 
him,  and  the  party  drew  a  razor  and  wounded  the 
officer ;  held,  that  upon  a  provocation  so  slight, 
if  death  had  ensued  it  would  have  been  murder ; 
mUter,  if  the  party  had  been  struck  a  blow  or 
knocked  down.  Reg.  v.  Hagan,  8  C.  &  P.  (m.  p.) 
167. 

17.  Shooting  into  a  room  where  the  prosecutor 
was  supposed  to  be,  but  in  fact  was  not,  held  not 
to  be  a  snooting  at^  within  the  statute.-  R.  v.  Le- 
vel, 2  M.  &  Rob.  (n.  p.)  39. 

18.  But  where  he  shot  at  A.,  and  struck  B., 
held  to  amount  to  the  ofifence  of  shooting  at  B.  R. 
V.  Jarvis,  2  M.  &  Rob.  (if.  p.)  40. 

19.  To  constitute  a  wound,  there  must  be  a 
separation  of  the  entire  skin,  and  not  a  mere  abra- 
sion of  the  outward  cuticle.  R.  v.  M'Loughlin, 
8  C.  d^  P.  (n.  p.)  635. 

90.  Where  the  indictment  contained  the  usual 
counts,  and  one  for  a  common  assault,  the  ver- 
dict of  guilW  allowed  to  be  entered  on  the  count 
on   felony,  for  the  intent  to  do  grievous  bodily 
harm ;  and  held,  by  the  15  judges,  on  the  objee- 
VoL.  IV.  66 


tion  for  misjoindeTi  that  the  eonviotion  wis  good. 
R.  o.  Jones,  8  C.  A  P.  (v.  p.)  776» 


(c)  Robbery, 

1.  Where  two  persons  were  robbed  whilst  in 
the  same  carriage,  and  there  were  separate  in- 
dictments, held,  that  on  the  trial  of  the  fin^  the 
prosecutor  in  the  second  might  be  asked  as  to  hb 
loss  of  a  watch  found  on  one  of  the  prisonen, 
but  not  as  to  the  violence  used  towards  Jum.  R. 
V.  Rooney,  7  C.  &  P.  (h.  p.)  517. 

2.  Laws  relating  to  offences  against  the  pefson 
amended  by  1  Vict.  c.  85 ;  to  robbing  and  stealing 
from  the  person,  c.  87. 

3.  On  an  indictment  for  robbeir,  the  juiy  hav- 
ing found  the  prisoner  **  guilty  of  an  assault,  but 
without  any  intention  to  commit  any  felony;" 
held,  that  the  prisoner  might  be  convicted  of  tha 
assault,  and  punished,  under  the  7  Will.  4,  &  1 
Vict  o.  85,  B.  11.  R.  V.  Ellis,  8  C.  db  P.  (m.  p.) 
654. 


4.  So,  where  the  indictment  charged  an  asMult, 
and  wilful  administering  deleterious  drugs.  R. 
V.  Sutton,  8  C.  A  P.  (n.  p.)  660. 


(f)  Threatening  Letter, 

1.  It  is  for  the  jury  to  say  whether  the  terms 
of  the  letter  amount  to  threats  within  the  statute. 
R.  V.  Tyler,  1  Ry.  &  M.  (c.  c.)  428. 

2.  Upon  an  indictment  for  threatening  to  ac- 
cuse or  an  infiunous  crime,  and  intimidating  the 
party ;  held,  that  the  jury  may  take  into  their 
consideration,  in  reference  to  the  expressions 
used  before  obtaining  the  money,  what  was  said 
afterwards  by  the  prisoner  relating  thereto,  when 
in  custody.    Reg.  v,  Kain,  8  C.  di&  P.  (a.  p.)  187. 

3.  On  an  indictment  under  7  d&  8  Geo.  4,  c. 
29,  for  threatening  to  accuse;  held,  that  the  words 
were  not  confined  to  an  accusing  by  course  of 
law,  but  to  be  taken  to  mean,  threatening  to 
charge  before  any  third  person.  R.  v.  Robinson, 
2  M.  &  Bob.  (H.  p.)  14. 

4.  Where  the  threat  was  to  accuse  "  of  having 
taken  indecent  liberties,"  held  not  within  7  Will. 
4,  db  1  Vict.  c.  87,  s.  4,  which  is  to  be  construed 
as  a  threat  to  accuse  of  having  committed  the 
complete  crime ;  but  the  prosecutor  having  parted 
with  his  money  under  the  combined  fear  of  per- 
sonal violence  as  well  as  of  character,  held  not 
the  lees  a  robbery,  because  the  bodily  fi$ar  was 

groduced  by  two  adequate  causes.    R. «.  Norton, 
C.  &  P.  (If.  p.)  671. 


[CI  Offshczs  against  Propbrtt. 

(a)  Lareeny^  what, 

1.  Removal  by  miners  of  ore  from  the  hfiaps 
of  other  miners  to  their  own,  in  order  to  inereaat 


2796 


[INDICTMENT] 


their  own  wu^eH)  without  being  taken  away  from 
the  owners,  held  not  to  amount  to  larceny.  R. 
V,  Webb,  1  Ry.  &  M.  (c.  c.)  431. 

2.  Where  the  prisoner,  occasionally  employed 
as  a  clerk,  received  a  check  to  be  handed  over 
to  a  creditor,  but  appropriated  it  to  his  own  use, 
held  to  amount  to  larceny  of  the  check.  R.  v. 
Metcalf,  1  Ry.  &  M.  (c.  c.)  433. 

d.  Where  the  prisoner  had  received  the  horse 
frem  the  prosecutor  to  agist,  and  been  paid  for 
one  week,  held  that  the  subsequent  sale  of  it  did 
not  amount  to  larceny.  R.  ti.  Smith,  I  Ry.  A  M. 
(c.  c.)  473. 

4.  Where  the  articles  stolen  were  not  such  as 
pass  from  hand  to  hand,  as  ends  of  unfinished 
woollen  cloths,  the  lapse  of  two  months  held 
only  a  circumstance  for  the  jury.  R.  v.  Partridge, 
7  C.  &  P.  (if.  F.)  551. 

5.  Where  the  prisoner  hired  a  horse  and  gig  of 
the  prosecutor,  which  he  immediately  offered  for 
sale ;  held,  that  there  having  been  no  actual  con- 
version of  the  property,  the  prisoner  could  not  be 
convicted  of  larceny.  R.  v.  Brooks,  8  C.  &  P. 
(n.  p.)  295. 

6.  Where  the  prisoner  having  ordered  goods 
and  change  for  a  crown  to  be  sent,  and  he  met 
the  prosecutor's  servant  with  the  goods,  and  re- 
ceived them  &om  him  with  the  change,  giving 
him  a  crown  which  turned  out  to  be  counterfeit ; 
held,  that  if  the  jury  found  that  it  was  a  precon- 
certed scheme  to  get  possession  of  the  goods  with- 
out t>ayin^,  and  that  the  servant  had  only  a  limit- 
ed authority  to  deliver  on  payment,  the  offence 
amounted  to  larceny.  R.  v.  Small,  8  C.  dt  P. 
(v.  p.)  46. 

7.  Where  the  prosecutor  went  to  sleep  at  a 
house  with  the  prisoner,  and  laid  his  watch  on  the 
table,  whence  it  was  stolen ;  held  to  be  a  stealing 
in  the  dwelling-house,  and  not  from  the  person. 
R.  V,  Hamilton,  8  C.  &  P.  (n.  p.)  49. 

8.  Where  in  a  case  of  ring-dropping,  the  pro- 
secutor parted  with  his  money  in  the  purchase  of 
the  prisoner's  share,  held  not  to  be  a  case  of  lar- 
ceny.   Reg.  V.  Wilson,  8  C.  &  P.  (n.  p.)  111. 

0.  Where  the  workmen  of  a  mine  proprietor 
by  his  orders  stopped  up  an  air-way  affecting  an 
aiMbining  mine ;  held,  that  if  they  acted  in  the 
belief  that  he  had  the  right,  although  they  might 
be  all  guilty  as  trespassers,  yet  they  could  not  be 
guilty  of  felony  within  7  &  8  (3eo.  4,  c.  30,  s.  6 : 
alitery  if  they  knew  that  the  act  was  maliciously 
directed  by  tneir  employer.  Reg.  v.  James,  8  C. 
&P.  (N.  p.)  131. 

10.  Opening  a  letter,  and  detaining  it,  merely 
irom  cqriosity  or  political  motive,  held  to  be  a 
trespass  only,  and  not  a  felony.  R.  v.  Godfrey, 
8  C.  &  p.  (K.  p.)  563. 


(b)  Arson, 

1.  Since  the  7  &  8  Geo.  4,  c.  30,  s.  17,  the  in- 
dictment for  setting  6re  to,  &c.  with  intent  to 
injure  the  owner  is  suifieieiit,  although  the  jury 
found  the  intent  to  be  to  iiyure  another,  and  a 


count  would  be  good  although  no  intent   laid. 
R.  V.  Newill,  1  Ry.  &  M.  (c.  c.)  458. 

2.  A  covering  of  wood  and  straw  set  on  upright 
posts  and  cross  timbers,  in  a  farm-yard,  held  to  be 
an  outhouse  within  the  7  &  8  Geo.  4,  c.  80,  s.  2, 
and  that  placing  fire  among  the  straw,  producing 
smoke  and  burnt  ashes  in  the  straw,  was  a  set- 
ting on  fire,  although  there  was  no  appearance  of 
fire  itself.    R.  v.  Stallion,  I  Ry.  6l  M.  (c.  c.)  396. 


(c.)  Burglary — katubrealang. 

1.  A  separate  building,  in  which  a  gardener 
lived  upon  his  master's  premises,  held  well  des- 
cribed as  the  dwelling-house  of  the  servant.  R.  9. 
Rees,  7  C.  &  P.  (if.  p.)  568. 

2.  An  erection  in  a  field  for  a  cart  shed,  board- 
ed up,  with  a  look  and  key,  and  gorse  thrown 
over  the  top,  held  a  building  within  7  dt  8  Geo. 
4,  c.  29,  8.  44.  R.  V.  Worrall,  7  C  &  P.  (ff.  r.) 
516. 

3.  Laws  relating  to  burglary  and  stealing  in  a 
dwelling-house,  amended  by  1  Vict.  c.  86. 

4.  Laws  relating  to  piracy  amended  by  1  Vict. 
c.  88 }  to  burning  or  destroying  ships,  by  c.  69. 

5.  Upon  an  indictment  under  7  Will.  4  &  1 
Vict.  c.  86,  8.  2,  it  must  allege  both  the  burglaiy 
and  striking,  and  the  proof  must  correqx>nd  there- 
with; where  the  party  struck  was  misnamed, 
held,  that  the  prisoner  could  only  be  guilty  of 
burglary.    R.  v.  Parfilt,  8  C.  &  P.  (if.  p.)  288. 

6.  On  an  indictment  for  stealing  lead  affixed  to 
a  buildinjgr,  &c. ;  held,  that  the  prisoner  could  not 
be  founa  guilty  of  a  simple  larceny,  the  jniy 
finding  that  he  took  the  lead  when  severed  and 
lying  at  a  considerable  distance  from  the  building. 
R.  V.  Gooch,8  C.  &  P.  (K.  p.)  294. 

7.  The  breaking  out  of  a  house  may  be  bur^^ 
rious,  although  tlie  being  within  the  house  may 
have  been  originally  lawful,  as  in  the  case  « 

guests  at  an  inn,  or  of  lodgers ;  the  lifting  a  latch 
y  such  parties,  if  with  the  intention  of^getting 
out  with  goods  feloniously  taken,  is  a  bur^arioas 
breaking  out  of  the  house.  R.  v.  Wheeldon,  8  C. 
&  P.  (N.  P.)  747. 


•        (d)  Embezzlement' 

1 .  Whpre  it  was  the  duty  of  the  prisoner,  a 
banker's  clerk,  to  keep  the  money  received  in  a 
box,  and  make  entries  of  his  receipts ;  and  upon 
his  being  called  on  to  produce  his  money,  be 
threw  himself  upon  their  mercy,  and  said  he  was 
900/.  short ;  held  upon  an  indictment  for  embex- 
zling  monies  to  a  large  amount,  to  wit,  GOOf.  thai 
he  was  properly  convicted,  although  no  evidence 
was  offered  of  the  persons  of  whom  received  nor 
the  sort  of  money  abstracted  ;  and  the Judgnaent 
affirmed  by  the  judges.  R.  r.  Grove,  7  C  dk  P. 
(N.  p.)  6^,  and  1  Ry.  &  M.  (c.  c.)  447. 

2.  The  omission  of  a  clerk  to  enter  money  re* 
ceived  in  his  books,  held  insufficient,  where  there 


[INDICTMENT] 


aro? 


had  been  no  denial  by  him  of  the  receipt.    A.  v. 
Jones,?  C.  &  P.  (if.  r.)  833. 

3.  It  is  essential  that  there  should  be  a  denial 
of  the  receipt,  or  a  false  account  have  been  given, 
lb.  834. 

4.  On  an  indictment  against  the  clerk  of  a 
savings  bank,  held  that  he  was  properly  descri- 
bed as  clerk  to  the  trustees,  although  he  was  ap- 
pointed by  the  managers.  K.  v,  Jenson,  1  Ry. 
&  M.  (c.  c.)  434. 

5.  So  where  the  secretary  of  a  society  received^ 
monies  from  a  member  to  be  paid  over  to  the 
trustees,  although  usually  received  by  a  stew- 
ard, and  he  fraudulently  withheld  it;  held,  that 
it  might  be  stated  as  the  property  of  the  trustees, 
and  he  be  deemed  their  clerk  and  servant.  R. 
i;.  Hall,  1  Ry.  &  M.  (c.  c.)  474. 

6.  A  collector  of  the  poor-rates,  church  and 
rector's  rates,  appointed  m  vestry  under  a  local 
act,  and  described  as  servant  to  the  committee  of 
management ;  held  sufficient,  and  the  conviction 
proper  under  7  &  8  Geo.  4,  c.  29,  s.  47.  R.  v. 
Callahan,  8  C.  &  P.  (n.  f.)  154. 

And  see  R.  v.  Jenson,  Mood.  (c.  c.)  434. 

7.  It  is  not  sufficient  to  prove  generally  a  defi- 
ciency in  account,  but  some  specmc  sum  must  be 
proved  to  have  been  embezzled.  R.  v.  Lloyd 
Jones,  8  C.  &.  P.  (n.  p.)  288. 

8.  Where  the  prisoner,  being  a  salesman  as 
well  as  drover,  had  been  entrusted  to  take  cattle  to 
the  salesman  of  the  prosecutor  at  Smithfield,  but 
had  authority  to  sell  them  on  the  road  if  he  could, 
and  he  drove  them  to  the  market,  and  sold  them 
there,  and  applied  the  monev  to  his  own  use ; 
held,  that  being  the  agent,  and  not  the  servant,  he 
could  neither  be  convicted  of  larceny  or  embez- 
zlement.   R.  V.  Goodbody,  8  C.  &  P.  (n.  p.)  665. 

9.  Where  A.,  a  coach-proprietor,  horsed  the 
coach  from  H.  to  W.,  driving  it  himself,  and  lia- 
ble to  his  co-proprietors  for  the  receipts,  emploj^ed 
the  prisoner  to  drive  occasionally  for  him,  givmg 
him  all  the  fees,  and  it  was  his  duty  to  account 
for  all  the  sums  received,  to  his  employer ;  held, 
that  the  abstracting  and  not  accounting  for  part 
was  embeezlement,  and  that  he  was  properly  des- 
cribed as  the  servant  of  A.,  and  the  monies  em* 
bezsled  as  the  property  of  A.  R.  v.  White,  8  C. 
A  P.  (M.  P.)  742. 

10.  Where  the  party  charged  with  embezzling 
was  clerk  to  a  society,  binding  themselves  by 
oaths  of  an  unlawful  nature,  ynder  37  Geo.  3,  c. 
123,  and  57  Geo.  3,  c.  19 ;  held,  that  the  indict- 
ment lajring  the  property  in  persons  so  unlawfully 
combined  could  not  be  supported.  R.  v.  Hunt, 
8  C.  &  P.  (F.  P.)  642. 


(e)  Poaching. 


1.   Where  gamekeepers 
wood,  the  circumstances  are 


find  poachers   in    a 
sufficient  notice, 


employer,  they  would  not  be  justified  in  the  ap- 
prehending.   R.  V.  Davis,  7  C.  &  P.  (r.  p.)  785. 

2.  Large  stones  brought  to  the  spot  and  used  in 
assailing  gamekeepers,  held  to  be  *^  offensive 
weapons"  within  the  statute.  R.  r.  Grice,  7  C 
&  P.  (N.  P.)  803. 

3.  The  indictment,  sembU^  ougrbt  to  allege  the 
being  armed  at  the  time  of  entering  the  land,  as 
well  as  ^*  being  then  and  there  by  night  armed  a0 
aforesaid."    R.  v.  Wilks,  T  C.  &  P.  (n.  p.)  811. 

4.  Where  two  were  charged  in  the  same  indict- 
ment with  the  principal  felon  as  receivers,  in  one 
connt  jointly,  and  in  another  with  receiving  sep- 
arate parts 't  held  good.  R.  v.  Hartall,  7  C.  A  P. 
(5.  P.)  475. 

5.  Where  the  only  weapon  found  on  the  pri- 
soner was  a  common  walkmg-stick,  held,  that  if 
there  were  circumstances  showing  an  intention 
to  use  it  for  purposes  of  offence,  it  mi^ht  be  an 
offensive  weapon  within  the  statute ;  aUter^  if  the 
jury  find  that  it  was  in  his  possession  in  the  ordi- 
nary way,  and  upon  unexpected  attack  or  collision 
only,  used  it  otensively.  R.  v.  Fry,  2  M.  A 
Rob.  (ir.  p.)  42. 

6.  An  indictment  under  9  Geo.  4^  c.  69,  s.  9, 
held  sufficient,  although  not  charging  whether 
the  land  entered  on  was  enclosed  or  not;  held, 
also,  that  where  some  of  the  party  were  in  the 
lands  stated,  and  others  in  the  adioining  land  co- 
operating in  the  same  purpose,  all  were  guilty  of 
the  offence.  R.  v.  Andrews,  2M.  dt  Rob.  (n.  p.) 
37. 

7.  Where  one  of  several  went  by  himself  to 
poach  in  a  distinct  field,  held  not  an  entry  by 
the  others  into  that  field,  to  support  the  indict- 
ment; nor  where  they  remained  out  in  the  road, 
and  sent  in  their  dogs  into  an  adjoining  field  to 
drive  the  game  into  nets  set  by  them.  R.  v.  Neck- 
less  and  others,  8  C.  &  P.  (R.  p.)  757. 

8.  So,  a  constructive  arming  is  not  sufficient 
within  the  statute  to  mak«  the  arming  by  one  an 
arming  of  all,  and  satisfy  the  averment  that  all 
were  armed.  R.  v.  Davis  and  another,  8  C.  ds  P. 
(if.  p.)  759. 

And  see  CStntotction. 


(f)  MaUdaua  injuries. 

Where  goods,  although  complete  as  to  the  man- 
ufiicturing  and  texture,  were  still  in  process  of 
dyeing,  held  to  be  still  within  the  protection  of 
7  &  8  Geo.  4,  c.  30,  s.  3,  against  wilful  damage 
of  goods  in  process  of  manufacture.  R.  v.  Wood- 
head,  1  M.  db  Rob.  (H.  P.)  549. 


(g)  MisdeTMancrs. 
An  attempt  to  commit  a  misdemeanor,  whetber 


and  no  notice  need  be  given  that  they  are  going  the  offence  be  one  at  common  law  or  created  by 
to  apprehend ;  but  if  the  parties  are  not  on  the  I  statute,  held  a  misdemeanor.  R.  «.  Roderick,  7" 
ground,  or  within  the  manor  ef  the  gamekeepers' '  C.  &  P.  (n.  p.)  795. 


9796 


[INDICTMENT] 


(h)  Skigp-tUaimg, 


Where  the  prisoner  had  cat  the  throat  of  the 
■beep,  but  was  disturbed,  and  the  animal  died  two 
days  after  the  wound,  the  jury,  finding  that  he 
inflicted  the  wound  with  intent  to  stead  the  car- 
case, held  tbat  the  conTiction  was  right  R.  v. 
Sutton,  8  C.  dk  F.  (h.  r.)  291. 


(i)  FordkU  miry. 

A  Jndge  of  assise  may  refuse  to  award  restitu- 
tioii  after  a  true  bill  found  by  the  grand  jury  for  a 
forcible  entry  and  detainer,  and  the  CQurt  has  not 
jurisdiction  to  interfere.  R.  «.  Uarland,  1  Ferr. 
&  Day.  (q.  B.)  93. 


[0]   iHlilCTHEMT. 

(a)  Suficieticy  rf--vanue — Central  Court. 

1.  Indictment  for  stealinff  pipes  fixed  to  the 
dwelling^hoase  of  A.  and  B.,  it  appearmg  that 
the  hensQ  wis  let  in  separata  jparts  to  A.  dt  B., 
teld  not  svstamable.  R.  v.  Finch,  1  Ry.  dc  M. 
(a.  Q.)  41& 

8.  Wherever  it  is  clear  that  there  is  only  one  of- 
^nee,  the  Joinder  of  counts,  one  as  an  accessory  to 
the  principal  felony,  and  another  for  receiving,  as 
a  substantive  felony,  under  7  &  8  Geo.  4,  c.  29, 
f ,  84 }  held,  that  tlw  objection  ought  not  to  pre- 
V»il  I  bot  it  ia  a  matter  wholly  in  the  discretion 
of  the  Jvdgtt,  and  not  open  to  demurrer,  nor  a 
gffovnd  for  qnaahing  the  indietmeBt.  R.  v,  Aua* 
Imi  7  a  A  P,  (M.  r.)  796. 

3.  Where  the  proeecutor's  wife,  employed  to 
sell  her  husband's  goods,  received  a  note,  which 
was  stolen  from  her  beibre  her  return  home ; 
held,  tbat  it  was  properly  described  as  the  bus- 
hand's  property.  R.  w.  Roberts,  7  .  &  P.  (m. 
r0  48SL 

4.  Since  1  WUl.  4,  c.  G6,  s.  24,  a  party  held  to 
be  triable  for  forgery  in  any  oounty  in  which  he 
is  in  custody,  although  tlie  ofience  arose  else- 
where.   R.  V.  James,  7  C.  d&  P.  (r.  p.)  555. 

5.  Where  tlie  prisoner  stole  lead  from  a  build- 
ing in  Berks,  and  was  found  in  possession  of  it 
in  Middlesex;  held,  tbat  the  taking  not  being  a 
larceny  but  a  statutable  felony,  of  which  Uic 
aubsequent  possession  was  not  a  laroeny,  he 
could  not  be  tried  aa  for  an  oi^nce  within  tne  ju- 
risdiciioa  of  the  Central  Criminal  Court.  R.  r. 
Millar,  7  C.  <&  P.  (v.  r.)  665. 

6.  Where  the  indictment  for  an  offence,  a  mis- 
demeanor, triable  at  the  Central  Criminal  Court, 
was  removed  by  certiorari  ;  held,  that  it  could  only 
be  tried  at  the  assises  ibrthe  county  in  which  the 
offence  was  committed.  R.  v,  Connop,  3  Ad.  &, 
Bit.  (K.  B.)  94». 

7.  Where  the  prisoner  was  apprehended  with 
the  stolen  horses  m  S.,  and  acooippviiwi  the  Qffi* 


eer  with  the  horaee  into  K.,  where  hBcm^; 
held,  that  he  could  not  be  convicted  of  Miv 
in  K.    R.  V.  Symmonds,  1  Ry.  (b.  M.  (c.  c)m. 

8.  Where  the  laroeny  of  tea  was  comnnttei  a 
a  place  inland,  but  where  great  ships  ini|[ht  |>b; 
held,  that  the  prisoner  was  triable  within  the  ji- 
risdiction  of  the  Central  Criminal  Conrt  Hf. 
Allen,  1  Ry.  db  M.  (c.  c.)  494  ;  and  7  C.  A  F. 
664. 

9.  Where  after  a  true  bill  for  perjniy  feood  « 
the  Central  Criminal  Court,  the  defendutini 
arrested  in  a  civil  suit  and  committed  to  the  eai- 
tody  of  the  sheriff  of  Middlesex ;  held,  thil  Ik 
court  had  no  power  under  4  A-  5  Will.  4,  c  38, 
s.  16,  to  cause  him  to  be  brou^^ht  by  As&est  C017W 
to  be  removed  to  the  gaol  of  r^ewgatr,  (in  uot^ 
er  county,)  to  be  tried  for  the  misde 
R.  V.  Morg^,  7  C.  &  P.  (h.  p.)  642.    » 


10.  Practice  of  Central  Criminal  Coarti 
lated  with  other  courts  of  criminal  judicature,  witk 
respect  to  offenders  liable  to  the  punisbment  ef 
death,  by  1  Vict  c.  77. 

11.  W  here  the  name  of  the  child,  onlj  13  4qi 
old,  was  idleged  to  be  unknown,  itappeanac  netto 
have  been  baptized,  and  the  only  eyidenceoUBine 
waa  of  the  mother  saying  she  should  hate  tkt 
child  named  M.  A.  j  held,  that  no  name  of  lefSr 
iation  was  thereby  acquired,  and  the  ooofictiQa 
proper.     R.  «.  Smith,  1  Ry.  d&  M.  (c.  c.)  4fl£. 

12.  Where  a  stotnte  only  regalates  the  pae- 
ishment,  no  averment  contra  Jorwum  ^'^"'^ 
necessary.    R.  o.  Berry,  1  M.  &  Rob.  (a.  r.)46»> 

13.  Any  one  of  several  defendants  is  entitled  ti 
remove  an  indictment  by  ctrtiotari^  and  tbe  ei^ 
cumstance  that  by  his  so  doing  the  recf^maatn 
of  the  others  are  diseharged,  although  it  B17  ke 
a  gnHind  for  exercising  a  discretion  as  to  isni^ 
the  writ,  is  no  ground  for  a  proeedtmdo^  R*  *• 
Boxall,  1  Nev.  A,  P.  (k.  b.)  513. 

14.  The  court  refused  to  add  toarule  ivi 

eeriiorwi  to  remove  proceedings  before  tbe  coiO' 
ner,  who  had  issued  his  wamnt  against  a  pai^i 
Uiat  he  might  be  admitted  to  bail  before  a  mB|ii' 
trate,  where  he  had  not  surrendered,  ft  v- 
Wien,5Dowl.(r.  c.)222. 

15.  Where  a  piisoner  was  acquitted  of  &1<^( 
and  a  new  bill  found  for  the  misdenaeaiMr ;  bisi« 
that  he  was  entitled  to  traverse.  R.  v.  WilfiMiS 
1  M.  dkRob.  (ir.  p.)503. 

16.  And  •where  the  prosecutor  was  nnabls  t» 
attend,  from  the  consequences  of  yiolenoe  wed 
towards  him ;  held,  that  it  is  for  the  Judge  te 
decide  in  each  instance  whether  it  is  a  cue  le* 


quiring  the  detention  of  the  prisoner,  or  adait 
him  to  bail.    R.  v.  Osbom,  7  C.  db  P.  (n.  r.)  799. 

17.  Where  an  indictment  for  an  offence  con- 
mitted  in  the  reign  of  the  late  king,  concluded, 
*'  against  the  peace  of  tbe  now  queen,'*  Ac, held 
fatal  on  demurrer,  the  7  Geo.  4,  c.  64,  a.  20,  beiac 
confined  to  the  cases  of  objections  taken  aflir 
judgment;  and  leave  to  quash  and  prefbr  a  new 
indictment  refused.  R.  v.  Smith,  2  M.  db  Rob. 
(H.  p.)  109. 

18.  Where  a  aerraot  oeat  •ut  to  oolleet  i 


[INDICTMENT] 


3799 


r'f* 


was  robbed  before  he  retained  home,  held,  that 
the  money  wim  improperly  laid  to  be  the  property 
of  the  matter.  R.  v.  Peodick,  8  C  &  P.  (h.  p.) 
237. 

19.  The  indictment  for  8tealin|r  in  a  shop,  on 
7  &  8  Geo.  4,  c.  29,  s.  15,  roust  expressly  aver  a 
stealing  therein;  and  merely  averring  that  the 
goods  were  in  the  shop,  and  that  tl^  prisoner 
stole  them,  held  insafficient.  R.  v.  Smitn,  3  M. 
&  Rob.  (5.  p.)  115. 

20.  The  "West  India  Ooek  Act,  making  it  suf- 
finient  to  describe  and  refer  to  goods  stolen  as 
the  goods  of  the  company,  held  sufficient  to  al- 
lege the  foods  taken  as  the  property  of  the  com- 
pany, wiQiout  going  to  allege  them  to  have  been 
taken  from  the  company.  Reg.  v.  Stokes,  8  C. 
A  P.  (».  p.)  151. 

21.  Where  an  indictment  contained  counts 
charging  a  party  as  accessory,  both  before  and  af- 
ter the  iact  committed  by  other  prisoners ;  held, 
not  improperly  joined,  and  that  the  prosecutor 
could  not  be  put  to  elect.  R.  v.  Blackson,  8  C. 
&,  P.  (N.  P.)  43. 

22.  Where  a  party  is  indicted  as  an  accessory 
afler  the  fact,  with  the  principal  in  a  case  of  mur- 
der, held,  that  if  the  latter  is  found  guilty  of 
manslaughter  only,  the  former  may  be  found  guil- 
ty as  accessory  to  the  lesser  ofience :  the  question 
for  the  jury  in  such  eases  is,  whether  the  pris- 
oner, knowing  the  offence  to  have  been  commit- 
ted, was  assisting  in  concealing  the  offence,  or 
in  any  way  aiding  the  offender  to  escape  justice. 
R.  r.  Greenacre,  8  C.  d&  P.  (ir.  p.)  35. 

23.  It  is  sufficient  to  make  a  party  liable  as  an 
accessary  ailer  the  fact,  if  he  employ  another  to 
receive  and  assist  in  the  escape  of  the  principal. 
R.  V.  Jarvis,  2  M.  &.Rob.  (h.  p.)  40. 

24.  Where  an  indictment  for  conspiracy  had 
been  remoyed  by  certiorari^  and  only  one  defend- 
ant had  entered  into  the  proper  recognizances,  the 
Court  refused  to  interfere  to  compel  him  to  sub- 
mit to  terms  as  to  the  time  of  trial.  R.  v.  Hunt, 
9  Nev.  A  P.  (K.  B.)  121 ;  6  Dowl.  (p.  c.)  5. 

25.  The  proper  mode  of  describing  a  peer  in  an 
indictment  is  oy  his  Christian  name,  and  degree 
in  the  peerage ,  describing  him  as  **  lord,'*  and 
not  "  baron,''  held  insufficient  R.  v.  Pitts,  8  C 
db  P.  (s.  P.)  771. 

26.  Where  an  illegitimate  child,  six  weeks  old, 
and  baptised  by  the  name  of  £.,  after  which  for  a 
few  days  only  it  was  called  by  the  name  of  bap- 
tism, and  its  mother's  name ;  neld,  sufficient  evi- 
dence to  go  to  a  jury,  whether  it  had  acquired  by 
reputation  its  mother's  name,  and  to  warrant  their 
finding  it  properly  so  described  in  the  indictment 
R.  V.  Evans,  8  C.  A  P.  (h.  p.)  765. 

27.  An  indictment  alleging  a  previous  coDvio- 
tion,  but  not  concluding  contra  formamy  held  in- 
vnffioient    R.  v.  Blea,  6  C.  &  P.  (n.  p.;  735. 

28.  Where  the  indictment,  on  1  Vict  c.  85,  a. 
2,  described  the  means  by  which  the  bodily  injury 
was  occasioned,  and  the  nature  and  situation  of 
the  iniury;  held  sufficient     R.  v.  Cruse  and 


Wiii,8C.AP.(«.  p.)541. 


29.  Where  the  inquisition  stated  a  beating  with 
a  poker  on  the  head  by  A.  on  one  day,  and  a  kick 
in  the  belly  by  B.  on  another  day,  of  which  the 
deceased  respectively  languished  until,  dtc.,  and 
then  died  of  the  said  blows  on  the  head,  together 
with  the  bruises  and  contusions  on  the  belly,  and 
that  so  the  said  A.  and  Ji.  the  said  deceased  did 
kill,  dec,  held  bad.  R.  v.  Devettand  fox,  8  C  & 
P.  (N.  p.)  639. 

And  see  Baron  and  Feme;  Lunatic, 


(b)  Plea  Autr^ois  acquit, 

1 .  A  party  who  had  been  tried  and  acquitted  as 
a  principal  m  murder ;  held  not  entitled  to  plead 
such  acquittal  in  bar  of  an  indictment  as  an  ac- 
cessory before  the  fact  to  the  same  felony.  R.  v. 
Plant,  7  C.  &  P.  (N.  p.)  575. 

2.  Plea  to  an  indictment  against  A.  for  receiv- 
ing, &c.,  that  A.  and  others  were  tried  on  an  in- 
dictment for  the  same  offence  at,  &c.  where  A. 
and  three  others  were  acquitted,  held  good.  R. 
V.  Oann,  1  Ry.  &,  M.  (o.  c)  424. 

3.  Where  the  bill  was  found  nartly  on  the 
affirmation  and  partly  on  the  oatns  of  jurors^ 
charged,  &o. ;  held  that  the  plea  ouffht  to  state 
who  were  sworn  and  who  affirmed.  lb. 

4.  Where  the  prisonera  pleaded  autrefois  ac' 
quity  and  that  the  felonies  m  the  secona  indict- 
ment were  the  same;  held  that  the  prisoners' 
counsel  were  to  begin ;  the  four  prisonera  having 
been  charced  for  rape  in  separate  counts,  each 
as  principu,  and  the  othere  as  aidere  and  abbet- 
tore,  and  acquitted,  and  at  the  same  assises  three 
of  them  indicted  in  the  same  way,  to  which  they 
pleaded  antrtfms  acquit^  the  Jucwe  (dub.)  admit- 
ted the  commitment  in  eyidenoe  for  the  prisonsis» 
but  held  that  pending  the  same  assises,  the  first 
indictment  and  minutes  of  the  verdict  were  re- 
ceivable without  the  record  being  made  up ;  the 
jury  having  found  that  the  felonies  were  th» 
same,  and  acquitted  the  prisonera,  the  Judges,  on 
reference,  held  that  the  verdict  was  final.  BL  s^ 
Parry,  7  C.  &  P.  (h.  p.)  836.  ' 


(o)  Trial  jwy  examination  of  loifnsMst— 
r^y—^Hponement  of, 

1.  Wherever  there  is  oounsel  for  the  prisoner,, 
the  case  shc^d  be  q>ened  by  the  counsel  for  the* 
prosecution.  R. «.  Qasooine,  7  C.  &  P.  (ff .  p.) 
772. 

2.  And  although  there  be  none,  if  the  eireum* 
stances  of  the  case  are  peculiar.  R.  v.  Bowler^ 
lb.  T73. 

3.  And  dechuratioos  of  the  prisoner,  not  being 
confessions,  should  be  stated.  R.  v,  Haitel,  iC 
774;  R.  v.Onell,  lb.  775;  R.  v.  Davis,  ik  786. 

4.  in  opening  the  case  for  the  proaecotion» 
counsel  held  entitled  to  state  to  the  jury  declara- 
tions by  the  prisoner^  as  well  as  facts.  R.  v.  Or- 
rell,  1  M.  A  Rob.  (n.  p.)  467. 


2800 


[INDICTMENT] 


5.  In  strictness  the  eounsel  may  reply,  allhongh 
the  evidence  called  on  the  part  of  the  prisoner  is 
only  to  character,  although  the  court  would  re- 
comniend  the  right  to  l:^  exercised  only  under 
special  circumstances.  R.  v.  Stannard,  7  C.  & 
P.  (m.  p.)  673. 

6.  And  the  right  to  reply  will  be  on  the  whole 
case,  and  not  only  on  the  evidence  to  character. 
R.  r.  Whiting,  7  C.  &  P.  (w.  p.)  771. 

7.  Where  two  presentments  by  commissioners 
of  sewers  were  removed  by  certiorari^  and  first 
entered  by  the  defendant,  and  the  prosecutors 
afterwards  entered  them,  the  Judge  refused  to 
alter  the  order  of  entry,  and  directed  them  to  be 
tried  as  entered.  R.  v.  Leigh,  7  C.  &  P.  (ir.  p.) 
8J3. 

8.  Although  the  jury  may  use  their  general  know- 
ledge on  the  subject  of  any  question,  yet  where  it 
relates  to  a  particular  trade,  the  knowledge  as  to 
which  one  of  them  can  speak,  he  must  be  sworn 
as  a  witness.  R.  v.  Ross^r,  7  C.  Ai  P.  (n.  p.)  648. 

9.  The  6  Geo.  4,  c.  50  (Jury  Act),  held  not  to 
affect  the  right  of  tbe  crown  not  to  be  put  to  be 
called  on  for  cause  of  peremptory  challenge  until 
the  panel  is  exhausted;  held  also  that  a  prisoner 
having  challenged  peremptorily  20  jurors  could 
not  be  allowed  to  withdraw  one  and  challenge 
another  remaining  juror  instead.  R.  v.  Parry,  7 
C.  &  P.  (M.  p.)  837. 

10.  Where  a  witness  on  the  bill  is  tendered, 
but  not  examined  by  the  counsel  for  the  prosecu- 
tion, held  that  he  might  be  cross-examined  after 
being  examined  for  the  prisoner.  R.  v.  Harris,  7 
G.  dc  P.  (m.  p.)  581. 

11.  Where  a  material  witness,  a  friend  of  the 
prisoner,  and  whose  name  had  been  forged,  did 
not  attend  upon  his  recognizance  at  the  trial, 
and  he  was  proved  to  have  been  attempting  to 
compromise,  the  Judge  ordered  the  prisoner  to  be 
remanded  until  the  next  assizes,  until  he  should 
have  entered  into  sureties  for  his  appearance,  and 
to  give  seven  days'  notice  of  bail.  R.  v.  Parish, 
7  C.  &  P.  (N.  p.)  782. 

12.  On  several  indictments  against  the  same 
party  for  felony,  the  witness  must  be  re-sworn, 
and  may  then  nave  read  over  the  evidence  in  the 
former  case  from  the  Judge's  notes,  and  avouch 
iU  truth.    R.  v.  Foster,  7  C.  dt  P.  (ir.  p.)  495. 

13.  A  witness  for  the  crown  cannot  be  asked 
upon  cross-examination,  whether  he  did  not,  be- 
fore the  justices,  state  so  and  so,  until  alter  his 
deposition  is  read,  and  which  is  to  be  taken  as 
part  of  the  evidence  of  the  cross-examining 
party ;  and  if  not  read,  the  court  may  direct  it  to 
be  <u>ne,  and  entitle  the  counsel  for  the  prosecu- 
tion to  a  reply ;  if  the  witness  admits  such  state- 
ment to  have  been  made^  the  prisoner's  counsel 
may  comment  on  the  omission  or  its  efiect  upon  the 
other  parts  of  his  testimony  ;  if  he  denies  it,  the 
prisoner's  counsel  may  call  witnesses  to  prove 
that  be  did ;  but  in  either  case  the  deposition  is 
the  prisoner's  evidence,  and  entitling  the  prose- 
cutor to  the  reply.  Mem,  1  Ry.  Sc  M.  (c.  c.) 
496;  and7C.  ^tP.676. 

14.  Where  eyidenoe  is  called  only  to  character, 


the  prosecutor  is  strictly  entitled  to  reply,  al- 
though it  may  be  for  his  discretion  whether  he 
will  do  so  or  not  In  cases  of  Crown  prosecutions, 
the  prosecutor  is  entitled  in  strictness  to  reply, 
whether  the  prisoner  calls  witnesses  or  not 
lb. 

15.  Where  the  indictment  has  not  been  taken 
before  tbe  grand  jury,  a  material  witness  having 
absconded,  the  course  is,  that  if  it  can  be  traoed 
to  any  acts  or  contrivance  of  the  prisoner  or  his 
friencU,  to  require  heavy  recognizances  for  his 
future  appearance,  but  if  no  collusion  appears,  to 
discharge  the  prisoner  on  his  own  recognizance 
alone ;  semb.  magistrates  should  commit  accom- 
plices, although  it  may  be  intended  to  call  them 
as  witnesses.  R.  v.  Beardmore,  7  C.  &  P.  (h.  p.) 
497.  ' 

16.  The  rule  of  the  Central  Criminal  Court 
said  to  be,  not  to  try  a  case  of  perjury  whilst4he 
cause  out  of  which  it  arises  is  undetermined,  un- 
less the  court  in  which  the  latter  is  pending  di- 
rect tbe  charge  to  be  first  disposed  of.  R.  v.  Ash- 
bum,  8  C.  &  P.  (if.  p.)  50. 

17.  The  court  refused  to  compel  a  prosecutor  to 
try  a  traverse  entered  by  the  defendant,  where 
ten  dayi*  notice  had  not  been  given.  Reg.  v. 
Featherstonhaugh,  8  C.  &  P.  (if.  p.)  109. 

18.  On  cross  indictments  for  assaults,  tried  as 
traverses  at  the  assizes,  the  transaction  being  the 
same,  tbe  Judge  directed  the  jury  to  be  sworn  in 
each  case,  and  the  counsel  for  the  traverse  first 
entered  to  open  his  case  and  call  witnesses,  and 
aflerwards  the  counsel  for  the  other  to  do  the  like, 
without  either  replying.  R.  v.  WaUyn  6l 
Vaughan,  8  C.  &  P.  (h.  p.)  290. 

19.  Where  the  grand  jury  threw  out  a  bill  for 
murder  on  the  ground  of  the  prisoner  being  in- 
sane, heljd  wrong,  as  preventing  the  detention  of 
the  party  during  the  pleasure  of^e  Crown.  Reg. 
V.  Hodges,  8  C.  A  P.  (h.  p.)  195. 

20.  On  an  indictment  for  riot,  the  having  taken 
an  active  part  in  a  measure  occasioning  much  lo- 
cal excitement,  held  a  good  ground  of  challenging 
jurors.    R.  v.  Swain,  2  M.  ^  Rob.  (n.  p.)  llf 

21.  The  duty  of  counsel  in  a  prosecution  is,  to 
assist  in  the  furtherance  of  justice,  not  oonsiiler- 
ing  himself  as  acting  for  any  side  or  party.  R.  v. 
Thursfield,  8  C.  <&  P.  (n.  p.)  269. 

22.  Counsel  can  only  cross-examine  from  depo- 
sitions, by  making  them  evidence  and  giving  the 
right  of  reply  ;  but  Judges  are  not  bound  by  the 
resolutions  advised  upon  the  passing  of  the  Pris- 
oners' Counsel  Bill,  and  may  in  their  discretion 
question  the  witness  as  to  the  discrepancies: 
where  cross-examinations  of  witness  are  not  re- 
turned in  the  depositions  by  the  magistrates,  coun- 
sel may  cross-examine  as  to  such.  R.  v.  Ed- 
wards, 8  C.  &  P.  (if.  p.}  26. 

23.  Afler  counsel  haye  cited  and  commented 
on  a  case  to  the  Judge,  he  cannot  do  so  afler- 
wards in  his  address  to  the  jury,  who  are  bound 
to  take  the  law  from  the  Judge.  R.  v.  Parish,  8 
C.  &  P.  (If.  p.)  96. 

24.  After  the  prifoner's  coansel  baa  addreMed 


[INDICTMENT] 


2801 


the  janr,  he  caanot  be  also  heard.    Keg.  v.  Bouch- 
er, bC.&  P.  (n.  p.)  141. 

25.  And  bis  counsel  cannot  state  the  prisoner's 
story,  nor  anything  which  he  is  not  in  a  condition 
to  prove.     iCeg.  v.  Beard,  8  C.  &  P.  (ir.  p.)  142. 

26.  A  prisoner,  since  the  statute,  is  not  entitled 
to  the  privilege  of  two  statements,  one  by  himself 
and  another  by  bis  counsel.  R.  v.  Burrows,  2  M. 
A,  Rob.  (H.  p.)  124. 

27.  The  court  will  not  direct  the  name  of  a  wit- 
ness to  be  struck  oiF  the  back  of  the  indictment, 
being  the  brother  of  the  prisoner,  as,  if  showing 
any  unfair  bias,  he  might  be  cross-examined  by 
the  counsel  for  the  prosecution.  R.  v.  Chapman, 
8  C.  &  P.  (N.  p.)  558. 

28.  Where  the  bill  for  perjury  had  been  found 
at  the  preceding  assizes,  and  entered  at  the  ensu- 
ing assiiea  as  a  traverse  by  the  defendant,  with- 
out notice  of  trial  given ;  held,  that  notwithstand- 
ing the  defendant  had  been  on  bail  more  than  20 
days,  he  could  not  force  the  prosecutor  to  try. 
R.V.  Minshall,  8  C.  &  P.  (v.  p.)  576. 

29.  On  an  indictment,  under  1  Vict.,  c.  75,  s.  2, 
against  husband  and  wife,  for  violently  beating  a 
child,  with  intent  to  murder ;  held,  that  the  jury 
must  be  satisfied  of  an  actual  intent, and  it  is  not 
sufficient  that  if  death  had  ensued,  the  ofience 
would  have  been  murder :  and  where  a  party  is 
charged  as  aiding  and  abetting,  the  jury  must 
find  that  the  latter  was  aware  of  the  intent  of 

Erincipal  to  commit  the  ofience  of  murder : 
eld  also,  that  the  jury  convicting  only  of  the 
assault,  the  wife  was  not  protected  from  the  pre- 
sumption of  having  acted  under  coercion.  R.  v» 
Cruse  and  Wife,  HCA  P.  (m.  p.)  541. 

30.  Where  the  prisoner's  counsel  attempts  to 
elicit  on  cross-examination  evidence  as  to  cnarac- 
ter,  evidence  of  a  previous  conviction   may  be 

Siven  in  the  first  instance.    R.  v.  Gadburn,  8  C. 
t  P.  (w  p.)  676. 

31.  Where  at  the  trial  of  an  indictment  found 
at  a  previous  sessions,  a  jury,  after  tbe  opening 
of  counsel,  recollected  that  he  sat  as  a  grand 
juror  when  the  bill  was  found,  and  it  was  propos- 
ed that  he  should  leave  the  box,  which  was  re- 
sisted, and  the  trial  proceeding,   the   defendant 

efi 


found  guilty ;  the  court  refused  a  new  trial, 
as  on  a  mis-trial.  R.  v.  Sullivan,  1  Perr.  &  Dav. 
(<l.  B.)  96. 

32.  A  witness  cannot  be  asked  as  to  what  he 
did  or  did  not  state  before  the  magistrate  ;  the  de- 
position must  be  first  put  in,  and  read  over  to  him. 
Reg.  V.  Taylor,  8  C.  &  F.  (n.  p.)  726. 

-  33.  The  application  for  a  prosecutor  to  elect,  is 
to  the  discretion  of  the  Jud^e ;  where  several 
houses  had  been  burnt,  and  the  setting  each  on 
fire  was  alleged  in  distinct  counts,  being  one 
transaction,  the  Judge  refused  the  application. 
Reg.  V.  Trueman,  8  C.  &  P.  («.  p.)  727. 

34.  On  an  indictment  containing  10  counts,  a 
return  of  *'  true  bill  on  both  counts,"  held  to  be 
^  cured  by  pleading  to  the  whole,  and  the  court  re- 
fused to  ask  the  grand  jurors  to  explain  their  find- 
ing.   R.  V.  Cooke,  8  C.  &  P.  (s.  r.)  584. 

And  see  R.  v.  Carlile,  lb.  n. 


(d)  Evidence — confusion — depositions, 

1.  There  is  a  difference  of  opinion  amongst 
the  Judges,  as  to  receiving  evidence  of  confes- 
sions where  an  inducement  has  been  held  out 
by  persons  having  authority,  and  where  by  per- 
sons having  none.  R.  v.  Spencer,  7  C.  &  P. 
(If.  p.)  776. 

2.  Where  the  confession,  was  obtained  from  the 
prisoner,  a  girl,  15  years  old,  through  the  promises 
and  threats  of  relatives  and  servanbi  of  the  proa- 
ecntor,  held  improperly  received,  and  the  convic- 
tion bad.  R.  V.  Simpson,  1  Ry.  &  M.  (c.  c.) 
411. 

3.  So,  where  obtained  by  the  promises  and 
threats  of  the  prosecutor's  wife,  held  inadmissible. 
R.  V.  Upchurch,  1  Ry.  &,  M.  (c.  c.)  465. 

4.  And  where  the  prisoner,  under  14  years 
of  age,  was  solemnly  questioned  and  pressed  by 
a  party  not  connected,  nor  a  constable,  held,  that 
the  statement!  were  strictly  admissible,  but  the 
mode  of  obtaining  them  strongly  disapproved. 
R.  r.  WUd,  1  Ry.  &  M.  (c.  c.)  452. 

5.  Where  the  constable  had  said  to  the  prisoner, 
*'  You  had  better  not  add  a  lie  to  the  crime  of 
thefl,''  and  then  desired  him  to  go  with  another 
constable  and  show  where  he  had  put  the  things, 
a  confession  afterwards  made  to  such  constable 
rejected.  R.  v.  Shepherd,  7  C.  &  P.  (n.  p.) 
579. 

6.  Where  the  prosecutor  said  to  the  prisoner, 
*'  If  you  will  not  tell  us  what  you  know  about  it, 
we  of  course  can  do  nothing  ;"  held  to  amount 
to  a  promise,  that  if  he  would  tell,  the  prosecu- 
tor would  do  something  for  him,  and  to  render 
the  confession  inadmissible.  R.  r.  Partridge,  7 
C.  &  P.  (a.  p.)  552. 

7.  Where  the  prisoner's  statement  had  been 
made  in  answer  to  questions  pot  bytlie  mag- 
istrate, and  been  read  over  to  him  and  ackno'vd- 
edged  in  substance  correct,"  held  sufficiently 
proved  by  a  witness,  who  deposed  to  the  signar 
tures  of  the  magistrate  and  the  prisoner,  without 
calling  the  magistrate  or  his  clerk.  R.  v.  Rees, 
7  C.  d&  P.  (N.  p.)  568;  S.  f .  R.  r.  Reading,  ib. 
649. 

8.  Where  the  prosecutor,  before  the  magistrate, 
on  a  charge  of  forgery,  said,  he  considered  the 
prisoner  as  only  the  tool  of  another,  and  the 
magistrate  told  the  prisoner  to  be  sure  to  tell 
the  truth,  held,  that  tbe  statement  then  made 
was  receivable.  R.  v.  Court,  7  C.  dt  P.  (n.  p.) 
486. 

9.  Where  parts  of  the  prisoner's  statement 
were  in  answer  to  questions  put  by  the  magistrate, 
held  unobjectionable ;  held  also,  that  what  was 
said  to  him  by  his  wife,  when  in  custody,  was 
admissible.    R.  v.  Bartlett,  7  C.  A  P.  (n.  p.)  832. 

10.  The  object  of  7  Geo.  4,  c.  64,  s.  2,  (Prison- 
ers' Counsel)  being  to  enable  prisoners  to  know 
what  they  have  to  answer  on  their  trial,  the  msr 
gistrates,  although  not  bound  to  take  down  more 
than  is  material  to  prove  the  charge,  yet  aro> 


nsost 


[INDICTMENT] 


bound  to  take  down  the  whole  of  the  prisoner's 
statement.  R.  v.  Gmdj,  7  C.  &  P.  (s.  i».)  650. 
S.   P.  R.  V.  Coveney,  ib.  667. 

11.  And  since  the  Act,  it  is  proper  to  take 
down  the  witnesses  statements  T^lly  i^on  the 
matter  in  question.  R.  v.  Thomas,  7  C.  ^  P. 
<w.  p.)  817. 

12.  On  an  issue  out  of  Chancery,  between  A. 
and  B.,  held,  that  depositions  in  a  suit  between 

B.  and  C.  were  inadmissible.  Atkins  o.  Hum- 
phreys, 1  M.  &  Rob.  (n.  p.)  523. 

la  But  held,  (per  LitUedale,  J.)  that  where 
the  .defence  is  either  fraud,  circumvention  or 
forgery,  the  declarations  of  the  testator  contained 
in  an  admitted  codicil,  are  admissible.  Ellis  v. 
Hardy,  1  M.  &  Rob.  (if.  p.)  525. 

14.  Dying  declaration  in  favor  of  the  prisoner, 
held  admissible.  R.v.  Scaife,!  M.  &  Rob.  (n.  r.) 
£51. 

15.  Where  no  person  wis  present  at  the  time 
to  contradict  the  prosecutor's  statement,  tlie  pris- 
oner allowed  to  make  his  statement  before  his 
counsel  addressed  the  jury.  R.  o.  Malings,  8  C. 
^  P.  (N.  p.)  242. 

16.  But  Gumty  B.«  A^sitaitter,  under  circum- 
stances, allowed  that  course,  and  that  it  ought  not 
to  be  drawn  into  precedent.    R.  v,  Walkling,  8 

C.  4k  P.  (n.  p.)  243. 

17.  Where  before  the  prisoner's  examination 
'was  taken,  he  was  told  not  to  say  anything  to  pre- 
judice himself,  as  it  would  be  used  for  or  against 
him ;  held,  (per  Coleridge^  J.)  that  the  examina- 
tion was  inadmissible.  Rieg.  v.  Drew^  8  C.  &  P. 
<v.  p.)  140. 

18.  Where  a  party  charged  with  murder  made 
:a  statement  before  the  coroner,  which  purported 
to  have  been  taken  on  oath,  held  not  receivable 
■against  him,  and  that  parol  evidence  was  inadmis- 
sible to  show  that  it  was  not  made  on  oath.  R.  v. 
Wheeley,  8  C.  &  P.  (».  p.)  250. 

19.  The  depositions  of  witnesses  taken  before 
magistrates  need  not  be  signed  by  them  separate- 
ly, to  make  the  deposition  of  a  particular  witness 
admissible.  Reg.  v.  Osborne,  8  C.  «Sk  P.  (ir.  p.) 
114. 

SO.  Where  a  witness  had  been  examined  before 
a  magistrate,  had  gone  to  sea,  and  could  not  be 
produced ;  held,  that  his  deposition  could  not  be 
read,  except  by  consent.  Reg.  v.  Hagan,  8  C.  4d 
P.  (H.  p.)  168. 

21.  Where  the  coroner  has  returned  deposi- 
tions, the  Judges  have,  under  their  general  au- 
thority, power  over  them  to  order  copies  to  be 
fumisiied  to  the  prisoner.  R.  «.  Greenacre,  8  C. 
4&  P.  {ft,  p.)  38. 

32.  The  evidence  of  an  accomplice  held  equal- 
ly to  require  corroboration,  notwithstanding  his 
having  been  summarily  convicted  oS  the  ofience, 
and  such  corroboration  must  be  of  some  fact  which 
aiiects  the  identity  of  the  aeoosed.  Reg.  v.  Far- 
lar,  8  C.  &  P.  (H.  p.)  107. 

23.  The  confirmation  must  be  as  to  some  matter 
which  goes  to  connect  the  prisoner  with  the  trans- 
action.   R.  V.  Dyke,  ^C,4lV,  (h.  p.)  261. 


24.  Where  the  evidence  of  an  accomplice  M 
far  short  of  his  depositions,  he  being  unable  to 
read,  the  Judge,  at  the  instance  of  the  prosecutor, 
refused  to  allow  them  to  be  read  over  to  him  by 
the  ofBcerof  tlie  court,  with  a  view  of  founding 
questions  thereon.  R.  v.  Beardmore,  8  C  &  P. 
(N.  p.)  260. 

25.  Where  one  of  two  prisoners  charged  with 
sheep-stealing  had  been  convicted  at  the  sessions, 
held,  that  his  wifemiffhtbc  examined  on  the  trial 
of  the  other.  R.  v.  Williams,  8  C.  &  P.  (k.p.) 
284. 

26.  A  servant  finding  bank-notes  in  her  mas* 
ter's  house,  making  no  inquiry,  and  converting 
them  to  her  own  use,  held  guilty  of  felony;  hel(^ 
also,  that  constables  are  not  justified  in  putting 
questions  to  parties  in  their  custody,  withoot 
cautioning  them  that  their  answers  may  be  gi?en 
in  evidence.    Reg.  v,  Kerr,  8  C.  &  P.  (b.  p.)  176. 

27.  Where  the  magistrate's  clerk,  in  taking 
down  the  statements  of  several  parties  charged, 
left  the  names  of  each  other  mentioned  by  toem 
in  blank,  the  Jud^  refused  to  have  it  supplied  by 
supplementary  evidence.  R.  v.  Morse  ano  otben, 
8C.  &P.  (ii.p.)605. 

28.  An  examination  taken  after  the  commit- 
ment, and  not  in  the  prisoner's  presence,  ou^t 
not  to  be  returned  as  one  of  the  depositions.  R. 
V.  Arnold,  8  C.  &;  P.  (v.  p.)  621. 

29.  Where  a  prisoner  is  defended  by  counsel, 
who  address  the  jury,  the  party  is  not  entitled 
also  to  make  a  statement.  R.  p.  Rider,  8  0.  dt 
P.  (IT.  p.)  539. 

30.  The  examination  of  a  party,  taken  in  the 
prisoner's  absence,  ought  not  to  be  returned  as 
one  of  the  depositions  :  if  the  prisoner  is  desiroas 
of  making  a  statement,  it  is  the  duty  of  the  majps* 
trate,  afler  a  caution  that  it  will  be  used  against 
him,  in  order  to  get  rid  of  any  previous  impree- 
sion,  to  receive  it  and  have  it  taken  dovrn.  R  v- 
Arnold,  8  C.  &  P.  (s.  p.)  621. 

31.  Where  the  prisoner  made  a  statement  in- 
duced by  a  person  without  authority,  but  in  tbe 
presence  of  her  mistress,  and  who  expressed  bo 
dissent,  held  not  receivable :  to  exclude  such  con- 
fessions the  inducement  must  be  made  or  sane* 
tioned  by  a  party  having  some  authoritv.  R  v> 
Taylor,  8  C.  &  P.  (h.  p.)  733. 

32.  The  statement  made  before  the  magistrate 
at  the  first  hearing,  although  not  taken  down,  and 
on  the  final  one  the  prisoner  had  declined  saying 
anything,  held  receivable  in  evidence,  and  not  to 
be  excluded  by  reason  of  the  magistrate's  ne^ct 
in  not  returning  what  had  been  said.  R.  o.  Wilk- 
inson, 8  C.  &  P.  (H.  p.)  663. 

33.  Where  the  statement  is  returned  with  the 
deposition,  the  prisoner  is  not  entitled  to  a  copy 
thereof  under  6  &  7  Will.  4,  c.  114,  but  onkof 
the  deposition  of  witnesses.  R.  v.  Ay lett,  8  U.  A 
P.  (ir.  p.)  669. 

34.  Where  the  principal  thief  had  been  admit- 
ted evidence  for  the  Crown  agunst  the  receiver, 
the  latter  was  allowed  to  see  the  depositions  which 
had  been  returned  against  the  former.  R.  o.  Wil- 
ford,  8  C.  d&  P.  (ir.  p.)  767. 


[INDICTMENT— INFANT] 


2803 


35.  Where  the  ttateroent  of  an  accomplice  in 
flheep-Btealing  was  corroborated  by  the  fact  of 
great  quantities  of  mutton  beinff  found  in  the 
prisoner's  father's  house  where  he  lived,  and  as 
stated  hj  the  accomplice ;  held,  a  sufficient  cor- 
roboration.   R.  V.  Birliett,  8  C.  &  P.  (ir.  p.)  722. 

36.  Where  the  prisoners  went  to  the  ground 
with  parties  about  to  fight  a  duel,  although  neith- 
er acted  as  a  second,  and  were  present  when  the 
shot  was  fired,  and  returned  with  the  principals ; 
held,  that  if  the  jury  were  satisfied  that  the  pris- 
oners were  there  for  the  purpose  of  ff iving  coun- 
tenance and  assistance,  they  were  liable  as  princi- 
pals in  the  second  degree.  R.  v.  Young,  8  C.  &> 
K  (».  F.)  644. 


(e)  Judgnunt — rtgtitiiHon, 

1.  Where  the  prisoner,  on  an  indictment  for 
murder,  was  convicted  of  manslaughter,  held, 
that  sentence  of  transportation  under  9  €reo.  4,  c. 
31,  s.  9,  might  be  passed,  although  not  conclud- 
ing emUraformamj  the  punishment  only,  and  not 
the  nature  of  the  ofi^nce  being  altered.  R.  v. 
Chatbum,  1  Ry .  4k  M.  (c.  c.)  403 ;  B.  F.  R.  v, 
Rushworth,  ib.  404. 

2.  On  an  indictment  for  separate  utterings,  an 
entire  Judgment  of  two  years*  imprisonment 
under  2  Wul.  4,  e.  34,  s.  7,  held  bad  ;  it  should 
have  been  of  consecutive  judgments  of  one  year's 
imprisonment  on  each  count.  R  i;.  Robinson, 
1  Ry.  &  M.  (c.  c.)  413. 

3.  The  court  will  not  pass  sentence  on  a  con- 
viction for  an  assault  where  an  action  is  pending 
for  the  same  assault.  R.  v.  Mahon,  1  Nev.  &  r. 
(K.  B.)  575. 

4.  So  the  court  refused  a  criminal  information 
for  an  assault,  where  the  defendant  had  been  held 
to  bail  on  a  warrant,  although  it  was  ofiered  that 
the  latter  proceeding  should  be  abandoned.  R. 
V.  Anon,  gent,  &c.  lb.  576,  n. 

5.  Punishment  of  pillory  abolished  by  7  Will. 
4  and  1  Vict  c.  23. 

6.  Punishment  of  death  abolished  in  cases  of 
forgecy,  by  1  Vict.  c.  84,  and  in  other  cases  by 

7.  Laws  relating  to  offences  punishable  by 
transportation  for  life,  c.  90. 

8.  The  court  directed  the  governor  of  the  gaol 
to  attest  the  power  of  attorney,  to  enable  a  pris- 
oner to  obtain  funds  out  of  a  savings  bank,  to 
enable  him  to  conduct  his  defence  or  for  paying 
a  bonafidjt  debt  R.  v.  Coxon,  7  C.  dt  P.  (m.  p.) 
651. 

9.  And  where  from  the  lapse  of  time  it  mi^ht 
be  presumed  that  the  prisoner  obtained  a  portion 
of  it  from  other  sources,  the  Judge  ordered  5Z.  to 
be  given  up  for  his  defence.  R.  r.  Rooney,  7  C. 
&  P.  (n.  f.)  516. 

10.  Where  the  prisoner  was  found  in  posses- 
ion of  a  horse  which  had  been  clearly  pnrchased 
with  the  proceeds  of  a  bill  which  he  was  found  guil- 

Vol.  IV.  67 


t^  of  stealing,  the  court  ordered  the  horse  tobe  de- 
liveAd  to  the  prosecutor.  R.  r.  Powell,  7  C.  4b 
P.  (H.  F.)  640. 

11.  Where  a  jury  of  matrons  impanelled  to  try 
whether  a  prisoner  is  quick  with  child,  requira 
the  assistance  of  a  medical  person,  he  must  be  ex- 
amined as  a  witness  in  court ;  and  held  (per  Crtcf- 
nty^  B.)  that  "  quick  with  child"  means  having 
conceived.  R.  v.  Wycherley,  8  C.  &  P.  (n.  f.) 
963.  ' 

12.  Where  the  nuisance  had  been  abated,  and 
the  prosecutor  consented,  the  Judge  allowed  an 
acquittal  to  be  entered  for  one  defendant  who  was 
absent  abroad  from  ill  health.  R.  o.  M 'Michael. 
8  C.  &  P.  (H.  F.)  755. 

13.  t^here  a  party,  having  pleaded  gnilty,  is 
brought  up  for  judgment,  the  affidavits  m  aggrsr 
vation  are  to  l>e  first  read,  and  counsel  for  the 
Crown  to  be  heard  before  that  for  the  defendant : 
eotUra,  where  the  verdict  is  taken  b^  consent  and 
without  evidence:  and  the  rule  is  not  varied 
where  several  defendants,  and  some  plead  guilty 
and  others  are  convicted  on  a  verdict  Reg.  v. 
Oignam,  7  Ad.  &  £U.  (q.  b.)  593. 

And  see  R.  v,  Sutton,  lb.  natis. 

14.  Where  parties  were  convicted  of  an  offence 
which  subjected  them  to  capital  punishment,  and 
the  judgment  pronounced  was  of  transportation, 
upon  which  a  writ  of  error  was  brought ;  held, 
that  the  Judge  being  functus  ofieio,  it  could  not 
be  remitted  back  nor  could  the  Court  of  Error 
give  the  proper  judgment  R.  v.  Bourne,  7  Ad. 
&,  £11.  (q.  B.)  58. 

15.  The  rule  that  if  the  Crown  will  not  join  in 
error  the  party  is  entitled  to  be  discharged,  ap- 

Sltes  to  cases  of  felonv  as  well  as  of  misdemeanor. 
L.  V.  Howes,  7  Ad.  a  £11.  (q.  b.)  60  n. 

And  see  Atoard  ;  Certiorari. 


INFANT. 

1.  In  deciding  the  question,  whether  goods  sap- 
plied  are  necessaries,  held,  that  evidence  to  show 
that,  at  the  time  of  sale,  the  defendant's  father  had 
furnished  him  with  goods  of  the  same  kind  suit- 
able to  his  condition,  was  admissible.  Burkhardt 
V.  Angerstein,  1  M.  dt  Rob.  (n.  f.)  456. 

2.  Where  an  infant  was  made  a  co-plaintiff, 
held  that,  on  his  coming  of  age,  his  name  might 
be  struck  out  of  the  bill.  Acres  v.  Little,  7  Sun. 
(CH.)  138. 

3.  Where  the  infant  was  not  entitled  to  a  lega- 
cy given  for  her  sole  and  separate  use  until  21, 
and  married  before  21 ;  held  that,  having  no  pow- 
er to  alienate  until  that  age,  her  interest  did  not 
psss  by  the  act  of  marriage  to  her  husband,  but 
that  she  was  entitled  to  have  it  transferred  to  her 
separate  use.    Johnson  v.  Johnson,  1  K.  (cb.) 

4.  Where  the  snit  was  instituted,  as  next  friend, 
bv  a  person  in  low  circumstances  and  of  immoral 
character,  and  under  circamstancei  showing  that 


1 


»M 


[INFANT— INFORMATION] 


H  WM  not  instituted  for  the  infant's  benefit,  but 
from  motiTea  of  spite,  the  bill  ordered  to  be  taken 
off  the  file,  with  costs,  by  the  prochein  amy. 
Walker  v.  £lae,  2  Sim.  (ch.)  234. 

5.  The  court,  in  deciding  which  of  several 
soits  on  behalf  of  infants  uiall  be  prosecuted, 
will  prefer  that  which  is  so  framed  as  to  be  capa- 
ble of  being  beneficially  and  effectually  prose- 
eated,  to  one  in  point  of  form  more  extensive  in 
ike  relief  sought ;  and  where  the  trustees  occa- 
sion and  persist  in  unnecessary  litigation,  they 
will  be  personally  liable  to  the  costs.  Camp- 
bell V.  Cambell,  2  Myl.  &  Cr.  (ch.)  25. 

6.  The  Coart  will  only  allow  infant  wards  to 
reside  out  of  the  jurisdiction  when  absolutely 
necessary  to  their  health,  and  where  such  an  or- 
der is  made,  it  ought  to  comprise  a  scheme  for 
their  education  and  a  proviHion  for  informing  the 
Court  from  time  to  time  of  their  condition  and 
proffiess,  and  an  undertaking  to  bring  them  with- 
in the  jurisdiction  when  required.  Campbell  o. 
Maekay,  2  Myl.  dk  Cr.  (ch.)  31. 

7.  Where  ill-health  required  the  removal,  the 
Court  made  an  order  for  the  Master  to  approve 
of  a  plan  for  the  infant's  maintenance  and  educa- 
tion out  of  the  jurisdiction,  but  the  allowance  lim- 
ited to  one  year.  Wyndham  v.  Lord  Ennismore, 
1  K.  (cB.)  467. 

8.  An  infant  allowed,  under  circumstances,  to 
be  plaeed  at  the  University  in  Dublin,  upon  se- 
curity fer  bringing  him  within  the  jurisdiction 
when  required.  Lethem  v.  Hall,  7  Sim.  (ch.) 
141. 

9.  Where,  after  an  order  to  bring  in  an  infant 
defendant,  tne  messenger  returned  that  there  was 
•very  reason  to  believe  that  she  was  secreted  by 
the  mother,  the  court  ordered  the  senior  six  clerk 
to  be  appointed  guardian  to  answer  and  defend  the 
Hill.    Steed  v.  C^alley,  7  Sim.  (ch.)  141:). 

10.  An  order  to  permit  an  infant  ward  to  go 
abroad  for  a  fixed  time  to  visit  his  father,  the  par- 
ty by  whom  he  was  to  be  accompanied  giving 
■eeurity  for  bringing  him  back  within  the  juris- 
diction within  the  time  limited.  Biggs  v.  Terry, 
I  Myl.  dk  Cr.  (ch.)  675. 

11.  Where  the  next  friend  became  insolvent, 
and  had  been  indemnified,  the  court  refused  to 
compel  security  for  costs.  Murrell  v.  Clapham, 
8  Sim.  (cR.)  74. 

12.  Where  legacies  were  given  to  sons  attain- 
ing twenty-four,  or  dying  under  that  age,  leaving 
issue,  and  to  daughters  attaining  that  age  or  mar- 
rying, aiid  no  limitation  over  in  the  event  of  none 
aeouiring  a  vested  interest,  tlic  court  refused  to 
malEe  an  order  for  maintenance  without  the  con- 
sent of  the  testator's  next  of  kin.  Caunings  v. 
Flower,  7  Sim.  (ch.)  523. 

13.  Where  the  father,  convicted  of  felony, 
was  on  board  the  hulks ;  on  a  habeas  corpus,  held, 
that  the  mother  was  entitled  to  the  custody  of  her 
infant.    Bailey,  ex  parte,  6  Dowl.  (r.  c.)  311. 

14.  An  infant,  although  he  has  a  sufficient  in- 
come te  pay  rfeady  money,  is  not  incapable  of 
contracting  for  articles,  necessary  or  suitable  to 


his  station,  on  eredit.    Bnrghart  v.  Hall,  4  Mees. 
&  W.  (EX.)  727. 


15.  In  an  action  for  goods,  alleged  to  be 
saries,  to  an  infant,  that  being  the  simple  qoestioB 
for  the  jury ;  held,  that  inquiry  as  to  the  defend- 
ant's circumstances  is  not  a  condition  precedent 
to  the  right  of  recovery.  Brayshaw  v.  Eaton,  5 
Bing.  N.  S.  (c.  p.)  231. 

16.  And  where  the  mother  was  present  at  the 
time  of  the  defendant  ordering  the  goods,  held 
that  inquiry  as  to  her  sanctioning  the  purchaw 
was  unnecessary.  Dalton  v,  Gib,  5  Bing.  N.  8> 
(c.  p.)  199. 

17.  Where  the  parents  were  in  very  indigent 
circumstances,  an  increased  allowance  for  main- 
tenance of  infant  legatees  ordered.  Allen  v.  Cos- 
ter, 1  fieav.  (cH.)  Sm. 

18.  An  infant's  share,  a  residue  of  small  amount, 
ordered  to  be  paid  to  his  father  as  an  outfit  and 
passage  to  India.  Clay  v.  Pennington,  8  Sua 
(CH  )  359. 

19.  The  fund  to  which  an  infent  was  entitled 
being  £1,000,  the  mother,  hj  petition,  appointed 
guaraian,  and  the  interest  directed  to  be  pnid  to 
her.    Allsop,  tn  rs,  1  Coop.  (cu.  c.)  44. 

20.  Where  some  of  the  plaintiffs  were  infanta, 
the  Master  of  the  RoUs  having,  upon  the  fiwis 
disclosed  in  the  affidavits,  directed  a  refeienee 
whether  the  suit  was  for  their  benefit,  and  wlietb- 
er  the  next  friend  should  be  charged,  the  Lovd 
Chancellor  refused  to  interfere  with  the  order. 
Robinson  v.  Stone,  1  Coop.  (ch.  c.)  369. 

21.  Custody  of,  regulated  by  2  &  3  Vict.  c.  51 

And  see  Bankrupt ;  Cognovit ;  Judicial  Com- 
miUu;  Marriage;  Mortgage;  Pleading, 


INFORMATION. 

1.  Criminal  information  refused  for  words  sno- 
ken  to  a  magistrate,  alleging  that  he  wilfully 
absented  himself  from  an  election,  callingr  him  a 
liar,  and  tlireatening  to  repeat  the  charge  when- 
ever he  met  him,  no  intention  appearing  to  pro- 
voke a  breach  of  the  peace.  Chapman,  ex  parte, 
4  Ad.  &.  Ell.  (K.  B.)  773. 

2.  Upon  an  infiirmation  under  6  Geo.  4,  e.  106, 
s.  45,  tor  assisting  and  bemff  concerned  in  tke 
unshipping  tobacco  into  Ireland  the  dnties  net 
having  been  paid,  the  defendant  being  proved 
only  to  have  hired  the  vessel  in  England,  bat  ts 
have  taken  no  part  in  the  offence  subsequently 
committed  ;  held,  that  he  was  guilty  of  no  o^nee 
described  in  tlie  Act,  for  which  he  was  triable  in 
England.  Attorney-General  v.  Kenifeck,  S 
Mees.  &  W.  (ex.)  715. 

3.  Where  on  an  information  and  bill,  the 
person  was  relator  and  plaintiff,  suing  in  his  oi 
riffht,  and  he  had  failed  to  give  security  for 
when  required   by  the  Attorney-general ;  beld, 
that  it  was  not  a  ground  for  the  court  to  stop 
suit.    Attorney-General  v.  Knight,  3  Myl.  i. 
(ch.)  154. 


[INFORMATION— INJUNCTION] 


2M<( 


4.  Where  the  affidavit  in  support  of  an  ap- 
plicatJouTor  a  oriminal  information  for  slander  of 
a  ma|ristrate,  was  itself  filled  with  slanderous 
matter  and  intemperate  langaage,  the  role  refu- 
■ed,  without  costs.  R.  v.  Byrne,  2  Nev.  A  P. 
(k.  b.)  15*2 ;  and  6  Dowl.  (p.  c.)  37  :  held,  also, 
that  it  was  sufficient  if  the  county  appeared  where 
the  deponent  was  sworn,  although  not  stated  in 
the  jurat. 

5.  Where  the  affidavit  in  support  of  a  motion 
lor  an  information  for  a  libel,  only  stated  that  the 
defendant  did  print  and  publish  a  newspaper, 
ealled,  Ae,  a  copy  of  which  is  annexed ;  held  not 
sufficient  proof  of  publication  to  ground  the  men- 
tion, nor  can  the  prosecutor  avail  himself  of  ad- 
missions in  the  affidavits  in  answer.  Rex  v.  Bald- 
win, 3  Nev.  A  P  (<i.  B.)  342. 

6.  On  an  application  for  a  criminal  information 
for  a  libel,  affecting  several  members  of  a  family, 
at  the  instance  of  one,  whose  conduct  had  been 
such  as  would  not  have  entitled  him  to  the  rule  ; 
held,  that  the  others,  against  whom  no  imputa- 
tion rested,  were  not  thereby  precluded  from  the 
proteetion  of  the  court.  R.  v.  Gregory,  1  Perr.  A 
D.  («.  B.)  110. 

7.  Where  a  criminal  information  for  sending  a 
challenge  was  applied  for  by  a  party  who  had  him- 
self sent  one  to  a  partv  to  the  same  transaction  ; 
held  not  to  be  entitled,  although  the  latter  took 
place  in  a  foreign  country,  and  no  breach  of  the 
peace  contemplated  here.  R.  v,  Larrien,  7  Ad. 
A  Ell.  («.  B.)  277. 

8.  An  attorney  giving  a  relator  an  indemnity 
for  costs  for  using  his  name,  or  using  it  without 
authority,  although  afterwards  assented  to,  the 
court  will  order  tne  information  to  be  taken  off* 
the  file,  with  costs  to  be  paid  by  the  relator  and 
attorney.  Attorney-general  t.  Skinner's  Com- 
pany, 1  Coop.  (cB.  c.)  7. 

9.  Where  several  being  named  as  relators,  some 
were  desirous  of  withdrawing  their  names,  held 
that  an  order  to  amend,  by  striking  out  their 
names,  was  irregular ;  but  that  such  amendment 
not  consisting  in  anew  engrossment,  it  was  not  a 
ground  for  taking  it  off  the  file,  but  the  court 
would  restore  the  record  to  the  original  state  ;  in 
order  to  warrant  such  an  application  on  the  part 
of  relators,  it  is  not  enough  to  show  merely  that 
the  defendants  will  not  l«  prejudiced  by  the  al- 
teration, but  that  justice  will  not  be  done,  or  that 
the  suit  cannot  be  so  conveniently  prosecuted  un- 
lets It  be  made.  Attorney-general  v.  Cooper,  3 
Myl.  A  Cr.  (ch.)  296. 

10.  Upon  a  reference  to  the  Attorney-general, 
his  cenincate  that,  upon  certain  terms,  all  pro- 
ceedings should  be  stayed,  adopted  by  the  court ; 
relators  are  at  every  moment  subject  to  his  au- 
thority, and  he  is  biound  to  exercise  a  discretion 
as  to  the  prosecution  of  the  suit  Attorney-gen- 
eral V.  Fishmongers'  Company,  1  Coop.  (ch.  c.) 
85. 

And  see  Charity. 


INHABITANT. 
See  Charter. 


INJUNCTION. 

1.  Where  suits  were  instituted  for  the  i 
matter  in  the  Courts  in  England  and  Ireland,  and 
in  the  former  a  decree  obtained  affainst  the  plain- 
tiff, the  court  restrained  the  party  from  proceeding 
with  the  suit  in  Ireland.  Booth  v.  Leycester,  1 
K.  (ch.)  579. 

2.  The  Act  53  Geo.  3,  c.  121,  enabling  the 
Commissioners  of  Woods  and  Forests  to  grant 
building  leases  in  streets,  &c.,  according  to  Cer- 
tain plans  and  leases  granted  (  setting  eut  the 
lines  and  boundaries,  but  not  otherwise  referring 
to  or  including  the  plans ;  held  that  the  parlia* 
mentary  plans,  showing  open  spaces  in  certain 
streets,  did  not  prevent  the  erection  of  a  statue 
thereon,  either  on  the  ground  of  contract,  or  of  pub- 
lic nuisance  or  obstruction,  and  an  injunction  dis- 
solved. Squire  v.  Campbell,  1  Myl.  A  Cr.  (ch.) 
459. 

3.  A  resolution  signed  by  a  majority  of  the 
communicants  of  a  dissenting  chapel,  in  whom 
the  management  was  vested,  communicated  lo 
the  minuter,  with  a  request  to  him  to  resign,  held, 
tantamount  to  a  dismissal,  and  an  ejectment  re- 
fused to  be  stayed  by  injunction.  Attorney-Gen- 
eral V.  Aked,  7  Sim.  (ch.)  321. 

4.  Where  the  officer  omitted  to  bring  the  de- 
fendant to  the  bar  within  the  time  required  by  16 
Reg.,  in  consequence  of  his  being  in  ill  health, 
the  court  granted  a  motion,  with  costs,  for  an  in- 
junction to  stay  proceedings  in  an  action  brought 
against  the  officer  for  the  irregular  detention. 
(Jnalie  v.  Pickering,  1  K.  (ch.)  749. 

5.  Where  a  case  is  made  out,  the  court  will  di- 
rect a  reference  as  to  compensation.    lb. 

6.  Where  a  joint-stock  company  is  incorporated 
by  Parliament  to  cany  into  effect  certain  purposes 
in  a  certain  way,  the  court  will  not  restrain 
them  from  attempting  to  obtain  the  aid  of  Parliar 
ment  to  material  alterations,  or  the  mode  of  effiscU 
ing  those  purposes  and  extending  them,  or  of 
varying  its  constitution ;  and  an  injunction  re- 
fused, except  as  against  aU  acts  not  authoriied  bj 
the  existing  powers  and  constitution  of  the  com- 

rmy.    Ware  v.  Grand  Junction  Canal  Company, 
Russ.  &M.  (ch.)470. 

7.  Upon  a  bill  for  discovery  in  aid  of  an  action, 
and  injunction  to  restrain  it,  the  court  refused  to 
dissolve  the  injunction  before  the  coming  in|of 
the  answer,  upon  presumptive  but  contradictory 
evidence  of  tne  defendant's  death ;  the  answer 
being  read  as  an  affidavit'of  a  fact,  the  court  al- 
lowed affidavits  to  contradict  the  fact  to  be  read. 
Janson  v.  Solarte,  2  Younge,  (ex.  xq.)  127. 

6.  Where  A,  and  B.  carried  on  business  under 
the  firm  of  A.  L.  A  Co.,  and  upon  the  death  of 
A.,  B.  continued  the  business  under  the  firm  of 
B.  A  Co.,  successors  to  A.  and  L. ;  held,  that  the 
surviving  partner  had  a  right  to  carry  on  tho  bu- 
siness under  the  original  or  modified  form,  and 
an  injunction  granted  to  restrain  the  executor  of 
A.  from  commencing  the  same  business  under  die 
firm  of  L.     Lewis  v.  Langdon,  7  Sim.  (en.)  Ml. 

9.  Where  a  tramroad  had,  with  the  lieenee  of 
a  former  tenant  in  posiMaion,  been  iOBTflghjl 


2806 


[INJUNCTION} 


and  Qfed ;  held,  that  the  defendants,  if  not  en- . 
titled  to  aae  it  as  a  rijght  of  way,  being  trespassers  ] 
and  subject  at  law,  it  was  not  a  case  for  injunc- 
tion.   Deere  v.  Guest,  1  Myl.  &  Cr.  (en.)  516. 

10.  And  where  a  notice  of  motion  for  a  special 
injunction  had  been  refused  below,  and  renewed 
in  the  court  above  upon  the  appeal  against  the 
order  below,  allowing  a  demurrer ;  upon  the  ap* 
peal  beinj^  dismissed,  held,  that  the  defendants 
were  entitled  to  the  costs  of  the  motion  as  well 
as  the  appeal.    lb. 

11.  The  court  refused  an  order  to  extend  the 
common  injunction  to  stay  trial  where  the  affida- 
vit was  not  made  by  the  plaintiff  himself,  nor  any 
sufficient  reason  given  why  it  had  not  Spalding 
V,  licey,  7  Sim.  (ch.)  377. 

12.  Where  parties  had  been  imprisoned  on  an 
attachment  afterwards  set  aside  as  irregular,  the 
court,  on  terms  of  payment  of  costs,  and  referring 
the  amount  of  compensation  to  the  Master,  stay- 
ed actions  commenced  for  the  imprisonment 
Phillips  V.  Worth,  3  Russ.  &  M.  (ch.)  638. 

13.  An  order  nisi  to  dissolve  an  injunction  aAer 
publication,  held  irregular.  Barnett  v.  Mole,  1 
IC.  (cH.)  645. 

14.  The  court  granted  an  injunction  to  restrain 
a  party  from  using  on  his  omnibuses  the  same 
words  and  devices,  being  a  colorable  imitation 
of  those  used  by  the  plaintiffs,  and  held  that  the 
not  having  complied  with  the  requisites  of  the 
stage-coach  lic^sinff  Acts,  which  were  merely 
fis^,  did  not  preclude  the  right  to  sue.  Knott  v. 
Morgan,  2  Keene,  (en.)  213. 

15.  Where  the  lessee,  of  tin-plate  works  at  C. 
had  long  used  a  mark  as  designating  the  manb- 
fiictory,  and  on  the  expiration  of  the  lease  re- 
anoved  the  mannfactorv  to  another  place,  where 
he  continued  to  use  the  former  mark,  and  the 
original  works,  afVer  bein^^  some  time  unoccupied, 
were  taken  by  the  plaintiff,  who  obtained  an  in- 
junction, against  the  former  leasee  continuing  to 
Qse  the  mark,  the  Lord  Chancellor,  on  appeal, 
dissolved  the  injunction,  with  liberty  to  bring  an 
action;  where  the  court  exercises  a  jurisdiction 
over  legal  rights,  it  will  not  at  once  interfere  by 
injunction,  and  prevent  the  defendant  from  dis- 
puting the  plaintiff's  legal  title.  Motley  «.  Down- 
man,  3  Myl.  &  Cr.  (ch.)  1. 

!€.  Where  a  testator  to  whom  a  party  was  in- 
debted, in  one  sum  on  a  note,  and  another  on  a 
bond,  in  his  will  bequeathed  to  a  son  part  of  the 
entire  debt,  and  afterwards  by  codicil  revoked 
the  bequest,  and  by  indorsement  on  the  bond,  de- 
clared that  he  thereby  acquitted  the  obligor  of  the 
sum,  and  stated  that  in  consequence  he  bad  re- 
voked by  codicil  of  the  same  date  the  bequest  to 
the  same  amount ;  held,  that  being  a  volunteer, 
and  the  release  without  consideration,  he  was  noi 
entitled  |o  come  into  equity  for  relief.  Tuffnell 
V,  Constable,  8  Sim.  (tu.)  60. 

17.  Where  private  individuals  sofier  an  injury 
quite  distinct  trom  that  done  to  the  public  in  ge- 
neral, thev  are  entitled  to  relief,  and  may  main- 
tain a  bill  for  an  injunction,  which  may  have  the 
effi9ct  of  compelling  the  party  to  take  active  mea- 
Stt^s  from  oUowmg  the   isgury  to  continue. 


Spencer  v.  London  and  Biimingbam   Railway 
Cfompany,  8  Sim.  (ch.)  193. 

IB.  Where  the  undertakers  of  a  navigation 
and  tram-road  therefrom,  had  fifteen  years  allow- 
ed to  complete  it  in,  but  they  were  bound  to  get 
possession  of  the  land  within  five  years;  and  it 
appeared  that  they  had  made  some  deviation  from 
the  Parliamentary  Hoe,  although  in  no  way  inju- 
rious to  the  plaintiff,  at  a  distant  part,  but  there 
was  nothing  to  show  that  the^  had  finally  aban- 
doned that  line,  the  court  refused  an  ininnction 
from  taking  the  lands  of  the  plaintiff  witnin  that 
line  before  the  five  years  expired.  Where  an 
Act  is  strictly  carried  into  execution,  as  regards 
a  party's  lands,  he  cannot  restrain  them  from  pro- 
ceeding on  the  ground  merely  of  a  variation 
made  with  the  consent  of  others,  and  not  injo- 
rious  to  himself.    Lee  v.  Milner,  2  Younge  Sl  C 

(ex.  K((.)61]. 

19.  Where  on  the  eve  of  trial  of  an  ejectment, 
an  ex  parte  injunction  was  obtained,  which  was 
afterwards  dissolved,  and  an  order  made  for  the 
parties  to  give  judgment  in  the  ejectment,  the 
Lord  Chancellor,  on  appeal,  being  of  opinioa 
that  there  was  no  omission  of  facts  which  might 
have  improperly  led  the  court  to  have  granted 
the  injuuction,  held,  that  there  was  no  authority 
to  support  such  order ;  held  also,  that  the  plain- 
tiff being  in  contempt  for  disobedience  of  toe  or- 
der, was  not  precluded  from  moving  to  discharge 
the  order,  which  was  the  root  from  which  the  at- 
tachment had  proceeded.  Brown  r.  Newall,  2 
Myl.  &,  Cr.  (cH.)  556. 

20.  Where  in  an  injunction  suit  to  stay  pn>> 
ceedings  at  law,  the  subject  of  claim  is  ordered  to 
be  paid  into  court  by  instalments,  and  afterwards 
to  be  suspended  until  the  hearing,  the  eflfect  of 
such  order  is  to  reverse  both  legal  and  equitable 
jurisdiction  over  it  at  the  hearing,  and  if  the 
court  then  finds  the  defendant  to  be  entitled,  it 
will  at  once  order  it  to  be  paid  to  him,  without 
driving  him  to  establish  his  legal  right  by  further 
proceedings  at  law.  Small  v.  Atw'KMl,  o  Tounge 
^  C.  (Kx.  s<i.)  105. 

21.  An  injunction  to  stay  a  trial  immediately 
coming  on,  merely  on  the  ground  of  the  greater 
rapidity  occasioned  by  the  new  rules  at  law,  in- 
fused, although  there  was  not  sufficient  time  for 
obtaining  it  according  to  the  practice  of  the  court 
as  to  granting  injunctions.  Bailey  v.  Weston,  7 
Sim.  (cii.)  666. 

22.  Where  upon  a  motion  upon  a  bill  for  a 
special  injunction,  notice  was  required  to  be 
served,  and  before  the  day  named  the  answer 
was  put  in ;  held,  that  on  the  motion  being  re- 
newed, the  affidavits  filed  in  support  of  the  bill 
might  be  read.  Atkinson  r.  Kemble,  7  Sim. 
(ch.;  638. 

23.  Amending  the  bill  without  a  special  apf>l»- 
cation,  held  to  be  a  waiver  of  ootice  of  motion  for 
an  injunction.    Martin  v.  Fast,  8  Sim.  (ch.)  199. 

24.  The  common  injunction  having  been  ob- 
tained on  a  report  of  the  answer  bein^  insufficient, 
and  an  order  to  amend  without  prejudice  to  the 
injunction,  and  for  the  defendant  to  answer  the 
amendments  and  exceptions,  and  subsequently 


[INJUNCTION] 


2807 


mn  order  to  extend  the  mjunciton  to  lUy  trial ;  ^ 
held,  that  aacb  latter  order  was  regolar.    Simes 
V.  Oaff,  6  Sim.  (cb.)  270. 

25.  On  motion  to  restrain  the  defendant,  a  ten- 
ant, from  removing  buildings  erected  during  the 
tenancy,  which  he  by  his  answer  aliped  not  to 
be  affixed  to  the  freehold,  the  court  refused  to  al- 
low the  plaintiff  to  read  aflidavitB  filed  after  the 
answer,  tending  to  show  that  they  wore  affixed. 
Shirreffv  Barnard,  8  Sim.  (ch.)  161. 

S6.  A  party  Buataininff  special  dama^  from  a 
nuisance,  may  sustain  a  bill  to  restrain  it  without 
making  the  Attorney-general  a  party.  Sampson 
V.  Smith,  8  Sim.  (ch.)  272. 

27.  In  an  injunction  suit,  the  court  will  not  en- 
large the  time  for  obtaining  the  Master's  report, 
except  under  special  circumstances,  as  the  mdis- 

rwitionofthe  Master.     Davenport  v.  Whitmore, 
Sim  (cB.)25i. 

28.  Where  a  bottomry  bond  was  alleged  to  have 
been  executed  in  fraud  or  under  cirGumstances 
which  a  court  of  equity  would  not  give  effect  to ; 
held,  that  it  had  jurisdiction  to  restrain  a  party 
firam  proceeding  m  a  suit  in  the  Admiralty  Court 
upon  it,  and  that  it  was  quite  sufficient  if  the 
court,  upon  the  pleadings  and  evidence,  finds  a 
case  which  makes  the  transaction  a  proper  sub- 
ject of  investigation  in  a  court  of  equity.  Glass- 
eott  V.  Lang,  3  Myl.  &  Cr.  (ch.)  460 ;  and  8  Sim. 
(ch.)  358. 

29.  Injunction  to  restrain  the  setting  up  of  oat- 
standing  terms  on  the  trial  of  an  eiectment,  re* 
fased,  uthough,  by  the  answer,  the  le^  title  was 
admitted,  but  a  question  of  equity  raised  which 
would  bind  the  plaintiff  if  the  cause  came  to  a 
liearing.  Ringer  v.  Blake,  3  Younge  A  C.  (sx. 
xq.)  591. 

30.  Where  a  creditor,  suing  an  executor,  ob- 
tained judgment  de  bonu  test,  et  si  nan  d$  bonis 


proprus,  but  under  circumstances  the  court  was 
of  opinion  that  an  injunction  against  further  pro- 
ceeaing  ought  to  be  continued,  the  executor  or* 
dered  to  pay  the  costs  up  to  the  time  of  notice  of 
the  injunction^  and  the  balance  appearing  to  be 
in  the  defendaint's  hands  to  be  paid  into  court. 
Bookless  V.  Crummack,  I  Coop.  (ch.  c.)  125 ; 
and  where  the  cases  as  to  fklse  pleas  by  executors 
are  collected. 

31.  Where,  to  a  bill  of  injunction  to  restrain  an 
action  on  a  bill  until  answer  or  further  order,  the 
defendant  put  in  his  answer,  admitting  the  pos- 
session of  docoments,  the  court  refused  to  dis- 
solve the  injunction  until  the  plaintiff  had  time 
to  inspect  them.  Walker  v.  Corke,  3  Younge  & 
C.  (XX.  xq.)  276. 

33.  Where,  pending  proceedings  at  law  to  try 
the  right  to  a  watercourse,  the  defendants  were 

Eroceeding  to  take  the  law  into  their  own  hands, 
eld  thatwe  plaintiff  was  entitled  to  file  a  bill  for 
an  injunction ;  but  where  the  application  for  dis- 
solving it,  on  the  ground  of  the  bill  showing  a 
legal  title  acquired  by  lapse  of  time,  had  been  re- 
fused, the  court  said  that  it  ought  to  make  provis 


33.  Where  the  plaintiffs,  in  an  action  for  ob- 
structing a  watercourse,  claimed  tlie  right  by 
reason  of  their  possession  of  a  mill,  and  the  en« 
joyment  was  alleged  to  have  been  had  under  an 
agreement  made  &  years  before,  which  was  given 
in  evidence  by  the  defendants ;  held,  that  it  should 
still  be  left  to  the  jury  to  sav  whether  they  would 
presume  a  grant  to  have  been  execntea,  and  a 
new  trial  granted.     S.  C.  lb.  n.  321K 

34.  Where  the  plaintiff  accepted  a  bill  for  the 
accommodation  of  D.  and  W.,  which  washy  thein 
deposited,  with  others,  with  O.  &  Co.,  as  a  col- 
lateral security  for  tlie  payment  of  a  bill  indorsed 
by  the  defi?naant,  and  also  for  the  purpose  of  se- 
curing clearances  made  by  D.  &  Co  to  a  stated 
extent,  and  they  subsequently  assented  to  hold 
the  securities  for  the  benefit  of  the  defendant,  af- 
ter their  own  claims  satisfied  :  on  the  bankrnptoy 
ofD.  and  W.  the  holders  sued  the  plaintiff  and 
obtained  n  cognovit,  and  upon  the  defendamt  hav* 
ing  paid  the  amount,  tlie  plaintiff's  bill  and  cog' 
novU  were  delivered  over  to  him :  held,  that  too 
plaintiff  not  being  entitled  to  the  possession  of  the 
bill,  nor  the  defendant's  possession  of  it  fraudu- 
lent or  against  good  faith,  the  plaintiff  could  not 
sustain  a  bill  for  having  it  delivered  up  to  him  to 
be  cancelled,  nor  to  restrain  the  defendant  from 
enforcing  the  cognovit.  Jones  v.  Lane,  3  Younge, 
(EX.  xq.)  281. 

35.  If  a  party  obtain  wrongful  possession  of  a 
bill,  although  under  circumstances  which  would 
give  a  complete  defence  at  law,  equity  will,  nevcr- 
tneless,  interfere,  if,  from  lapse  of  time  or  death 
of  witnesses,  such  defence  is  likely  to  fail ;  but 
if  the  objection,  being  apparent  on  the  face  of  the 
iiV^trument,  must  always  be  open  to  the  defend- 
ant whenever  the  action  is  brought  against  him, 
he  is  not  entitled  to  relief  in  equity,    lb. 

36.  Where  the  plaintiff,  a  shareholder  in  a  joint 
stock  company,  being  sued  at  law,  in  the  name  of 
the  officer,  for  calls,  filed  a  bill  against  the  de- 
fendants as  directors,  and  also  against  the  public 
officer  of  the  company,  praying  a  discovery  and 
the  refunding  of  sums  already  paid,  to  whicn  bill 
the  latter  appeared,  but  the  other  defendants  did 
not,  and  an  injunction  was  obtained  for  want  of 
appearance,  and  an  order  for  extending  to  stay 
trial ;  held,  on  appeal,  that  the  latter  order  was 
irregular,  the  common  injunction  never  having 
been  against  the  plaintiff  m  the  action,  aHhongn 
only  nominally  such ;  it  also  appearing  on  the  af> 
fidavits  and  the  whole  case,  that  the  allegation  in 
the  plaintiff's  affidavit  that  the  discovery  sought 
by  his  bill  was  material  to  his  defence  to  the  ao- 
tion  could  not  be  true,  held,  that  snch  order  ouvht 
not  to  have  been  made,  and  that  the  delay  be- 
tween the  coinniencenient  of  the  action  and  the 
filing  of  the  bill  not  being  sufficiently  accounted 
for,  the  court  would  not  Be  justified  in  extending 
the  injunction  on  the  very  eve  of  the  trial.  Thorpe 
V.  Hughes,  3  Myl.  &.  Cr.  (ch.)  742. 


37.  Where  the  plaintiff  had  himself  been  gutlty- 
of  false  representation  as  to  his  own  preparation 
and  mode  of  procuring  it,  the  court  refused  to  in* 
terfere  to  protect  him  against  the  sale  of  a  spuri- 


ioA  for  having  the  (|ueBtion  between  the  parties  ous  article  by  the  defendant  under  the  same  name, 
tried  at  law.  Dewhirst  v.  Wrigley,  1  Coop.  (ch.  until  the  legal  title  was  established  at  law.  Pid- 
c.)  319 ;  collecting  and  reviewing  the  cases.         I  ding  v.  How,  8  Sim.  (ch.)  477 


3808 


IINJUNCTION— INQUIRY,  WRIT  OF] 


38.  Where  a  railway  company  had  agreed  to 
take  preiniaes  at  a  valuation  by  arbitrators,  but 
began  to  pull  down  before  tJie  award  made,  an  in- 
junction granted  on  an  ez  parte  motion,  allhough 
the  defendants  had  appeared.  Petley  v.  Eastern 
Counties  Railway  Company,  8  Sim.  (ch.)  463. 

39.  Where  the  owner  of  lands  intended  to  be 
taken  by  a  railway  company  had,  by  his  conduct 
and  witn  full  knowledge  of  his  equity,  permitted 
the  company  to  carry  on  the  works,  as  upon  the 
sopposition  that  they  were  entitled  to  enter  upon 
and  take  the  lands  of  the  plaintiff  for  their  pur- 
poses ;  held,  that  he  was  not  entitled  to  an  inter- 
locutory injunction  to  restrain  them  from  so  enter- 
ing. Greenhalgh  v.  Manchester  and  Birmingham 
Kailway  Company,  3  Myl.  &,  Cr.  (ch.)  784. 

40.  On  an  injunction  against  commissioners, 
under  a  local  paving  Act,  to  restrain  them  from 
proceeding  to  summon  a  jury  and  assess  the  value 
of  premises  intended  to  be  taken,  it  being  suggest- 
ed that  they  had  not  funds  sufficient  for  the  pay- 
ment of  the  purchase ;  held,  that  the  Act  having 
Tested  ID  them  the  power  of  purchase,  both  the 
fiinds  and  the  powers  being  undefined  in  point  of 
time,  and  not  temporary  only,  it  was  not  incon- 
sistent with  the  rights  under  the  Act  and  the  con- 
yenient  course  for  all  parties,  that  the  jury  should 
go  on  to  assess  the  sum  at  which  the  commis- 
sioners might  purchase ;  the  Lord  Chancellor,  on 
appeal,  dissolved  the  injunction  granted  by  the 
V ioe-Chancellor,  as  to  proceeding  before  the  jury, 
and  also  the  motion  for  extending  it  to  the  taking 
possession  of  the  premises.  Salmon  v.  Randall, 
3  Myl.  &>  Cr.  (ch.)  439. 

41.  Where,  in  an  injunction  suit  to  restrain  the 
defendant  from  using  certain  marks,  which  he 
had  ceased  to  do  from  the  time  of  an  ini unction 
obtained  against  another  party,  with  wnom  the 
defendant  nad  no  connection,  and  the  suit  was 
persisted  in  at  a  great  expense,  for  the  sake  of  the 
account,  which  was  abandoned  at  the  hearing  on 
account  of  its  minuteness,  the  court,  exercising  its 
discretion  as  to  costs,  in  repressing  useless  litiga- 
tion, decreed  a  perpetual  injunction,  but  without 
the  costs  of  the  cause.  Millington  v.  Fox,  3  Myl. 
A  Cr.  (cu.)  338. 

42.  Where,  pending  a  suit  to  establish  a  will  of 
real  estate,  in  which  the  heir  ooneurfed,  and  also 
with  the  trustee  on  the  management  thereof,  but 
had  brought  actions  of  ejectment  and  detinue  for 
veeovering  the  estates  and  title  deeds,  a  reference 
to  the  Master  directed,  to  inquire  as  to  what  pro- 
ceedings ought  to  be  taken,  and  under  circum- 
stances an  injunction  granted  against  one  defend- 
ant  at  the  instance  <^  another  co-defendant :  the 
will  having  eventually  turned  out  to  be  invalid, 
the  trustee  acting  bo!^  fide  and  in  concurrence 
with  the  heir,  held  entitled  to  be  indemnified  out 
of  the  estate.  £dgecumbe  v.  Carpenter,  1  Beav. 
(CH.)  171. 

43.  Where,  on  a  covenant  with  two  for  jMiy- 
ment  of  an  annuity  to  a  third  party,  on  its  falling 
in  arrears  one  of  the  trustees  oeclming  to  enforce 
it,  the  other  brought  an  action  in  the  name  of 
both,  and  thereupon  the  covenantor  filed  a  bill 
against  all  the  parties,  alleging  fraud,  and  for  an 


injunction,  which  he  obtained  against  the  trustees 
separately,  the  court  refused  to  dissolve  it  against 
the  party  who  had  answered  until  the  other  had 
filed  his  answer,  fianney  «.  Vaughan,  8  Sim. 
(CH.)  439. 

44.  A  plaintiff  in  an  injunction  cause  to  be  al- 
lowed to  amend  the  bill  without  prejudice  to  the 
injunction.  2  Reg.  Gen.  May  li^,  1  Beav. 
(cu.)  Ap.  X. 

45.  And  where  after  injunction  to  stay  proceed- 
in^s  dissolved,  the  plaintiff  shall  amend  his  bill, 
to  oe  entitled  to  move  for  injunction  upon  affida- 
vit of  the  truth  of  the  amendment,  unless  defend- 
ant shall  plead,  &c.  within  eight  days  afler  ap- 
pearance.   3  Reg.  €ren.    lb. 

46.  On  a  special  injunction  against  four  co- 
partners, to  restrain  them  fromdomgan  act  joint- 
ly, one  of  whom  had  not  answered,  the  plaintiff 
held  entitled  to  read  affidavits  m  opposition  to  a 
motion  by  the  three  to  dissolve  the  joint  injunc- 
tion.   Nay  lor  r.  Wellington,  8  Sim.  (ch.)  396. 

47.  Afler  the  common  injunction  obtained  to 
stay  execution,  and  a  subsequent  notice  of  motion 
to  stay  trial,  but  before  the  motion  made  the 
answer  was  filed  and  excepted  to ;  held  that  an 
order  as  of  course  to  refer  the  answer  inHamter 
for  insufficiency,  was  regular.  Brooks  v,  Haigh, 
9  Sim.  (CH.)558. 

48.  Upon  an  action  by  a  cestui  ^e  tnul  in  the 
name  of  his  trustee,  and  injunction  obtained,  a 
special  motion  to  dissolve  it  held  regular.  Sharp- 
ley  V.  Perring,  8  Sim.  (cb.)  GOO. 

49.  An  order  nin  to  dissolve  the  common  in- 
junction, obtained  af\er  exceptions  to  the  answer 
filed,  held  irregular.  Howes  v.  Howes,  1  Beav. 
(ch.)  197. 

And  see  Bank  of  England;  Bridge;  Ejeet- 
ment ;  Fraud  ;  interpleader ;  Landlord  and  Tern- 
ant  ;  Lunatic  ;  Manaamus  ;  Marriage  Settlement  ; 
Receiver, 


INNKEEPER. 

1.  Where  goods  were  left  in  an  inn,  to  be 
taken  up  by  a  carrier,  and  lost,  held  that,  however 
the  innkeeper  might  be  liable  for  neffligenee, 
trover  could  not  he  maintained.  Wiuianis  v. 
Geese,  3  Ring.  N.  S.  (c.  f.)  849 ;  and  7  G.  dk  P. 
(h.  p.)  777. 

2.  An  innkeeper  cannot  detain  the  person  of  his 
guest,  or  take  off  his  clothes  to  secure  the  pay- 
ment of  his  bill.  Sunbolf  v,  Alford,  3  Mees.  A 
W.  (ex.)  24a 


INQUIRY,  WRIT  OF. 

In  a  proper  case,  the  court  will  direct  the  sheriff 
to  summon  a  juiy  from  the  special  jury  list.  Price 
V.  Williams,  5  Dowl.  (p.  c.)  160. 


[INQUISITION— INSOLVENT] 


2809 


INQUISITION. 

1.  Where  the  iDquisition  alle^d  the  offence 
on  a  day  not  arrived,  by  niietakingly  usinp  the 
words  **  year  aforesaid,  it  was  quashed.  R.  v. 
Mitchell,  7  C.  <&  P.  (5.  p.)  800. 

2.  On  a  coroner's  inquisition,  several  jarors 
being  of  the  same  name,  it  is  not  necessary  to 
distinguish  them  by  their  trades  or  places  of 
abode.  Where  it  alleged  that  parties  were  felo- 
niously present,  then  and  there  aiding,  &c. ;  held 
insufficient,  as  the  word  "  feloniously"  only  ap- 
plied to  the  word  "  present,"  and  not  to  the  fatter 
words ;  but  want  of  time  and  place  to  the  con- 
cluding averment,  "and  so  the  jurors,  &c.," 
held  not  material.  R.  w.  Nicholas,  7  C  &  P.  (w. 
p.)  538. 

3.  Where  a  local  drainage  Act  authorized  the 
trustees  to  purchftae  **  lands,  tenements,  or  hered- 
itaments," for  the  purposes  of  the  Act,  and  com- 
pensation to  be  awarded  by  a  jury  to  be  impanel- 
led 40  days  afler  notice  to  the  party  interested  ; 
held,  that  where  the  paiiy  expressly  waived  such 
notice,  he  could  not  object  to  the  inquisition  for 
not  setting  it  out,  nor  that  the  Act  did  not  extend 
to  the  purchase  of  copyhold  lands,  he  having  con- 
cealed the  nature  of  the  tenure  :  and  the  jury  hav- 
ing found  a  certain  sum  for  the  value  and  com- 
pensation, and  gone  on  to  direct  a  hedge  to  be 
erected  on  the  party's  land»  at  the  expense  of  the 
trustees ;  held,  that  such  latter  direction  did  not 
avoid  the  inquisition,  it  not  appearing  that  any 
less  compensation  had  been  awarded  on  that  ac- 
count R.  T.  South  Holland  Drainage  Trustees, 
1  Perr.  &  D.  (q.  b.)  79. 

And  see  Indictment. 


INSOLVENT. 

1.  in  assumosU  by  drawer  against  acceptor, 
and  plear— discnarge  under  the  Insolvent  Act,  it 
appearing  that  the  defendant  had  been  sued  by 
the  holder  of  the  bill  at  the  time  of  his  discharge, 
and  whose  name  he  had  inserted  as  the  creditor 
for  the  amount  of  the  bill ;  held,  that  he  was 
thereby  dischar^d  from  the  debt,  the  only  object 
of  the  8.  46,  being  to  identify  the  debt,  and  that 
such  insertion  was  sufficient  notice  to  all  persons 
interested  in  the  security,  fioyitell  v.  Uhamp- 
neys,  2  Mees.  &  W.  (ix.)  433. 

2.  Where  damages  in  an  action  of  tort  have 
been  ascertained  by  verdict  before  filing  the  peti- 
tion ;  held  that,  under  s.  50  of  7  Geo.  4,  c.  57, 
the  insolvent  is  entitled  to  be  discharged  from  the 
damages  and  costs.  Groldsmid  o.  Lewis,  3  Bing. 
N.  S.  (c.  p.)  46 ;  and  3  Sc.  369. 

3.  Semblcj  a  party  entitled  to  be  discharged  out 
of  execution  under  48  Geo.  3,  is  not  deprived  of 
the  right  by  a  prior  motion  against  him  under  the 
compulsory  clause  of  the  lords'  Act.  Davis  v. 
Curtis,  3  fiing.  N.  S.  (c.  p.)  259;  3  Sc.  321 ;  and 
5  Dowl.  (p.  c.)  344. 

4.  Where  a  woman  lived  with  the  insolvent  as 


his  wife,  not  knowing  of  his  being  married;  held, 
that  her  goods  in  his  possession  did  not  pass  to 
his  assignees ;  aUter^  if  knowing  of  his  marriage 
she  permitted  him  to  have  the  control  and  man- 
agement of  them.  Miller  v,  Demetz,  1  M.  & 
Rob.  (N.  p.)  479. 

5.  The  7  Geo.  4,  c.  57,  s.  32,  held  to  apply  to 
assignments  made  at  any  time  previous  to  the 
imprisonment,  with  the  view  of  petitioning  the 
court  for  a  discharge,  and  not  merely  to  such  as 
are  made  within  three  months  before  the  com- 
mencement of  such  imprisonment  Becke  v. 
Smith,  2  Mees.  &,  W.  (ex.)  191. 

6.  Where  an  insolvent  filed  a  bill  to  set  aside  an 
assi^ment  of  an  interest  under  his  father's  will, 
stating  a  case  of  collusion  between  him  and  the 
executor,  the  court  thought  it  was  proper  that 
the  bill  should  be  answered,  and  over-ruled  a  de- 
murrer.   Barton  e.  Jayne,  7  Sim.  (ch.)  24. 

7.  In  a  suit  for  the  administration  of  an  insol- 
vent's estate,  the  Master  held  properly  to  have 
admitted  proof  for  more  than  the  amount  speci- 
fied in  the  insolvent's  schedule,  but  leave  given 
to  establish  the  demand  as  a  general  creditor. 
Barton  v.  Tattersall,  2  Russ.  &  M.  (ch.)  541. 

8.  Where,  afler  the  insolvent's  discharge,  he 
gave  a  warrant  of  attorney  to  a  creditor  for  the 
debt  and  a  fresh  advance  of  goods,  the  court  set 
aside  the  execution  thereon  as  to  the  old  debt. 
Smith  V.  Alexander,  5  Dowl.  (p.  c.)  13. 

9.  Where  the  insolvent,  having  a  debt  due 
from  M.,  secured  on  mortgage,  but  subject  to  a 
prior  charge,  on  the  bankruptcy  of  M.,  agreed 
verbally  with  the  defendant  to  assign  the  dehtfor 
monies  advanced,  the  solicitor  to  M.'s  commission 
advising  that  no  written  instrument  was  neces- 
sary, AS  the  dividends  on  M.'s  estate  would  pass 
through  his  hands,  but  he  did  not  communicate 
the  assignment  to  M.'s  assignee ;  the  mortgage 
being  unavailable,  the  debt  was  proved,  and  divi- 
denos  received  and  paid  over  by  the  insolvent  to 
the  defendant ;  in  an  action  by  the  assignee  of 
the  insolvent  for  money  had  and  received,  held'^ 
first,  that  the  debt  was  not  in  the  order  and  dispo- 
sition of  the  insolvent,  within  7  Geo.  4,  c.  57,  s. 
30 ;  secondly,  that  the  assignment  amounted  to  a 
valid  assignment  in  equity;  and  that  the  debt 
being  certain,  and  the  assignment  only  of  se 
mucn>of  the  dividends  as  would  be  snfiusient  ie 
satisfy  the  debt,  the  whole  did  not  pass  to  the  a»> 
signee,  subject  to  the  defendant's  olaim  or  lien. 
Tibbits  e.  George,  5  Ad.  ^  £11.  (k.  b.)  107. 

10.  A  bill  by  an  insolvent  against  his  assignees 
and  a  party  in  possession  of  an  estate  claimed  by 
the  insolvent,  alleging  that  the  assignees  had  re- 
fused to  sue  for  the  estate,  but  were  willing  to 
concur  in  the  sale  of  it,  and  that,  if  sold,  there 
would  be  sufficient  to  pay  the  creditors,  and  leare 
a  surplus  for  the  plaintin,  held,  on  demurrer,  not 
sustainable.    Kaye  v.  Fosbrooke,  8  Sim.  (ch.)  28, 

11.  Where  the  surety  paid  money  after  the  dis- 
charge of  the  principal  under  the  Insolvent  Act, 
held  that  he  was  entitled  to  sue  the  principal ;  the 
exception  in  7  Geo.  4,  c.  57,  s.  51,  being  limited 
to  any  step  which  may  a^ct  the  discharge  under 
that  Act  Hooken  v.  Browne »  4  Bing.  N.  & 
(c.  p.)  400. 


2810 


[INSOLVENT] 


12.  In  ejectment  by  the  plaintiff,  as  assignee  of 
an  insolvent,  held,  that  an  assignment  by  the  pro- 
visional assignee  to  the  creditors'  assignee,  in  the 
form  prescribed  for  the  assignment  by  the  insol- 
vent to  the  provisional  assignee,  was  valid  :  guar. 
whether  on  an  assignment,  reciting  it  to  have 
been  made  by  an  order  of  the  court  (pursuant  to 
11  Geo.  4  &  1  Will.  4,  c.  38),  the  court  would 
intend  that  an  order  had  been  made  without  pro- 
duction of  it.  (Dub.  Denman^  L.  G  J.,  Little- 
dale  and  WUluimSf  J.  J.,  contra  Coleridge^  J.) 
Doe  V.  Story,  3  Nev.  &  P.  (q,.  b.)  107. 

13.  Where  after  a  former,  but  previous  lo  a 
second  discharge,  the  insolvent  became  entitled 
to  a  legracy,  held,  that  as  future  acquired  property, 
it  could  only  be  obtained  by  the  first  set  of  as- 
signees by  entering  up  judgment,  with  leave  of 
the  court ;  and  passed  under  the  second  assign- 
ment as  a  chose  in  action,  to  which  the  insolvent 
was  then  entiiled.  Curtis  v,  Sheffield,  b  Sim. 
(CH.)  176. 

14.  Plea  in  assumpsit  for  goods,  discharge  of 
the  defendant  under  the  Insolvent  Act ;  replica- 
tion, that  the  plaintiff,  although  named  in  the 
schedule,  had  no  notice  of  the  nling  the  petition, 
or  of  the  time  of  hearing ;  held  bad,  on  demurrer, 
for  not  alleging  that  the  plaintiff 's  debt  amounted 
to  £bj  BO  as  to  be  entitled  to  notice  under  7  Geo. 
4,  c.  57,  s.  43.  Troup  v.  Boffi,  3  Mees.  &.  W. 
<EX.)  615. 

15.  Although  certified  copies  of  assignments  to 
and  from  the  provisional  assignee  are  made  evi- 
dence by  7  Geo.  4,  c.  57,  s.  76,  yet  where  the  in- 
solvent petitioned,  and  his  effects  were  assigned 
under  53  Geo.  3,  c.  102,  held  that  such  copies 
were  not  sufficient.  Doe  d.  Threlfaill  v.  Sellers, 
6  Ad.  A  Ell.  (K.  B.)  328. 

16.  But  where  the  petition  and  assignment 
were  made  under  1  Creo.  4,  c.  119;  held,  that 
they  might  be  proved  afler  7  Geo.  4,  c.  57,  ac- 
cording to  the  directions  of  sect.  76,  although  it 
did  not  appear  that  the  proceedings  had  gone  on 
to  the  discharge  of  the  party,  and  final  assignment 
of  his  effects  Doe  d.  £Uis  v.  Hardy,  o  Ad.  &. 
£11.  (K.  B.)  335. 

17.  Where  afler  an  acquittal  on  an  indictment 
Against  an  insolvent  for  omitting  specified  articles 
out  of  his  schedule,  a  second  was  preferred,  in 
substance  the  same,  but  including  the  omission  of 
additional  articles ;  held,  that  the  plea  of  autrefois 
4icquit  was  not  a  good  defence  to  tne  whole  of  the 
latter  indictment ;  but  the  Judge  strongly  advised 
the  jury  to  acquit,  unless  they  were  satisfied  that 
the  omission  was  under  essentially  different  cir- 
cumstances. R.  V.  Uhampneys,  2  M.  &.  Rob. 
(n.  p.)  26. 

18.  Further  provisions  for  relief  of  insolvent 
debtors,  by  1  &  2  Vict.  c.  110,  s.  23. 

19.  Where  a  party,  whilst  unmarried,  made  a 
voluntary  settlement,  upon  trust,  in  case  of  her 
ever  marrying,  for  her  husband  and  children,  and 
she  afterwards  became  insolvent,  the  court  dis- 
missed a  bill  by  the  assignee  to  have  the  fund 
transferred.  Kirk  v,  Cureton,  1  Coop.  (cu.  c.) 
191. 


20.  Where  an  insolvent  was  ordered  to  be  dis- 
charged, except  as  to  two  debts,  and  as  to  those 
not  until  afler  16  months  from  the  filing  his  peti- 
tion ;  held,  that  such  debts  were  within  the  very 
words  of  s.  16  of  7  Geo.  4,  c.  57,  as  to  which  an 
adjudication  could  be  made ;  and  that  one  of 
those  creditors  having  subsequently  commenced 
an  action,  the  not  proceeding  to  declare  within 
two  terms  did  not  render  the  prisoner  superaede- 
able.  Buzzard  r.  Bousfield,  4  Mees.  &.  W.  (ex.) 
368;  and  7  Dowl.  (p.  c.)  1. 

21 .  Where  a  demand  is  made  by  a  creditor  bona 

fide,  and  a  transfer  is  made  in  pursuance  of  that 

demand,  it  is  not  a  voluntary  transfer  within  the 

Insolvent  Act.     Magg  v.  Baker,  4  Mees.  &  W. 

(ex.)  348. 

22.  Where  by  a  provision  in  an  agreement  to 
purchase  a  busmess  for  a  sum  to  be  paid  by  two 
mstalments,  the  purchaser  had  a  right,  within  a 
limited  time  before  the  completion  of  the  contract, 
to  give  notice  of  abandonment,  and  the  soiii 
paid  to  be  returned  ;  held,  in  an  action  to  recover 
it  back,  that  it  was  no  defence  that  the  defendant 
had  been  discharged  under  the  Insolvent  Act,  the 
notice  having  been  given  within  the  time  limited, 
it  being  a  contingency  not  capable  of  being  valaed 
at  the  time  of  such  discharge.  Brown  r.  Fleet- 
wood, 6  Mees.  A  W.  (kx.)  19 :  and  7  Dowl.  (p. 

c.)  tee. 

23.  Where  the  defendants  were  eonplayed  9i$ 
tlie  attorn  ies  of  a  party  in  embarrassed  cixcam- 
stances,  to  effect  an  arrangement  with  his  credit- 
ors, and  under  resolutions  oy  them  proceeded  to 
sell  his  estate  and  received  the  proceeds,  bat  the 
party  aflerwards  took  the  benefit  of  Uie  Insolvent 
Act ;  held,  that  the  retainer  of  a  sum  to  satisl^ 
their  bill  of  costs,  did  not  amount  to  a  case  of  vol- 
untary transfer  within  the  Act,  the  money  so  re- 
ceived not  originating  with  the  insolvenrt,  and  en- 
trusted to  the  defendants  only  as  agents,  and  not 
for  the  benefit  of  any  particular  creditor.  Wain- 
wright  V.  Clement,  4  Mees.  d^  W.  (ex.)  385. 

24.  The  right  reserved  to  creditors  of  payment 
out  of  future  effects,  does  not  prevent  the  opera- 
tion of  the  Statute  of  Limitations.  Browning  v. 
Reid,  5  Mees.  &  W.  (ex.)  117;  and  7  DowL  (p. 

c.)  398. 

!^.  The  85th  sect,  of  1  &  2  Vict.  c.  110,  con- 
trols the  general  words  of  s.  2,  and  no  preiioos 
writ  of  summons  is  necessary  to  the  issuing  a  os. 
sa.,  in  order  to  detain  an  insolvent  under  the  for- 
mer section.  Tumor  v.  Daniel,  7  Dowl.  (p.  c.) 
346 ;  and  5  Mees.  &,  W.  (ex.)  28. 

26.  The  1  &  2  Vict  c.  10,  s.  41,  only  operates 
to  prevent  a  supersedeas  at  common  law,  and 
does  not  interfere  with  the  48  (Jeo.  3,  c.  123,  en- 
titling a  prisoner  who  has  applied  to  the  Insolvent 
Court  to  his  discharge.  Chew  v.  Lys,  7  DowL 
(p.  c.)  465. 

27.  Plea  to  an  action  on  a  bill  that  the  defend- 
ant was  discharged  under  the  Insolvent  Act;  re- 
plication, Ihaf  plaintiff,  although  in  England,  had 
not  been  served  with  a  notice  of  the  petiUon ; 
held  bad,  the  s.  42  of  7  Geo.  4,  c.  57,  being  only 
directory,  and  not  a  condition  precedent  to  the 


[INSOLVENT— INSURANCE] 


28II 


validity  of  the  diwharge.    Reid  v.  Croft,  6  B'mg. 
N.  S.  (c.  p.)  69 ;  and  7  Dowl.  (p.  c)  122. 

And  see  Bankrupt;   Outlawry)   Praetiee^  (c. 
L.))  Prisoner;  Speeifie  Performance;  Trover. 


INSURANCE. 
.  Ships — firx — lifk. 

1.  Where  the  policy  was  effected  on  the  3d 
November,  on  the  ship  G.,  at  and  from  M.  to  L., 
warranted  to  sail  on  toe  10th  October  previoosly, 
and  the  insured  communicated  that  tne  ship  G. 
sailed  with  another,  the  F.,  on  the  10th  October, 
which  latter  had,  with  the  underwriter's  knowl- 
edge, arrived  some  days  before,  but  the  insured 
did  not  communicate  the  fact  that  the  G.  and  F. 
had  parted  company  in  a  g^e  on  the  21st  October, 
the  court  mnted  a  new  trial,  although  the  jury 
had  found  that  the  fact  was  not  a  material  one. 
Westbury  v.  Aberdein,  2  Mees.  &  W.  (ex.)  267. 

2.  It  is  for  the  court  to  put  a  construction  on 
what  are  "perils  of  the  seas,"  which  are  terms 
of  general  import.  Where  casks  of  oil,  which 
had  not  been  shifted  or  damaged,  had  leaked,  a 
witness  mieht  be  asked  to  what  he  attributed  it, 
but  not  whether,  in  such  ease,  it  is  in  practice 
considered  as  leakage,  or  loss  by  perils  of  the 
WB^»»  Qiusrs,  whetMr  counsel  can  refer  to  the 
authority  of  books  on  insurance,  written  by  liv- 
ing mercantile  men  ?  Crofls  v.  Marshall,  7  C.  & 
P.  (w.  p.)  507. 

3.  The  term  "  carffo"  bein^  of  mercantile  con- 
struction, Uiat  given  t>y  the  dictionary  held  of  no 
authority.  Houghton  v.  Gildart,  7  C.  dt  P.  (s.  p.) 
701. 

4.  In  assumpsit  for  money  paid  on  a  policy  ef- 
fected for  the  defendant,  plea — that  the  policy  in 
respect  of  which  the  alleged  pavments  were  made 
was  so  framed  as  to  be  utterW^  useless  to  him ; 
semb.  the  defence  might  well  form  the  subject  of 
a  special  plea,  and  demurrer  thereto,  as  amount- 
ing to  the  general  issue,  allowed  to  be  withdrawn, 
ana  reply  de  novo.  Cole  v.  Le  Soeuf,  3  Sc.  (c. 
p.)  188;  and  5  Dowl.  (p.  c)  41. 

5.  In  an  action  on  a  policy  for  time,  with  the 
usual  warranty  as  to  average,  the  ship  having 
been  injured  by  collision  wiu  another,  and  each 
being  damaged,  the  Question  was  referred  to  ar- 
bitration, under  which  it  was  awarded  that  each 
ship  should  bear  half  the  joint  expenses  of  the  two, 
and  in  the  result  the  ship  insured  had  to  pay  a 
balance ;  the  ship  was  also  detained  during  the 
repairs  of  damages  sustained  by  perils  of  the 
sea,  and  expended  additional  sums  for  wages  and 
maintenance  of  the  crew ;  held,  that  neither  of 
these  heads  of  damage  could  be  taken  into  ac- 
count by  the  jury,  as  losses  for  which  the  under- 
writers were  liable.  De  Vaux  v.  Salvador,  4  Ad. 
&  £11.  (K.  B.)  420 ;  and  6  Nev.  Si,  M.  713. 

6.  Where  sixty  actions  had  been  consolidated, 
and  a  rule  nisi  for  a  new  trial  been  obtained,  the 
court  refused  an  application  for  the  defendant  to 
pay  the  amount  recovered  into  coorty  to  invest 

Vol.  IV.  68 


the  same,  upon  the  ground  of  the  delay  and  loss 
which  might  arise  from  the  state  of  the  new  trial 

J>aper,  before  the  rule  could  be  disposed  of.    Ohr- 
y  V.  Dunbar,  1  Nev.  A  P.  (k.  b.)  244. 

7.  A  consolidation  of  causes  may  be  made  be- 
fore declaration.  HoUingworth  v.  Brodrick,  6 
Nev.  &  M.  (X.  B.)  240 ;  and  4  Ad.  dk  £1L  646. 

And  see  Practice^  (c.  l.) 

8.  Upon  a  suit  to  ascertain  whether  goods,  the 
subject  of  the  insurance,  had  in  fact  been  pur- 
chased, the  court  refused  to  allow  of  inquiries  as 
to  the  general  solvency  of  the  purchasers.  Jan- 
son  V.  Solarte,  2  Younge  (ex.  sq.)  132. 

9.  Where  the  policy  contained  a  warranty  that 
the  mills  insured  should  be  worked  by  day  only ; 
upon  a  plea  in  an  action,  that  the  mill  was  work- 
ed by  night,  and  not  by  day  only ;  held,  that  it 
was  to  be  confined  to  the  usual  manufacture  car- 
ried on  therein,  and  that  it  was  no  breach  of  the 
warranty  that  a  steam«ngine  in  the  mill  had  on 
one  occasion  been  used  at  night  to  turn  machine- 
rv  in  an  adjacent  building;  held,  also,  that  a  plea 
that  a  certain  steam-engine  and  shafls,  *«  these 
being  respectively  parts  of  the  said  milk,"  were 
worked  at  night,  was  bad.  Mayall  v.  Milford,  1 
Nev.  &  P.  (k.  b.)  732. 

10.  In  an  action^  upon  an  insurance  policy 
against  fire,  upon  a  dwelling-house  and  a  kiln 
attached  to  a  granarv  for  drying  com,  it  appeared 
that,  a  cargo  of  bark  having  been  sunk  near  the 
premises,  the  plaintiff  had  permitted  it  to  be  dried 
gratis  at  his  kiln,  in  the  course  of  which  the  fire 
occurred;  held,  that  such  single  act  did  not 
amount  to  an  alteration  in  the  business,  of  which, 
by  one  of  the  conditions,  notice  was  to  be  given, 
or  a  misdescription  in  the  policy  of  the  trade  car- 
ried on,  although  the  jury  found  that  corn-drying 
and  bark-drying  are  diflferent  trades,  and  that  the 
latter  was  more  dangerous  than  the  former }  that 
there  was  nothing  in  the  policy  amounting  to  an 
express  warranty  that  nothing  but  corn  should 
ever.be  dried  in  the  kiln;  and  lastly,  that,  in  the 
absence  of  all  fraud,  there  is  no  distinction  be- 
tween the  fire  having  been  occasioned  by  the 
negligence  of  servants  or  strangers,  or  of  the 
assured  himself  Shaw  v.  Robberds,  1  Nev.  &  P. 
(K.  b.)  279. 

And  see  Dobson  v.  Sotheby,  1  Moody  &  Malk. 
90. 

11.  On  a  warranty  that  the  assured  has  not 
been  subject,  amongst  other  things,  to  fits^  held 
to  mean  that  he  was  not  naturally  so  subject,  and 
that  having  had  fits  onoe  or  more  in  consequence 
of  an  accident  did  not  vacate  the  policy.  Cbat- 
tock  V.  Shaw,  1  M.  &  Rob.  (h.  p.)  496. 

12.  An  executor  held  not  bound  to  show  a 
special  ground  for  his  testator's  effecting  a  limited 
insurance  on  his  own  life  :  but  where  a  policy  is 
effected  on  the  life  of  another  by  a  party  having 
no  interest  in  it,  and  who  pays  the  premium,  and 
the  object  is  to  obtain  an  assignment^  of  the  poli- 
cy ;  held  void,  as  an  evasion  of  14  Geo.  3,  c.  48, 
s.  1,  2.  Wainwright  v.  Bland,  1  M.  &  Rob.  (n. 
p.)  481. 

13.  On  a  policy  fh>m  and  to  any  port  of  trading 


S812 


[INSURANCE— INTEREST] 


•n  the  eout  of  A.,  and  thenoe  baok  to  L.^  with 
liber^  to  call  at  any  ports  and  placet  backwards 
and  forwards  without  heins  deemed  a  deviation, 
and  also  to  tranship  on  board  any  ship  in  the  same 
employ,  and  that  the  ship  might  be  used  as  a  ten- 
der to  any  other  ship  in  the  same  employ ;  the 
ship  at  B.,  on  the  coast  of  Africa,  was  employed 
in  remoTing  the  cargo  from  another  ship,  which 
0ot  on  shore,  and  took  it,  not  to  the  nearest  place 
of  safety,  bnt  to  another  port,  and  on  a  different 
Yoyage ;  held,  that  such  assistance  was  not  in  the 
employment  as  a  tender,  and  was  a  clear  devia- 
tion,  and  having  been  lost  on  the  homeward  voy- 
age, the  plaintiSs  were  not  entitled  to  recover ; 
held,  also,  that  it  was  a  question  properly  left  to 
the  jury,  whether  the  stav  at  B.  was  for  an  un- 
reasonable time  or  not.  Hamilton  v.  Sheddon,  3 
Mees.  &  W.  (ex.)  49. 

14.  In  an  action  on  a  time  policy  for  a  year, 
and  loss  by  perils  of  the  seas,  upon  the  question 
whether  the  defendant  was  entitled  to  deduct  one- 
third  new  for  old,  upon  the  ground  of  the  ship  at 
the  time  being  on  her  first  yoyage ;  held,  that  the 
rule  had  grown  up  to  avoid  controversy,  but  that 
the  voyage  was  determinated  by  the  policy  ;  and 
9emk,f  It  would  be  better  to  have  a  time  specified 
in  the  policy,  depending  on  the  age  of  the  ship. 
Pirie  v.  Steele,  8  C  &  P.  (ic.  p.)  200. 

15.  It  appeared  that  the  ship,  newly  built,  was 
chartered  from  England  to  New  South  Wales. 
where  the  freight  was  payable,  and,  as  was  the 
oustom,  not  beine  able  to  get  a  homeward  cargo 
there,  she  proceeded  to  Madras,  and  was  lost  on 
the  homeward  voyage;  held, that  it  was  to  be 
deemed  a  new  ship  on  her  first  vojrafe,  and  that 
the  rule,  allowing  a  deduction  of  one- third,  as  new 
for  old,  did  not  apply.  S.  C.  S  M.  &  Rob.  (ir.  p.) 
49. 

16.  Where  actions  were  brought  by  the  plaintiff 
against  diflbrent  defendants,  the  court  refused  to 
make  the  consolidation  rule  upon  the  teruYs  of 
the  plaintiff  and  defendant  in  one  action  being 
bound  by  the  verdict  in  the  other,  without  the 
plaintiff'^s  consent.  M'Gregor  v.  Horsfall,  6 
Dowl.  (p.  c.)  338;  and  3  Mees.  A  W.  (ex.)  321. 

17.  Since  the  3  &  4  Will.  4,  c  42,  Reg.  Hil.  4 
Will.  4,  want  of  interest  must  be  specially  plead- 
ed. Mills  V.  Campbell,  2  Younge  &  C.  (ex.  xq.) 
397. 

18.  The  court  of  Equity  will  not  give  relief  by 
ordering  a  policy  to  be  delivered  up,  on  the 
ground  of  want  of  insurable  interest.  Oesbo- 
rough  V.  Curlewis,  3  Tounge  A  C.  (ex.  xq.)  175. 

And  see  Smith  o.  Lord  Howden,  3  Myl.  &  K. 
97. 

19.  Where  upon  a  settlement  of  a  wife's  prop- 
erty, to  the  intent  of  making  provision  for  the 
husband  if  be  survived  her,  it  was  provided  that 
the  trustees  should  pay  out  of  the  trust  fund  the 

f>remium8  of  a  policy  of  a  stated  amount  on  the 
ife  of  the  wife,  and  on  the  principal  becoming 
payable  invest  the  amount,  and  pay  the  interest 
to  the  husband  for  life,  and  afterwards  pay  the 
principal  as  the  wife  should  appoint,  or  in  default 
of  appointment,  to  the  persons  entitled  under  the 
Statute  of  Distributions )  the  wife  having  survi- 
ved, and  being  unwilling  to  oontinue  the  payment 


of  the  premium,  awigned  the  policy  to  a 
who  paid  the  premiums,  and  his  representative  aA 
terwards,  who  on  the  death  of  the  wife  received 
the  amount  of  the  policy ;  held,  that  auch  asaiga- 
ment  was  valid,  and  the  assignee  entitled  to  the 
benefit  tliereof.  Godsal  v.  Webb,  2  Keeae,  (ca.) 
99. 

20.  Where  in  an  action  on  a  policy  of  issa- 
rance,  effected  by  the  husband  on  the  life  of  Iw 
wife,  it  appeared  that  she  had  been  sent  to  the  of- 
fice to  be  examined,  and  had  given  general  an- 
swers to  the  printed  questions,  and  the  jury  found 
that  the  husband  had  no  personal  knowledge ; 
held,  that  the  allegations  in  the  plea,  as  to  the 
husband's  knowledge  of  certain  facts  material  ts 
be  disclosed,  could  not  be  considered  aa  aUegi- 
tions  that  he  had  knowledge  through  the  wile  as 
bis  agent ;  but  it  appearing  that  before  her  mar- 
riage she  had  been  long  attended  by  a  naedical 
person,  who  ceased  to  w  so  upon  her  marriage, 
and  subsequently  the  husband  s  usual  family  at- 
tendant had  prescribed  for  her,  once  or  twice,  on 
slight  indispositions,  and  she,  to  the  inquiry,  who 
was  her  uiual  medical  attendant,  had  giTen  tl» 
name  of  the  latter ;  held,  that  it  on^ht  to  hate 
been  left  to  the  jury  to  say  if  he  oould  be  rowid 
ered  her  medical  attendant  at  all ;  and  that,  if  ia 
answering  the  question,  she  was  aware  that  he 
could  not  be  the  proper  person  to  give  the 
the  office  were  desirous  of  obtaining,  the 
must  have  been  intended  to  deceiye ;  and  a 
trial  granted.  Huckman  v.  Fenue,3  Meea.  A 
W.  (kx.)  517. 

21.  Where  a  policy  was  effected  on  freight  iitna 
C.  coast  to  B.,  and  the  ship  put  in  for  repair  at  a 
port  on  the  C.  coast,  at  7  miles  from  which  the 
plaintiff  procured  a  cargo  ready  to  be  loaded,  bat 
the  ship  was  lost  by  accident  in  going  out  of  dock  ; 
held,  that  the  risk  attached,  and  that  the  plaintilTi 
interest  was  properly  described  as  freight ;  and 
that  the  policy  covering  perils  of  the  seaa  and  all 
other  perils,  losses  and  misfortunes,  the  loea  was 
within  the  terms  of  the  policy.  Devauz  v.  Jan- 
son,  5  Ring.  N.  S.  (c.  p.)  519. 

23.  In  an  action  on  a  policy  for  a  voyage  dar- 
ing 12  months,  and  loss  alleged  by  perils  of  the 
sea ;  plea,  that  afler  the  making  of  the  policy,  and 
during  the  time  of  her  being  so  insured,  the  ship 
was  greatlv  damaged,  &.c.,  and  unseaworthy,  and 
that  the  plaintiff  might  and  could  and  ought  to 
have  repaired  and  rendered  her  seaworthy,  but 
that  the  plaintiff,  well  knowing  the  premiaea, 
neglected,  &c.,  and  that  the  ship  continued  in 
such  an  unseaworthy  state  until  the  -loas ;  held 
bad  on  demurrer,  as  not  expressly  showing  that 
the  plaintiff  was  aware  of  the  nnseaworthineaa,  and 
that  there  was  time  for  repairing  before  the  loas 
happened,  or  that  it  did  so,  from  such  neglect ; 
and,  aembU,  no  warranty  of  seawortbinesa  is  In 
be  implied,  except  at  the  commencement  of  the 
voyage.  Holling worth  v.  Brodrick,  7  AcL  4b 
£11.  in.  a.)  40 ;  and  2  Ney.  db  P.  606. 

And  see  Agent;  Attorney;  Pleadings  (^^O 


INTEREST. 
1.  Where  a  testator  directed  all 


midiie  Ib 


[INTEREST— INTERPLEA  DER] 


8818 


be  coaTerted  and  vetted  in  itock,  and  to  pay  the' 
mtereat  and  dividends  to  M.  S.  for  life,  and  after 
her  death  over;  held,  that  M.  S.  was  entitled  to 
the  interest  of  such  residae,  as  it  was  making  at 
the  testator's  death,  from  that  time  up  to  the  time 
of  the  conversion  under  the  direction  of  the  will. 
l>ougla8  V.  Congreve,  1  K.  (ch.)  410. 

2.  Where  in  a  suit  for  setting  aside  a  contract, 
a  decree  in  the  court  below,  declaring  it  fraudu- 
lent and  void,  was  made  in  1831,  and  the  defen- 
dant compelled  to  pay  costs;  in  1838 the  decree 
was  reversed  bv  the  House  of  Lords,  and  the 
cause  remitted  for  the  court  below  to  do  as  should 
be  just ;  held,  first,  that  the  defendant  was  not 
entiUed  to  interest  on  the  sum  paid  below  for  costs ; 
secondly,  the  purchasers,  being  bound  by  the 
contract  to  pay  the  residue  of  the  purchase-money 
by  instalments,  with  interest  upon  the  remaining 
aam  due,  by  half-yearly  payments,  and  after  the 
rait  commenced  the  vendor  was  restrained  by  in- 
junction from  suin^  for  the  instalments  or  inter- 
est, which  were  paid  into  Court ;  held,  that  as  to 
the  instalments  of  interest  which  became  due  on 
the  unpaid  purchase-money,  subsequent  to  the 
decree  below,  the  court  would  not  give  any  re- 
lief, but  that  the  defendant  must  resort  to  his  rem- 
edy at  law ;  thirdly,  that  he  was  entitled  to  be  re- 
paid the  instalments  of  interest  which  became 
due  between  the  suspension  and  decree  below, 
but  not  interest  thereon ;  fourthly,  that  he  was 
only  entitled  to  the  value  of  the  accumulations  of 
the  stock  in  which  the  payments  had  been  inves- 
ted, as  sold  out  at  the  hearing ;  fifthly,  that  if  the 
plaintiflb  had  not  sold  out  the  stock,  but  it  had 
been  merely  transferred  to  them,  they  would  have 
been  liable  to  the  defendant  for  the  dividends  re- 
i^eived  upon  it.  Small  v.  Atwood,  3  Tounge  & 
C.  (ex.  Kd.)  105. 

3.  Where  money  is  paid  over  by  the  erroneous 
act  of  the  court,  and  afterwards  the  party  is  or- 
dered to  refund  it,  he  is  not  liable  for  interest   lb. 

4.  Where  goods  were  sold,  to  be  paid  by  bill 
at  two  months,  which  was  never  given,  held, 
that  the  interest  from  the  time  when  the  bill 
would  have  been  payable  might  be  recovered  as 
part  of  the  estimated  value  upon  the  common 
coont  for  goods  sold  and  delivered.  Farr  v. 
Ward,  6  Oowl.  (p.  c.)  163 ;  and  3  Mees.  &  W. 
(sx.)  35. 

5.  Where  a  party  assigned  a  trust  fund  for  the 
benefit  of  certain  creditors  specified  in  the  deed, 
some  specified  as  bearing  interest,  others  not; 
held,  that  the  forttier  were  entitled  to  interest  on 
their  debts  before  any  payment  should  be  made 
to  the  subsequent  incumbrancers.  Jenkins  t?.  Per- 
ry, 3  Tounge  dt  C.  (ex.  z%.)  178. 

6.  In  the  case  of  a  mortgagee  asking  for  pay- 
ment not  in  a  suit  for  foreclosure,  but  in  an  ad- 
ministration suit,  in  which  the  mortgaged  estate 
had  been  sold ;  held,  that  the  direction  to  com- 
pute interest  subsequent  to  the  Master's  report  of 
what  was  due  on  the  principal  only,  was  right. 
Brewin  v.  Austin,  2  Keene,  (ch.)  211. 

7.  Where  an  annuity  for  the  grantor's  life  was 
secured  by  bond  ana  warrant  of  attorney,  on 
which  judgment  had  been  entered  up,  and  at  the 
death  of  tSe  grantor,  who  died  intestate,  the  an- 


nuity was  greatly  in  arrear,  and  his  estate  con- 
sisted only  of  a  uind  in  court  which  had  been  ac- 
cumulating ever  since  his  death ;  held,  that  the 
court  would  adopt  the  provisions  of  3  &4  Will.  4, 
c.  42,  although  only  applicable  to  proceedings  at 
law,  and  the  grantee  therefore  decreed  to  be  en- 
titled to  the  arrears  of  the  annuity,  with  interest 
at  five  per  cent.,  from  the  death  of  the  grantor. 
Hyde  «.  Price,  8  Sim.  (ch.)  578. 

8.  Where  in  a  suit  by  annuity  creditors  against 
the  Crown,  as  the  personal  representative,  and  no 
contest  between  them  and  any  other  creditor,  and 
since  the  debt  ascertained  by  a  former  decfee, 
payment  could  not  have  been  enforced  by  any 
proceeding ;  held  that  interest  was  allowable,  and 
at  five  per  cent.,  as  on  a  legal  debt,  out  of  the 
fund  in  court,  and  beyond  the  penalty.  Hyde  v. 
Price,  I  Coop.  (ch.  c.)  193,  and  cases  collected 
there  and  reviewed. 

9.  A  party  is  entitled  to  interest  upon  a  judg- 
ment from  the  time  that  execution  is  delayed  by 
a  writ  of  error,  and  allowed  at  the  rate  of  four  per 
cent.  Langridge  p.  Levi,  7  Dowl.  (p.  c.)  27;  and 
4  Mees.  &  W.  (ex.)  337. 

10.  The  case  of  Booth  v.  Levcester.  1  Keene, 
247. 579,  affirmed  by  the  Lord  Chancellor,  3  M^l. 
&,  Cr.  (ch.)  459. 

And  see  Bankrupt ;  BUI ;  Cr^dUor  ;  Legmey  ; 
Mortgage;  Partner;  Surety;  Will. 


INTERPLEADER. 

1.  Where  the  depositary  claimed  a  personal 
interest  in  part  of  tne  fund  claimed  by  one  of 
the  claimants ;  held,  that  it  was  not  a  subject  of 
an  interpleading  suit  Moore  v.  Usher,  7  Sim. 
(ch.)  384. 

2.  So,  where  he  had  by  admissions  given  to 
one  of  the  claimants  a  right  of  action  against 
him  in  respect  of  the  subject  of  claim.  Craw- 
shay  V.  Thornton,  7  Sim.  (ch.)  391.  Confirmed 
on  appeal,  2  Myl.  &  Cr.  1. 

And  see  Pearson  e.  Cardon,  4  Sim.  218 ;  and 
affirmed  on  appeal,  2  Ruas.  dk  M.  (on.)  606. 

3.  Where  a  party  to  an  interpleading  rule  re- 
fused to  proceed,  the  court  refused  to  substitftte 
another  claimant  unless  the  former  were  p^rty  to 
the  rule  for  substituting  the  other.  Lydal  v.  Bid- 
die,  5  Dowl.  (p.  c.)  244. 

4.  Where  the  plaintiff  in  an  interpleading  suit, 
having  obtained  the  common  injunction,  moved 
to  extend  it  to  stay  trial,  refused ;  the  injunction 
in  such  a  suit  staving  proceedings  at  law  until 
further  orders.  Moore  v.  Usher,  7  Sim.  (ch.) 
383. 

5.  Where,  on  an  application  under  s.  1  of  1  & 
2  Will.  4,  c.  58,  the  claimant  did  not  appear,  the 
court  refused  to  allow  tlie  costs  of  the  applicant 
out  of  the  fund  in  dispute.  Lambert  v.  Cooper, 
5  Dowl.  (p.  c.)  547. 

6.  Where  the  defendant  had  purchased  cattle 
of  the  plaintiff,  and  sent  a  biU,  accepted  in  blaok 


2814 


[INTERPLEADER— JAMAICA] 


for  the  drawer*fl  name  for  the  payment,  which 
came  into  the  hands  of  third  imrties  for  valuable 
constdenition,  the  plaintiff  denied  that  it  had  ever 
been  received  or  indorsed  by  him,  and  he  had 
commenced  an  action  for  the  price  of  the  cattle ; 
the  holder  of  the  bill  also  threatening  proceedings 
on  it  against  the  defendant ;  held,  uiat  it  not  be- 
ing shown  that  the  cross  claims  were  on  the  same 
subject  matter,  and  the  defendant  might  be  liable 
to  one  or  other  of  the  parties,  it  was  not  a  case 
within  the  Act.  Farr  v.  Ward,  2  Mees.  &,  W. 
(BX.)  844. 

7.  Where  in  an  interpleading  suit,  the  common 
order  for  an  injunction  only  was  applied  for,  and 
intended  to  be  made,  and  from  necessity,  it  was 
drawn  up  without  making  the  payment  mto  court 
a  condition  precedent  to  die  issuing  of  the  injunc- 
tion ;  held  irregular,  and  the  or£r  discharged. 
Sieveking  v.  Behrens,  2  Myl.  &  Cr.  (cb.)  581. 

8.  Where  proceedings  against  an  agent  of  a 
foreign  house  had  been  taken  in  the  Mayor's 
Court  by  two  attaching  creditors,  and  by  the  cu- 
rators of  the  foreign  creditors  become  bankrupt, 
and  one  of  the  former  had  obtained  a  judgment 
in  his  favor,  but  the  other  had  failed,  although 
the  judgment  might  not  be  conclusive ;  held  a 
proper  case  for  interpleader,  and  that  the  having 
abstained  until  the  last  moment  from  seeking  the 
protection  of  the  court,  entitled  the  party  to  the 
favor  of  the  court;  but  it  appearing  that  the 
continuance  of  the  injunction  might  be  the  means 
of  letting  in  third  parties  to  intervene,  and  obtain 
a  title  against  both  claimants,  the  injunction  was 
limited  to  execution  upon  any  proceedings.    lb. 

9.  Where  an  auctioneer  was  sued  for  the  de- 
posit, and  paid  the  amount  into  court,  upon  a  rule 
of  interpleader  between  the  vendor  and  purchaser, 
held  entitled  to  his  costs  out  of  the  fund,  the  vend- 
or not  having  appeared.  Pitchers  v,  Edney,  4 
Bing.  N    S.  (c.  p.)  721 ;  and  6  Sc.  582. 

10.  Where  an  issue  was  directed  upon  a  rule  of 
interpleader,  under  1  d^  2  Will.  4,  e.  58,  to  try 
the  right ;  the  party  succeeding,  held  entitled,  as 
against  the  unsuccessful  party,  to  the  costs  of  the 
application  for  an  order  to  the  stakeholder,  who 
had  been  ordered  to  detain  the  property  until  the 
issue  decided,  and  who  after  that  and  demand, 
had  declined,  until  application  had  been  made  to 
the  court.  Barnes  v.  Bank  of  England,  7  Dowl. 
(P.  c.)  310. 

11.  Where  the  defendant  advertised  a  reward 
for  information  leading  to  the  discovery  of  a  fel- 
ony, and  several  parties  having  given  informa- 
tion more  or  less  material,  claimed  the  reward, 
held  not  a  case  within  I  &  2  Will.  4,  c.  58.  Gay 
V.  Pitman,  4  Sc.  (c.  p.)  795. 

12.  In  an  interpleading  suit,  the  common  or- 
der for  an  injunction  can  only  be  dependant  on 
the  payment  of  the  money  into  Ck>urt  Pauli  v. 
Von  Melle,  8  Sim.  (ch.)  327. 

13.  Semb.f  a  notice  of  a  docket  and  Jiat  issued 
against  the  party  whose  goods  have  been  seized 
by  the  sheriff  is  not  a  sufficient  claim  to  found 
the  rule.  Tarleton  v.  Dnmelow,  5  Bing.  N.  S. 
<c.  p.)  110;  and  6Sc.  6^7,  843. 


14.  Where  the  declaration  on  an  israe,  averred 
that  the  goods  were  not  the  property  of  the  plain- 
tifis,  or  either  them,  plea,  that  the  goods  were  the 
property  of  the  plaintifis*  or  one  of  tbem  ;  held, 
that  the  defendant  had  the  right  to  begin,  the 
affirmative  lying  on  him.  Hudson  v.  Ciown,  8 
C.  &.P.  (H.  p.)774. 

15.  Where  an  action  on  an  attorney's  bill  was 
referred  for  taxation,  but  the  amount  of  the  ver- 
dict taken  brought  into  court  by  the  sheriff^  upon 
a  rule  of  interpleader ;  held,  that  it  could  not  be 
considered  as  money  paid  in  for  the  purpose  of 
the  taxation,  so  as  to  give  the  Court  jurisdiction 
over  it  under  2  Geo.  S,  o.  23.  Rogers  v,  Peter- 
son, 7  Dowl.  (p.  c.)  187 ;  and  4  Mees.  dk  W.  (kx.) 
588. 

16.  The  1  &  2  Will.  4,  c.  58,  s.  1,  does  not  ap- 
ply to  claims  for  unliquidated  damages.  Walter 
e.  Nicholson,  6  Dowl.  (p.  c.)  517. 

And  see  Bankrupt ;  Composition;  Skenjjf;  Skip. 


INTRUSION,  WRIT  OF. 

1.  The  remainder-man,  after  the  determination 
of  the  estate  pur  autre  vie,  held  to  be  entitled  to 
maintain  the  writ  of  intrusion,  although  the  title 
of  the  tenant  for  life  was  only  equitable,  and 
created  by  devise  to  trustees,  who  were  to  receive 
the  rents,  and  pay  them  over  to  the  cestui  que 
vie ;  held  also,  tnat  such  writ  falls  within  the  32 
Hen.  8,  c.  2,  and  not  within  the  21  Jac.  1,  c.  16, 
and  might  have  been  maintained  when  brought 
on  a  seisin  within  50  years.  Piercy  dem.,  Gard- 
ner ten.,  3  Bing.  N.  S.  (c  p.)  748. 

2.  On  an  information  of  intrusion  on  crown 
lands,  it  is  not  necessary  that  the  title  of  the 
crown  should  be  first  found  by  inquest  of  office, 
the  only  effect  of  21  Jac.  1,  c.  14,  beine,  where 
the  crown  has  been  out  of  possession  for%  years, 
to  throw  the  onus  of  proving  title  on  the  crown 
in  the  first  instance  ;  held  also,  that  the  crown 
may  of  right  lay  the  venue  in  the  county,  or  have 
the  inquisition  taken  in  a  different  county  than 
that  where  the  venue  is  laid.  Attorney-General 
V.  Parsons,  2  Mees.  &,  W.  (xx^  23;  1  Tyr.  dk 
6r.  980;  and  5  Dowl.  (p.  c.)  165. 


JAMAICA. 

The  House  of  Assembly  in  Jamaica  have  pow- 
er to  punish  contempts  for  libellous  paragr^hs 
(found  and  resolved  breaches  of  privilege  of  the 
House)  by  commitment  to  the  gaol  in  the  Co.  of 
M.  there,  during  thd  pleasure  of  the  House ;  held 
also  to  be  unnecessary  to  set  out  in  the  warrant 
what  the  libel  was,  but  qwere^  whether  a  mere 
warrant  to  the  serjeant-at-arms  to  take  into  cnsto* 
dy,  would  justify  the  carrying  the  party  to  such 
gaol.    Beaumont  e.  Barrett,  1  Moore,  (p.  c.)  59. 

And  see  West  India  Estates, 


[JOINT  STOCK  COMPANY— JUDICIAL  COMMITTEE]         3815 


JOINT  STOCK  COMPANY. 

1.  AetioDs  and  saits  by  compaDies  against  in- 
diTidoals,  bein^  co-partners,  and  rUe  veraA^  legn- 
lated  farther  by  l' 4k  2  Viot.  c.  96. 

22.  A  joint  stock  company,  the  shares  of  which 
might  be  increased  to  an  unlimited  extent,  and 
be  assigned  or  disposed  of  by  deed  or  will  to  any 
persons  at  the  discretion  of  the  holders,  held  fraud- 
ulent and  illegal.  Blundell  v.  Windsor,  8  Sim. 
(CH.)  601. 

3.  There  is  no  distinction  between  trading  and 
mining  companies:  and  where  a  party  takes 
shares  in  concern,  on  a  prospectus  holding  out 
that  a  certain  capital  is  to  be  raised  for  carrying 
it  on,  he  will  not  be  liable  as  a  partner  unless  the 
terms  of  the  prospectus  be  fulfilled,  or  it  be  shown 
that  he  knows  and  acquiesces  in  the  directors  oar- 
lyinff  it  with  a  less  capital ;  where  the  jury  nega- 
tived such  knowledge  or  acquiescence,  and  found 
the  defendant  not  liable,  the  Court  held  the  find- 
ing right.  Pitchford  v.  Davis,  5  Mees.  &  W. 
(ex.)  £ 

4.  Where  in  consequence  of  the  embarrassment 
of  the  afiiiirs  of  a  joint  stock  company,  by  deed 
the  shareholders  empowered  a  committee  to  cer- 
tify what  sum  should  be  necessary  to  satisfy  the 
claims  on  the  company,  and  the  proportion  each 
shareholder  should  pay,  and  which  the  defendant 
amongst  others  covenanted  to  pay ;  in  an  action 
thereon,  alleging  that  — I.  had  been  so  certified, 
and  that — /.  was  the  proportion  of  tlie  defendant, 
and  a  demand  and  refusal  by  him ;  pleas,  amongst 
others,  one  traversing  that  the  committee  had 
certified,  as  the  fact  was ;  and  another,  that  such 
sum  was  not  necessary  to  satisfy  the  fclaim,  &c.. 
and  that  the  committee  had  fraudulently  signed 
such  certificate ;  and  it  appeared  that,  on  a  similar 
certificate,  the  defendant  had  paid  a  portion  of  the 
sum  awarded  against  him,  and  that  the  subse- 
quent certificate  had  been  made  for  the  same 
amount  to  avoid  confusion  amongst  the  other  con- 
tributors, and  that  the  defendant  had  notice  tliat 
he  would  be  allowed  to  deduct  his  former  payment 
out  of  the  subsequent  claim  :  held,  1st,  that  the 
defendant  was  not  estopped  from  showing  that  by 
reason  of  the  previous  payment,  the  certincate  was 
erroneous  in  stating  the  amount  necessary ;  but, 
2dly,  that  the  second  certificate  beifig  erroneous 
in  fact,  did  not  under  the  circumstances  neces- 
sarily amount  to  fraud  in  law.  Wilson  v,  Butler, 
4  Bing.  N.  S.  (c.  p.)  748;  and  6  Sc.  541. 

And  Bee  Action;  Bankrupt;  Injunction;  Mar- 
ruge  SottUment ;  EaU  Road. 


JOINT  TENANTS. 

In  debt  for  rent  by  survivor,  upon  a  joint  de- 
mise by  joint  tenants ;  plea,  that  the  parties  were 
tenants  in  common,  held  a  good  bar  on  demurrer. 
Burne  v.  Cambridge,  M .  dt  Rob.  (ir.  p.)  539. 

And  see  Doe  v.  Errington^  1  Ad.  ft  £11.  750 ; 
and  3  Nev.  A  M.  641. 


JUDGMENT. 

1.  In  an  action  against  a  tenant,  assigning  sev 
eral  breaches,  and  general  damages ;  one  of  the 
breaches  assigned  being  bad,  the  court  refused  to 
arrest  the  juogment,  but  awarded  a  venire  de  novo. 
Leach  v.  Thomas,  2  Mees.  &  W.  (ex.)  427,  and 

5  Dowl  (p.  c.)  6J2;  overruling  Holt  v,  Schofield^ 

6  T.  R.  691. 

2.  Where  a  verdict  was  taken,  and  the  amount 
referred  to  be  certified,  and  the  arbitrator  assessed 
the  damages  on  each  count  separately  ;  held  that 
the  court  would  not  arrest  the  judgment  on  the 

round  of  one  count  being  bad.    Hay  ter  v.  Moat, 
Mees.  &,  W.  (ix.)  56  j  and  5  Dowl.  (p.  c.)2tl8. 

3.  In  order  to  enter  up  satisfaction  ofajudg^ 
ment  on  the  rule,  the  warrant  of  attorney  from 
the  plaintifiTis  requisite.  Wood  v  Hurd,  3  Bing. 
N.  S.  (c.  p.)  45  J  5  Dowl.  (p.  c.)  188:  and  3  Sc. 
368. 

4.  The  90urt  refused  to  allow  satisfaction  to  be 
entered  on  a  judgment  on  an  action  by  five  plain-, 
tifis,  upon  a  warrant  signed  by  four  only,  al- 
though the  other  was  sworn  to  have  lefl  the  coun- 
try.   Davis  o.  Jones,  4  Sc.  (c.  p.)  202. 

5.  The  court  refused  to  allow  the  plaintiff'  to 
enter  judgment  nunc  pro  tunc,  where  the  delay 
arose  from  the  laches  of  the  plaintiff,  and  in  the 
interval  the  defendant  had  died.  Vaughan  v. 
Wilson,  4  Bing.  N.  S.  (c.  p.)  116;  6  Dowl.  (p.  c.) 
210;  and  3  Sc.  404.  ^       ' 

6.  Upon  a  bill  by  a  judgment  creditor,  to  estab- 
lish a  lien  on  the  equitable  estate  of  the  debtor ; 
held,  that  it  is  necessary  to  allege  on  the  face  of 
the  bill  that  the  creditor  has  sued  out  an  elegit  ; 
and  demurrer  allowed,  supporting  the  judgment  of 
the  Vice  Chancellor.  Neate  v.  Duke  of  Marlbor- 
ough, 3  Myl.  Hl  Cr.  (ch.)  407. 

7.  Where  purchase-money  had  been  deposited 
in  the  hands  of  a  third  party,  for  the  use  of  the 
defendant ;  held,  not  liable  to  be  attached  under 
I  ds  2  Vict,  c.  110,  s.  14.  Robinson  v.  Peace,  7 
Dowl.  (p.  c.)  93. 

And  see  Pleading  (c.  l.)  ;  Replmn ;  Requesta  ; 
Surety. 


JUDICIAL  COMMITTEE. 

1.  The  court  possesses  the  same  power  of  rec- 
tifyinff  mistakes  in  embodying  its  judgments  as 
all  other  courts  of  record :  upon  a  simple  order 
of  dismissal  of  an  appeal  and  affirmance  of  the 
judgment  below,  purporting  to  be  upon  hearing 
of  Sie  cause  ;  held  that  the  court  might  treat  it 
as  a  simple  dismissal,  and  rescind  the  order,  it  ap- 
pearing that  the  appellants  were  infants  under  the 
protection  of  the  Court  of  Wards  in  India,  and 
that  the  guardian  ad  litem  had  absconded ;  but 
terms  imposed.  Rae  v.  Govind  Bing,  1  Moors^ 
(p.  c.)  117. 

And  see  Dumaresq  v.  Le  Hardy,  lb.  notis,  127. 

8.  The  rule  requiring  the  proeecntion  of  an  ap- 


I 


2B16 


[JUDICaAL  COMMITTEE— KIN,  NEXT  OP] 


peal  within  a  year  and  day  is  not  imperative,  and 
an  application  tb  diamiaa  refuaed,  where  the  re- 
spondenU  had  forborne  to  apply  for  eight  months. 
St.  Lfouia  V.  St.  Louis,  1  Moore  (p.  c.)  143. 

And  see  Wilson  v.  Arnold,  lb.  lurfis,  147. 

3.  Under  the  5  Geo.  4,  c.  113,  s.  29,  the  jadi- 
eial  committee  have  no  power  to  extend  the  time 
of  appeal  against  any  decree  or  sentence  of  any 
Court  of  Admiralty.  Muter  v.  Chipchase,  1 
Moore  (f-c.)  1. 

4.  Ailer  a  delay  of  six  years,  leave  to  prosecute 
an  appeal  refused.  Lindo  v.  Rex,  I  Moore  (p. 
c.)3. 


JURY. 

1.  A  jury  are  not  bound  to  find  any  other  than 
a  general  verdict,  although  the  Judge  directs 
them  to  find  specially  as  to  a  particular  fact,  on 
which  a  legal  question  may  be  raised  ;  and  where 
they  refused,  the  court  would  not  disturb  the  ver- 
dict. Devises,  Mayor,  &c.  o.  Clark,  3  Ad.  &. 
£11.  (K.  B.)  506. 

2.  Where  the  defendant  was  aware  of  the  mode 
in  which  the  bill  had  been  found  by  the  grand 
jury,  pleaded  to  it,  and  was  found  guilty,  the 
court  aAerwards  refused  to  quash  the  mdictment 
on  the  ground  that 25  grand  jurymen  were  sworn, 
and  that  13  were  against  the  finding,  as  he  migUt 
bring  error  either  in  law  or  in  fact ;  but  the  court 
will  not  receive  affidavits  of  the  jury  of  what 
passes  at  the  time  of  the  finding  of  the  bill ;  held 
also,  that  the  correct  number  to  be  sworn  is  23 
only.    R.  V,  Marah,  1  Nev.  &  P.  (k.  b.)  1&7. 

3.  Juries  to  be  summoned  to  attend  at  any  ad- 
journed sessions  in  like  manner  as  for  any  general 
quarter  sessions.    1  &  2  Vict,  c  4. 

4.  The  Court  will  not  listen  to  any  affidavit 
containing  statements  made  by  the  jury  as  to  their 
mode  of  finding  their  verdict,  with  a  view  of  im- 
pugning it  Straker  v.  Graham,  4  Mees.  &  W. 
(«.)  721 ;  and  7  Dowl.  (p.  c.)  223. 


JUSTICES. 

1.  Justices  have  no  jurisdiction  under  6  Geo. 
3,  c.  25,  to  determine  disputes  between  masters 
and  houiehold  servants.  Kitchen  v.  Shaw,  1 
Wev.  &  P.  (K.  B.)  791. 

S.  The  jurisdiction  of  the  Justices  of  Middlesex 
b  not  directly  taken  away  by  the  4  Greo.  4,  c.  64, 
B.  13,  (Gaol  Act)  so  as  to  empower  the  Court  of 
Mayor  and  Aldermen  of  Lonaon  to  prevent  them 
from  committing  to  Newgate,  as  the  county  gaol 
of  Middlesex.  R.  v.  Cope,  1  Nev.  St  P.  (k.  b.) 
515. 

3.  Where  the  defendant,  a  magistrate,  seixed 
the  plaintiff's  goods,  alleging,  at  the  time,  they 
were  stolen ;  held  that,  having  acted  Inma  fide^ 
and  intending  and  believing  that  he  was  acting 


in  the  execution  of  his  duly,  be  was  entitled  ts 
notice  of  action,  although  the  jury  found  that  he 
had  no  reasonable  ground  to  suppose  the  propettj 
to  have  been  stolen.  Wedge  v.  JBerkeley,  I  Nev. 
Sl  p.  (k.  b.)  665. 

4.  A  justice  may  be  entitled  to  notice,  althoogk 
he  may  have  no  defiance  to  the  action,     lb. 

5.  Where  the  defendant,  a  magistrate,  meeting 
the  constables  having  in  custody  the  plaintiff  oa 
a  charge  of  drunkenness,  ordered  him  to  be  takes 
back  to  the  iock-up  house,  and  he  would  see  bim 
the  next  day,  and  the  plaintiff  was  kept  confined 
until  then,  when  he  was  ordered  by  the  defendant 
to  be  fined  ;  held,  that  it  was  his  duty  either  ts 
have  gone  into  the  case,  or,  if  he  could  not  do  so, 
not  to  nave  interfered,  but  have  let  the  officer  take 
him  before  another  magistrate,  and  that  the  ac- 
tion of  trespass  was  maintainable  ;  be  has  no 
right  to  imprison  for  breach  of  the  neace  withoat 
hearing  the  charge.  Edwards  v.  f  erris,  7  C.  & 
P.  (If.  p.)  542. 

6.  The  notice  of  action  being,  of  impnaonmeiit 
in  the  lock-up  house,  evidence  of  what  passed 
before  the  magistrate  held  admissible,  as  part  of 
the  alleged  illesal  transaction  ;  but  what  was  said 
by  the  constables  before  any  joint  act  proved, 
held  not  receivable,     lb. 

7.  An  order  of  justices  for  payment  of  a  weekly 
sum  for  the  maintenance  of  a  father  by  the  son, 
describing  the  application  to  have  been  made  to 
the  justices  of  K.  by  the  overseers  of  the  parish 
of  M.  in  the  county  of  K.,  to  have  an  order  made 
on  T.  G.cfthe  parish  of  M.  in  the  same  county, 
&c.  and  proceeding  to  order  the  said  T.  O.  to 
pay,  &e- ;  held  sufficiently  to  show  that  T.  G. 
was  dwelling  within  the  jurisdiction  of  the  jus- 
tices, and  that,  by  making  their  order  on  the  said 
T.  G  ,  the  justices  had  adopted  those  words  and 
adjudicated  that  he  dwelt  there.  R.  r.  Toke,  3 
Nev.  &  P.  (q.  B.)  323. 

8.  The  obtaining  the  certificate  of  the  Judge 
who  tries  the  cause  is  a  condition  precedent  to  toe 
right  of  a  magistrate  who  obtains  a  verdict  in  aa 
action  brought  by  him  for  an  act  done  in  his  ju- 
dicial capacity,  ror  double  costs,  under  7  Jac  1, 
c.  5.  Penny  v.  Slade,  5  Ring.  N.  S.  (c.  r.)  469; 
and  7  Dowl.  (p.  c.)  440. 

9.  Justices'  powers  of  acting  in  detached  parts 
of  counties  regulated  by  2  dt  3  VicL,  c.  88. 

And  see  Apprentice;  BasUard;  Corperatiom; 
Distress;  Friendly  Society;  Mandanuts;  TVwpass. 


KING'S  B£NCH  MARSHAL. 
See  Prisoner^  8. 

KIN,  NEXT  OF. 
See  JSdmimstratUm  ;  Botch  and  Feme, 


[LANDLORD  AND  TENANT] 


2817 


LANDLORD  AND  TENANT. 

1.  Where  the  original  affreement  in  writing 
was  for  a  yearly  tenancy,  held  not  altered  by  tlie 
tenant  agreeing  to  pay  quarterly,  and  doing  so ; 
and  that  a  distress  for  a  quarter's  rent  was  illegal. 
Turner  v.  AUday,  1  Tyr.  &  Gr.  (bx.)  81U. 

2.  Where  in  assumpsit,  the  declaration  alleged 
that  the  defendant  held  lands  on  lease,  of  which 
the  plaintiff  becoming  entitled  to  the  reversion, 
the  defendant,  in  consideration  of  a  reduction  of 
the  rent,  promised  to  hold  of  the  plaintiff  on  the 
same  terms  in  all  other  respects,  and  then  alleged 
breaches ;  held,  that  the  plaintiff,  not  being  able 
to  produce  the  agreement,  could  not  rely  upon 
implied  terms  of  holding  under  the  original  lease 
without  putting  it  in  evidence,  as  it  could  not  be 
considered  as  mere  inducement  Wallis  o.  Broad- 
bent,  4  Ad.  &,  £11.  (R.  B.)  877. 

3.  A  memorandnm,  in  the  terms,  *^1,  D.  B., 
hereby  certify  th«t  1  remain  in  the  house,  at  &c., 
upon  sufferance  only,  and  agree  to  give  imme- 
diate possession  to  him  at  any  time  lie  may  re- 
quire i"  held,  not  to  amount  to  an  agreement  for 
a  tenancy,  or  to  require  a  stamp.  Bury  v.  Good- 
man, 2  Mees.  6l  W.  (ex.)  768. 

4.  Upon  the  expiration  of  the  tenancy,  the  ten- 
B.nt  is  bound  to  give  up  the  entire  possession,  un- 
less by  the  custom  he  is  entitled  to  hold  over  any 
part,  which  custom  it  lies  on  him  to  prove. 
Where  the  custom  was  to  have  one- third  on  til- 
lage, which  he  was  entitled  to  hold  until  the  har- 
Test,  and  also,  if  there  was  an  excess,  when  it  was 
divided ;  and  it  was  not  clear  whether  a  whole 
field  was  an  excess  or  not,  and  the  tenant  might 
have  a  lien  for  the  expenses  of  sowing ;  held,  that 
the  oat-going  tenant  was  entitled  to  maintain 
trespass  for  cutting  and  taking  away  the  corn. 
Caldecott  v.  Smytnies,  7  C.  &F.  (m.  r.)  808. 

5.  And  a  verbal  permission  by  the  landlord  to 
sow  bevond  the  one-third,  would  be  good  as 
against  oim,  and  his  in-coming  tenant.  Griffith 
V.  Tombs,  7  C.  &  P.  («.  p.)  810. 

6.  On  a  covenant  to  repair,  the  lessee  is  not  lia- 
ble for  the  expense  of  renewing  works  in  an 
unproved  and  more  dnrable  manner.  Soward  v. 
Leggatt,  7  C.  &  P.  (if.  p.)  613. 

7.  Whefe  the  tenancv  had  ceased  by  the  con- 
veyance of  the  landlord  s  reversion ;  held,  that  he 
was  not  entitled  to  follow  goods  removed  to  avoid 
distress.  Ashmoire  v.  Hardy,  7  C.  dk  P.  (k.  p.) 
501. 

8.  And  the  admission  of  the  landlord  in  an  an- 
swer in  Chaneerv,  of  such  conveyance,  held  ad- 
missible against  nim.    lb. 

9.  Where  the  tenant  erected  staddles  with  stone 
caps,  and  placed  thereon  a  wooden  and  thatched 
building,  connected  in  no  other  way  than  by  rest- 
ing the  oeams  on  the  staddles,  and  might  be  taken 
to  pieces  and  removed  without  injury  to  the  soil; 
held,  that  the  tenant  was  entitled  to  remove  them, 
and  might  maintain  trover  for  the  materials. 
Wansboroogho.  Matoo,6  Nev.  6lM.(%,  b.)  967; 
and  4  Ad.  ££U.  884. 


And  see  R.  v.  Otley,  1  B.  &  Ad.  161. 

10.  Where  A.,  having  a  demise  of  a  colliery  for 
21  years,  with  the  right  of  erecting  engines,  &c., 
ana  having  erected  steam-engines  and  other  im- 
plements thereon,  afterwards  assigned  them  to 
trustees  to  permit  B.  to  enjoy  the  same  until  de- 
fault made  in  payment  of  an  annuity  to  A.,  and 
the  latter  afterwards  recovered  the  premises  in 
ejectment,  in  pursuance  of  the  proviso  for  re- 
entry ;  held,  that,  upon  an  execution  issued  bv  a 
creditor  of  B.,  under  which  the  engines  and  otner 
articles  on  the  colliery  were  seizea  by  the  sheriff^ 
the  trustees  could  not  maintain  trover  for>the  en- 

fines  found  to  be  affixed  substantially  to  the  free- 
old,  they  havine  only  the  same  right  of  removal 
as  the  tenant,  and  that  to  be  exercised  during  the 
tenancy.  Minshall  v.  Lloyd,  2  Mees.  &>  W.  (xx.) 
450 ;  questioning  Trappes  v.  Harter,  2  Cr.  A  M. 
153. 

11.  Where  A.,  B.  and  G.  (whilst  unmarried) 
entered  into  a  cimtract  in  December  1834,  for  a 
a  term  of  seven  years,  at  a  rent  payable  quarterly, 
but  the  plaintiff  not  having  executed,  it  could  not 
operate  as  a  demise,  but  under  which  they  Enter- 
ed;  in  the  following  September,  C.  married  with 
one  of  the  defendants,  and  A.  afterwards  became 
bankrupt,  and  his  assignees  paid  the  quarter's 
rent  at  Michaelmas  1835,  but  it  did  not  appear  bv 
whom  the  previous  rent  was  paid,  although  aa- 
mitted  to  have  been  paid ;  and  there  was  no  evi- 
dence of  any  payment  having  been  made  before 
C.'s  marriage,  or  with  her  assent  after ;  held,  that 
there  was  not  sufficient  evidence  to  raise  an  im- 
plied new  tenancy,  so  as  to  charge  the  defendants 
in  an  action  for  use  and  occupation  on  a  joint  de- 
mise. Doidge  V.  Bowers,  2  Mees.  &.  W.  (ex.) 
3G5. 

12.  Where  the  premises  were  originally  taken 
to  hold  from  May  1832  to  February  1833,  and 
thence  from  year  to  year,  and,  on  23d  October 
1833,  a  notice  was  served  to  ouit  *'  at  the  expirar 
tion  of  half  a  year  from  the  delivery  of  the  notice^ 
or  at  such  other  time  or  times  at  which  your  pres^ 
ent  year's  holding  would  expire,  after  the  expire 
tion  of  half  a  year  from  the  delivery  of  the  notice  ;** 
held,  that  the  word  "  present "  might  be  rejected, 
and  the  notice  sufficient  to  determine  the  tenancy 
on  the  February  1835.  Doe  d.  Williams  v.  Smittu 
5  Ad.  &  Ell.  (k.  b.)  350. 

13.  Where  plaintiff,  the  grantee  of  an  annuity 
or  rent  charged  on  lands,  with  power  of  re-entry 
in  case  of  the  rent  being  in  arrear,  which  the  gran- 
tor afterwards  demised  to  the  defendant  xor  a 
term,  having  distrained  for  arrears  of  the  annuity, 
tlie  lessee  signed  an  agreement  to  attorn  to  the 
plaintiff,  and  paid  him  rent,  distresses  had  also 
been  made,  and  a  six  months'  notice  to  quit  giv- 
en ;  held,  that  it  created  a  tenancy  from  year  to 
year,  as  between  hini  and  the  annuitant,  deter- 
minable on  the  payment  of  the  arrears,  and  upon 
which  the  lease  for  years  would  revive.  Doe  v. 
Boulter,  1  Nev.  &  P.  (k.  b.)  655. 

14.  Upon  an  issue  whether  a  notice  of  deter- 
mining a  tenancy  of  coal  mines  had  been  waived 
by  the  parties  continuing  afterwards  to  work  on, 
by  cutting  away  so  much  of  the  pillars  dfcoal  as 
mighc  be  done  with  safety  (alleged  to  be  usiial 


8818 


[LANDLORD  AND  TENANT] 


Upon  abandoning^  a  mine) ;  held,  that  the  qaeation 
was  one  of  intention  for  the  jury ;  held  also,  that 
a  letter  from  an  agent  of  former  partners,  not  the 
same  as  at  the  time  of  giving  the  notice,  was  in- 
admissible against  the  new  members  of  the  firm, 
although  two  were  still  partners.  Jones  v.  Sheares, 
6  Nev.  &  M.  (K.  B.)  428 ;  and  4  Ad.  <&  £U.  632. 

15.  Where  the  father  of  the  deceased  orcupier 
being  tenant  of  a  farm,  of  which  the  tenancy 
would  expire  at  Lady-day,  the  attorney  of  the 
landlord,  in  December,  proposed  to  let  that  and 
other  farms  according  to  the  terms  of  a  printed 
paper  then  read,  and  which  the  deceased  assented 
to,  and  agreed  to  Rucceed  his  father  at  Lady-day, 
but  no  writing  was  signed,  and  he  entered  and 
continued  in  possession  until  his  death,  afler  whicli 
his  executors,  the  defendants,  entered  and  paid 
the  rent ;  held,  that  such  agreement,  followed  by 
entry  and  payment  of  rent,  created  a  tenancy  up- 
on the  terms  of  the  printed  paper,  and  which 
might  be  referred  to  by  the  attorney  to  show  the 
terms  of  the  demise.  Lord  Bolton  v.  Tomlyn,  1 
Nev.  &  P.  (K.  B.)  247. 

16.  A  notice  to  quit,  given  by  an  agent  of  an 
agent,  without  any  evidence  of  recognition  by  the 

Srincipal,  held  insufficient.     Doe  v.  Robinson,  3 
ling.  N.  a  (c.  p.)  677;  and  4  Sc.  396. 

17.  In  debt  to  recover  double  yearly  value,  with 
a  count  for  use  and  occupation,  it  appearing  that 
the  plaintiff  had  mortgaged  the  premises  to  the  de- 
fendant in  fee,  with  a  proviso  for  redemption,  and 
afler  the  covenant  for  reconveyance,  a  proviso, 
that  the  principal  should  not  be  called  in  for  sev- 
en years,  and  that  if  the  interest  were  kept  down, 
the  mortgagor  should  hold,  occupy,  &c.,  and  take 
and  receive  the  rents,  dui.,  to  his  own  use ;  held, 
that  the  latter  part  of  the  deed  operated  as  a  re- 
demise to  the  mortgagor  for  the  term  of  seven 
years,  and  that  the  plaintiff  was  entitled  to  reco- 
ver for  the  use  and  occupation.  Wilkinson  v. 
Hall,  3  Bing.  N.  S.  (c.  p.)  508 ;  and  4  Sc.  351. 
QiMPr.  if  a  quarterly  tenancy  is  within  the  stat.  4 
Geo.  2,  c.  19? 

18.  Where  the  tenant  had  given  a  joint  note 
for  the  rent  due,  and  in  ejectment  by  the  landlord, 
a  verdict  for  the  lessor  of  the  plaintiff  was  agreed 
to  be  taken  for  him,  consenting  that  the  defendant 
should  remain  in  possession  tor  a  fortnight,  and 
not  be  called  on  for  any  rent  due ;  held,  that  such 
agreement  extinguished  the  claim  on  the  note  for 
lent.    Howell  r.  Lewis,  7  C.  &  P.  (s.  p.)  566. 

H).  Although  the  landlord  in  distraining  may 
impound  the  goods  on  the  premises,  and  to  secure 
them  lock  them  up,  yet  where  he  locked  up  the 
plaintiflTs  cottage  for  the  purpose  of  keeping  .the 
possession,  held,  that  the  tenant  might  maintain 
trespass  for  the  expulsion,  and  that  a  licence  by 
the  tenant  could  only  be  pleaded  specially.  Cox 
V.  Painter,  7  €-  &  P.  (n.  p.)  767. 

20.  A  breach,  assigning  that  the  tenant  threat- 
ened to  commit  waste  unless  he  were  paid  certain 
sums,  held  bad.  Leach  v.  Thomas,  2  Mees.  Sc 
W.  (BZ.)  427;  and  5  Dowl.  (p.  c.)  612. 

21.  Under  32  Hen.  8,  c.  34,  the  assignee  of  a 
levexnon  held  not  entitled  to  anean  of  lent  due 


prior  to  the  assignment    Flight  v.  Bentley ,  7 Sim. 
(ca.)  149. 

22.  In  order  to  entitle  the  landlord  to  the  rule 
under  1  Geo.  4,  c.  87,  s.  1,  he  must,  at  the  time 
of  moving,  have  a  perfect  lease  or  agreement ; 
where  it  was  not  stamped  until  after  the  rule  nid 
obtained,  the  court  discharged  it,  and  held  that 
such  rule  cannot  be  drawn  up  on  reading  a  copy 
of  the  lease  or  agreement  Doe  d.  Wooa  «.  Roe, 
3  Sc.  (c.  p.)  156: 

23.  The  case  of  Neale  v.  Mackenzie,  (2  Cr.  M. 
&.  R.  84)  reversed  on  error,  1  Mees.  &  W.  (xz.) 
747. 

24.  Upon  a  demise  of  premises  by  agreement, 
stipulating  inter  alia  that  the  lessor  would,  at  the 
request  and  costs  of  the  lessee,  grant  and  execute 
a  lease  thereof ;  held  that  the  landlord  could  not 
charge  the  latter  with  the  expense  of  a  counter- 
part if  he  required  it.  Jennings  «.  Turner,  8  C. 
<k  P.  (N.  p.)61. 

25.  Plea  in  debt  for  rent,  that  by  agreement 
between  the  plaintiff  and  defendant,  before  the 
rent  became  due,  in  consideration  the  latter 
would  give  up  possession,  he  should  be  dischar- 
ged from  all  liability  to  pay  any  further  rent,  and 
that  the  premises  were  deftvered  up  accordingly, 
averring  the  tenancy  to  be  thereby  at  end ;  held 
that  although  not  setting  up  a  surrender,  the  plea 
showed  a  valid  excuse  for  non-payment  of  the 
rent  Gore  v.  Wright,  3  Nev.  &  P.  (4.  b.) 
243. 

26.  In  case  for  an  excessive  distress,  the  rent 
being  payable  quarterly,  and  the  first  wufmaU 
being  by  the  agreement  for  a  lease,  dated  oth  Sep- 
tember, to  be  made  on  25th  March  then  next  fol- 
lowing ;  held,  that  only  one  quarter's  rent  beeane 
due  in  March  :  it  appeared  that  the  broker  went 
to  the  tenant's  house  and  demanded  the  rent  al- 
leged to  be  doe,  and  three  guineas,  his  costs  of 
levy,  but  made  no  inventory,  and  touched  noth- 
ing; the  tenant,  however,  paid  the  demand,  and 
the  broker  lefl  the  premises ;  held,  that  it  did  not 
lie  in  the  defendant's  mouth  to  say  there  had 
been  no  actual  distress :  afler  the  agreement  had 
been  signed  and  delivered,  the  number  of  the 
house  was  altered  from  35  to  38,  which  the  jury 
found  to  have  been  altered  without  the  defisn- 
dant's  assent ;  the  declaration  alleging  a  tenancy, 
which  was  not  denied,  and  the  evi<Knce  of  the 
distress  applying  only  to  35,  held,  that  although 
the  deed  was  vitiated  by  the  alteration,  and  the 
plaintiff  had  lost  his  interest  thereby,  the  instru- 
ment was  admissible  to  show  the  terms  on  which 
he  held  No.  35.  Hutchins  v.  Scott,  2  Mees.  4l 
W.  (EX.)  809. 

27.  Where  the  widow  came  into  poswion 
under  her  husband,  who  had  conveyed  to  the 
lessor  of  plaintiff,  held  that  she  was  estopped 
from  setting  up  a  prior  mortgage  title.  Doe  r. 
Skirrow,  2  Nev.  &  P.  (x.  b.)  123 ;  supporting 
Doe  «.  Perkins,  3  M.  &  S.  271. 

28.  An  insufficient  notice  to  leave  the  premises 
given  by  the  tenant,  accepted  by  the  landloTd, 
held  not  to  amount  to  a  surrender  by  operation  of 
law ;  there  cannot  be  a  surrender  to  operate  m 
fiUuro,  Doe  v.  Milward,  3  Mees.  &  W.  (bx.) 
328. 


[LANDLORD  AND  TENANT— LEASE] 


2819 


29«  Whew  on  an  agraement  of  demise,  the 
defendanta  were  to  pay  all  rates,  &e.,  land-tax 
excepted ;  held,  that  an  extraordinary  aaaeaament 
by  the  commiBsionera  of  eewexa,  for  works  produc- 
ing a  permanent  benefit  to  the  lands,  was  within 
the  agreement,  but  the  rate  being  made  in  pro- 
portions upon  the  owners  and  occupiers,  and  the 
tenant  having  for  four  years  paid  both,  and  in 
settling  with  the  landlord's  agent,  who  was  igno- 
rant of  that  agreement,  deducted  the  former,  and 
receipts  were  griyen  for  the  balance ;  held,  in  an 
an  action  on  the  agreement  to  recover  the  amount 
•o  deducted,  as  arream  of  rent,  that  the  facts 
supported  a  plea  of  payment.  Waller  v.  An- 
drews, 3  Mees.  «&  W.  (ax.)  302. 

30.  Summary  proceedings  for  recovery  of  ten- 
ements let  for  not  exceeding  seven  yean,  nor 
202.  rent,  by  I  &.  2  Vict.  c.  74. 

31.  Where  npon  an  agreement  for  the  purchase 
of  premises  by  defendant,  he  was  let  into  posses- 
sion forthwith,  paying  interest  until  the  payment 
of  the  purchase-money  and  completion  of  the  pur- 
chase, he  afterwards  built  on  the  land,  no  convey- 
ance was  ever  tendered,  nor  any  steps  taken  by 
the  plaintiff  to  enforce  the  performance,  but  on 
failure  in  payment  of  the  mterest,  the  vendor 
brought  ejectment  \  held,  to  amount  only  to  a  ten- 
ancy at  will,  determinable  without  any  notice  to 
quit  Doe  v.  Chamberlaine,  5  Mees.  A  W.  (ex.) 
14. 

32.  Upon  an  agreement  of  demise  for  one  year 
certain,  and  so  from  year  to  year,  with  a  proviso 
that  either  party  might  determine  the  tenancy  by 
three  months'  notice ;  held  to  create  a  tenancy 
for  two  years  certain,  and  a  notice  therefore  to 

2uit  at  the  end  of  the  first  year  was  insufficient, 
^oe  V.  Green,  1  Perr.  &.  Day.  («.  b.)  454. 

33.  Upon  a  demise  for  two  years,  with  an  op- 
tion of  purchase  within  the  period,  the  tenant 
having  after  it  had  expired  filed  a  bill  for  the  spe- 
cific performance  of  the  purchase,  and  pendmg 
an  ejectment  by  the  landlord,  the  tenant  moved 
for  an  injunction ;  the  court  granted  it,  only  on 
the  terms  of  paying  the  rent,  without  prejudice 
to  the  cause.  Pyke  v.  Northwood,  1  Beav.  (cii.) 
152. 

34.  hi  assumpsit^  on  an  agreement  of  demise, 
for  not  keeping  them  in  habitable  repair,  plea, 
that  hie  did  within  a  reasonable  time  put  into  hab- 
itable repair,  according  to  the  true  mtent.  Sec. : 
held,  that  the  plaintiff  ought  to  begin ;  held,  also, 
that  the  repair  into  which  the  defendant  was 
bound  to  put  them  was  to  have  reference  to  the 
state  of  the  premises  at  the  time  of  the  demise, 
and  also  to  the  situation  and  class  of  persons  like- 
ly to  inhabit  them.    Belcher  v.  Mlntosh,  8  C.  dt 


ly  tomii 
r.  (».  F. 


)722. 

35.  In  case  for  mismanaging  a  farm,  and  con- 
trary to  the  custom  of  the  country,  plea  travers- 
ing that  the  defendant  was  such  tenant  to  the 
plaintiff,  moda  el  forma  ;  held,  that  upon  this  is- 
sue, which  pat  only  in  issue  a  tenancy  in  fact, 
the  plaintiff  was  not  obliged  to  produce  the  lease 
to  show  that  the  terms  of  it  were  consistent  with 
the  alleged  obligation  to  cultivate  according  to 
the  custom.  Hallifax  v.  Chambers,  7  Dowl.  (p. 
c.)  343  ^  and  4  Maes.  A  W.  (xz.)  661. 

Vol.  IV.  69 


36.  Where  aflerthebankmptcv,  and  ceitificftte 

of  the  lessor  of  the  plaintiff,  the  defendant  having 
purchased  the  stock  in  trade,  but  no  assignment 
of  the  premises  was  made,  and  upon  an  agree- 
ment for  partnership  it  was  agreed  that  the  partF- 
nership  snonld  hold  the  premises,  of  the  lessor  of 
the  plaintiffs,  under  which,  on  their  account,  rent 
wss  paid  to  him )  held,  that  upon  the  dissolution 
of  the  partnership,  the  tenancy  was  at  an  end,  and 
the  defendant  could  not  be  allowed  to  dispute  the 
title  of  the  lessor.  Doe  d.  Colnaghi  o.  Bluck,  8 
C.  &  P.  (5.  p.)  464. 

37.  Where  lessor,  after  having  committed  an 
act  of  bankruptcy,  assigned  premises  idemised, 
and  informed  the  tenant  that  he  had  so  done,  and 
requesting  him  to  give  Is.  as  an  acknowledg- 
ment to  the  assignees,  which  the  tenant  did,  but 
he  was  not  informed  of  the  circumstances  which 
rendered  the  assignment  invalid  ;  held,  in  eject- 
ment, by  the  assignees,  that  the  tenant  was  not 
estopped,  nor  the  assignees  under  the  commis- 
sion, defending  as  landlords,  from  showing  that 
the  lessor  of  plaintiff  was  not  his  landlord,  it  oeing 
open  to  a  party,  not  guilty  of  laches,  to  explain 
and  render  inconclusive,  acts  done  under  mistake 
or  through  misrepresentation.  Doe  v.  Brown,  7 
Ad.  &.  EU.  (4.  B.)  447 ;  and  2  Nev.  &  P.  592. 

And  see  Action  on  the  Case ;  Agent ;  Agree- 
ment ;  Covenant  ;  Disclaimer ;  Distress ;  J^^' 
ment;  Lease;  Pleading,  (c.  L.);  Heplemn;  Tro* 
veri  Wastes, 


LAND  TAX. 

1.  Lands  in  the  occupation  of  the  crown  for 
public  purposes,  (as  dock-yards,)  held  not  assessa- 
Die  to  the  land-tax.  Attorney- General  v.  Hill,  2 
Mees.  &  W.  (ei^.)  160. 

2.  Where  a  party  having  been  returned  as  a 
defaulter  for  a  sum  assessed  upon  him  in  a  par- 
ticular parish,  and  the  same  levied  by  writs  of 
levari^  and  paid  into  the  Exchequer,  the  court 
refused  to  set  aside  the  writs,  on  the  ground  that 
the  party  had  been  assessed  in  a  wrong  parish. 
Glatton  Land-tax,  in  re,  4  Mees.  d&  W.  (ex.)  570. 

And  see  Distress. 


LEASE. 

1 .  Where,  on  an  agreement  for  letting  lands  on 
building  leases,  the  lessee  covenanted  to  build  and 
secure  700/-  per  annum  on  rents  of  the  houses  he 
built,  and  the  lessor  agreed  to  lease  certain  parts 
of  the  remaining  lands,  intended  as  a  nursery 
ground,  at  a  peppercorn  rent ;  the  lessee  failing 
to  build  accordmg  to  the  agreement,  the  lessor 
acquiesced  in  a  variation  of^the  plan,  and  with 
his  consent  an  underlease  was  made,  with  cove- 
nants for  building  according  to  the  varied  plan  to 
P.,  who  proceeded  with  the  buildings,  ana  after 
completing  houses  on  which  rents  to  the  amount 
of  7002.  were  secured  to  the  lessor,  and  his  in- 
terest assigned  to  the  lessor  as  a  security  for  mo- 
nies ad^nanoed  to  cany  on  the  buildings,  niled  and 


3820 


[LEASE] 


,  left  the  ooantry ;  held,  th&t  after  such  waiver  of 
the  original  Btipulations,  the  lessor  could  not  com- 

Eel  the  original  lessee  to  perforin  them,  and  that 
e  was  bound  to  execute  the  lease  o{  the  land  to 
which  the  lessee  was  entitled  on  the  rent  of  7002. 
being  secured.  Jenkins  v.  Portman,  1  K.  (ch.) 
435. 

2.  Where  the  owner  of  a  farm  obtained  a  lease 
of  the  tithes  of  the  adyowson,  and  devised  them 
separately,  with  a  condition,  as  to  the  latter,  that 
the  farm  should  at  all  times  be  exempted  from  the 
tithes ;  held,  that  upon  the  renewal  of  the  lease, 
all  who  had  a  special  interest  in  the  old  one,  took 
the  same  in  the  renewed  one,  and  were  exempt 
from  tithes,  and  that  the  owner  of  the  lease  could 
not  compel  him  to  contribute  to  the  renewal  fines ; 
held  also,  that  purchasers  for  valuable  considera- 
tion stood  in  the  place  and  took  upon  the  same 
trusts  as  the  origmal  volunteers.  Webb  v.  Lu- 
gar,  U  Younge  (bx.  xq.)  247.  ^. 

3.  Where  it  appeared  on  the  face  of  the  instru- 
ment that  the  party  had  not,  at  the  time  of  exe- 
cuting the  agreement,  power  to  grant  a  lease, 
held,  that  it  could  not  operate  as  such.  Hay  ward 
V.  Haswell,  1  Nev.  &  P.  (k.  b.)  411. 

4.  Upon  a  lease  to  M.  £.,  habendum  to  her  and 
her  heirs  for  the  lives  of  a  son  and  daughter  and  a 
grand-dau|^hter  of  A.  £.,  and  the  survivor :  it  ap- 

Seared  that  A.  £.  had  a  daughter,  but  no  grand- 
aughter ;  held,  that  it  enured  as  an  estate  for 
the  two  lives,  but  not  of  a  person  not  then  in  ex- 
istence. Doe  V.  Edwards,  1  Mees.  &  W.  (ex.) 
553;  and  1  Tyr.  &  Gr.  1006. 

5.  A  proviso  for  avoiding,  on  assignment  by 
the  lessee,  held  not  to  apply  to  a  case  of  mere 
equitable  deposit    Cocks,  ex  parte,  2  Deac.  (b.) 

6.  Where  a  lease  of  premises,  not  within  the 
restraining  statutes,  was  made  by  a  vicar  in  re- 
version, less  than  three  years  of  the  prior  lease 
being  unexpired ;  held  valid  and  binding  on  the 
successor.  Vivian  v.  Blomberg,  3  Bing.  N.  S. 
(c.  p.)  311 ;  and  3  Sc.  681. 

7.  Where  the  defendant  entered  on  premises 
under  an  assignment  of  a  void  lease,  and  con- 
tinued to  occupy  and  pay  the  rent  until  the  term 
expired;  held  liable  to  the  stipulations  in  the 
lease  to  repair,  and  the  damages  to  be  estimated 
according  to  the  state  at  the  end  of  the  lease. 
Beale  v.  Bandera,  3  Bing.  N.  S.  (c.  p.)  850. 

8.  An  agreement  to  make  and  execute  a  lease 
with  stipulated  terms  and  covenants  to  be  pre- 
pared at  the  costs  of  the  lessee,  and  approved  of 
oy  the  lessor's  solicitor ;  after  the  execution  of 
such  agreement,  the  intended  lessor  assigned  the 
premises  for  a  long  term  on  mortsage,  became 
oankrupt,  and  Uic  mortgagee  ffave  tne  lessee  no- 
tice to  pay  the  rent  to  him ;  held,  that  the  instru- 
ment was  properly  stamped  as  an  agreement  for 
a  lease,  anu  that  after  such  notice  he  might  main- 
tain the  action  for  use  and  occunation,  for  the 
occupation  after  the  mortgage  tonim.  Rawson 
V.  £icke,  2  Ncv.  &  P.  (q.  b.)  423. 

9.  Where  after  an  ofier  to  let,  and  proposals, 


by  letter,  of  terms,  and  for  a  valuation  and  lease 
to  be  prepared,  the  landlord  wrote  in  answer, 
that  he  accepted  the  defendant  as  his  tenant, 
ameably  to  the  terms,  stating  the  time  from 
wnich  the  term  was  to  commence ;  held,  that  the 
agreement  amounted  to  a  present  demise,  and  that 
the  landlord  was  entitled  to  distrain.  Chapman 
9.  Bluck,  4  Bing.  N.  S.  (c.  p.)  187. 

10.  Where  a  lease  of  an  infant*s  lands  is  gran- 
ted durin^r  his  infancy,  and  on  coming  of  a^e  he 
mortgaged  the  estate  to  the  lessees,  the  deed  re- 
citing me  lease  held  to  be  a  confirmation  of  the 
lease.  Story  v.  Johnson,  2  Younge  dc  C  (ex. 
mq,.)  586. 

11.  Where  a  lessee  under  a  dean  and  chapter, 
for  twenty-one  years,  renewable  every  seven 
yean,  underlet  with  a  covenant  on  any  renewal 
to  execute  a  lease  for  such  further  term  as  to 
make  up  a  term  of  twenty-four  years,  the  leasee 
surrendering  the  existing  lease,  and  paying  a 
proportion  of  the  fine,  which  should  be  imposed 
in  consequence  of  new  erections  on  the  premii 


held,  that  the  lessee  was  not  bound  to  pay  anv 
portion  of  the  fine  on  any  renewal  after  that  whicn 
enabled  the  lessor  to  complete  the  term  of  twenty* 
four  years.  Clutton  «.  Fleming,  8  Sim.  (ch.) 
105. 

12.  Where  the  lessee  covenanted  to  expend 
£ in  repairs,  4&c  ,  to  be  inspected  and  approv- 
ed of  by  the  lessor,  and  by  a  clause  afterwards  it 
was  declared  that  he  should  be  allowed  the  sum 

of  jC towards  such  repairs,  and  be  at  liberty 

to  retain  it  out  of  the  first  year's  rent ;  held,  that 
the  approval  of  the  lessor  was  not  in  nature  of  a 
condition  precedent  to  the  right  to  retain,  and 
the  jury  naving  found  the  covenant  to  have 
been  substantialTv  complied  with,  held  that  the 
lessee  was  entitled  to  deduct  it.  Dallman  v.  King, 
4  Bing.  N.  S.  (c.  p.)  105 ;  and  3  Sc.  382. 

13.  Where  defendants  as  assignees  of  a.  lease, 
which  was  void,  held  possession,  and  paid  the 
rent  reserved,  held,  that  the^  were  to  be  taken 
to  hold  upon  the  {erms  of  all  tlie  covenants. 
Beal  V.  Saunders,  3  Sc.  (c.  p.)  58. 

14.  The  certificate  of  the  Judges  in  the  case  of 
Vivian  v.  Blomberg,  (3  Bing.  N.  S.  311,)  con- 
firmed by  the  master  of  the  Rolls.  7  Sim.  (ch.) 
548. 

15.  Where  premises  were  demised  by  lease, 
dated  21st  March,  to  hold  from  25th  March,  fiir 
seven  years,  wanting  seven  days,  at  a  rent  pay- 
able by  quarterly  payments,  on  25th  March,  &c., 
commencing  from  2ath  March  then  instant^  with 
covenants  for  payment  of  rent ;  the  declaration  in 
covenant  allegea  as  a  breach  the  non-payment  of 
the  two  last  quarters,  ending  25th  March,  at  thi 
end  of  the  term ;  held,  that  Die  covenant  was  ti 
be  construed  to  be  for  the  payment  of  a  before- 
hand rent,  the  first  payment  beinf  expressly 
stipulated  as  payable  on  the  25th  March,  the 
day  of  the  commencement  of  the  term,  and  sc 
the  whole  rent  payable  within  it.  Hopkins  9 
Helmore,  3  Nev.  6^  P.  (q.  b.)  452. 

16.  Upon  an  agreement  for  a  demise  of  prem- 
ises for  99  years,  to  a  committee  in  trust  for  the 
parishioners  of  H.,  for  the  purpose  of  a  poor> 


[LEASE- LEGACY] 


2821 


aoiue,  with  a  claAie  for  parchasin^  in  fee,  and 
agreements  by  the  committee  to  pay  the  rent,  and 
keep  in  repair,  d^e.,  and  to  execute  a  lease,  &c., 
but  none  was  ever  executed ;  held,  that  the 
agreement  operated  as  a  demise  from  the  date 
thereof,  and  not  as  a  mere  agreement  for  a  lease, 
and  that  it  vested  in  the  overseers,  by  force  of  the 
59  Geo.  3,  c.  12,  s.  17,  for  the  time  being,  and 
that  they  were  liable  to  the  covenants.  Alderman 
V.  Neate,  4  Mees.  &  W.  (ex.)  704. 

.  17.  Where  by  the  agreement  for  a  demise  of 
premises,  to  hold  from  a  future  day,  at  a  rent  pay- 
able quarterly,  and  to  execute  a  lease,  with  the 
usual  covenants  for  payment  of  rent,  &o.,  it  was 
stipulated  that  until  such  lease  should  be  execut- 
ed, the  grantor  might  distrain  for  rent  in  arrear ; 
held,  that  as  such  stipulation  would  have  been 
nugatory  if  the  instrument  were  intended  to  oper- 
ate  as  a  demise,  it  amounted  only  to  an  agreement, 
and  that  a  lease  stamp  was  unnecessary.  Bick- 
neU  V.  Hood,  5  Mees.  A  W.  (xx.)  104. 

18.  Where  vacant  land  had  been  let  on  a  build- 
ing lease,  which  expired  in  1834,  and  the  plain- 
tin  had  become  possessed  of  a  house  erected  there- 
on, from  an  under-lessee,  and  had  enjoyed  there- 
with a  right  of  using  a  passage  adjoining  for 
shooting  coals  into  his  cellar,  and  laying  water- 
pipes  thereto,  and  the  original  lessor  had,  pending 
the  lease,  granted  a  reversionary  lease  of  the  plain- 
tiff's house  to  him,  with  all  and  singular  the  ap- 
purtenances, to  hold  from  the  day,  6lo.  at  which 
the  original  lease  would  end  and  determine  ;  held, 
that  tlie  rigl^t  of  passage,  and  of  using  it  for  such 
purposes,  passed  under  the  reversionary  lease  as 
a  necessary  incident  to  the  subject-matter  de- 
mised, although  not  specially  named  in  it,  and 
that  upon  the  expiration  of  the  original  lease,  the 
lessor  never  having  for  a  moment  a  right  of  pos- 
session, such  easement  was  not  extinguished  by 
any  unity  of  possession.  Hinchli^  v.  Earl  of 
Kinnoul,  5  fiing.  N.  S.  (c.  p.)  2 ;  and  6  Sc.  650. 

19.  Where  a  testator  devised  lands  in  trust  to 
his  son  for  life,  with  power  lo  lease  for  21  years, 
and  also  with  power  to  his  executors  to  raise  a 
sum  for  payment  of  debts  and  by  mortgages  in 
fee,  or  for  years,  and  the  son  by  indenture  demis- 
ed the  premises  to  C.  for  99  years,  if  he  should  so 
long  live ;  he  afterwards,  m  execution  of  the 
power,  executed  a  lease  for  21  years  to  the  de- 
fendant, and  subsequently,  the  executors,  in  pur- 
suance of  their  power,  and  with  the  concurrence 
of  the  son,  mortgaged  the  premises  to  the  plain- 
tilTfor  1,000  years,  and  who,  claiming  as  assignee 
of  the  reversion,  brought  an  action  ror  breach  of 
farm  covenants  in  the  lease  for  21  vears  by  the 
son  to  the  defendant ;  held,  that  the  defendant 
could  not  set  up  as  a  defence  the  interest  of  C, 
the  grantor,  for  99  years,  there  having  been  no 
suspension  of  the  leasing  power  of  the  tenant  for 
life,  so  far  as  regarded  me  grantee  of  the  term 
under  the  leasing  power  of  the  executors.  Bring- 
loe  V.  (zoodson,  4  Bing.  N.  S.  (c.  p.)  726 ;  and  6 
8c.  502. 

20.  Where  a  party  being  yearly  tenant,  in  the 
course  of  a  current  lialf  year  entered  into  an  agree- 
ment with  his  lessor,  the  one  to  let,  and  the  other 
to  take,  a  14  years'  lease,  determinable  at  the  op- 
tion of  either  at  the  end  of  seven  years,  at  a  rent 


payable  half  yearly ;  held,  to  amount  to  a  lease,  al- 
though the  parties  might  not  contemplate  the  le- 
gal consequences  of  the  surrender  of  the  previous 
term  and  the  merger  of  the  accruing  rent.  Doe 
r.  Benjamin,  1  Perr.  *.  Dav.  (q,.  b.)  440. 

21 .  Under  circumstances  of  alleged  misrepre- 
sentation of  the  sale  of  premises,  a  reference  di- 
rected as  to  the  expediencv  of  an  abatement  of 
rent,  both  as  to  the  past  and  future.  Millbank  v. 
Stevens,  1  Coop.  (ce.  c.)  45. 

And  see  Late  ward  v.  Schreiber,  lb.,  noHs. 

And  see  Cawenant;  Dud;  Ejectment',  Land- 
lord; Mortgage;  Power;  SpeeyU  Parf. 


LEGACY. 

[A]  Absolute — vzstxd. 

[B]  CUMDLATIVX. 

[C]  BUBSTITQTXD. 

[D]  Lapsko. 

[E]  Spxcific. 

[F]    RXSIOVARV. 

[G]  In  satisfaction. 

[H]  Adbmption. 

[1]  Wbbn  patablx — out  of  what  FUnDi. 

[K]  Duty. 


[A]  Absolute — vkstxd.         , 

1 .  A  bequest  of  a  sum  to  A.,  and,  in  case  of 
his  decease,  the  same  to  his  wife,  and  at  her  de- 
cease to  her  eldest  daughter ;  held,  that  A.,  hav- 
ing survived  the  testatrix,  was  absolutely  entitled 
to  the  legacy.  Crigan  v,  Baines,  7  Smi.  (ch.) 
40. 

2.  Upon  a  bequest  to  testator's  grandchildren, 
and  in  case  they  should  all  die  without  leaving 
issue,  then  to  the  children  of  A.  and  their  issue 
equally,  or  unto  ^uch  as  should  prove  their  right 
within  two  years  next  after  the  death  of  the 
grandchildren  without  issue,  the  first  notice  there- 
of to  be  given  in  the  Gazette,  to  be  inserted  once 
in  each  month  for  six  months  after  such  failure 
of  issue;  A.  had  five  children,  three  of  whom 
died  before  the  date  of  the  will,  but  left  issue  ; 
the  other  two  survived  the  testator;  held,  that 
all  the  descendants  of  A.  who  were  living  at  the 
time  of  the  death  of  the  grandchildren  without 
issue,  or  bom  within  two  years  and  one  month 
after  that  event,  would  be  entitled  to  participate 
in  the  fund.  Clay  v.  Pennington,  7  Sim.  (ch.) 
370. 

3.  Upon  a  bequest  of  residue  in  trust  to  apply 
the  interest  and  proceeds  for  the  use  of  his  wife 
for  life,  and  after  her  decease,  what  should  be 
remaining  equally  among  the  daughters  of  D. 
and  their  issue;  held  that  the  parties  only  in 
existence  at  the  time  when  the  property  to  be 
taken  was  to  be  ascertained,  were  entiUed,  and 
that  the  two  surviving  daughters  at  the  widow's 


2832 


[LEGACY] 


detth  were  absolutely  entitled.    Gibbsv.  Tait, 
8  Sim.  (cB.)  133. 

4.  Bequest  of  residue  to  be  divided  equally 
amongst  the  testator's  daughters,  *'  their  husbands 
and  families ;"  held,  that  the  latter  words  were  to 
be  rejected,  and  that  the  daughters  took  absolutely. 
Robinson  v.  VVaddelow,  8  Sim.  (ch.)  134. 

5.  Upon  a  bcouest  to  trustees  to  apply  for  the 
support  of  the  wife  of  his  son,  and  for  the  support 
and  education  of  his  son's  children  born  in  wed- 
lock, there  being  no  children  of  the  son  at  the 
testator's  death,  although  there  were  born  afler ; 
held,  that  the  wife  took  absolutely  to  her  sepa- 
rate use.  Cape  v.  Cape,  2  Younge  &  C.  (ex. 
Ea)  543. 

6.  Upon  a  bequest  of  stock  to  T.,  to  receive 
the  interest  for  life,  and  afler,  to  her  issue,  and 
in  case  of  her  death  without  issue,  then  over ; 
held,  that  T-  took  an  absolute  interest ;  the  gen- 
erality of  the  expression,  **  without  issue**  being 
void  for  remoteness.  Attorney- General  v.  Bright, 
2  Keene,  (ch.)  57. 

7.  Bequest  of  a  sum  to  trustees  to  pay  the 
interest  to  his  son's  wife,  for  the  benefit  of  lier- 
self  and  husband  and  children  during  his  son's 
life,  and  afler  his  death  for  the  benefit  of  tlie  wife 
and  children,  and  at  her  death  to  be  equally  di- 
vided among  the  latter  if  they  should  have  at- 
tained twenty-one,  and  if  not,  the  interest  to  be 
applied  for  their  maintenahce ;  and  in  case  of 
the  wife  marrying  again,  the  children  were  to 
receive  their  shares  at  twenty-one ;  held,  that 
their  shares  did  not  vest  until  they  attained  twen- 
ty-one.   Taylor  v.  Bacon,  8  Sim.  (ca.)  100. 

8.  Devise  of  real  and  personal  estate,  to  accu- 
mulate for  30  years  afler  testator's  decease,  in 
trust  afler  payment  of  debts,  dec,  for  all  and  every 
the  children  of  his  children,  A.,  B.,  and  C,  "now 
bom,  or  whom  should  hereafler  be  born  during 
the  lifetime  of  their  respective  parents,  as  should 
attain  21 ,  or  marry  with  consent,  and  whether  bor^ 
or  unborn,  when  any  other  of  them  should  attain 
the  age  or  time  aforesaid,  and  their  respective  ex- 
ecutors," &<:. :  at  the  expiration  of  the  20  years, 
A.  and  B.  were  living,  and  B.  had  children  who 
had  attained  21  ;  and  held,  that  the  grandchil- 
dren acquired  vested  interests,  subject  to  be  divest- 
ed or  diminished  in  the  event  of  other  grandchil- 
dren of  A.  and  B.  being  born,  who  should  attain 
21 ;  and  that  in  the  meantime  they  were  entitled 
to  the  income  of  the  accumulated  fund.  Scott  v. 
Earl  of  Scarborough,  J  Beav.  (ch.;  154. 

9.  Upon  a  devise  of  freehold,  copyhold  and 
leasehold  estate,  and  of  stock,  to  A.,  B.,  and  C  , 
to  hold  the  said  freehold  and  leasehold  tenements 
and  premised,  and  the  stock,  in  trust  for  A. ;  held, 
that  the  copyhold  did  not  pass  to  A.,  but  descend- 
ed to  the  customary  heir  *,  the  trust  being  to  per- 
mit A.  to  receive  the  rents,  &c.  for  life,  and  afler 
her  decease  to  convey  to  her  heirs,  executors, 
Ac,  but  in  case  A-  should  marr^,  and  have  no 
children,  then  to  D.  his  son,  or  if  he  should  die 
before  A.,  then  to  his  children ;  and  the  events 
were,  that  A.  married,  and  O.  died  in  her  life- 
time, without  issue  ;  held,  that  A.  took  an  abso- 
lute estate,  subject  to  be  defeated  by  a  contingent 
executory  gifl  over,  and  that  as  £>.  died  in  her 


lifetime,  without  iaene,  the  abioliile  estate  vested 
in  A.  could  not  be  divested.  Jackson  v.  NoUe, 
2  Keene,  (ch.)  590. 

10.  Upon  a  bequest  of  a  fund  to  children,  the 
interest  to  be  applied  to  their  maintenance  antil 
21,  with  power  then  to  dispose  of  the  interest, 
and  the  whole  property  to  be  transferred  at  25 ; 
held,  that  such  portion  of  the  interest  as  was  not 
applied  during  their  minorities  vested  absolutely 
in  them,  and  passed  to  their  personal  representa- 
tive.   Barber  v.  Barber,  3  Myl.  &  Cr.  (cfl.)  688. 

11.  Upon  a  giflof  a  fund  in  trust  for  the  testa- 
tor's sister  for  life,  and  afler  her  death  for  her 
husband,  and  ailer  his  decease  for  his  nephew  and 
nieces,  the  children  of  his  sister,  who  skould  be 
then  living ;  the  wife  survived  the  husband  and 
one  of  the  children  ;  and  held,  that  such  deceased 
child  took  a  vested  interest,  the  word  "  then  "  re- 
ferring to  the  last  antecedent,  viz.  aAer  kis  de- 
cease. Archer  v.  Jegon,  8  Sim.  (ch)  446;  and 
1  Coop.  (ch.  c.)  172. 

12.  On  a  bequest  to  the  testator's  brothers  and 
sisters  absolntelv,  and  if  any  died  in  his  lifetime 
without  issue  tnem  surviving,  that  their  share 
should  ffo  amongst  the  survivors,  and  that  if  any 
should  die  in  his  lifetime  leaving  issue,  such  is* 
sue  should  be  entitled  to  his  share,  but  that  none 
of  the  legatees  should  be  entitled  until  attaining 
the  age  of  21  ;  held,  that  on  attaining  21,  they 
look  absolute  interests,  not  afiected  by  the  limita- 
tion over  in  case  of  the  dedth  under  21  of  any  in 
the  lifetime  of  the  testator,  or  afterwards.  Mon- 
teith  V.  Nicholson,  2  Keene,  (ch.)  719. 

13.  On  a  gift  of  personalty  to  Sir  G.  A.,  bart., 
for  life,  and  afler  his  decease  to  his  eldest  son, 
and  if  he  should  die  leaving  no  issue,  then  to  the 
person  on  whom  the  baronetcy  should  devolve, 
but  so  that  each  succeeding  baronet  should  enjoy 
only  for  his  life,  and  after  the  extinction  of  the 
title  to  fall  into  his  residuary  estate  ;  Sir  6.  A. 
died  without  having  had  any  tssne,  and  the  title 
devoWed  on  his  brothers,  J.  and  R.;  and  held, 
that  J.  took  the  property  absolutely.  Mack  worth 
V.  Hinzman,  2  Reene,  (ch.)  658. 

14.  Upon  a  bequest  of  two  leasehold  houses  to 
testator's  sisters  respectively,  to  be  held  by  them 
during  their  lives,  and  to  be  disposed  of  at  their 
deaths,  the  one  to  descend  to  his  sister  H.'s  elclest 
son  or  daughter,  and  the  next  heir  male,  until  the 
expiration  of  the  lease,  and  in  like  manner  as  to 
the  other  sisters ;  held,  that  the  sisters  took  al^ 
solutely ;  and,,  semble^  if  the  premises  had  been 
freehold,  that  they  would  have  taken  a  fee  simple. 
Harrison,  ez  parte,  3  Tounge  4&  C.  (ex.  xti.)  275» 

15.  Where  the  testator  gave  the  interest  of  a 
sum  until  his  son  should  settle  in  life,  and  then 
the  principal  to  be  paid  him,  at  the  option  of  the 
executors  whether  to  pay  him  the  whole  or  re- 
serve a  part  for  his  children ;  held,  that  the  lega- 
tee having  attained  21,  was  entiUed  absolutely  to 
the  fund.   Williams  v.  Tales,  1  Odop.  (cH.  c.)  177. 

And  see  Infant ;  LiimtaHon^  Stat,  of;  Stmmp, 


[B]  CnirvLATivB. 
Where  a  bequest  by  a  fktber  to  his  son  was, 


[LEGAOYl 


3833 


hj  the  will  3,00m.,  and  by  a  codicil  4,0002.  in  ad- 
dition  to  the  legacy  of  3,000  given  by  the  will ; 
held,  that  he  wos  entitled  to  the  legacies  given 
both  i>y  the  will  and  codicil.  Gordon  r.  Hoff- 
man, 7  Sim.  (cH.)  29. 


[C]    SOBSTITUTID. 

Where  the  testator  directed  bo  much  stock 
to  be  invested  as  woald  produce  an  annuity  of 
£279,  and  after  the  death  of  the  annuitant,  he 

Sve  £2,000  of  the  stock  in  trust  to  pay  the  divi- 
nds  in  sums  of  £o  to  poor  men  and  women, 
residents  of  A.,  and  if  more  than  sufficient,  to 
divide  the  rest  amongst  such  poor  men  and  wo- 
men as  the  trustees  should  think  fit;  by  a  codicil, 
reciting  that  he  had  sold  out  the  £2,000,  and 
bought  £2,042  in  the  Long  Annuities,  he  gave 
the  dividends  thereof  to  his  wife  for  her  life,  and 
afVer  her  death  to  the  same  trustees  as  named  in 
his  will,  in  tmst  to  pay  the  dividends  in  sums  of 
£5  to  poor  men  and  women,  natives  and  residents 
of  A.  and  if  more  than  sufficient,  then  to  pay  £7 
instead  of  £5  to  six  poor  men  and  six  poor  wo- 
men ;  held,  that  the  latter  bequest  was  not  a  sub- 
stitution of  that  in  the  will.  Attorney- General 
V.  George,  8  Sim.  (ch.)  136. 


[D]  LAPSsn. 

1.  Upon  a  bequest  of  lands  in  trust  to  pay  the 
rents  and  profits  to  the  testator's  wife  for  hie  or 
widowhood,  and  after  her  death  or  marriage  to  ap- 
ply them  for  the  maintenance  of  his  children,  until 
the  youngest  attained  twenty-one,  and  he  gave 
and  bequeathed  his  estate  to  his  son,  paying  to 
daughters  £  each;   held,  that  .the  pay- 

ment being  postponed  for  the  convenience  of^  the 
estate,  the  legacy  to  a  daughter  did  not  lapse  by 
her  death  before  the  period  apj>ointed  for  payment. 
Goulborn  v.  Brooks,  2  Youngig  ^  C.  (vz.  e<i.) 
539. 

3.  Where  the  testetor  expressly  exonerated  his 
personal  estate  (other  than  leasenolds,)  from  the 
payment  of  debte,  and  expressly  subjected  his 
neehold  and  copyholds  as  tne  primary  fund,  and 
declared  his  leasehold  estates  to  be  the  secondary 
fund  for  the  payment  of  his  debte  and  testement- 
ary  expenses ;  and  he  gave  all  his  estetes  for  the 
benefit  of  his  ehildren,  and  his  remaining  personal 
estate  to  A.,  exonerated  from  his  debte;  one  of 
the  children  having  died  in  the  testetor's  lifetime, 
held,  that  as  between  the  heir  and  next  of  kin  of 
such  child,  and  the  residuary  legatees,  that  the 
share  intended  for  such  child  was  to  be  applied  in 
the  same  manner  and  extent  as  if  such  child  had 
survived,  and  his  heir  and  next  of  kin  entitled  re- 
spectively to  what  remained  after  such  applica- 
tion.   Fisher  v.  Fisher,  2  Keene,  (ch.)  610. 

3.  Upon  a  bequest  of  chattels  to  two,  share  and 
share  alike,  and  upon  the  decease  of  either  with- 
out lawful  issue,  the  share  to  go  to  the  other; 
held,  that  the  death  of  one  in  the  lifetime  of  the 
testetor  did  not  prevent  the  gill  over  teking  ef- 
fisct ;  held  also,  that  the  legacies  given  to  them 


on  particular  events,  di^rent  in  amonot,  and 
from  different  motives,  and  steted  as  **  further 
sums,"  were  cumulative,  and  not  substitutional. 
Mackinnon  r.  Peach,  2  Keene,  (en.)  555. 


(£)  Specific. 

1 .  Where  the  testetrix  directed  her  executors- 
to  invest  so  much  as  would  purchase  a  steted 
sum  in  the  three  per  cente.,  and  pay  the  dividend* 
to  a  party  for  life ;  held,  that  a  direction  to  pay 
legacies  within  three  months  did  not  apply  to 
such  a  gifl,  but  that  the  legatee  was  entitled  to 
have  that  amount  of  stock  purchased,  although 
the  executor  was  unable  to  get  in  the  estetes  un* 
til  a  period  when  the  price  of  the  stock  had  risen. 
Owden  v,  Campbell,  8  Sim.  (ch.)  554. 

2.  Upon  a  bequest,  upon  certein   truste,  of 

£ consols,  ana  £-- —  long  annuities,  and  of 

all  monies  over  which  the  testetrix  had  a  power 
of  appointment  under  a  settlement,  and  all  the 
residue  in  trust,  &c. ;  held,  that  the  separation  of 
the  consols  and  long  annuities,  bv  specific  de- 
scription, constituted  them  specific  legacies^ — 
Kamptv.  Jones,  2  Keene,  (ch.)  756. 

3.  Where  the  testetor  possessed  only,  at  the 
date  of  his  will  and  of  his  decease,  particular 
stocks,  devised  them  specifically,  and  aflerwarda 
gave  certain  other  legacies,  and  upon  the  whole 
of  the  circumstences  and  tenor  of  the  will,  it  waa 
dear  that  he  designed  the  stocks  should  be  a  fund 
to  secure  the  payment  of  the  latter,  and  by  impli- 
cation charged  tnereon  ;  held,  in  defect  of  assets^ 
that  the  former  bequesto  were  liabltf  to  abate. 
Rogers  9.  Clarke,  1  Coop.  (ch.  c.)  376;  where 
see  the  distinction  between  general  and  specific 
legacies. 


(F)  RxsinuART. 

1.  Upon  a  gifl,  in  certein  evente,  of  residue  be- 
twixt four  persons,  equally  betwixt  them,  and 
who  were  also  appointed  executors,  and  one  re- 
nounced probate ;  held,  that  such  portion  of  the 
residue  became  a  lapsed  legacy,  and  became  un- 
disposed of,  and  as  such  devolved  upon  the  teste- 
tor s  next  of  kin.  Barber  v.  Barker,  3  Myl.  db 
Cr.  (CH.)  688. 

2.  Where  the  execntors  were  directed  to  apply 
the  dividends  to  the  maintenance  of  R.  S.,  and 
in  the  event  of  his  death  under  21,  then  to  apply 
them  as  directed;  the  le^tee  dvin^  under  2I> 
and  a  part  only  of  the  dividends  havmg  been  so 
applied,  held,  that  the  unapplied  part,  with  the 
accumulations,  formed  part  of  the  residue.  Mc- 
Donald V,  Boyce,  2  Keene,  (ch.)  517. 


(G)   111   SATISFACTION. 

The  judgment  of  the  Vioe-Chancellor,  in  Pbwys 
V.  Mansfield,  6  Sim.  528,  as  to  the  admissibility 
of  extrinsic  evidence  to  show  that  a  testetor 
stood  in  loco  parentis^  as  regards  the  question  of 


2824 


[LEGACY] 


intention  to  proyide,  affirmed ;  but  revened  as  to 
the  sabaequent  proyision  by  a  settlement  being 
in  satisfation  of  that  given  by  will,  and  also  that 
a  child  might  be  deemed  to  stand  in  that  relation, 
although  at  the  time  living  with  its  parent,  and 
maintamed  by  him.    3  Myl.  A.  Cr.  (ch.)  359. 


[H]  Ademption  or. 

Where  a  testator  resident  abroad  gave  by  his 
will  a  sum,  part  of  money  in  his  agent's  hands, 
received  from  the  Transport  Board,  and  shortly 
before  his  death  he  instructed  his  agent  abroad 
to  direct  his  agents  in  this  country  to  invest 
all  monies  in  their  hands  in  such  of  the  public 
funds  as  they  should  think  most  beneficiaJ,  and 
he  died  befbre  they  received  the  instructions, 
bat  they  had  of  their  own  accord  previously  in- 
Tested  the  whole ;  held,  that  the  legacy  was  spe- 
cific and  not  adeemed  by  the  circumstances 
which  bad  taken  place.  Basan  v.  Brandon,  8 
Sim.  (cH.)  171. 


[1]    Wh«5    payable — OUT   OF   WHAT   FCKDS. 

1 .  On  a  gift  of  an  annuity  payable  quarterly, 
**the  first  payment  to  be  made  within  eighteen 
months  after  testator's  death;"  held,  that  it  did 
not  commence  nntil  fifteen  months  after  his 
death.  Where  the  first  payment  is  to  be  made 
within  one  month  after  that  event,  it  commences 
immediately  on  the  testator's  death ;  whertf  the 
first  year's  payment  is  to  be  made  at  an  appointed 
time,  the  second  year's  payment  is  not  due  nntil 
the  end  of  the  year,  Irvin  «.  Ironmonger,  2 
Rues.  &  M.  (cH.)  531. 

2.  Where  testator  having  given  a  real  estate 
and  a  sum  of  money  to  A.  (who  became  subse- 
quently his  widow)  for  life,  and  afterwards  to  his 
brother,  to  whom,  after  legacies  to  nephews  and 
nieces,  he  bequeathed  the  residue ;  tne  brother 
dying  in  his  lifetime^  he,  hj  a  codicil  reciting  that 
event,  gave  an  annuity  to  his  widow,  and  directed 
the  trustees  to  pay  her  the  income  of  his  person- 
al  estate,  and  he  ffave  also  his  real  estates  to  A. 
for  life,  and  after  her  death  to  sell,  and  the  pro- 
ceeds tu  fall  into  his  personal  residuary  estate, 
and  he  also  gave  to  eacn  of  his  nieces  sums  "  in 
addition  to  the  legacies  given  them  by  the  will," 
to  be  held  by  the  trustees  for  their  separate  use ; 
held,  that  the  legacies  to  the  nieces  were  not 
payable  until  after  the  death  of  his  widow.  Over- 
end  t7.  Gumey,  7  Sim.  (ch.)  128. 

3.  Where  testator  devised  all  his  leasehold  and 
personal  estate  to  trustees  to  sell  for  payment  of 
his  debts  and  legacies,  and  by  a  codicil  gave  a  sum 
**•  out  of  his  personal  estate,"  to  charitable  pur- 
poses, held,  that  having  distinguished  between 
nis  leasehold  and  personal  estate,  and  expressly 
directed  the  payment  to  be  made  ont  of  bis  per- 
sonal estate,  the  bequest  was  payable  wholly  out 
of  the  latter.  Wilson  v,  Thomas,  3  Myl.  db  K. 
(cH.)  579. 

4.  Whexe  a  testatrix,  in  the  execution  of  a 


power  over  mixed  estate  of  realty  and  personaltjr, 
appointed  the  whole  fund  to  her  hnsband  ibr  liw, 
and  then  to  children,  and  if  none,  she  gaye  the 
whole  to  him,  *•*•  subject  as  hereinafter  mentioned," 
and  then  gave  several  conditional  legacies,  and 
also  one  absolutely  to  £.,  to  be  paid  within,  &c. ; 
held,  that  the  legacy  was  a  charge  upon  the  real 
estate,  which  was  the  subject  of  uie  appointment 
Nyssen  r.  Gretton,  2  Tounge  (ex.  e^.)  222. 

5.  Where  in  a  suit  for  a  legacy  charged  on  a 
particular  estate,  and  reference  to  the  Master,  to 
whom  no  question  was  submitted  as  to  the  liability 
of  other  estates  to  satisfy  genera]  creditor*,  and 
he  had  found  that  such  legacy  was  a  charge  on 
that  particular  estate,  after  payment  of  judgment 
and  bond  debts,  which  had  priority  over  the  lega- 
cy; held,  that  such  finding  was  proper,  and  de- 
cree affirmed  with  costs.  Bouverie  r.  Norbuxy. 
9  Bli.  N.  S.  (p.)  611. 

6.  Pecuniary  legatees  are  not  entitled  to  have 
the  assets  marshalled  against  a  devisee  of  residu- 
ary, any  more  than  of  specific  devises  of  land ; 
and  where  the  testator,  afler  giving  several  pecu- 
niary and  one  devise  of  real  estate,  directed  pay- 
ment of  all  his  debts  and  legacies  within  six 
months  after  his  decease,  and  all  the  rest  and 
residue  of  his  estate,  both  real  and  personal,  he 
devised  to  N. ;  held,  that  both  debts  and  legacies 
were  effectually  charged  on  such  estate.  Idire- 
house  V.  Scaife,  2  Myl.  &  Cr.  (en.)  695. 

7.  Where  a  tesUtor  by  will  didy  attested,  di- 
rected his  real  and  personal  estate  to  be  converted 
into  money,  and  the  mixed  fund  to  be  applied  in 
the  first  place  to  the  payment  of  debts,  ftmeral 
and  testamentary  expenses,  and  also  the  legacies 
which  he  might  bequeath  by  any  codicil ;  and  he 
by  an  unattested  codicil  gave  an  annuity  to  his 
wife,  held,  that  by  the  will  there  was  a  general 
charge  on  both  legacies,  by  the  will  and  codicil; 
and  the  annuity  tiierefore  was  well  charged  on 
the  real  estate.  Swift  v.  Nash,  2  Keene,  (cB.) 
20. 

8.  Where  a  testator  by  will  charged  his  estate 
with  the  payment  of  portions,  to  be  raised  within 
two  years  after  his  sons  attaining  twenty-one, 
and  as  to  his  yonger  sons'  portions  directing  naain- 
tenance  in  lieu  of  interest,  and  as  to  daughters 
giving  maintenance  expressly,  but  silent  as  to  in- 
terest ;  held,  first,  that  the  portions  were  raiaea- 
ble  at  the  period  stated,  although  before  the  time 
of  payment ;  and ,  secondly,  that  the  daughters 
were  not  entitled  to  interest  on  their  portions, 
notwithstanding  a  general  clause  that  the  trustees 
should  stand  possessed  of  the  trust  funds,  and 
the  interest,  &o.,  for  the  benefit  of  the  daughters 
on  attaining  twenty-one.  Selby  v.  GiUam,  S 
Younge  6c  C.  (ex.  sq.)  379. 

9.  Where  the  testator  devised  real  estates  for  a 
term,  as  provision  for  his  wife  for  life,  portions 
for  younger  children,  and  for  maintenance,  in 
case  of  a  deficiency  of  his  personal  estate,  and  to 
raise,  after  the  death  of  his  wife,  sufficient  to  die- 
char^^  the  legacies,  and  he  directed  that  all  the 
legacies  should  bear  interest  from  the  time  of 
their  becoming  payable ;  the  nersonal  estate  was 
deficient,  hot  there  being  no  children,  there  was  a 
eoDsidenible  sarploa  of  the  rents  or  the  estOea 


[LEGACY] 


2835 


oomprised  in  the  term;  held,  that  the  legacies, 
altboagh  not  to  he  raiaed  until  the  death  of  the 
wife,  bore  interest  from  the  death  of  tbe  testator, 
and  were  payable  out  of  such  estates  during  her 
life  (affirming  the  iudgnnent  below).  MillLown 
r.  Trench,  10  Bli.  N.  S  (p.)  1. 

10.  Where  the  wife,  exercising  a  power,  ap- 
pointed all  her  real  and  personal  estate  to  the  use 
of  her  husband  for  life,  subject  to  the  payment 
of  her  debts,  and  she  also  gave  various  charitable 
and  other  legacies,  "to  be  paid  by  my  husband 
as  soon  after  my  deatb  as  is  convenient,  or  within 
three  years,  if  it  suit  his  convenience,"  and  she 
charged  her  real  estate  with  the  payment  of  debts 
and  legacies,  and  gave  her  husband  a  power  of 
sale  or  mortgage  of  any  part ;  held,  that  the  lega- 
tees were  not  entitled  to  interest  on  their  legacies 
until  after  the  expiration  of  three  years,  and  that 
the  discretion  given  to  the  husband  as  to  the  sale 
was  to  be  exercised  as  a  sound  discretion,  and 
not  of  arbitrary  or  capricious  choice.  Thomas  v. 
Attorney-General,  2  Younge  &  C.  (xx.  e(i.)  525. 

11.  Where  the  testatrix  gave  shares  of  the  pro- 
ceeds of  the  sale  of  estates  to  B.  and  others,  and 
afterwards  revoked  the  bequest  to  B.,  and  in  lieu 
thereof  gave  a  specific  sum  to  him ;  she  also  re- 
voked bequests  of  shares  to  the  others,  and  gave 
them  specific  sums,  to  be  paid  out  of  tbe  proceeds 
of  sale,  and  a  ftirther  bequest  to  B.,  payable  out  of 
her  personal  estate  ;  held,  that  both  of  the  lega- 
cies to  B.  were  payable  out  of  the  ge'neral  person- 
al estate.  Buxton  V.  Buxton,  1  Coop.  (ch.  g.) 
197. 

12.  Upon  a  gift  of  an  annuity,  payable  out  of 
testator's  long  annuities,  and  to  be  secured  there- 
on, and  the  principal  after  the  death  of  the  annu- 
itant to  hts  next  of  kin ;  held,  that  a  sum  of  so 
much  three  per  cents,  should  be  purchased  by 
sale  of  so  much  of  the  long  annuities  as  would  be 
sufficient  to  satisfy  the  annuity,  and  the  dividends 
be  payable  to  the  annuitant,  and  the  remainder  of 
the  long  annuities  fiill  into  the  residuary  estate. 
Fryer  v.  Buttar,  8  Sim.  (ch.)  442. 

13.  Where  the  testator  empowered  the  trustees 
of  a  legacy  given  to  the  separate  use  of  his  daugh- 
ter for  life,  to  permit  the  fund  to  remain  in  the 
hands  of  such  of  his  sons  as  should  continue  the 
business :  the  interest  thereon  having  been  regu- 
larly paid  b;^  those  taking  tbe  real  and  personal 
estate  on  which  the  legacy  was  charged,  the  court 
would  not  presume,  even  after  the  lapse  of  30 
jears,  that  it  had  been  raised  and  retained,  and 
that  the  real  and  personal  estate  remained  charg- 
ed.   Horner  v,  Sayner,  1  Coop.  (ch.  c.)  168. 

14.  Where  the  testator  had  taken  upon  himself 
to  indemnify  the  parish  against  the  charge  of  the 
legatee,  an  illegitimate  child  of  his  deceased  son, 
and  had  contributed  to  its  maintenance  up  to  the 
time  of  his  death,  and  made  provision  for  it  in  his 
will ;  held,  that  having  placed  himself  in  loco 
parentis^  interest  shoula  be  paid  on  the  legacy 
irom  the  period  of  the  testator's  death.  Rogers 
«.  Soutter,  2  Keene,  (ch.)  508 ;  and  1  Coop.  (ch. 
c.)  96. 

15.  Devise  of  real  estates,  upon  tmst,  for  sale, 
bot  the  testatrix  directed  that  the  tmstees  ihonld 
not  be  liaUe  to  be  oelled  on  to  sell,  until  after  two 


years  from  her  death,  and  ebe  gave  the  rente, 
&.C.  until  nle  to  her  daughters,  and  after  sale  the 

trustees  were  to  invest  a  sum  of  £ ,  in  the 

first  place  out  of  the  proceeds,  and  she  afterwards 
gave  certain  legacies  to  her  sons  out  of  the  re- 
maining proceeds,  but  which  were  not  to  bear  in- 
terest  until  the  principal  legacv  was  paid ;  she 
also  directed  certain  legacies  to  be  paid  within  12 
months  after  the  sale ;  lield,  that  the  estates  were 
to  be  considered  as  sold  at  the  expiration  of  the 
two  vears,  and  the  principal  legacv  to  bear  inter- 
est from  that  time,  but  that  the  legacies  to  the 
sons  did  not  bear  interest  until  three  years  after 
her  death.  Buxton  v.  Buxton,  1  Coop.  (ca.  c.) 
97. 

And  see  Marriage  SetL  ;  Portion. 


[K]  Duty. 

1.  Where  testator  having  given  anannuitvto 
his  grandson,  and  directed  the  duty  to  be  paid  by 
his  executors  on  all  legacies  and  annuities  given 
by  the  will,  he  by  codicil  gave  an  annuity  in  lien 
of  that  given  by  the  will ;  held,  that  the  latter 
being  a  mere  substitution,  was  to  be  taken  with 
all  its  accidents,  and  was  to  be  paid  fVee  from  the 
legacy  duty.  Earl  of  Shaftesbury  e.  Duke  c^ 
IVfarlborough,  5  Sim.  (ch.)  237. 

2.  Where  a  testator  domiciled  in  India,  and 
having  personal  estate  there  and  in  this  country, 
gave  uie  latter  to  his  wife,  and  the  former  to  Ta- 
rions  lejratees ;  one  of  the  executors  proved  the 
will  \n  England  in  lespeot  of  the  property  there, 
and  the  other  executors  obtained  probate  in  India, 
and  remitted  the  estate  collected  by  them  to  this 
country,  and  it  was  invested  and  transferred  into 
court  in  a  suit  instituted  against  the  executors  for 
the  administration  of  the  estate ;  held,  that  the 
fund  so  remitted  was  not  liable  to  legacy  duty. 
Arnold  v.  Arnold,  2  Myl.  A  Cr.  (ch.)  256. 

3.  Where,  previous  to  36  Geo.  3,  c.  52,  a  tes- 
tator devised  his  residuary  estate  to  the  same 
uses  as  his  real  estate  before  devised,  viz.  to  G. 
for  life,  remainder  to  his  is^ue  in  tail,  in  strict 
settlement,  remainder  over  to  M.  for  life  and  like 
uses;  such  residue  having  remained  invested  in 
mortga^,  and  afterwards,  and  after  the  5th  April 
1805,  when  55  Geo  3,  c  184,  came  into  operation, 
the  remainder  to  M.  took  efiect ;  held  that,  being 
still  personal  estate  when  it  devolved  upon  M., 
it  was  liable  to  tbe  payment  of  legacy  duty  under 
the  latter  Act  Attorney- General  e.  Hancock, 
2  Mees.  &,  W.  (kx.)  563. 

4.  Where  testator  gave  stock  to  be  transferred 
to  M.  S.  within,  &c.,  after  his  decease,  and  also 
several  pecuniary  legacies,  and  directed  the  leg- 
acy duty  upon  all  the  pecuniary  legacies  before 
bequeathed  to  be  paid  out  of  his  general  personal 
estate ;  held,  that  the  legacv  of  stock  was  not  ex- 
empt under  that  clause  U'om  payment  of  the 
duty.    Douglas  v.  Congreve,  1  iC.  (ch.)  410. 

5.  Where  an  executor  does  not  show  cause 
against  a  rule  under  42  Geo.  3,  c.  99,  s.  2,  calling 
upon  him  to  account  for  and  pay  over  duties, 
held  that,  in  case  tt  shall  appear  npon  hie  state- 


f»26 


[LEGACY— LIBEL] 


ment  that  daties  are  doe,  it  ia  to  be  part  of  the 
rale  in  future  that  he  ahali  pay  coats  to  be  tax- 
ed, Ac.  Robinson^  in  re,  2  Meea.  &  W.  (ex.) 
407. 

6-  The  case  of  Wharton  v.  Earl  of  Durham, 
reversed  on  appeal  in  Oom.  Pr.,  3  CI.  &  Fi.  (f .) 
698. 

7.  On  a  bequest  of  such  a  sum  as  when  in- 
Tested  would  produce  a  dear  yearly  sum  of  500^. 
on  trusts  in  succession,  some  not  being  ascertain- 
ed at  the  testatrix's  death  ;  held,  that  the  word 
^^  clear"  was  to  be  construed  not  to  exempt  the 
fund  from  legacy  duty,  but  ^expenses  of  invest- 
ment   Sanders  v.  Kiddell,  7  Sim.  (ch.)  536 

8.  Where  testator  gave  "one  clear  yearly  sum 

of  X ,*'  and  charged  the  same  on  a  particular 

estate,  which  he  devised  to  trustees  on  trust,  to 
raise  and  levy  the  same  and  subject  thereto,  and 
all  costs  and  expenses  of  raising  and  paying,  to 
A.  for  life,  with  remainder  over;  held, that  the 
annuity  was  clear  of  legacy  duty,  which  was 
chargeable  on  the  residuary  estate.  Gude  v. 
Mumford,  2  Tounge  iSc  C'.  (ex.  Eq,.)  448. 

9.  Where  lands  were  devised  successively  in 
tail,  with  power  to  each  tenant  for  life  in  succes- 
sion to  charge  the  estates,  by  deed  or  will,  with 
certain  annuities  by  way  of  jointure,  one  of  whom 
by  will  chared  them  with  an  annuity  by  way  of 
jointure  to  his  wife ;  held,  that  the  appointee  took 
ov  the  ffifl  of  the  original  devisor,  and  the  gift 
CBargeable  with  the  lee^acy  duty ;  held,  also,  that 
the  party  entitled  to  tne  real  estate  in  remainder 
was  chargeable  with  such  duty.  Attorney-€ren- 
mbI  v.  Pickard,  3  Mees.  ^k  W.  (ex.)  552. 

10.  Where,  from  the  whole  tenor  and  context 
of  the  will,  the  trustees  have  a  discretion  to  sell 
jeal  estate,  and  convert  it  into  personalty,  until 
3uch  discretion  exercised,  the  legacy  duty  does 
Dot  attach.  Attorney- General  v.  'Mangles,  5 
Mees.  &  W.  (ex.)  120. 

11.  Where  the  testator  directed  a  sufficient 
«am  to  be  invested  to  produce  a  clear  sum  of  jC— 
iL  year  to  be  paid  to  A.,  and  afler  her  decease  the 
principal  to  be  divided  amongst  other  parties,  and 
he  directed  the  legacy  duty  to  be  paid  out  of  his 
residuary  estate,  of  all  the  specific  and  pecuniary 
legacies,  and  of  the  said  yearly  sum ;  held,  that 
the  duty,  as  well  in  respect  of  the  interest  given 
io  A.,  as  well  as  those  in  remainder,  was  payable 
x»ntofthe  residuary  estate.  Calvert  t?.  Sebbon, 
^  Keeae,  (cb.)  672. 

12.  Where  a  testator  directed  certain  specified 
^ebts  (barred  by  the  Statute  of  Limitations)  to  be 
paid,  and,  afler  yarions  legacies,  directed  one-fiflh 
4>f  the  residue  to  be  paid  equally  among  certain 
joint  creditors,  who  were  named  in  a  schedule ; 
aeld,  that  such  direction  was  not  to  be  consider- 
ed as  a  voluntary  bounty,  but  a  payment  of  sub- 
sisting debts,  although  not  capable  of  being  en- 
forced, and  was  not  liable  to  legacy  duty ;  held, 
Also,  that  the  scheduled  creditors  who  came  in 
And  proved  afler  the  usual  advertisement,  though 
not  all  those  named,  were  the  parties  amongst 
whom  that  share  of  the  residue  was  to  be  divided 
rateably,  and  that  until  satisfkction  of  their  debts 
no  part  resulted  to  the  next  of  kin ;  the  represen- 


tatives of  such  creditors  as  died  in  th^  tMtalor*s 
lifetime  were  also  entitled  to  prove.  WiUiamson 
V.  Naylor,  3  Tounge  &  C.  (xx.  sq.)  208. 

And  see  Administration  ;  ExecfUor, 


LEVARI  FACIAS. 

Where  the  bishop's  return  to  a  lewiri  merely 
stated  the  debtor  and  creditor  account  of  the  se- 
questrator, held  that  it  ought  to  state  that  no  otbei' 
sums  had  been  received,  and  be  verified.     Elchin 
V.  Hopkins,  7  Dowl.  (p.  c.)  146. 


LIfiEL. 

1.  Where  reports,  printed  by  order  of  the 
House  of  Commons,  were  sold  by  their  appmnted 
agent,  containing  matters  highly  slanderous  on 
individuals,  held  not  a  privileged  publication 
(per  Denman,  L.  C.  J.)  Stockdde  v.  Hansard,  7 
C.  &.  P.  (K.  p.)  731. 

2.  Where  the  libel  consisted  of  charges  against 
the  plaintiff,  a  constable,  made  in  a  letter  to  the 
rate-payers ;  held,  that  bein^  a  privileged  com- 
munication, if  made  to  them  by  word,  it  was  in- 
cumbent on  jhe  plaintiff  to  show  that  the  defen- 
dant's absence  from  the  meeting,  the  pretence  ci 
writing,  was  wilful.  Spencer  v,  Ameston,  I  M. 
6l  Rob.  (K.  p.)  470. 

3.  Where  the  plaintiff  wrote  a  letter  justifying 
himself  and  his  conduct,  and  criminating  the 
plaintiff's  wife,  who  had  been  a  servant  to  the 
party  to  whom  the  letter  was  addressed;  held, 
for  tne  jdry  to  say  whether  the  defendant  merely 
meant  oanA  fide  to  defend  himself,  and  throw  an 
alleged  fraud  on  the  servant,  and  if  so,  that  it 
was  a  privileged  communication.  Coward  v.  Wel- 
lington, 7  C.  &  P.  (N.  p.)  531. 

4.  Where  the  libel  was  contained  in  an  adver- 
tisement, stating  the  issmng  of  process  against 
the  ]>laintiff,  ana  that  he  cowd  not  be  found,  and 
offering  a  reward  for  such  information  as  should 
enable  him  to  be  taken ;  plea,  that  a  capias  bad 
been  issued  and  delivered  to  the  sheriff,  and  that 
the  plaintiff  kept  out  of  the  way,  and  that  the 
advertisement  had  been  inserted  at  the  request  of 
the  party  suin^  out  the  writ  to  enable  the  sheriff 
to  arrest;  hela  a  sufficient  defence.  JLayv.  Law- 
son,  4  Ad.  ds  Ell.  (X.  B.)  796. 

And  see  Delany  v.  Jones,  4  Esp.  N.  P.  191 ; 
and  Fairman  v.  Ives,  5  B.  dt  Aid.  645. 

5.  In  libel,  where  the  defence  is  privileged 
communication,  held  that  it  need  not  be  specially 
pleaded.  Lillia  r.  Price,  1  Nev.  &  P.  (k.  b.)  16; 
and  5  Dowl.  (p.  c.)  432. 

6.  To  an  action  for  a  libel,  pleas  —  the  general 
issue,  and  two  special  pleas,  the  issues  on  all  oi 
which  were  found  for  the  plaintiff,  with  Is.  dam- 
ages, and  the  Judge  had  certified  under  43  Eliz. 
c.  6,  8.  2,  to  deprive  the  plaintiff  of  costs  ;  Iseld 
that,  notwithstanding  the  seventh  rule  of  UiL«  4 
Will  4,  the  plaintiff  w«i  eatitied  to  no 


[LIBEL] 


98Si7 


eoflts  than  damageB.    Simpson  v.  Hurdia,  8  Mees. 
tfi  W.  (XX.)  84  ;  and  6  Dowl.  (p.  c.)  904. 

7.  Where  the  terms  of  the  libel  are  equiyocal, 
subaequent  words  of  the  same  import  raaj  be  ^ven 
in  evidence ;  aliterf  where  the  words  are  unam- 
biguous, and  the  subsequent  words  of  themselyes 
actionable.  Pearce  v.  Omsby,  1  M.  &  Rob. 
(5.  T.)  455;  8.  P.  Symmons  v.  Blake,  lb.  477; 
in  which  also  held,  that  damages  recovered  for 
previous  slander  might  be  given  in  evidence  to 
show  the  malice. 

8.  Where  the  plea  justifying  a  libel  gave  no 
answer  to  particular  scurritous  and  opprobrious 
terms  used  in  it ;  held  that,  not  containing  any 
ground  of  charge  or  imputation  against  the  plain- 
uff  distinct  from  that  which  was  the  gist  of  the 
libel,  and  the  truth  of  which  was  justined  by  the 
plea,  the  plea  was  sufficient,  and  a  rule  to  enter 
up  judgment  non  obst.  vered.  refused  ;  held  also, 
that  under  an  alloffatioo  in  the  libel  that  the  de- 
^ndant  had  crushed  the  Hygeist  system  of  whole- 
sale poisoning,  and  that  several  vendors  had  been 
convicted  of  manslaughter,  it  was  not  necessary 
for  the  defendant  to  prove  that  tlie  system  had 
been  entirely  crushed,  and  that  proof  of  the  con- 
viction of  two  vendors  for  manslaughter  suffi- 
ciently proved  the  plea,  although  the  evidence  as 
to  Ihe  (&ath  being  occasioned  by  not  complying 
with  the  printea  regulations  in  some  respects 
varied  from  the  allegation,  there  being  evidence 
for  the  jury  as  to  the  cause  of  death.  Morrison 
0.  Harmer,  3  fiing.  N.  S.  (o.  p.)  756. 

9.  In  case  for  libel,  pleas — ^not  guilty,  and  a 
justification  that  the  libel  was  a  true  report  of 
what  had  passed  in  a  court  of  justice  on  a  charge 
of  conspiracy  against  the  plaintiff  and  others, 
both  which  were  found  for  the  defendant ;  the 
counsel,  who  moved  the  judgment  against  the 
plaintiff,  being  called  as  a  witness,  and  having 
proved  that  he  had  stated  the  plaintiff  to  have 
(set  out  as  an  overt  act  of  the  conspiracy)  writ- 
ten a  letter  which  was  alleged  to  have  b^n  writ- 
ten, not  by  him,  but  by  a  co-conspirator ;  held, 
that  the  plaintiff's  own  allegations  making  a  ne- 
cessary part  of  his  case  and^  proof,  the  character 
of  the  publication  was  part  of  the  issue  of  not 
guilty,  and  the  question  properly  left  to  the  jurv^ 
upon  that  plea.  Stockdale  v.  Tarte,  4  Ad.  &  £11. 
(K.  B.)  1016. 

10.  Proof  of  the  copy  of  the  libel  being  in  the 
defendant's  handwriting,  addressed  to  the  editor 
of  the  T.  S.,  and  sent  to  the  T.  S.  office,  held 
evidence  to  show  that  it  was  sent  with  the  inten- 
tion of  being  published ;  held  also,  that  hand-bills 
pablished  by  the  defendant  on  the  same  subject 
at  the  same  time,  and  also  the  manner  of  publica- 
tion by  being  placarded  and  carried  bemre  the 
pkiintiff's  house,  were  admissible  to  show  the 
ammnu.  Bond  v.  Douglass,  7  C.  db  P.  (v.  p.) 
626. 

11.  The  post-mark  on  a  letter  held  to  be  primA 
fade  evidence  of  a  publication.  Sbepley  v.  Tod- 
hnnter,  7  C.  &.  P.  (k.  p.)  680. 

12.  Where  a  witness,  called  to  prove  the  de- 
fendant's handwriting  to  a  libel,  deposed  to  hav- 
ing seen  the  defendant  also  write  in  a  book  which 

m  propoaed  io  be  dhown  to  ihe  jury  to  eom- 
VoL.  IV.  TO 


pare,  held  inadmissible ;  but  that  a  letter  written 
to  the  plaintiff,  referring  to  some  of  the  anbjeeta 
in  the  libel,  if  admissible  in  its  own  nature,  it 
could  not  be  withdrawn  from  the  consideration 
of  the  jury-  Waddington  v.  Cousins,  7  C.  & 
P.  (H.  p.)  595. 

13.  Where  an  application  for  a  criminal  infor- 
mation for  a  libel  had  been  discharged  on  an  affi- 
davit that  the  libel  was  true,  and  the  deponent 
subsequently  indicted  for  perjury  thereon,  but 
absconded,  the  court,  reluctantly  acting  on  a 
suggestion  of  former  affidavits  bemff  untrue,  un- 
der the  circumstances  made  a  second  rule  for  the 
information  absolute.  R.  «.  Eve  A  Parlby,  1 
Nev.  &  P.  (K.  B.)  229. 

14.  Where  the  defendant,  a  son-in-law,  ad- 
dressed a  letter  to  his  mother-in-law,  about  to  mar- 
ry the  plaintiff,  containing  slanderous  imputations 
against  him ;  held,  that  Uie  occasion  justified  the 
writine,  and  that  the  jury  were  to  say  whether 
the  defendant  acted  bona  fide,  and  under  a  belief 
of  the  truth,  although  the  imputations  were  false, 
and  that  such  communications  were  to  be  regard- 
ed liberallv,  unless  a  cleoiir  malicious  intention 
was  mani&st  in  the  act.  "Todd  t.  Hawkins,  8  C. 
&  P.  (5.  P.)  88 ;  and  2  M.  db  Rob.  (n.  p.)  90. 

15.  In  an  action  against  the  publisher  of  a  mag- 
azine containing  the  libel,  evidence  of  personal 
malice  of  the  editor  against  the  plaintiff  held  inad- 
missible. Robertson  v.  Wylde,  2  M.  &  Rob.  (a. 
p.)  101. 

16.  Publishing  remarks  of  a  slanderous  natnre 
by  an  elector, oia  candidate,  held  not  within  the 
principle  of  privileged  communications;  held, 
also,  that  the  libellous  matter  being  twofold,  and 
the  plaintiff's  counsel  in  his  opening  having 
statea  evidence  to  disprove  them,  but  called  wit- 
nesses only  as  to  one,  held,  that  he  could  only  con- 
tradict the  defendant's  witnesses  as  to  the  other, 
and  not  give  evidence  in  reply  in  support  of  his 
original  statements,  (per  Dennuiji^  L.  C.  J.) 
strongly  disapproving  the  practice  of  counsel 
stating  facts  in  their  opening,  and  then  not  of- 
fering evidence  thereon.  Duncombe  v.  Danielle 
8  C.  &  P.  (K.  P.)  223. 

17.  An  authority  by  the  House  of  Commons  to 
publish  and  sell  their  proceedings  and  reports, 
held  not  a  iustification  of  the  party  publishing 
matter  libellous  of  an  individual.  Stockdale  v. 
Hansard,  2  M.  &  Rob.  (v.  p.)  9. 

18.  Writing  of  the  defendant,  a  floricultural 
exhibitor,  **  tne  name  of  G.  is  to  be  rendered  fa- 
mous in  all  sorts  of  dirty  work,"  held  not  within 
the  privilege  of  fair  criticism.  Green  v.  Chap- 
man, 4  Ring.  N.  S.  (c.  p.)  92;  and  3  Sc.  340. 

19.  Where  in  an  action  for  libel,  the  defendant 
sought  to  give  in  evidence  libellous  publicationa 
by  Uie  plaintiff  of  the  defendant  in  newspapers 
and  periodical  works ;  held,  that  to  make  such 
admissible,  it  must  be  shown  that  they  came  to 
the  knowledge  of  the  party  supposed  to  be  pro- 
voked thereby,  and  that  the  court  could  not  infer 
from  the  mere  depositing  newspapers  in  the  de- 
fendant's name,  as  editor,  at  the  Stamp-office, 
under  38  Geo.  3,  c.  78,  s.  17,  that  they  were  pub- 
lished by  or  came  to  the  knowledge  of  the  de- 
fendant. Watts  9.  Freser,  2  Nev.  &  P.  (k.  b.) 
157. 


2«M 


[LIBEL] 


20.  In  an  action  against  the  defendant  for  pub- 
lishing libels,  it  appearing  that  five  packets,  ad- 
dressed to  individuals  and  enclosed  in  one  ad- 
dressed to  him,  had  been  received  at  the  coach- 
office  where  he  was  porter,  and  he  delivered 
them;  held,  that  if  the  jury  found  that  he  did  so 
in  the  course  of  his  business,  and  in  ignorance  of 
the  contents,  he  was  not  liable  ;  but,  Ming  prima 
facie  liable,  it  was  for  him  to  show  such  ignorance. 
Day  V.  Bream,  2  M.  d^  Rob.  (v.  p.)  54. 

21.  Where  the  libel  was  contained  in  a  news- 
paper, held  that  the  defendant  had  a  right  to  have 
other  parts  of  the  same  paper,  referred  to  in 'the 
libel,  read  as  part  of  the  plaintiff's  case.  Thorn- 
ton V.  Stephen,  2  M.  &  Rob.  (n.  p.)  45. 

22.  Where  the  defendant  pleads  the  general  is- 
sue and  a  justification,  of  which  he  gives  no  evi- 
dence, but  succeeds  on  the  first  issue  ;  held,  that 
the  plaintiff  is  entitled  to  a  verdict  and  costs  on 
the  latter.  Eropson  v.  Fairfax,  3  Nev.  &  P. 
((I.  B.)  385. 

23.  In  ease  for  libel  on  the  plaintiff  in  the  way 
of  his  trade,  imputing  insolvency,  and  in  other 
counts  alleging  speciaT  damage  by  the  stopping  of 
the  partnership  m  which  the  plaintiff  was  en- 
gaged ;  held,  that  the  plaintiff  was  entitled  to 
maintain  the  action  alone,  as  the  words  were  not 
necessarily  injurious  to  the  firm,  in  which  case 
only  a  joint  action  could  be  maintained;  held, 
also,  that  a  witness  must  prove  the  words  spoken, 
and  not  merely  the  impression  made  on  his  mind. 
Harrison  v.  Bevington,  8  C.  &  P.  (r.  p.)  713. 

24.  Where  the  libel  in  a  newspaper  professed 
to  be  a  statement  of  the  proceedings  before  a  jus- 
tice on  a  charge,  held  that  the  insertion  of  libel- 
lous remarks  by  parties  present  could  not  be  jus- 
tified ;  and  held,  also,  that  on  an  allegation  of 
general  injury,  the  plaintiff  might  show  a  general 
diminution  of  business;  but  tliat,  if  he  seeks 
specific  damages,  he  must  give  specific  evidence  ; 
and  in  order  to  show  malice,  the  insertion  of  the 
libel,  the  same  in  substance,  in  other  newspapers, 
may  be  given  in  evidence,  although  there  may 
be  separate  counts  in  the  declaration  to  meet  such 
other  publication ;  and  a  demurrer  to  some  of  the 
pleas  does  not  prevent  the  defendant  from  proving 
the  truth  of  the  libel.  Delegal  v.  Highley,  8  C. 
&  P.  (M.  P.)  444. 

25.  In  case  for  publishing  defamatory  matters, 

Elca,  that  it  was  part  of  a  document  laid  by  order 
efore  the  House  of  Commons,  and  published  as 
part  of  the  proceedings,  and  afterwards,  by  order 
of  the  House,  printea  and  sold  by  their  printer, 
and  that  the  power  of  publishing  such  of  its  pro- 
ceedings as  it  shall  deem  necessary  or  conducive 
to  the  public  interests  is  an  essential  incident  to 
the  constitutional  functions  of  Parliament ;  held, 
on  demurrer,  that  a  court  of  law  is  competent  to 
determine  whether  or  not  the  House  has  such 
privilege  as  would  support  the  plea.  Stockdale 
V.  Hansard,  9  Ad.  &  £11.  {q,.  b.)  I. 

26.  Declaration  for  a  libel,  headed  '*  an  honest 
lawyer,"  and  alleging  that  the  plaintiff  had  been 
reprimanded  by  one  of  the  Masters  of  the  Court 
for  sharp  practice,  with  introductory  averments 
that  the  plaintiff  had  carried  on  the  business  of  an 
attorney,  and  been  engaged  as  such  in  a  certain 


cause,  and  that  sharp  practice  in  such  profession 
was  considered  to  be  disreputable  to  the  attorney 
practising  the  same ;  held,  that  such  matter  was 
libellous,  and  the  averment  that  the  libel  was 
ironical,  coupled  with  the  inuendo,  that  the  term 
'^  honest  lawyer "  was  used  in  a  libellous  sense, 
was  sufficient.  Boydell  v.  Jones,  4  Meet.  A,  W. 
(ex.)  446;  and?  Dowl.  (p.  c.)  210. 

27.  Where  the  plaintiff's  ship  being  advertised 
for  passengers,  Ckc^  the  defendant  published  that 
she  was  unseaworthy,  and  had  been  boagbt  by 
Jews  to  take  out  convicts ;  held,  that  a  plea  to 
the  whole  declaration,  that  the  ship  was  unsea- 
worthy, was  insufficient,  as  the  latter  allegation 
was  calculated  to  deter  passengers  from  applying. 
Ingram  v.  Lawson,  5  Bing.  N.  S.  (c.  p.)  o6;  7 
Dowl.  (p.  c.)  125;  and  6  Sc.  775. 

28.  Where  the  statement  in  a  newspaper,  pro- 
fessing to  give  a  report  on  an  election  petition, 
went  on  to  comment  on  a  party,  bail  for  one  of 
the  petitioners,  stating,  **  he  is  hired  for  the  oc- 
casion,** and  the  plea  justified  only  the  former 
part  of  the  libel ;  held,  that  if  the  part  left  uncov- 
ered would  by  itself  have  formed  a  substantive 

f  round  of  action,  the  plaintiff  would  be  liable  in 
amages;  aliter^  if  the  comment  were  only  a 
necessary  inference  from  the  facts  stated.  Coop- 
er V.  Lawson,  1  Perr.  &  D.  (q.  b.)  15. 

29.  Where  the  libel  (a  song)  from  which  the 
publication  took  place,  was  lost,  and  the  printer 
produced  a  similar  one  printed  at  the  time,  which 
was  proved  to  correspond  with  that  lost,  held  saf- 
ficient.  Johnson  v.  Hudson,  7  Ad.  &  Ell.  {%.  b.) 
233,  n. 

30.  Where  the  declaration  only  alleged  the  in- 
tention to  impute  misconduct,  and  tnat  the  de- 
fendant maliciously  published  a  notice,  *^  that  any 
person  giving  information  where  property  belong- 
ing to  the  plamtiff,  a  prisoner  jn  the  King's  Bench 
prison,  might  be  found,  should  receive  five  per 
cent,  on  the  goods  recovered,"  an  inuendo  that 
thereby  the  plaintiff  had  been  guilty  of  concealing 
his  property,  with  a  fraudulent  and  unlawful  in- 
tention, held  bad,  on  demurrer,  as  enlarging  the 
meaning  of  the  terms  used.  Gompertz  e.  Cevy, 
1  Perr.  &  Dav.  {q,,  b.)  214. 

31.  Where  the  declaration  alleged  and  set  out 
a  libellous  paragraph  in  the  defendant's  newvpa- 
per,  and  afterwards,  &c.  (stating  other  libelloos 
matters  in  subsequent  newspapers) ;  held  that 
each  allegation  was  to  be  considered  a  separate 
count;  one  of  the  latter  being  in  the  terms,  **  we 
again  assert  the  cases  formerly  put  by  as  on  re- 
cord, we  assert  them  against  (the  plaintiffs)  ;  we 
again  assert  they  are  such  as  no  gentleman  or 
honest  man  would  resort  to ;"  held  to  be  conatmed 
not  as  used  merely  in  denial  of  some  asaextioa 
made  by  the  plaintiff,  but  asserted  as  an  acensa* 
tion  of  the  plaintiff,  and  libellous.  Hughes  n 
Rees,  4  Mees.  &  W.  (ex.)  204. 

32.  Plea  of  justification  of  libel,  that  the  plain- 
tiff had  been  guilty  of  bigamy,  requires  as  atroBf 
proof  as  on  an  indictment  for  that  offisnoe ;  a  {rfes, 
also,  justifying  a  charge  of  polygamy,  held  sos- 
tained  by  proof  of  actual  marriage  in  tvro  in- 
stances, and  of  cohabitation  and  reputation  asts 


J 


rUBEL— LIMITATION  OF  ESTATES] 


2839 


a  third. 
G95. 


Willmett  r.  Hormer,  8  C.  &  P.  (if.  p.) 


And  see  Action  an  the  Case;  Evidence;  Infor- 
nuUioti;  Pleading ;  Practice ;  Slander;  Trespass. 


LICENCE. 

A  mere  parol  licence  to  enjoy  an  eafiement  on 
the  land  or  another  is  not  binding  on  the  grantor 
after  he  has  transferred  his  interest  and  possession 
to  a  third  party ;  nor  is  any  notice  of  the  trans- 
fer necessary  to  determine  the  licence ;  and  a 
parol  licence  executory  is  countermandable  at 
any  time.  Wallis  v.  Harrison,  4  Mees.  dt  W. 
(XX.)  536. 

And  see  Manor. 


LIEN. 

1.  Where  the  plaintiff  knowing  that  consign- 
inents  made  by  B.  to  C,  and  bills  drawn  on  the 
plaintiff,  were  on  credit  of  the  goods  generally, 
and,  upon  the  plaintiff  having  oeen  obliged  to 
pay  the  acceptances,  the  effect  of  the  correspon- 
dence with  D.  amoanted  in  equity  to  a  contract 
by  B.^  that  the  goods  remaining  in  C.*s  hands 
■boold  be  an  indemnity  to  the  plaintiff  for  the 
bills  paid ;  held,  that  the  plaintin  had  a  lien  on 
them  for  his  debt  Bum  v.  Carvalho,  7  Sim. 
(cH.)  109. 

2.  In  troyer  for  plates,  etchings,  and  engray- 
ings;  plea,  that  they  were  detained  upon  an 
agreement  as  a  security  for  a  sum  dae  from  plain- 
tiff, and  issue  as  to  the  sufficiency  of  a  sum  ten- 
dered in  discharge*  of  the  lien ;  held,  that  the 
amount  of  the  sum  tendered  was  a  material  fact 
to  be  traversed,  and  was  not  the  less  material  by 
being  laid  under  a  rndeUcet;  the  plea  also  alleging 
a  retainer  of  the  defendant  on  divers  days  and 
times  to  execute  particular  works,  whereby  the 
plaintiff  became  indebted,  Ac,  and  that  the  de- 
fendant detained  the  plates,  &c.,  as  a  security ; 
held,  that  a  replication,  alleging  that  the  work 
was  done  under  distinct  contracts,  was  not  an 
immaterial  issue ;  held,  also,  that  an  entry  by  the 
plaintiff's  deceased  clerk,  admitting  the  receipt 
of  a  sum  for  the  purpose  of  the  tencfer,  and  going 
on  to  say  that  it  was  not  accepted,  was  admissi- 
ble as  an  entry  of  a  fact  within  the  party's  knowl- 
edge, and  subjecting  him  to  a  pecuniary  demand. 
Marks  v.  Lahee,  3Bing.  N.  S.  (c.  p.)  4Q8 ;  and  4 
Sc.  137. 

3.  Where,  by  the  decree,  deeds  in  the  pos- 
aewion  of  the  defendant's  solicitor  were  ordered 
to  be  deliyered  up ;  held,  that  being  real  property, 
no  lien  attached.  Bell  v.  Taylor,  b  Smi.  (ch.) 
216.    CQiwere.; 

4.  Where  a  wife,  having  a  power  of  appointing 
real  estate,  just  after  the  birth  of  a  cndd,  and 
when  in  extremis,  executed  the  power  in  favor 
of  Jier  husband,  who  shortly  af\erwards  executed 
a  bond  to  trustees,  reciting  that  upon  the  execu- 
tion of  such  power,  he  had  given  the  wife  an  as- 


surance that  he  would  make  a  provision  for  the 
child,  and  conditioned  for  securing  the  sum  of 

£ to  be  paid  to  her  on  attaining  twenty-one, 

or  within  six  months  af\er  his  decease  ;  held,  that 
such  sum  was  a  lien  on  the  estate.  Atkins,  ex 
parte,  2  Younge  &  C.  (ex.  eq.)  536. 

5.  Where  A.  and  B.  being  directors  of  a  com- 
pany which  required  the  holding  ten  shares  as  a 
qualification,  upon  a  loan  by  B.  to  A-  the  latter 
gave  an  order  on  the  secretary  to  transfer  his 
shares,  but  it  was  not  made  use  of,  and  A.  contin- 
ued to  act  as  director,  but  upon  his  subsequently 
becoming  insolvent,  B.  served  the  order  of  trans- 
fer, and  m  a  suit  for  the  administration  of  A. 's  es- 
tate claimed  an  equitable  lien  on  the  shares ;  held, 
that  there  was  no  evidence  of  a  contract  for  lien, 
and  the  claim  properly  rejected.  The  mortgagee 
of  shares  is  bound  to  give  notice  to  the  company 
of  his  incumbrance,  in  order  to  render  it  available 
a^rainst  a  subsequent  purchaser  for  valuable  con- 
sideration ;  and  semi.j  the  mortga^  of  such 
shares  would  not  annul  the  qualification.  Cum- 
ming  V.  Prescott,  2  Younge  &  C.  (xx.  xq.)  488. 

6.  In  trover,  for  certain  axletrees  and  iron 
work ;  plea,  that  they  were  delivered  to  the  de- 
fendant for  the  purpose  of  being  wrought  and  re- 
paired by  the  defendant  in  his  trade  of  coachman 
ker,  and  claiming  a  lien  thereon  for  the  work 
done,  to  which  the  plaintiff  replied,  de  injuria; 
held,  that  the  plaintiff  could  not  set  up  a  claim  to 
a  set-off  to  a  larger  amount  against  the  defend- 
ant's demand,  unless  an  agreement  were  shown 
that  the  one  demand  should  be  set  off  against  the 
other.  Pinnock  v.  Harrison,  3  Mees.  d&  W.  (xx.) 
532. 

7.  Where,  in  trover  for  a  mare,  it  appeared  that 
she  had  been  sent  to  be  covered,  and  the  defend- 
ant claimed,  besides  11^.  tiie  usual  charge,  a  fur- 
ther sum  for  similar  claims,  and,  on  demand, 
refused  to  deliver  the  mate,  unless  the  whole  lien 
was  satisfied,  but  the  plaintiff  made  no  tender  of 
the  lis.;  held,  1st,  that  the  charge  in  respect  of 
such  benefit  to  the  plaintiff's  mare  was  witnin  the 
principle  on  which  a  specific  lien  would  arise ; 
2dly,  that  the  claim  of  lien,  in  respect  of  the  sev- 
eral sums  not  sustainable,  did  not  amount  to  a 
waiver  of  the  lien  in  respect  of  the  one  for  which 
the  riffht  did  exist ;  and,  lastly,  that  the  transac- 
tion haying  taken  place  on  a  Sunday,  it  was  not 
invalid  as  an  exercise  of  ordinarj  calling,  within 
20  Car.  2,  s.  7 ;  and,  semble,  if  it  even  were  so, 
yet,  being  an  executed  consideration  and  the  pos- 
session transferred,  and  both  in  pari  delicto,  the 

Sropertv  must   remain.      Scarfe    v.  Morgan,  4 
lees,  dt  W.  (XX.)  270. 

And  see  Attorney;  Bankrupt;  Pawnbroker; 
SAip  ;  Vend^nr  and  Purchaser  ;  Warehouseman. 


LIMITATION  OF  ESTATES. 

1.  Where  lands  were  settled  to  the  use  of  the 
husband  for  life,  with  remainder  to  the  use  of  the 
wife,  remainder  to  the  use  of  the  heir  female  of 
the  bodies  of  the  husband  and  wife  begotten  and 
now  living,  and  in  default  of  such  issue  to  the 
use  of  the  heir  male  in  like  manner  begotten, 


1 


W3»  [LIMITATION  OF  ESTATES— LIMITATIONS,  STATUTES  OF] 


and  in  deftali  thefeof  to  the  right  hein  of  the 
settlor,  the  husband ;  and  there  was  issue  several 
sons  and  daughters ;  held,  that  such  limitation  to 
the  kdr  femMe  was  not  void,  but  ffood  words  of 
description  of  a  purchaser,  although  such  daugh- 
ter was  not  heir-aUlaw,  and  that  the  daughters 
took  by  purchase,  but  for  life  only,  and  that,  upon 
the  deatn  of  the  survivor,  the  son  of  the  settlor's 
second  son  (the  eldest  dying  without  issue^  be- 
came entitled.  Chamben  s.  Taylor,  2  Myl.  dEc. 
Cr.  (cH.)  376. 

2.  On  a  bequest  of  residue  to  testator's  daugh- 
ter for  life,  and  her  children  who  should  attain 
21  or  die  under  21,  leaving  issue,  with  a  limita- 
tion over  in  default  of  his  daughter  having  no 
child,  or  there  being  such,  no  one  of  them  should 
attain  21,  nor  leave  any  issue  who  should  attain 
that  age ;  held  that,  as  the  intention  was  upon 
the  whole  will  and  codicil  that  the  limitation 
should  take  ef&ct  on  fiiilure  of  grand-children 
who  should  survive  his  daufhter  and  not  attain 
21,  it  was  not  too  remote.  Trickey  r.  Trickey, 
3  Myl.  &  K.  (cH.)  560. 

3.  Upon  a  gifl  of  residue  to  the  eldest  son  of 
V.  S.,  and  faiimg  him,  to  the  next  and  other  sons 
in  succession,  the  dividends,  &c.  to  be  applied 
during  minority,  and  failing  the  male  children, 
to  certain  legatees ;  the  only  male  child  of  P.  S. 
dying  an  infant,  and  the  period  of  accumulation 
of  the  income  having  expired,  held,  that  the  in- 
come being  only  given  oy  the  residuary  clause, 
and  nothing  for  immediate  enjoyment,  it  was 
made  void  by  the  statute,  and  constituted  there- 
fore a  portion  of  the  residue  undisposed  of,  and 
belonged  to  the  testator's  next  of  kin.  M 'Donald 
V.  Bryee,  2  Keene,  (ch.)  276. 

4.  Upon  a  devise  of  certain  estates  to  the  use 
of  testator's  son  H.,  for  life,  remainder  to  his  first 
and  other  sons  in  tail  male,  remainder  to  his 
nephew  G.  in  fee ;  testator  also  devised  another 
estate  and  premises,  with  the  furniture,  &c,  there- 
in, to  his  son  i.  for  life,  remainder  to  his  son  H. 
ibr  life,  remainder  to  his  nephew  G.  absolutely, 
and  the  residue  of  his  personal  estate  he  gave  to 
tmstees  on  trust,  for  certain  legacies  and  annui- 
ties to  his  sons  and  their  children,  the  residue  to 
accumulate  until  his  grandson  B.,  the  eldest  son 
of  1.,  should  attain  twenty-five,  and  then  to  pay 
the  dividends  to  his  grandson  B.  for  life,  and  af; 
terwards  to  such  son  of  B.  as  should  first  attain 
twenty-one  absolutely,  and  if  he  should  have  no 
son  attain  such  ase,  on  a  like  trust  for  his  grand- 
sons, the  sous  of  r,  **  and  in  case  of  no  son  of  his 
said  son  I.,  born  or  thereafter  to  be  born  in  his 
lifetime,  nor  born  afler  his  decease,  who  should 
attain  twenty-one,"  then  from  and  immediately 
afler  the  decease  of  all  the  sons  and  grandsons  of 
I.,  in  trust  for  the  benefit  of  G.  for  life,  and  on 
like  trusts  for  any  son  of  G.  who  should  first  at- 
tain twenty-one  absolutely  :  held,  that  the  words, 
^  after  the  decease  of  all  the  sons  and  grandsons," 
was  to  be  construed,  "allsucA  sons,  &c.,"  and 
that  the  limitation  over  in  favor  of  G.'s  sons  was 
not  too  remote ;  the  clear  intention  of  the  testator 
being,  that  the  gifl  was  to  take  effect  upon  the 
failure  of  the  particular  objects  described  as  the 
objects  of  the  former  gift :  the  court  would  put  a 
restricted  sense  upon  the  words  used  in  the  gifl 
over,  in  order  to  effbctuate  the  intention  of  the 


testator.    Ellioombe  v.  Gompeitx,  3  Myl.  4k  Cr. 
(cH.)  127. 

5.  Afler  a  devise  to  a  party  for  life,  remainder, 
in  default  of  certain  powers  of  appointment,  to 
the  testetor's  next  of  kin  of  the  name ;  held,  that 
the  devisee  for  life  filling  the  character  to  wboa 
the  estetes  were  given  in  certain  evento,  was  not, 
because  he  was  tenant  for  life,  to  be  excloded 
from  teking  under  the  description  on  the  oltimale 
limitation  which  be  aflerwaids  filled.  Penroev. 
Vincent,  2  Keene,  (ch.)  230;  confirming  the 
judgmente  of  Common  Pleas  and  Exchequer,  2 
BiniT.  N.  S.  326;  ICr.  &  M.  598;  An.  Dig. 


Ding. 
1834, 


p.  67. 


6.  Where  a  testator  created  terms  fog  nisng 
portions  for  C.  and  D.,  antecedent  to  ealalfs  tail, 
limited  in  two  estetes,  to  A.  and  B.,  with  anas 
remainders  respectively,  and  in  case  either  sboold 
die  without  issue,  so  that  the  survivor  should  he> 
come  entitled  to  both,  then  to  raise  further  por- 
tions for  C.  and  D. ;  the  event  was,  that  on  the 
death  of  A.,  without  issue,  both  estates  centered 
in  the  issue  of  B. ;  held,  that,  as  creating  a  trust 
which  could  not  be  defeated,  and  a  term  which 
could  not  be  destroyed,  and  tending  to  a  perpetu- 
ity, the  limitation  as  to  the  furtlH'r  trust  was  void ; 
and  demurrer  to  a  bill  filed  for  raising  the  further 
portions  allowed.    Case  «.  Droser,  2  Keene  (cb.) 

And  see  JDsrise. 


LIMITATIONS,  STATUTES  OT. 

1.  Where  a  party,  to  whom  attornment  had 
been  made  upon  his  claiming  as  devisee  in  rever- 
sion afler  failure  of  the  previous  estates  tail,  did 
not  follow  it  up  by  any  assertion  of  right  Ibr  up- 
wards of  30  years,  and  the  property  was  dealt 
with  during  the  whole  period  by  those  under 
whom  the  defendante  claimed  as  their  rightfol 
property  (founded  upon  a  recovery  suffered  by 
the  first  tenant  for  life),  who  received  quit-rents, 
granted  leases,  and  executed  conveyances  uwtder 
which  possession  had  been  had ;  held,  that  sock 

I  a  solitery  act  did  not  prevent  the  bar  under  the 
statute  of  James.  Doe  d.  Lindsey  v,  Edwards, 
6  Nev.  A.  M.  (x.  b.)  633 ;  and  5  Ad.  &  £11.  95. 

And  now  see  3  dt  4  WUl.  4,  e.  27. 

2.  The  words  in  the  saving  clause  of  21  Jac 
1,  c.  16,  extend  to  actions  in  assumpsit  for  unfi- 

Suidated  damages.  Piggott  v.  Rush,  6  Nev.  A 
I.  (K.  B.)  376 ;  and  4  Ad.  A  Ell.  912;  support- 
ing Chandler  v,  Vilett,  2  Wms.  Saund.  120;  ani 
Crosier  v.  Tomlinson,  2  Mod.  71. 

3.  Semble^  since  9  Geo.  4,  c.  14,  a  written  ad- 
mission, as  a  recital  in  a  deed  of  an  existing  debt, 
cannot  be  coupled  with  parol  evidence  of  the 
amount,  to  take  the  ease  out  of  the  statute. 
Cheslyn  v.  Dalby,  2  Younge  (ex.  e^.)  199. 

4.  A  gifl  of  residue  is  within  the  3  &  4  Will 
4,  c.  27,  s.  49,  and  is  barred  afler  20  years  bate 
elapsed,  since  the  present  right  of  receiving  it 
has  accrued  to  a  party  capable  of  giving  a  release 
for  it;  ki  case  of  legacies^  the  preaumptioa  of 


[UMITATIONS,  STATUTES  OF] 


2S3t 


payment  cannot  be  drawn  from  mere  lapie  of 
time,  where  payment  would  be  out  of  the  ordi- 
nary course  of  payments  by  an  executor.  Prior 
V,  Uorniblow,  2  Younge  (ex.  eq  )  200. 

5.  Where  the  defendant  continned  in  posses- 
sion above  20  years  before  the  death  of  the  lessor 
of  plaintiff's  devisor,  but  the  jury  found  soch 
possession  not  adverse,  and  the  action  was  brought 
within  five  years  after  the  passing  of  the  3  &•  4 
Will.  4,  c.  27 ;  held,  that  the  proviso  in  s.  15 
saved  the  right  of  the  lessor  of  the  plaintiff.  Doe 
V.  Thompson,  1  Nev.&P.  (k,  b.)  215. 

6.  Where  a  testatrix,  seised  of  customary  lands, 
made  a  dormant  surrender  to  the  use  of  her  will, 
and  devised  them  to  her  son,  but  without  words 
of  inheritance,  and  the  dormant  surrenderee,  con- 
sidering that  the  son  took  a  fee  under  the  will, 
afterwards  surrendered  to  the  use  of  the  son,  his 
heirs,  &c.,  who  surrendered  them  to  a  purchaser 
who  had  notice  of  the  will ;  the  son  died  40  years 
before  the  filing  of  the  bill  by  the  equitable  heir ; 
held,  that  after  so  long  an  adverse  possession  he 
was  barred,  and  the  bill  dismissecl  with  costs. 
Collard  v.  Hare,  2  Russ.  &  M.  (cb.)  675. 

7.  Where  the  defendant,  who  had  taken  the 
stock,  and  undertaken  to  satisfy  the  debts  of  an 
insolvent,  and  been  carrying  on  the  business  for 
a  considerable  time,  in  answer  to  the  application 
of  the  plaintiff,  a  creditor,  expressed  his  regret 
in  a  letter  at  not  being  able  to  comply  with  the 
plaintiff's  request  of  his  account  being  paid,  and 
stated  that  there  was  a  prospect  of  an  abundant 
harvest,  which  must  turn  into  a  goodly  sum, 
**  and  reduce  your  account,  if  it  does  not,  the 
concern  must  be  broken  up  to  meet  it;"  held  a 
sufficient  acknowledgment  to  take  the  debt  out 
of  the  statute.  Bird  v.  Gammon,  3  fiing.  N.  S. 
(c.  p.)  883. 

8.  Where  the  defendant  gave  a  memorandum, 
whereby  he  promised  to  pay  the  debt  as  soon  as  it 
v^as  in  his  power ;  held,  that  there  being  other 
evidence  of  the  debt,  and  being  out  in,  to  take 
the  case  out  of  the  statute,  it  was,  by  9  Geo.  4,  c. 
14,  s.  8,  exempt  from  stamp  doty.  Morris  v. 
Dixon,  6  Nev.  &  M.  (k.  b.)  438  ;  and  4  Ad.  ik, 
£U.  845. 

9.  Where  the  defendant  in  a  letter,  in  answer 
to  an  application  for  the  debt,  said,  "  I  will  see 
D.,  or  write  to  him ;  I  have  no  doubt  he  has  paid 
it ;  if  by  chance  he  has  not,  it  is  very  fit  it  should 
be ;"  held  not  a  sufficient  acknowledgment  to 
take  the  case  out  of  the  statute.  Poynder  v. 
Bluck,  5  Dowl.  (p.  c.)  570. 

10.  Where  the  defendant,  being  indebted  on  a 
note  bearing  interest,  paid  £1,  and  said,  '^  this 
puts  straight  all  the  interest  for  last  year,  except 
ISs.^  and  that  1  will  bring  some  day  next  week  ;" 
held  sufficient  evidence  m  answer  to  the  statute, 
as  made  on  account  of  an  existing  debt,  and  no 
other  debt  being  shown.  Evans  v.  Davies,  4  Ad. 
d^Ell.  (K.  B.)840. 

11.  It  is  no  ground  for  applying  to  discharge 
the  defendant  out  of  custody,  that  it  appears  by 
the  particulars  tlie  debt  is  barred  by  the  statute. 
Merceron  r.  Merceron,  5  Dowl.  (r.  c.)  271. 

12.  3  db  4  Will.  4,  e.  27,  amended,  and  new 


provisions  for  simplifying  the  remedies  for  trying 
rights  to  real  property,  by  1  Vict.  c.  28. 

13.  Where  a  judgment  was  obtained  in  1805, 
and  duly  docketted,  and  upon  the  sale  of  the  de- 
fendants real  estate  in  1806,  notice  of  the  judg- 
ment remaining  unsatisfied  was  given  to  the  pur- 
chaser in  1606,  after  which  for  28  years  no  steps 
were  taken  bv  the  judgment  creditor  for  enforcing 
payment,  altbou^  he  might  have  resorted  to  a 
sufficient  fund  in  equity ;  held,  that  after  such 
unexplained  laches,  the  Court  of  Equity,  acting 
upon  the  principles  of  limitation  of  suits  at  law, 
would  adopt  the  same  inference  as  to  satisfaction., 
and  the  bill  to  enforce  the  charge  dismissed  with 
costs.  GrenfeU  v.  Girdlestone,  2  Younge  A  C 
(ex.  e«.)  662. 

14.  And  the  inference  was  not  repelled  by  evi- 
dence of  the  debtor's  insolvency  during  the  lapse 
of  time.  An  acknowledgment  by  the  debtor  to  a 
third  person  will  not  i&e  the  case  out  of  the 
statute,    lb. 

15.  Where  the  defendant,  on  being  applied  to 
for  payment,  ^ve  the  plaintiff  a  list  of  debts  due 
to  himself,  with  a  memorandum  in  the  terms,  **  1 
give  the  above  accounts  to  you,  so  you  must  col- 
lect them,  and  you  and  me  will  be  clear;"  held 
insufficient,  as  no  promise  to  pay  could  be  infer- 
red therefrom.  Routledge  v.  Kamsay,  3  Nev.  dt 
P.  {<i,  B.)  319. 

16.  A  letter  of  the  defendant,  in  answer  to  the 
plaintiff's  attorney's  application  for  the  debt,  in 
the  terms,  "  since  the  receipt  of  your  letter  I  have 
been  in  daily  expectation  of  being  enabled  to  give 
a  satisfactory  reply  to  yonr  application  respecting 
the  demand  of  M.  against  roe ;  1  propose  being  at 
O.  to-morrow,  when  1  will  call  upon  you  on  the 
matter  */'  held  not  a  sufficient  acknowledgment  to 
take  the  case  out  of  the  statute.  Where  there  is 
no  evidence  beyond  the  writing  itself,  its  mean- 
ing is  for  the  court,  and  not  &t  the  jury ;  alitor 
where  the  words  are  used  in  a  technical  sense,  aa 
in  mercantile  documents.  Morrel]  v.  Frith,  3 
Mees.  &.  W.  (ex.)  402 ;  and 8  C.  &  P.  (h.  p.)  246; 
questioning  Lloyd  v.  Maund,  2  T.  &.  760. 

17.  Where  the  defendant,  a  consul  at  N.,  being; 
indebted  on  a  balance  to  the  plaintiffs,  his  corres-- 
pendents  in  England,  gave  two  promissory  notes; 
falling  due  in  Deceml&r  1825  and  1826,  which 
being  outstanding,  in  1827  an  arrangement  was^ 
made  that  the  defendant's  agent  should  give  his- 

acceptance  of  a  bill  for  £ ,  and  should  be  au^ 

thorized,  by  a  letter,  to  pay  £300  a  year  out  of 
defendant's  salary,  and  the  proceeds  of  certain 
wines  then  in  India  be  remitted  in  some  shape  or 
other  to  the  plaintiff,  in  satisfiictiottof  the  balance;: 
held,  that  the  acceptance  of  the  security  of  a  third 
party,  with  an  autnority  to  appropriate  funds  to 
come  into  his  hands,  and  which  ne  accepted  to 
act  under,  was  a  good  consideration  for  the  plain- 
tiff's undertaking  to  forbear  and  give  time  to  the 
defendant ;  the  instalments  were  paid  up  to  the 
year  1830 ;  held,  that  on  the  breadi  of  the  latter 
contract,  the  plaintiff  was  remitted  to  his  right  of 
suit  on  the  original  debt,  and  was  not  barred  by 
the  statute,  and  bound  to  bring  his  action  on  the 
new  promise  (reviewing  the  cases).  Irvinr  9* 
Veicht^  3  Mees.  4[&  W.  (XX.)  90. 


1 


2832 


[LIMITATIONS,  STATUTES  OF— LUNATIC] 


18.  Devise  of  personalty  upon  trust  for  pay- 
ment of  debts  owing  at  the  testator's  decease, 
held  not  to  prevent  the  operation  of  the  statute. 
Evans  v.  Tweedy,  1  Beav.  (ch.)  55. 

19.  A  direction,  in  a  will  of  personal  estate,  for 
payment  of  debts,  held  not  to  prevent  the  opera- 
tion of  the  statute,  if  once  it  has  begun  to  run,  and 
it  does  not  cease  during  the  interval  of  his  death 
and  the  time  of  a  person  being  constituted  person- 
al representative.  Freak  v.  Cranefeldt,  3  Myl. 
&,  Cr.  (cu.)  499. 

And  see  Jones  v.  Scott,  1  Russ.  &  Myl.  255 ; 
and  Rhodes  v.  Smethurst,  4  Mees.  &.  W.  42. 

20.  Where  the  plaintiffs,  as  joint  owners,  work- 
ed in  co-partnersnip  plantations  in  1.,  and  kept 
an  account  with  merchants  and  agents  at  B.,  to 
whom  they  became  largely  indebted ;  held,  not 
to  be  merchants'  accounts  within  the  exception  in 
the  statute  ;  and  a  plea  of  the  statutes  of  21  Jas. 
1,  and  9  Geo.  4,  held  not  double.  Forbes  v. 
Skelton,  8  Sim.  (cu.)  355. 

21.  Where  there  has  been  no  account  in  writ- 
ing, nor  any  payment  on  account  of  a  particular 
debt,  it  is  not  an  open  account  within  the  mean- 
ing of  the  exception  of  the  statute  ;  where  a  pajr- 
ment  had  been  made  without  any  specific  appropri- 
ation, held  that  the  creditor  was  entitled  to  apply 
it  in  satisfaction  of  the  part  of  his  demand  barred 
by  the  statute,  but  that  it  was  not  such  a  part  pay- 
ment as  to  take  the  earlier  portions  out  of  the  op- 
eration of  it.  Mills  V.  Fowkes,  5  Bing.  N.  S.  (c. 
p.)  455. 

And  see  Tippets  v.  Heane,  1  Cr.  M.  &  R.  45  ; 
and  Williams  v.  Griffith,  2  £d.  45 ;  and  Bosan- 
quet  V.  Wray,  6  Taunt  597. 

22.  Where,  upon  the  settlement  of  an  old  ac- 
count, a  new  note  was  given  for  the  balance  and 
a  further  sum,  but  was  insufficiently  stamped ; 
held,  that  it  could  not  be  used  as  an  acknowledg- 
ment to  take  the  case  out  of  the  statute.  Jones 
V.  Ryder,  4  Mees.  &  W.  (ex.)  32. 

23.  Where  the  statute  began  to  run  in  the  life- 
time of  the  debtor,  and  afler  his  death,  the  will 
being  contested,  there  was  for  a  considerable  peri- 
od no  representative  who  could  be  sued,  held  that 
it  did  not  suspend  the  operation  of  the  statute. 
Rhodes  v.  Smethurst,  4  Mees.  d&  W.  (ex.)  42. 

24.  The  judgment  of  the  Master  of  the  Rolls 
in  Scott  v.  Jones  affirmed,  reversing  the  decision 
of  the  Lord  ChanceUor  in  D.  Pr.,  4  CI.  ISl  Fi. 
(p.)  382;  (An.  Dig.  1832.  98.):  held,  also,  that 
the  advertisement  by  an  executor  to  creditors  to 
•end  in  their  claims  was  not  sufficient  to  revive  a 
debt  already  barred  by  the  statute. 

And  see  Matement ;  Annuity  ;  Bamkrupt ;  BUI ; 
Insolvent;  Mortgage;  Partner. 


X      LONDON,  CUSTOM  OF. 

1.  The  custom  for  the  Court  of  Mayor  and  Al- 
dermen of  London  to  approve  or  reject  the  person 
nominated  by  the  ward  to  be  alderman,  and  to 
elect  if  the  same  person  be  three  times  returned 


bv  the  wardmote,  and  rejected  as  unfit  by  the 
Uourt  of  Mayor  and  Aldermen,  held  reasonable 
and  good,  and  that  tlie  latter  custom  is  not  re- 
pealed by  the  11  Greo.  ],  c.  18.  R.  v.  Johnson,  5 
Ad.  &  Ell. 
Anne. 


(k.  b.)  489;  nor  by  the  by-law  of  13 


2.  Held  also,  that  the  fitness  or  unfitness  of  the 
party  to  fill  the  office  having  been  determined  by 
a  court  of  competent  and  exclusive  jurisdiction, 
the  Judge  properly  discharged  the  jury  from  any 
finding  on  that  pomt.    lb. 

And  see  Custom. 


LUNATIC. 

1.  In  deciding  upon  the  propriety  of  issuing  a 
commission,  the  court  is  governed  solely  by  the 
consideration  of  what  is  necessarv  for  the  protec- 
tion of  the  person  and  property  of  the  party,  with- 
out regard  to  any  result  upon  antecedent  acts,  or 
to  the  motives  actuating  the  party  seeking  iL 
Where  there  was  no  sufficient  evidence  of  un- 
soundness of  mind  at  the  time  of  a  former  inquisi- 
tion, finding  a^inst  the  unsoundness,  nor  at  the 
date  of  the  affidavits,  the  application  for  a  new 
commission  dismissed.  In  re  J.  B.,  1  MyL  &,  Cr. 
(ch.)  38. 

2.  Commission  allowed  to  issue  into  Middlesex, 
although  the  lunatic  was  residing  in  Hertford- 
shire, the  propertv  being  sm^ll,  and  the  object  to 
sa?e  expense.  Waters,  in  re,  2  Myl.  &  Cr.  (ch.) 
38. 

3.  Where  the  party  was  found  lunatic  under  an 
inquisition  taken  in  England,  but  the  property  of 
the  lanatic  is  in  Ireland,  the  Lord  Chancellor  re- 
fused to  allow  the  nomination  of  the  committee  to 
be  made  by  the  Lord  Chancellor  of  Ireland,  not- 
withstanding a  transcript  of  the  record  of  the  in- 
quisition had  been  transmitted  there  with  that 
view.    Tottenham,  in  re,  2  Myl.  dc.  Cr.  (ch.)  39. 

4.  The  court  increased  the  allowance  for  the 
maintenance  of  the  lunatic  and  his  daughters,  in 
consideration  of  the  marriage  of  one,  and  appro- 

Eriated  part  to  the  establishment  of  her  and  ber 
usband,  but  setUed  to  her  separate  use,  and  a 
sum  allowed  for  her  outfit.  Drummond,  in  re,  1 
Myl.  &  Cr.  (ch.)  627. 

5.  Where  the  defendant,  an  auctioneer,  had 
been  employed  in  appraising  and  selling  the  prop- 
erty of  a  lunatic  with  the  sanction  of  the  Master, 
and  under  the  authority  of  the  court,  and  he  had  in 
the  first  instance  carried  in  his  claim  before  the 
Master,  but  afterwards  commenced  an  acUoo 
against  the  solicitor  in  the  lunacy,  the  court  made 
an  order  to  restrain  him,  and  for  referring  his 
claim.    Weaver;  in  re,  2  Myl.  &  Cr.  (ch.)  441. 

6.  Points  to  be  comprised  in  the  reference  un- 
der 1  Will.  4,  c.  60,  as  to  conveyances  by  trustees 
of  unsound  mind,  although  not  found  lunatic  by 
inquisition.  Piggott,  in  re,  2  Russ.  &,  M.  {^cm.) 
683. 

7.  On  an  issue  as  to  the  sanity  of  A.,  it  cuuiot 
be  asked  whether  a  sister  of  A.  was  not 
Doe  V.  Whitefoot,  8  C.  &  P.  (n.  p.)  272. 


[LUNATIC—  MANDAMUS] 


28a3 


8.  The  court,  on  an  application  for  the  transfer  i 
of  stock  in  the  name  of  a  lunatic  trustee,  refused 
to  act  upon  facts  relatiye  thereto,  consented  to  by 
all  parties,  on  the  arrange  me  nt  of  a  suit  in  the 
£xchequer,  but  directed  the  usual  reference.  Pri- 
deauz,  in  re,  2  Myl.  &  Cr.  (ch.)  640. 

9.  Further  provisions  for  the  safe  custody  of 
persons  insane,  and  having  the  purpose  of  com- 
mitting indictable  olfences,  by  1  ^  2  Vict.  c.  14. 

10.  A  fine  levied  by  a  lunatic  cannot  be  im- 
peached at  law  on  the  ground  of  fraud  practised 
on  the  conusor,  and  void  on  that  ground.  Mur- 
ley  V.  Siierren,  1  Perr.  A  Dav.  (<i.  b.)  126. 

11.  Where,  during  the  lifetime  of  a  lunatic  a 
variety  of  deeds  and  papers  had  been  deposited 
in  the  Master's  office,  and  a  report  made  as  to  the 
heir-at-law,  held  that,  althouen  the  court  had  no 
jurisdiction,  after  the  death  of  the  lunatic,  to  de- 
termine who  was  the  heir-at-law,  and  the  inquiry 
is  only  made  to  obtain  the  assistance  of  the  heir 
or  next  of  kin  in  the  protection  of  the  property, 
and  the  report  would  not  bind  the  right,  yet,  in 
the  absence  of  any  adverse  claimant,  the  person 
found  to  be  heir  would  be  treated  as  sucn,  and 
the  deeds,  &c.  ordered  accordingly  to  be  delivered 
up  to  him ;  costs  of  the  inquiry  to  be  borne  by 
the  different  parties.  Pearson,  in  re,  1  Coop. 
(cH.  c.)  314. 

12.  It  is  no  objection  to  the  wife  of  a  lunatic 
instituting  a  suit  for  the  recovery  of  his  debts, 
that  a  committee  has  not  been  appointed.  Rock 
V.  Slade,  7  Dowl.  (p.  c)  22. 

13.  In  assumpsit  for  use  and  occupation  of  a 
house,  the  defendant  being  a  lunatic,  and,  at  the 
time,  provided  with  a  sufficient  residence,  held, 
that  if  the  plaintiff  knew  that  the  defendant  was 
at  the  time  insane,  and  took  advantage  of  it  to 
induce  her  to  enter  into  the  contract,  he  could 
not  recover.  Dane  v.  Lady  Kirkwall,  8  C.  &  P. 
(H.  p.)  679. 

14.  The  court  refused  to  deal  with  the  estate 
of  a  deceased  lunatic  in  the  absence  of  a  report 
of  debts,  but  allowed  dividends  to  be  received  by 
a  party  appointed  receiver,  to  apply  in  payment 
of  the  cosU  of  the  sole  next  of  km  m  the  lunacy, 
and  for  maintenance.  Radcliffe  v.  Carter,  I  Coop. 
(cH.  c.)  250. 

15.  On  an  indictment  for  seditious  words,  and, 
upon  his  arraignment,  an  inquest  taken  whether 
le  were  insane  or  not ;  held,  that  the  jury  might 
form  their  opinion  from  his  demeanor  without 
calling  in  the  evidence  of  a  medical  man,  and  it 
was  not  necessary  for  him  to  be  asked  if  he 
would  cross-examine  the  witnesses,  or  make  any 
remarks  to  the  jury  on  the  evidence.  R.  v. 
Goode,  7  Ad.  &  Ell.  (q.  b.)  536. 

And  see  AdmiidstraHon ;  Assumpsit;  Baron 
and  Feme;  fine;  Partner;  Trustee, 


MAINTENANCE  OF  SUITS. 

Where  the  mother  of  an  illegitimate  child  de- 
posiied  a  sum  to  defray  the  eipensea  of  obtainiDg 


an  act  for  dissolving  her  marriage,  held  not  ille- 
gal.    Moore  v.  Usher,  7  Sim.  (cb.)  384. 


MAINTENANCE. 

1 .  Bequest  to  trustees,  after  the  death  of  tes- 
tator's wile,  to  apply  the  rents  and  profits  towards 
the  support  and  maintenance  of  his  nephews  and 
nieces,  and,  in  case  of  the  death  of  any  one,  for 
the  support,  &c.  of  the  survivors ;  they  all  sur- 
vived the  testator  and  his  widow,  and  one  then 
died ;  held  to  be  absolutely  entitled ;  the  words, 
'^  in  case  of  the  death,"  referring  to  the  death 
of  any  one  in  the  lifetime  of  the  tenant  for  life. 
Clarke  ».  Gould,  7  Sim.  (ch.)  197. 

2.  Upon  a  bequest  of  personal  estate  to  the 
testator's  son-in-law,  in  trust  to  apply  it  towards 
the  support  of  the  children  by  the  testator's  daugh- 
ter ;  held,  that'he  was  entitled  to  applv  the  funds 
towards  the  maintenance  of  his  cnildren,  not- 
withstanding he  was  of  ability  to  maintain  thtm. 
Hawkins  v.  Watts,  7  Sim.  (ch.)  199. 

And  see  WiU. 


MANDAMUS. 

1  A  mandamus  to  the  commissioners  of  the 
customs  to  restore  tobaccos  claimed  as  wrecked 
ffoods,  and  upon  which  the  lower  rate  of  duty 
had  been  tendered,  refused ;  as  the  party,  if  le- 
gally entitled,  might  maintain  an  action,  and  that 
the  granting  it  would  in  effect  be  issuing  the 
writ  to  the  crown,  whose  servants  the  commis- 
sioners are.  R.  v.  Commissioners  of  Customs,  1 
Nev.  <Sb  P.  (a.  b.)  536;  and  5  Ad.  <&  Ell.  380. 

2.  Where,  upon  a  grant  of  ecclesiastical  pos- 
sessions to  the  churchwardens,  &c.,  relieving  the 
parishioners  from  tithes,  they  were  by  Act  ofPar- 
liament  subsequently  empowered  to  make  a  rate, 
not  exceeding  a  certain  sum,  for  the  purposes  of 
paying  the  stipends  of  the  curates,  Ac,  also 
specified,  and  tnat  all  the  residue  should  be  ap- 
plied to  the  repairs  of  the  church ;  a  subsequent 
Act  placed  the  vestry  in  the  situation  of  the  for- 
mer parish  officers ;  a  mandamus  to  the  church- 
wardens, overseers,  and  inhabitants  to  call  a  ves- 
try and  make  a  rate,  held  to  lie.  R.  v.  St.  Sa- 
viour's Churchwardens,  dkc,  1  Nev.  &  P.  (k.  b.) 
946. 

3.  Where  churchwardens  had,  under  59  Geo. 
3,  e.  134,  s.  40,  borrowed  a  sum  for  rebuilding, 
the  party  agreeing  not  to  take  the  principal 
withm  20  years ;  held,  that  the  churchwardens 
were  compellable  to  raise,  not  only  the  interest, 
but  an  annual  sum  equal  thereto,  as  a  fund  for 
the  repayment  of  the  principal,  although  the 
party  advancing  it  could  not  demand  it  until  the 
expiration  of  the  20  years,  and  (per  Denman,  L. 
C.  J.)  the  Churchwardens  might  apply  it  in  the 
interval  for  the  benefit  of  the  parisn.  R.  v. 
St.  Michael's,  Pembroke,  1  Nev.  Sl  P.  (k.  b.) 
69. 

4.  Where  the  county  treasurer  delivered  in  to 


2B3i 


[MANDAMUS] 


the  Jotticefl  at  sesBions  a  book  of  entry,  allow- 
ing  the  balance  due  to  or  from  the  county,  and 
which  was  passed  by  the  Justices,  and  redelivered 
to  him ;  held  that  it  was  not  to  be  deemed  a 
private  book,  but  that  he  was  bound  to  deliver  it 
with  the  other  vouchers  to  the  clerk  of  the  peace, 
and  a  mandamus  arauted.  R.  v.  Payn,  1  Nev. 
&,  P.  (k.  b.)  6^. 

5.  Where  creditors  had  advanced  money  to 
parish  officers,  nnder  22  Geo.  3,  c.  83  (Gilbert's 
Act) ;  held  that  the  charge  created  under'  that 
Act  was  still  in  force,  and  that  the  provision  in 
the  subsequent  Act,  43  €reo.  3,  c.  110,  requiring 
the  payment  of  part  yearly,  did  not  absolve  the 
parish  from  the  liability  although  incurred  30 
years  ago,  and  no  part  of  the  principal  paid  off; 
and  a  mandamus  to  the  parish  officers  to  pay  the 
principal  aud  interest.  K.  v.  Bighton  Overseers, 
A*.,  1  Nev.  &  P.  (K.  B.)  774. 

6.  Where  an  infant  was  laid  at  the  gate  of  the 
Foundling  Hospital,  a  mandamus  to  the  officers 
of  the  parish  to  receive  it  granted.  Foundling 
Hospital,  ex  parte,  5  Dowl.  (p.  c.)  722. 

7.  The  court  of  K.  B.  has  no  authority  to 
compel  an  inferior  court  of  criminal  jurisdiction 
to  enter  a  verdict  in  a  particular  way.  Where 
the  clerk  of  the  peace  had  entered  it  as  given  by 
the  jnrv,  "  ffuilty  by  mischance^''  which  latter 
words  had  been  cancelled  upon  the  chairman 
directing  that  they  must  find  guilty  or  not  guilty, 
the  court  held  they  had  no  authority  to  interfere. 
R.  V.  Hewes,  3  Ad.  &  £11.  (k.  b.)  7^. 

8.  A  m4MndAmus  to  compel  the  Commiwioners 
of  Woods  and  Forests  to  pay  a  poor  rate  refused ; 
being  in  the  hands  of  the  crown,  the  lands  were 
not  rateable.  Reeve,  ex  parte,  5  Dowl.  (p.  c.) 
€68.  r-  V  y 

9.  Where  a  local  act  authorized  the  making 
rates,  bnt  was  silent  as  to  inspection  by  the  rate- 
payers, and  books  of  account  of  parochial  re- 
ceipts and  disbursements  were  kept  under  1  dk  2 
Will.  4,  C.60,  of  which  inspection  was  allowed ; 
lield,  that  the  court  had  not,  under  anv  statute  or 
at  common  law,  the  power  of  compelling  inspec- 
tion of  the  rates  made  under  the  local  Act  by 
wMndamut,  R.  «.  St.  Marylebona  Vestry,  5  Ad. 
&  £11.  (K.  B.;  268. 

10.  Where  a  criminal  information  had  been 
filed  against  a  town-clerk  for  misconduct  in  his 
office  in  the  election  of  councillors  of  the  borough, 
the  Court  refused  a  mandamus  to  compel  him  to 
produce  the  voting  papers  in  his  custody  which 
bad  been  used  at  Die  election.  R.  v.  Nicholetts, 
6  Ad.  /k  £U.  (K.  B.)  376. 

11.  Where  justices  convicted  a  party  under 
17  Geo.  3,  c.  56,  and  sentenced  him  to  11  weeks* 
imprisonment,  who  gave  notice  of  appeal,  but 
failed  to  prosecute  it;  held,  that  the  convicting 
justices  luying  power  to  commit  only  in  case  m 
a  recognizance  not  being  given,  and  the  sessions 
only  to  imprison  in  case  of  the  judgment  on 
appeal  being  confirmed,  it  was  so  doubtful  whe- 
ther the  justices  might  afterwards  commit  in  ex- 
ecution, that  the  court  would  not  by  mandamus 
compel  them.    R.  v.  Twyford,  5  Ad.  dk  £11.  (k. 


12.  Where  the  title  of  the  ekimaiit  to  eopT* 
hold  estate  was  clearhr  barred  by  the  3  dk  4  Will. 
4,  c.  27,  the  court  refused  a  mmtdamua  to  compel 
the  lord  to  admit.  R.  v.  Agarsdley,  Lord  of  Man- 
or, 5  Dowl.  (c.  p.)  19. 

13.  The  court  has  no  power  by  mandamus  Sn 
compel  the  mayor  and  assessors  to  insert  names 
of  parties  on  the  burgess  lists,  where  exvanfed 
upon  an  objection,  that  the  payment  of  the  Bhil- 
ling,  required  by  2  Will.  4,  c.  45,  s.  56,  had  not 
been  made.  R.  v.  Hithe,  Mayor,  &t-  1  Ney.  & 
P.  (K.  B.)  239. 

14.  The  court,  considering  it  had  no  anthority 
to  interfere  with  the  Society  of  Barnard's  lnn,re- 
fuited  a  mandamus  to  compel  them  to  admit  an 
attorney  into  the  society.  R.  v.  Barnard's  Inn, 
5  Ad.  &  £11.  (K.  B.)  17. 

15.  Where  an  office  is  full,  and  the  appoint- 
ment has  been  made  by  a  party  who  by  the  ordi- 
nary course  of  law  has  the  power,  the  court  will 
not,  unless  in  a  very  strong  case  that  such  ap- 
pointment is  void,  grant  a  mandamus  to  raise  the 
question,  particularly  where  there  is  another  and 
more  convenient  remedy.  Where  the  rector  had 
appointed  the  sexton,  but  there  appeared  soae 
evidence  of  a  custom  for  the  inhabitants  to  inter- 
fere, the  court  refused  a  mandamus  to  the  church- 
wardens to  call  a  vestry  for  the  purpose  of  elec- 
tion. R.  V.  Stoke  Damarel,  1  Nev.  dk  P.  (k.  b.) 
56 

16.  Where  a  party,  holding  an  office  daring 
the  pleasure  of  the  crown,  had  a  retiring  allow- 
ance ffranted  to  him ;  held,  that  it  conferred  do 
vested  interest,  but  that  the  Lords  of  the  Trea- 
sury had  a  discretion  to  revoke  the  grant.  R. «. 
Lords  of  the  Treasury,  ex  parte  Smyth,  6  New. 
Sl  M.  (k.  b.)  505  ;  and  4  Ad.  &.  £U.  976. 


17.  So,  they  have  no  power  to  grant  a  pei 
nent  pension,  but  can  only  recommend  to  Parlift> 
ment  that  such  a  sum  may  be  voted  as  a  pension 
or  retiring  allowance  to  any  officer.  R.  r.  Lords 
of  the  Treasury,  ex  parte  Hand,  6  Nev.  dk  M . 
(K.  B.)  508 ;  and  4  Ad.  dk  £11.  984. 

18.  So,  no  vested  right  accrues  to  an  officer  on 
half-pay,  as  to  enable  his  executors  to  demand 
arrears  accruing  in  his  life-time.  Rickets,  ex 
parte,  6  Nev.  dk  M.  (k.  b.)  523;  and  4  Ad.  dk  EO. 
99a 

19.  Where  commissioners  of  drainage,  dke^ 
were  by  a  local  Act  directed  to  apply  funds  for  aS 
such  works  as  should  from  time  to  tune  be  deem- 
ed necessary,  dec,  and  by  a  mandamus^  reciting 
that  money  had  been  paid  to  them,  they  were 
ordered  to  proceed  forthwith  to  put  the  banks  in 
a  permanent  state,  d^c. ;  held,  that  a  return  br 
them,  that  they  had  from  time  to  time,  at  au 
times,  since  the  passing  of  the  Act,  hitherto  pro- 
ceeded to  execute  all  such  works  as  should  be  or 
were  from  time  to  time  deemed  necessary,  dk<e^ 
following  the  langua^  of  the  Act,  without  al- 
leging that  they  had  done  any  thing,  held  insnflH 
cient  R.  v.  Ouze  Bank  ConuniasioiierB,  3  Ad. 
&  £11.  (K.  B.)  544. 

20.  Where  the  Act  of  1  Jac.  2,  c.22,  cieatinf 
the  parish  of  St  James  out  of  that  of  St.  Martinis, 
decuued  that  it  should  be  subject  to  the  km  and 


[MANDAMUS! 


3895 


■Utates  then  in  force  as  to  the  election  ofehurch- 
wariiens,  Acy  in  like  manner  aa  that  of  St.  Mar- 
tin's was  sabject  to ;  held,  that  tlie  subsequent 
abandonment  by    St  Martin's  of  a  custom  of 

3aestionable  legal  origin,  did  not  bind  that  of  St. 
ames  to  discontinue  it  also ;  and  that  the  mode 
of  election  at  the  time  of  the  separation  was  to  be 
deemed  as  recognised  by  the  Act  of  1  J.  2,  and 
established  in  St.  James's,  without  reference  to 
its  origin.  R.  v.  St.  James's  Churchwardens, 
&c.,  5  Ad.  &  Ell.  (K.   B.)  391. 

21.  Where  a  local  Paving  Act  empowered  a 
committee  to  make  rates,  and  recover  the  same 
by  distress,  or  action,  if  no  sufficient  distress 
found ;  and  a  later  Act  save  an  unrestricted  pow- 
er of  suing  for  them ',  held  that,  there  being  areme- 
dy  by  action,  the  court  would  not  compel  justices 
to  issue  warrants  of  distress,  and,  there  being  also 
a  feasonable  doubt  as  to  the  legality  of  the  rates, 
oblige  them  to  do  what  might  snbject  them  to  ac- 
tions of  trespass.  R.  v.  Halls,  3  Ad.  A  £11.  (k. 
B.)492. 

22.  Where  the  settlement  arose  by  service  un- 
der an  indenture  of  apprenticeship  assigned  by 
indorsement,  a  msmtornvj  for  its  production,  in 
order  to  be  stamped,  refused.  R.  r.  Westowe,  1 
NeT.  &  P.  (K.  B.)  222. 

23.  Where  the  plaintiff,  as  lord  of  the  manor,  had 
been  found  liable  to  the  repairs  of  a  bridge,  ro^ibnc 
tenuriB  ;  held,  that  he  mignt  recover  contribution 
from  any  who  were  in  possession  of  part  of  the 
demesne  lands ;  and  that  the  survey  of  the  manor 
in  3  Jac.  1,  under  a  commission  out  of  the  Ex- 
chequer, was  admissible  to  prove  the  defendant's 
lancto  parcel  of  the  demesne  lands.  Dimes  o.  Ar- 
den,  6  Nev.  (k.  M.  (k.  b.)  4M. 

24.  The  fees  claimed  by  the  clerk  of  the  ses- 
sion of  gaol  delivery  of  if ewgate,  in  respect  of 
convicts  sentenced  to  hard  labor,  held,  smce  19 
Geo.  3,  c.  74,  to  be  no  longer  due,  the  services  re- 
qmred  formerly  from  him  Ming  no  lon|^r  required 
to  be  performed,  and  that  Act  containing  no  pro- 
yinon  on  the  subject ;  held,  also,  that  sinoe  5  Geo. 
3,  c.  84,  which  recognized  the  payment  of  such 
fees  to  him,  in  respect  of  convicts  sentenced  to 
transportation,  as  had  been  usually  paid  the  suc- 
cessor of  the  person  in  office  at  the  time  of  the 
passing  of  the  Act,  he  was  not  precluded  from  his 
right  to  such  fees  by  his  predecessor  having  for- 
borne, whilst  in  the  office  (40  years),  from  claim- 
ing them  ;  and  a  mandamus  to  the  county  treas- 
urer granted,  with  a  view  of  inquiring  as  to  the 
usual  payment  Reg.  v.  Baker,  2  Nev.  A  P.  (q. 
B.)  375. 

25.  Where  the  return  to  a  mandamus  is  not 
▼oid  on  the  fiice  of  it,  the  court  will  not  allow  the 
validity  to  be  questioned  by  motion  to  take  it  off 
the  file,  upon  affidavit ;  it  can  only  be  discussed 
on  a  eoncilium  in  the  regular  way.  R.  v.  Payne, 
3  Nev.  6l  p.  (q.  b.)  165. 

26.  Where  by  a  royal  grant,  (Jac.  1)  the  rec- 
tory was  granted  to  the  churchwardens,  &c.,  in 
trust,  **oat  of  the  revenue  thereof  to  pay  certain 
stipends  to  two  chaplains,  a  school-master  and 
usher ;"  and  by  an  Act  the  parishioners  were  af- 
terwards exonerated  from  all  tithes,  and  in  con- 
sideration thereof  the  wardens  and  overseers,  with 
six  inhabitants,  were  empowered  to  make  a  rate 

Vol.  IV.  71 


yearly,  not  exceeding  a  certain  sum,  out  of  which 
they  were  directed  to  pay  the  stipends  and  ap- 
propriate the  surplus  to  repairs  of  the  church; 
and  a  subsequent  Act,  recitinff  the  former  enact- 
ments, and  that  ths  sums  allowed  to  be  raised, 
and  the  revenue  of  the  rectory,  were  inadequate, 
gave  power  for  raising  increased  rates,  and  there- 
out to  pay  certain  sums  in  lieu  of  the  sums  paid 
by  virtue  of  the  original  grant;  held,  that  a  mon- 
damus  would  lie  to  compel  the  imposing  and  col- 
lecting the  rate  and  paying  the  salaries.  Rjeg,  v. 
St.  Saviour's  Wardens,  &c.,  3  Mer.  <k  P.  (^.  b.) 
126. 

27.  Where  a  party  entitled  to  tolls  on  a  towing- 
path  hj  the  old  channel  of  the  river,  which  had 
been  diverted  by  navigation  commissioners,  claim- 
ed  compensation,  which  they  had  refused,  and  on 
appeal  to  the  sessions  an  order  had  been  made  for 
a  certain  sum  for  the  said  injury,  and  costs ;  held, 
that  the  sessions  having  under  the  Act  cogniz- 
ance and  full  power  to  mquire,  the  court  would 
not  question  their  finding,  nor  assume  that  the 
injury  might  not  be  twofold,  and  a  peremptory 
mandamus  awarded ;  held,  aJso,  that  the  refusal 
of  the  commissioners  was  a  subject  of  appeal.  R. 
V.  Thames  and  Isis  CommissioDers,  5  Ad.  6l  £1L 
(K.  B.)  601. 

2B.  Upon  a  rule  for  a  mandaimus  to  justices  to 
hear  an  appeal,  the  court  refused  to  decide  as  to 
the  costs,  which  must  be  the  subject  of  a  separate 
application,  as  on  the  return  the  parties  might 
show  they  acted  right  in  refusing.  Reg.  v.  Salop 
Justices,  6  Dowl.  (p.  c.)  34. 

29.  Parties  opposing  the  execution  of  the  writ, 
the  right  in  dispute  being  eventually  established 
against  them,  ordered  by  the  court,  in  the  exer- 
cise of  the  discretion  vested  in  them  by  1  Will. 
4,  c.  21,  to  pay  the  costs,  and  the  rule  made  ab- 
solute against  all  who  made  the  return.  R. «. 
St.  Saviour's  Wardens,  &c.,  3  Nev.  A  P.  {%.  b.) 
354. 

30.  Where  the  rents  of  premises  were  claimed 
by  freemen  for  their  exclusive  benefit,  but  the 
right  bein^  also  chunsed  1^  the  corporate  council, 
i&  defendant  had  been  appointed  to  receive  them 
nntU  the  right  was  settled ;  held,  that  it  was  not 
a  subject  for  a  mandamusy  at  the  instance  of  one 
of  the  freemen  interested  in  the  fund.  R.  v. 
Frost,  1  Perr.  &  D.  (q,  b.)  75. 

31.  The  Court  refused  the  writ  to  compel  the 
swearing  in  of  the  opposing  candidate  where  one 
bad  been  declared  elected,  and  admitted  a  coun- 
cillor, the  office  being  full,  in  fact,  and  the  reme- 
dy to  try  whether  full  in  right,  by  trua  toamofito. 
R.  V.  Derby  Councillors,  7  Ad.  &  £11.  («.  b.)  419; 
and  2  Nev.  &  P.  589. 

32.  A  mandamusy  to  the  Lords  of  the  Treasorjr, 
to  pay  over,  out  of  an  indemnity  fund  in  their 
hands  under  59  Geo.  3,  c.  31,  and  at  the  disposal 
of  the  crown,  money  in  liquidation  of  a  claim  for 
property  unduly  confiscated  bv  the  French  au- 
thority, refused.  Baron  de  Bode*s  ease,  6  Dowl. 
(p.  c.)  776. 

33.  Where  it  was  not  shown  that  any  custo- 
mary fine  was  payable  to  the  lord  for  a  licence 
for  digging  brick  earth  on  the  waste,  the  court 

I  Refused  a  mandamMs^  which  would  compel  him  to 


2896 


[M  ANDA  MUS— MARRIAGE] 


license  an  act  amounting  to  waste.     Reg.  v. 
Hale,  1  Perr.  &.  Day.  (q.  b.)  293. 

So  a  licence  to  a  tenant  to  demur  for  terms,  lb. 

34.  Where  a  local  pier  Act  provided  that,  in 
case  the  person  to  whom  compensation  should  be 
awarded  for  the  lands  taken  by  the  company 
could  not  make  a  good  title  to  the  premises,  it 
should  be  lawful  for  them  to  pay  the  amount  into 
the  bank ;  held,  that  before  the  party  could  com- 
pel the  payment  into  the  bank,  he  must  show 
that  he  was  unable  to  deduce  a  oood  title,  and  a 
mandamus  therefore  refused.  R.  v.  Deptford 
Pier  Company,  I  Perr.  &  Day.  (q.  b.)  128. 

35.  The  court  refused  to  issue  the  writ  to  a 
board  of  Guardians,  commanding  them  to  admit 
to  the  office  of  clerk,  a  party  alleging  that  he  had 
been  elected  by  a  majority  of  gocM  votes :  the 
court  would  not  thus  question  the  title  of  the 
voters.  R.  r.  Dolgelly  Guardians,  3  Nev.  &  P. 
(Q.  B.)  542. 

And  see  Bastard  ;  Church-rate  ;  Chwrchtoarden  ; 
Church;  Compensation;  Corporation;  Custom; 
Friendly  Society;  Officer;  Patent;  Poor;  Rail- 
tuay  Company;  Requests;  Sessions;  Vestry. 


MANOR. 

1.  Where  in  ejectment  to  recover  waste  en- 
closed within  10  years,  the  lessor  claimed  as  de- 
visee under  a  will,  charging  the  testator's  lands 
with  a  gross  sum  payable  to  the  testator's  daugh- 
ter, the  devise  being  to  trustees  until  the  lessor  of 
plaintiff,  his  son,  attained  23,  and  then  to  him, 
siibjf ct  to Ihe  charge;  held,  1st,  that  parol  evi- 
dence of  holding  courts  for  35  years  past,  and  ap- 
pointment of  gamekeepers  by  the  trustees,  was 
sufficient  primn  facie  evidence  of  a  manor,  and  of 
his  being  the  lord,  although  no  evidence  of  court 
rolls  or  other  documents  were  produced  ;  2d,  that 
the  court  could  not  infer  that  the  legal  estate  was 
outstandinsf  in  the  incumbrancer;  and  lastly, 
that  as  to  the  encroachment,  however  at  first  a 
licence  might  be  presumed,  it  was  sufficiently  put 
an  end  to  by  entry  and  breaking  down  the  enclo- 
sure a  few  aays  only  before  action  brought.  Doe 
d.  Beck  V,  fieakin,  6  Ad.  &  Ell.  (k.  b.)  495. 

2.  Where,  in  1658,  a  manor  was  conveyed  to 
trustees,  reserving  certain  specified  lands  in  trust 
for  certain  persons  in  certain  portions,  according 
to  their  interest,  stated  in  a  schedule  annexed,  in 
certain  tenements,  and  the  plaintiff,  as  owner  of 
one,  claiming  the  right  of  sporting  over  tlie  ma- 
nor, in  violation  of  resolutions  formerly  entered 
into  by  the  tenants  as  to  the  right  of  enjoying 
such  privilege,  an  action  of  trespass  having  been 
commenced  against  him,  he  had  filed  a  bill  to 
have  his  right  declared,  and  the  action  restrained  ; 
held,  that  it  not  being  clear  that  all  the  owners  of 
lands  within  the  manor  were  entitled,  nor  the 
right  claimed  such  as,  without  appropriate  words 
in  the  original  conveyance  of  the  various  tene- 
ments, could  be  assigned,  the  title,  as  one  of  the 
cestui  que  trusts,  was  not  sufficiently  established, 
and  even  if  it  were,  all  that  the  cestui  que  trusts 
were  entitled  to  was,  to  have  a  rateable  proportion 


of  the  rents  and  profits  derivable  from  the  letting 
such  privilege.  Hutchinson  r.  Morritt,  3  Tounge 
&  C.  (ex.  eq.)  547. 

And  see  Boundaries;  Copyhold;  Mandamus, 


MARKET. 

1.  Upon  evidence  of  a  market  immemorially 
holden  in  certain  places  within  a  manor  by  Uw 
lord,  a  jury  may  be  warranted  in  inferring  a  grant 
of  it  to  be  held  in  any  convenient  place  within 
the  manor,  and  of  course  with  the  power  incident 
tliereto,  of  removal  from  time  to  time.  De  Rnt- 
zen  V.  Lloyd,  5  Ad.  &,  Ell.  (k.  b.)  456. 

2.  Where  the  lord  removed  the  market  and 
demised  the  site  of  the  new  one  to  lesaeet,  and  bj 
the  terms  of  the  lease  a  power  was  given  of  im- 
posing tolls  on  all  persons  for  selling  or  exposing 
goods  for  sale,  there  being  no  evidence  that  stalf 
age  had  ever  been  paid  at  the  old  market ;  held, 
that  the  removal  was  bad,  as  imposing  restrictioos 
on  the  liberty  of  erecting  stalls ;  to  render  it  valid, 
the  site  to  which  the  market  is  removed  ought  to 
be  on  the  soil  of  the  lord,  and  it  is  enenttal  Aat 
he  should  have  the  correction  of  it.  R.o.8tHkey> 
2  Nev.  &  P.  (K.  B.)  165. 


MARRIAGE. 

1.  The  interest  of  a  father  in  the  legitimacy  or 
illegitimacy  of  the  issue  of  his  daughter,  held  t» 
be  a  sufficient  interest  to  entitle  him  to  support  a 
civil  suit  to  annul  her  marriage  with  the  husband 
of  a  deceased  sister;  reversing  the  judgment  be- 
low.   Ray  V.  Sherwood,  1  Curt  (arches)  193. 

2.  Held  also,  that  the  service  of  a  citaiioa,  pfo- 
vided  it  state  with  clearness  and  certainty  the  ob> 
ject  of  the  suit,  is  sufficient  to  constitate  a  Us 
pendens,    lb. 

3.  An  allegation  in  the  libel  as  to  the  residence 
of  the  parties,  expunged ;  the  court  being  ex- 
pressly prohibited  by  the  Act  from  inqairy  into 
such  residence,  after  marriage  once  celebrated. 
Ray  V  Sherwood,  1  Curt,  (arches)  193. 

And  see  Disclaimer. 

4.  Marriage  Registry  Acts,  6  db  7  Will.  4,c. 
85,  86,  suspended  until  the  last  day  of  Jane  1^, 
by  7  Will.  4,  c.  1,  and  amended  by  7  WiO.  4 
&  1  Vict.  c.  22. 

5.  The  provisions  of  the  Marriage  Act,  antho- 
rizing  the  judges  of  the  court  to  give  consent  te 
the  marriage  oT  an  infant,  held  not  to  extend  Is 
the  case  of  a  father  beyond  seas  unreasonably 
withholding  his  consent,  but  solely  to  the  case  ^ 
a  father  who  was  non  compos,  and  the  gnardiiB 
or  mother  mentioned  in  the  Act.  J.  C.  ex  parte, 
3Myl.  &Cr.  (CH.)  471. 

6.  In  an  action  against  husband  and  wife,  §Bt 
the  debt  of  the  wife  before  marriage,  strict  evi- 
dence of  the  marriage  is  not  necessary,  and  evi- 
dence of  his  haying  spoken  of  her  as  his  vi&t 


[MARRIAGE— MARRIAGE  SETTLEMENT] 


2837 


held  fQfficient  for  a  jniy  to  decide  on.    Tracy  v. 
M'Arlton,  7  Oowl.  (p.  c.)  532. 

7.  Before  a  party  can  be  pronounced  in  con- 
tempt, for  the  purpose  of  proceeding  in  the  cause, 
the  residence  roust  be  once  fixed  within  the  dio- 
cese, as  until  the  contrary  shown,  the  continu- 
ance will  be  presumed.  >  Garden  v  Garden,  1 
Gurt.  (cons.)  558. 

8.  Where  the  husband,  in  a  suit  for  a  diyorce 
by  reason  of  adultery,  afler  publication,  brought 
in  a  new  plea,  alleging  a  fresh  act  of  adultery, 
the  court  would  not,  on  that  ground  alone,  ex- 
clnde  an  exceptive  allegation  ;  but  when  such 
allegation  was  not  relevant  to  the  issue  in  the 
cause,  or  collateral,  held  that  it  could  not  be  re- 
ceived for  the  purpose  of  discrediting  a  witness. 
Trevanion  r.  Trevanion,  1  Gurt.  (cons.)  406. 
And  judgment  affirmed  on  appeal.    lb.  486. 

And  see  Action. 


MARRIAGE  SETTLEMENT. 

1.  Where  the  testator,  having  invested  a  sum 
in  settlement  on  the  marriage  of  one  daughter, 
and  executed  a  bond  for  payment  of  a  further 
8um  at  his  death,  agreed  with  the  plaintiff,  un  the 
intended  marriage  of  his  second  daughter,  to 
make  an  equal  provision  for  her  with  his  other 
daughter,  and  a  memorandum  by  way  of  instruc- 
tion was  given,  and  the  settlement  prepared  by 
the  fathers  solicitor  accordingly,  but  he  died  be- 
fore executing  it,  and  before  the  marriage  took 
effect,  and  by  his  will  he  had  given  a  share  of  the 
residue  to  toe  married  daughter ;  the  marriage 
took  effect,  and  the  husband  settled  property  on 
the  wife  pursuant  to  the  agreement ;  held,  on  a 
bill  filed  for  performance  of  the  settlement,  first, 
that  the  agreement  was  not  to  be  deemed  final 
mnd  bindinff  on  him  within  the  Statute  of  Frauds ; 
but,  secondly,  that  the  share  of  the  residue  given 
to  the  married  daughter,  was  to  be  deemed  a  sat- 
isfaction of  the  marriage  portion  secured  by  the 
bond.  Glengal,  Earl  of,  v.  Barnard,  1  K.  (ch.) 
769. 

2.  Where,  by  the  settlement,  a  yearly  sum  was 
charged  on  estates  for  the  wife,  together  with  the 
mansion,  park,  &c.,  and  by  will  the  settlor  con- 
firmed it,  and  gave  the  mansion,  park,  &c.,  to  his 
wife  for  life,  remainder  to  his  nephew,  to  whom 
he  also  devised  copyhold  estates  in  £.  and  his 
estates  in  P.,  free  from  all  incumbrances  whatso- 
ever; he  also  created  two  rentcharges  out  of  his 
estates  in  E. ;  held,  that  the  devise  to  the  wife  of 
the  lands  charged  by  the  settlement  did  not  merge 
the  charge  in  it,  but  that  she  was  entitled  to  en- 
joy the  mansion,  &c.,  without  any  deduction 
from  the  yearly  sum  given,  and  which  was  to  be 
raised  out  of  the  other  estates  in  E.,  devised  to 
the  nephew.  Powell  v.  Grigby,  2  GL  &  Fi.  (p.) 
103. 

3.  Where  the  parents  of  the  intended  husband 
and  wife,  by  marriage  articles  unskilfully  drawn, 
covenanted  to  settle  estates  respectively  in  terms 
expressed  to  be  dependent,  but  the  whole  instru- 
ment taken  together,  and  alao  the  covenant  Ibr 


title,  tended  to  show  the  intention  of  the  parties 
that  the  covenants  were  not  to  be  dependent ; 
held,  in  favor  of  the  issue  of  the  marriage,  to  be 
independent,  and  decreed  to  be  conveyeo  accord- 
ingly.   Lloyd  r.  Lloyd,  8  Sim.  (cb.)  7. 

4.  Limitation  of  the  trust  fund  in  a  marriage 
settlement,  to  the  husband  for  life,  and  aiter  his 
decease  to  the  wife  for  life,  and  afler  tlie  decease 
of  the  survivor,  the  fund  to  go  to  the  issue  of  the 
marriage,  in  case  there  should  be  any  living  at 
the  death  of  the  husband  and  wife,  in  such  man- 
ner as  the  father  should  appoint,  and  in  default  of 
appointment  then  to  such  issue  in  equal  shares, 
and  if  but  one,  then  the  whole  to  go  to  such  only 
child  ;  and  in  case  there  should  not  be  any  issue 
of  the  marriage  living  at  the  death  of  the  survi- 
vor, then  to  go  to  such  person  as  the  husband 
should  appoint ;  held,  that  the  word  issue  was  to 
be  construed  cJdld,  and  that  an  appointment  made 
by  the  father,  upon  the  death  of  the  only  child  of 
the  marriage,  in  his  lifetime,  although  leaving  a 
child,  was  valid.   Swifl  v.  Swifl,8  Sim.  (ch.)  168. 

5.  Where  by  a  prior  marriage  settlement,  the 
settlor  covenanted,  in  case  of  his  surviving  the 
wife,  to  pay  £100  to  each  child  at  21  ;  there  were 
seven  cnildren  of  the  marriage,  and  upon  hit 
again  marrying,  he  conveyed  nis  estate  to  trus- 
tees for  a  term  afler  his  decease,  or  upon  his  re- 
quest in  his  lifetime,  to  raise  £600,  and  pay  to  the 
children  the  portions,  and  he  settled  the  estate  on 
the  eldest  son;  the  £600  was  raised  and  paid  to 
the  children,  with  interest,  afler  his  death ;  and 
held,  that  such  second  settlement  and  payment 
was  to  be  taken  as  a  satisfaction  of  the  nrst,  and 
that  the  trustees  could  not  sustain  an  action  on 
the  covenant  against  his  representative,  to  compel 
the  payment  of  the  £100  pursuant  to  the  fust 
settlement,  and  a  perpetual  injunction  decreed. 
Jones  V,  Morgan,  2  Tounge  &,  G.  (xx.  xq.)  403. 

6.  Where  the  wife's  estate  was  settled  to  her 
for  life,  and  afler  her  decease  to  the  intended 
husband,  until  he  should  become  bankmpt  or  in- 
solvent, or  should  sell  or  do  any  thing  to  antici- 
pate the  rents  and  profits,  or  attempt  to  do  so, 
then  upon  trust  for  the  children  of  the  marriage, 
and  in  de&ult  of  such,  then  over ;  there  was  no 
issue,  the  husband  survived,  and  made  seTeral  at- 
tempts in  the  lifetime  of  the  wife  to  raise  money 
by  sale  or  mortgage  of  the  property,  but  failed  to 
do  so ;  and  hem,  that  a  party  haTing  such  an  in- 
terest and  subject  to  such  a  limitation  over,  might 
desire  and  take  advice  as  to  the  power  to  dispose 
and  do  various  acts  indicative  of  his  wishes, 
without  giving  effect  to  the  limitation  over; 
but  a  reference  directed  as  to  the  question  of  his 
insolvency.  Jones  r.  Wyse,  2  Keene  (ch.) 
2^. 

7.  Where  upon  a  marriage  between  English 
and  Scotch  subjects,  the  fauer  of  the  huslMind, 
domiciled  in  England,  in  consideration  of  the 
sums  to  be  given  by  the  father  of  the  lady, 
agreed  to  settie  certain  estates  on  his  son  and  the 
issue  of  the  marriage,  and  the  proposals  conclu- 
ded with  a  proviso,  that  the  settlement  was  to 
contain  the  clause  of  indemnity  to  trustees,  and 
"  all  other  usual  and  necessary  clauses ;"  the  set- 
tlement contained  no  clause  barring  legitim,  or 
the  child *s  portion  of  her  father's  personal  estate, 
although  a  usual  and  necessary  clause  in  Scotch 


2888     [MARRIAGE  SETTLEMENT— MASTER  AND  SERVANT] 


settleroeDtfl,  where  the  father  advanced  a  portion 
for  hia  child  ;  a  decree  having  been  obtained  in 
Scotland  in  favor  of  the  claim  to  UgUimy  and  the 
judgment  afterwards  affirmed  in  Dom.  Proc. 
Upon  the  alleged  subsequent  discovery  of  the 
proposals,  and  a  b'dl  filed  to  reform  the  settlement 
and  to  restrain  the  enforcement  of  the  decree  ob- 
tained, held,  Ist,  that  the  settlement  was  to  be  con- 
strued with  reference  to  the  subject  matter,  which 
being  entirely  English,  the  clause  as  to  legitim 
Was  not  to  be  comprehended  within  it;  2dly,  that 
the  father  of  the  wife  was  not  a  party  dealing  ad- 
versely with  her  rights,  and  that  her  claim  could 
only  he  barred  by  express  contract  between  them ; 
3dly,  that  there  was  no  evidence  of  the  proposals 
having  been  the  final  contract,  and  that  the  court 
would  only  reform  the  settlement,  when  the  evi- 
dence of  mistake,  and  as  to  the  real  intention  of 
the  parties,  was  perfectly  clear  and  satisfactory ; 
and  semb.^  the  court  would  not  entertain  such  suit 
on  the  ground  of  discovery  of  new  matter,  alter 
adjudication  by  a  foreign  and  competent  jurisdic- 
tion, and  when  it  might  still  be  available  there. 
Breadalbane,  Earl,  v.  Marquis  Chandos,  2  Myl. 
&Cr.  (CH.)71I. 

8.  Where  shares  in  an  assurance  company  were 
settled,  and  it  was  provided  that  any  bonus^  by 
way  of^  increase  of  capital  of  the  stock,  should  be 
added  to  and  form  part  of  the  trust  fund,  but  if 
given  by  way  of  interest  or  dividend,  it  should  go 
to  the  parties  entitled  to  receive  the  dividends ; 
and  an  accumulation  having  been  made  by  the 
companv,  by  a  reserve  of  part  of  the  profits,  it  was 

lesol ved  that  a  sum,  at  the  rate  of per  share, 

should  be  taken  out  of  the  profits  and  divided 
amongst  the  proprietors ;  held,  that  such  addition 
was  tofbe  deemed  part  of  the  capital  of  the  shares. 
Ward  V.  Combe,  7  Sim.  (ch.)  634. 

9.  Where  words  of  general  description,  which 
wookl  ioelade  particular  estates,  clearly  intended 
not  to  pass,  had  been  inadvertentlv,  and  by  mis- 
take, inaerlBd  in  a  settlement,  held  to  be  within 
the  jurisdiotion  of  the  oourt,  and  that  it  would 
declare  the  particular  estate  to  form  no  part  of 
the  contract  Exeter,  Marquess  of,  v.  Marchio- 
ness of  Exeter,  3  Myl.  &  Cr.  (ch.)  321. 

10.  Upon  a  settlement,  property  of  the  wife 
was  limited,  in  default  of  children,  to  her  next  of 
kin ;  and  the  husband  covenanted  that  any  pro- 
perty she  should  afterwards  acquire  should  be 
■ettfed  to  the  like  uses,  and  she  became  entitled 
to  a  fund  to  her  for  life,  remainder  to  her  child- 
ren, and  with  remainder  as  she  should  appoint,  and 
in  default  thereof,  **  to  her  executors,  administra- 
tors, and  assigns,"  and  she  died  during  the  cover- 
ture, having  made  no  appointment,  held,  that  the 
funds  settled,  devolved  upon  the  next  of  kin  of 
the  wife,  and  not  the  representatives  of  the  hus- 
band.   Grafftey  v.  Humpage,  1  Beav.  (ch.)  46. 

11.  Where  a  British  subject  domiciled  in  a  colo- 
ny, governed  by  the  law  of  France,  on  his  mar- 
riage there,  by  his  settlement  declared  the  inten< 
tion  to  be  to  marry  according  to  the  laws  of  Eng- 
land, the  benefit  of  which  they  reserved  the 
power  claiming,  and  stipulated  that  he  would  in- 
vest a  sum,  which  he  acknowledged  to  have 
received  from  her,  the  income  of  which  she  was 
solely  to  receive,  and  the  principal,  if  she  should 


die  in  his  lifetime,  was  to  belong  to  him ;  and 
that,  if  he  failed  so  to  invest  the  same,  she  was 
to  be  entitled  to  take  it  out  of  his  assets  on  his 
death.  The  events  were,  that  he  died,  without,  in 
fact,  ever  having  received  the  fund,  or  invested  a 
sum  to  that  amount ;  held,  that  she  was  entitled 
to  be  paid  it  out  of  his  estate,  and  also  to  her  dis- 
tributive share  of  his  personal  estate.  Lang  v. 
Lang,  8  Sim.  (cu.)  451. 

12.  The  judgment  of  the  court  below  in  Bread- 
albane, Marquess  of,  v.  Chandos,  2  Myl.  4&  Gr. 
711 ;  affirmed  in  D.  P.  4  CI.  &  Fi.  (p.)  43. 

And  see  Baron  and  Feme;  Copyhold;  Cott- 
nant;  Portions;  Resulting  Trust;  Vendor  and 
Purchaser. 


MARSHAL  OF  THE  QUEEN'S  BENCH. 

See  Escape, 

MASTER  AND  SERVANT. 

1.  Where  there  was  no  proof  of  any  hiring,  hot 
only  of  service,  and  payments  had  been  made 
without  reference  to  any  definite  period  or  yearly 
amount,  and  the  plaintiff  lefl  in  the  middle  of  the 
year  from  sickness,'  and  was  never  required  tore- 
turn  ;  held,  that  the  plaintiff  was  entitled  to  re- 
cover upon  a  quantum  meruit.  Bay  ley  v.  Rim- 
mell,  1  Mees.  <b  W.  (ex.)  506 ;  and  1  Tyr.  and 
Gr.  «06. 

3.  The  causing  the  servant  to  be  sent  to  prison 
on  a  charge  afterwards  abandoned,  held  not  to 
amount  to  a  dissolution  of  the  contract,  and  tbe 
partv  therefore  held  entitled  to  the  wages  which 
would  have  accrued  in  the  interval,  until  ftctval 
dismissal.     Smith  v.  Kingsford,  3  Sc.  (c.  p.)  279. 

3.  The  5  Geo.  4,  c.  96,  relating  to  disputes  be- 
tween masters  and  workmen,  amended  by  1  Vict 
c.  67. 

4.  In  case  by  a  servant  against  his  employer, 
for  injury  by  the  breaking  down  of  a  van  of  the  de- 
fendant, about  which  the  plaintiff  was  employed 
in  the  carriage  of  goods,  and  alleged  to  be  over- 
loaded ;  held,  tliat  as  the  plaintiff  must  have 
known,  probably  better  than  his  master,  wbetbet 
the  van  was  likely  to  proceed  safely,  and  the 
making  the  master  responsible  would  lead  to  the 
omission  of  the  caution  which  the  servant  is 
bound  to  use  in  the  service  of  his  master,  the  ac- 
tion was  not  maintainable.  Priestley  v.  Fowler, 
3  Mees.  &  W.  (ex.)  1. 

5.  Where  a  salaried  clerk  claimed  to  be  rec«v- 
nised  as  a  partner  with  his  employer,  held  a  soS- 
cient  ground  for  dismissal,  and  without  noCiee. 
Amor  V.  Fearon,  1  Perr.  &.  Oav.  (q.  B  )  39B. 

6.  The  law  of  Scotland  prohibitinfir  all  work  •& 
Sundays,  **  except  works  of  necessity  and  mer- 
cy," held,  that  the  master,  a  barber,  coald  not 
employ  his  apprentice  in  shaving  his  customeis 
on  any  part  of  that  day,  and  that,  by  a  coTenant 
in  the  indenture  by  tlie  apprentice  not  to  mhsepi 
hmiself  on  ^*  holidays  or  week  days  withont  lemrt' 


r 


[MASTER  AND  SERVANT— MORTGAGE] 


2899 


the  tprm  holidaif  did  not  apply  to  Sunday,  but 
other  days,  directed  to  be  kept  as  holidays  in  Soot- 
land,  (reversing  the  judgment  below.)  Phillips 
V.  lnnes,4  CI.  &  Fi.  (p.)  234. 

And  see  Action ;  Action  on  the  Case ;  Bankrupt ; 
Qndraet;  Justices, 


MERGER. 

Where  a  party  haying  a  partial  interest  in  pre- 
mises, bought  up,  and  had  transferred  to  a  trustee 
ibr  him  charges  thereon,  and  he  subsequently  be- 
came  absolutely  entitled  to  the  estate,  and  devi- 
sed it  so  as  to  become  attached  to  the  person  who 
should  become  entitled  to  a  dignit^r,  without  any 
mention  of  the  charges  he  had  paid  off;  held  to 
have  nnerged  in  the  inheritance.  Selsey,  Lord, 
V.  ixnrd  Lake,  1  Beav.  (ch.)  146. 


MINES. 

1.  A  permission  to  di^  and  search  for  ore,  ac- 
tually demised  and  exercised  ;  held  to  be  an  hered- 
itament within  11  Geo.  2,  c.  19,  s.  14,  and  to  be 
the  subject-matter  of  use  and  occupation.  Jones 
V.  Re3molds,(j  Nev.  &  M.  (k.  b.)  441 ;  and  4  Ad. 
&  £11.  805. 

And  see  Co.  Litt.  6  a. 

2.  The  court  refused  an  injunction  against  ten- 
ants working  mines,  where  the  lord  had  lain  by 
and  permitted  them  to  expend  large  sums  in  the 
operations,  leaving  him  to  his  legu  remedy ;  but 
held  that,  in  the  case  of  mines,  a  party  not  enti- 
tled to  an  iujunction  miffht  still  be  entitled  to  an 
account,  although  by  Ttdus  be  may  disentitle 
himself  to  it  Farrott  o.  Palmer,  3  Myl.  &  K. 
(cH.)  604. 

3.  Where,  upon  a  ffrant  of  lands,  houses,  and 
premises,  reserving  all  mines,  ^c,  with  libeily  of 
ingress  and  egress  for  working  the  same,  making 
compensation  for  damage,  £c.,  the  defendant 
worked  so  near  the  surface,  without  leaving  pro- 
per supports,  that  the  plaintiff's  houses,  lands, 
Ac,  fell  in  ;  held,  that  a  plea,  alleging  the  rtffht 
to  all  mines,  &c.,  and  that  he  was  not  bound  to 
leave  any  support,  could  not  be  sustained,  the  de- 
fendant being  bound  to  work  in  a  reasonable  mode. 
Harris  v.  Ryding,  5  Mees.  &  W.  (ex.)  60. 

And  see  Auionon  the  Case;  Crown  Grant;  In- 


MISTAKE. 
See  Eleeticn ;  Marriage  Settlement. 


MORTGAGE. 

1.  On  a  mortgage  of  premises  held  for  lives  for 
XI30,  with  power  to  the  mortgagee  to  expend  not 


exceeding  £70  for  a  renewal;  held,  that  a  £3 
stamp  was  sufficient.  Doe  d.  Jarman  v.  Larder, 
3  Ring.  N.  S.  (c.  p.)  92 ;  and  3  Sc.  407. 

2.  Where  the  mortgage  is  for  a  term,  and  also 
with  a  trust  for  sale,  and  a  bill  by  the  mortgagee 
prays  for  a  sale  only ;  held,  that  he  is  not  entitled 
to  foreclose  the  fee  nor  the  term,  without  amend- 
ing his  bill ;  held  also,  that  the  mortgagor,  become 
bankrupt,  was  not  a  necessary  party.  Kerrick  v. 
Saffery,  7  Sim.  (ch.)  317. 

3.  Where  the  plaintiff  in  a  suit  for  redemption 
had  not  offered  to  pav  the  principal  and  interest 
at  the  time  appointed,  the  court  refused  to  allow 
him  to  redeem,  although,  before  the  motion  to 
dismiss  mad«\  he  had  tendered  the  amount  re- 
ported due,  and  subsequent  interest  Faulkner 
V.  BokoB,  7  Sim.  (ch.)  319. 

4.  Where  the  mortgagor  was  interested  in  part 
of  the  premises  as  tenant  only,  of  which  the  land- 
lord recovered  possession  in  ejectment,  and  afler- 
wards  demised  to  the  mortgagor  by  a  new  lease ; 
held,  that  he  was  bound  to  let  the  new  lease  ope* 
rate  in  support  of  his  mortgage.  Doe  v.  Vickcrs, 
6  Nev.  A  M.  (K.  B.)  437 ;  and  4  Ad.  &  Ell.  782. 

5.  Where  a  mortgagee  purchased  part  of  the 
mortgaged  premises,  and  the  principal  and  inter- 
est due  to  him,  calculated  to  March  24,  exceeded 
the  purchase-money ;  held,  that  he  was  entitled 
to  be  let  into  possession  from  Christmas.  Bates 
V.  Bonnor,  7  Sim.  (ch.)  427. 

6.  Where  a  mortgagee  enters  into  possession, 
not  merely  in  his  character  as  mortgagee,  but 
under  a  conveyance  Irom  a  trustee,  anaas  pnr- 
ohaser  of  the  equity  of  redemption,  he  is  bonnd 
by  the  title  of  his  vendor  and  the  validity  of  the 
conveyance  he  takes,  and  bound  therefore  to  keep 
down  the  interest  for  the  benefit  of  those  in  re« 
mainder,  and  time  will  not  run  against  such  re- 
mainder-man during  the  continuance  of  the  pre-^ 
vious  estate ;  but  where  a  mortgagee  is  in  pos- 
session under  his  mortgage  title  uone,  and  no  ac- 
count is  called  for,  or  payment  tendered,  or  mort» 
gage  title  admitted  for  ^  years,  his  title  becomea 
absolute;  and  the  time  Kegins  to  run  from  the 
time  of  his  taking  possession  against  the  mortga- 
gor, and  all  claiming  under  him,  notwithstanding 
any  disabilities  to  which  they  may  be  subjects 
Raffety  v.  King,  1  K.  (ch.)  601. 

7.  Where  the  Master  had  found  that  premiaea 
agreed  to  be  mortgaged  as  a  security  for  advances, 
to  enable  the  mortgagor  to  erect  buildings,  in* 
eluded  all  the  messuages,  lands  and  premises  ad- 
joining the  unfinished  houses,  and  that  the  mort-^ 
gagee  had  a  prior  security  on  buildings  afterwards 
erected,  and  water  rents  arising  from  springs  on 
the  mortgaged  premises  brought  to  a  reservoir 
also  built  thereon,  although  afterwards  specifical- 
ly conveyed  as  a  mortgage  security ;  to  which  re- 
port exceptions  were  taken  and  allowed  below; 
the  judgment  reversed  npon  appeal.  Foumier  v. 
Paine,9Bli.  N    S.  (p.)  882. 

8.  Where  the  balance  of  a  claim  upon  an  ac- 
count had  been  settled  by  award  in  1799,  but  not 
acted  on  or  rescinded,  and  on  a  subsequent  nego- 
tiation in  1819,  a  mortgage  was  executed,  but, 
there  being  difficulties  in  making  it  available,  the 

I  creditor  proceeded  upon  old  juagments  for  parta 


1 


2840 


[MORTGAGE] 


of  the  amoant  seciired  by  the  mortga^  ;  a  bill  for 
opening  the  account,  and  setting  aside  the  mort- 
gage deed  on  the  ground  of  oppression  was  dis- 
missed, and  an  account  on  a  cross-bill,  establish- 
ing the  mortgage,  decreed  j  but  the  creditor  not 
allowed  a  cUim  for  life  insurances  not  proved  to 
have  been  paid,  and  also  a  sum  for  costs  errone- 
ously included  in  the  mortgage  security.  Done- 
gal, Marquis  of,  v.  Gratten,  8  Bli.  N.  S.  (p.)  831. 

9.  Where,  after  a  report  of  what  was  due,  the 
time  for  payment  was  enlarged,  with  order  to  com- 
pute subsequent  interest ;  held,  that  it  ought  to 
be  computed  on  the  aggregate  sum  found  due. 
Bruere  v.  Wharton,  7  Sim.  (oh.)  483. 

10.  Where  a  specialty  creditor,  haTing  also  a 
mortgage  secnrity,  comes  in  to  prove,  in  a  suit  for 
administration  of  assets,  the  Master  has  no  power 
to  put  him  under  terms,  nor  to  order  the  securi- 
ties to  be  given  up,  or  direct  a  sale  of  the  mort- 
gaged estates  ;  but  an  order  may  be  made  on  his 
report,  marshalling  the  assets,  or  particular  direc- 
tions given  to  meet  the  justice  of  the  case.  Mason 
V.  Bogg,  2  Myl.  A  Or.  (ch.)  443;  and  Memh. 
questioning  Greenwood  o.  Taylor,  1  Ruse.  &  M. 
185. 

11.  Ad  equitable  depositary  of  a  lease  held  to 
be  responsible  to  the  owner  of  the  reversion  for 
lent  and  covenants,  although  he  may  not  have 
taken  possession  of  the  premises.  Flight  v.  Bent- 
ley,  7  Sim.  (CH.)  149. 

And  see  Lucas  v.  Comerford,  1  Ves.  jun.  235. 

12.  Where  the  mortgagee  had  purchased  the 
equity  of  redemption,  and  united  his  equitable 
mortgage  therewith ;  held,  that  he  was  liable  to 
perform  an  agreement  for  a  lease  made  after  the 
mortgage  by  the  mortgagor,  who  had  become 
bankrupt  before  the  lease  executed,  and  that  such 
lessee  was  entitled  to  have  his  equitable  charge 
satisfied  out  of  the  united  interests  which  then 
constituted  the  equity  of  redemption.  Smith  v, 
Phillips,  1  K.  (CB.)  694. 

13.  And  where  the  mortgagor  is  d^ad,  the  equit- 
able mortgagee  has  a  right  to  have  the  estate,  af- 
fected by  nis  lien,  sold,  and  the  proceeds  applied 
in  payment  of  his  debt,  and  to  stand  in  the  place 
of  a  general  creditor  in  respect  of  any  balance  due 
to  him.    Brocklehurst  v,  Jessop,  2  Sim.  (ch.)  442. 

14.  Where  the  equitable  mortgagee  received 
the  rents  of  the  mortgaged  estate,  held  jnima 
foot  to  amount  to  a  payment  either  of  the  princi- 
pal or  interest,  within  the  proviso  of  the  Statute 
ot  Limitations,     lb.  438. 

15.  Where  in  a  suit  for  foreclosure  by  the  first 
mortgagee,  he  consented  to  a  sale  ;  held  that,  the 
proceeds  turning  out  insufficient  to  satisfy  his 
principal  and  interest,  he  was  entitled  to  the 
whole  of  the  fund.  Uppetton  v.  Harrison,  7  Sim. 
(cH.)  444. 

16.  In  ejectment  by  mortgagee,  a  defendant, 
not  the  mortgagor,  but  defending  for  his  benefit, 
not  allowed  to  set  up  a  prior  mortgage.  Doe  v. 
Clifton,  4  Ad.  6l  £11.  (k.  b.)  813. 

17.  And  in  order  to  found  jurisdiction  under  7 
Geo.  2,  c.  20,  to  relieve  the  mortgagor  on  pay- 
ment of  the  mortgage  debt  and  interest,  it  is  an 


essential  preliminary  that  be  should  make  him- 
self defendant    lb. 

18.  In  ejectment  by  mortgagor  agamst  mort- 
gagee, the  lease  for  a  year  recited  in  the  release, 
executed  by  the  defendant,  held  sufficient,without 
producing  the  lease.  Doe  r.  Wagstaff,  7  C.  4c  P. 
(H.  P.)  477. 

19.  Where  proceedings  in  ejectment  are  stayed 
under  7  Geo.  2,  c.  20,  the  costs  are  to  be  taxed 
only  as  between  party  and  party,  and  not  as  be- 
tween attorney  and  client.  Doe  v.  Capps,  3  Bing. 
N.  S.  (c.  p.)  768 ;  and  5  Dowl.  (p.  c.)  633. 

20.  In  the  case  of  Johnson  v.  Kennett,  6  Sim. 
384,  judgment  reversed. 

21.  Where  the  commissioners  were  empowered, 
with  the  consent  of  the  owners  and  proprietors,  to 
exchange  lands  for  allotments,  such  consent  to  be 
certified  in  writing,  and  by  the  award  two  pieces 
of  lands  in  mortgage  were,  with  the  consent  of 
the  mortgagor,  exchanged,  the  commissionen 
stating  on  their  award  that  the  exchange  was  made 
with  the  consent  in  writing  of  the  mortgagor, 
but  it  did  not  state  it  to  have  been  with  the  con- 
sent of  the  mortgagee  ;  held  unnecessary,  and  that 
the  court  woulcTnot  presume  it  not  to  have  been 
given,  and  the  presumption  was  that  the  commis- 
sioners had  acted  according  to  their  jurisdiction, 
as  the  contrary  did  not  appear ;  held,  also,  that  a 
letter  to  the  mortgagee  from  the  mortgagor,  dated 
previous  to  an  assignment  under  his  insolvency, 
was  admissible  in  evidence  against  the  defendant, 
his  assignee,  and  was  to  be  presumed  written  at 
the  period  of  its  date  until  the  contrary  shown. 
Goodtitle  d.  Baker  v.  Melburn,  2  Mees.  &l  W. 
(XX.)  853. 

22.  A  mortgagee  held  entitled  to  sustain  a  suit 
for  realizing  his  security  by  a  sale  of  the  mortga- 
ged premises,  against  tne  devisee  of  the  real  es- 
tate, an  infant,  although  a  decree  had  been  in 
suits  framed  only  for  the  administering  the  per- 
sonal estate  ;  and  in  such  cases  where  the  sale  is 
clearly  for  the  infant's  benefit,  a  sale  will  be  di- 
rected in  the  first  instance,  without  a  reference  to 
inquire  whether  it  will  be  so  or  not.  Davis  s. 
Dowding,  2  Keene,  (ch.)  245. 

23.  Where  it  was  sworn  by  a  mortgagor  that 
he  had  entered  the  usual  appearance,  the  court 
would  presume  that  he  had  taken  the  proper  steps 
to  render  him  the  defendant  in  the  action,  al- 
though it  was  not  stated  that  he  had  entered  into 
the  consent  rule.  Doe  d.  Cox  v.  Brown,  6  Dowl. 
(p.  c.)  471. 

24.  Where  deeds  were  deposited  under  a  pro- 
raise  til  forbear  suing  in  respect  of  an  existing 
debt,  although  for  the  purpose  only  of  preparing 
a  future  mortgage,  held  to  amount  to  an  eqaita- 
ble  mortgage.  Keys  v.  Williams,  3  Tounge  db 
C.  (ex.  xq.)  55. 

25.  Upon  a  decree  of  foreclosore  against  an  in- 
fant, held  that  a  day  must  be  given  to  him  after  he 
attains  twenty-one,  notwithstanding  the  11  Geo. 
4  db  1  Will  4,  c.  47 ;   the  parol  demurring  and 

giving  a  future  day  not  being  synonymous  teims. 
rice  V.  Carver,  3  Myl.  &  Cr.  (ch.)  157. 

26.  The  court  refused  to  allow  accsfvi  qat  trmsf, 
defendant  in  a  suit  for  fiareclosure,  to  be  permits 


[MORTGAGE] 


2841 


ted  to  be  sworn,  where  another  party  was  an  in- 
fant, and  the  title  of  tlie  plaintiff  was  not  denied, 
although  not  admitted,  and  the  rights  of  the  in- 
fant being  merely  sabmitted  to  the  court  Roe 
V.  Wardle,  3  Younge  &  C.  (ex.  kq.)  70. 

27.  Where  a  mortgage  sum  of  the  wife's  was 
settled  on  her  marriage,  and  a  decree  of  foreclo- 
sure was  obtained,  the  costs  of  the  trustee  were 
ordered  to  be  paid  by  the  plaintiff  and  added  to 
the  mortgage  debf.  Bartle  v.  Wilkin,  8  Sim.  (ch.) 
1238. 

28.  An  equitable  mortgagee  seeking  to  enforce 
his  security,  the  mortgagor  held  entitled  to  the 
six   months  to  redeem.    Thorpe  v.  Gartside,  2 

.  Younge  &  C.  (ex.  Eq.)  730. 

29.  Biddings  opened  on  an  advance  of  £365 
on  jB7,300,  but  the  mortgagee  applying,  not  al- 
lowed to  conduct  the  sale.  Doniville  r.  Berring- 
ton,  2  Younge  &.  C.  (ex.  xq,.)  723. 

30.  Conveyances  by  heirs  and  devisees  of 
mortgagees  under  I  Will.  4,c.  60,  doubts  relating 
to,  removed  by  1  &  2  Vict.  c.  69. 

31.  In  the  case  of  Garner  v.  Hughes,  2  Younge 
Sl  C.  328,  decree  varied  in  Dom.  P.  by  order  of 
an  issue.    2  Younge  ^  C.  731. 


32.  Where,  by  settlement,  the  husband,  afler 
the  death  of  the  wife  and  failure  of  issue,  had  an 
absolute  interest  in  the  settled  fund,  and  which 
contingent  interest  he  charged  with  a  debt  to  D., 
and  all  interest  doe  or  to  accrue,  and  the  fand  was 
made  redeemable  on  payment  of  the  sum  and  in- 
terest ;  he  afterwards  assigned  the  fund,  subject 
to  the  mortgage  to  D.,  and  other  property,  also 
subject  to  mortgages,  upon  trust  to  sell  and  pay 
both  mortgages,  and  divide  the  surplus  amongst 
his  other  creditors,  who,  by  the  same  deed,  releas- 
ed him.  D.  upon  being  applied  to  to  execute  the 
deed,  refused  to  do  so,  unless  his  security  upon  the 
settled  fund  was  preserved,  which,  by  a  memo- 
randum, was  indorsed  on  the  deed ;  held  that,  in 
the  absence  of  any  intention  to  conceal  the  trans- 
action, his  rights,  as  mortgagee,  against  the  set- 
tled fund  were  not  affected  by  his  having  so  exe- 
cuted the  deed  and  signed  the  memorandum. 
Lee  V.  Lockhart,  3  Mylne  Sl  Cr.  (ch.)  302. 

33.  Where  the  mortgagor  was  permitted  to 
continue  in  possession,  and  he  granted  a  lease  to 
the  plaintiff  in  replevin  subsequently  to  the  mort- 
gage ;  the  mortgagee  afWrwards  gave  notice  to 
Sie  lessee  that  the  mortgage  money  was  unpaid, 
and  distrained  for  half  a  year's  rent,  due  at  Lady- 
day,  which  was  paid ;  held  that  this  did  not  by 
lefation  back  constitute  a  tenancy,  so  as  to  entitle 
the  mortgagee  to  distrain  for  rent  antecedently 
due.  A  mortgagee  may  so  bind  himself  by  his 
own  conduct,  as  to  be  precluded  from  treating  his 
mortgagor's  lessee  as  a  trespasser.  £vans  v.  El- 
liott, 1  Perr.  &  Dav.  (^.  b.)  256. 

34.  Where  a  party  mortgaged  the  estate  suc- 
cessively to  three,  under  a  power  in  his  marriage 
settlement  the  second  mortgagee  had  no  notice  of 
the  first,  and  the  third  mortgagee  had  notice  of 
the  first,  but  not  of  the  second,  and  he  procured  a 
notice  of  his  charge  to  be  endorsed  on  the  settle- 
ment, which  was,  with  the  title-deeds,  in  the  pos- 
session of  the  first  mortgagee  ;  held,  that  he  did 


not  thereby  gain  a  priority  over  the  second.  Jones 
V.  Jones,  8  Sim.  (ch.)  633. 

35.  Where  the  defendant,  in  possession  of  mort- 
gaged premises,  claimed  a  right  independent  of 
the  mortgagor,  under  a  supposed  lease  executed 
afler  the  mortgage,  held  not  to  confer  any  title, 
and  upon  such  disclaimer,  no  notice  to  quit  was 
necessary;  if  the  .mortgage  consents  to  take  a 
party  in  possession,  as  his  tenant,  it  constitutes/ 
only  a  tenancy  from  year  to  year.  Doe  v.  Buck- 
nell,  8  C.  &  P.  (K.  p.)  566. 

36.  Where  a  lease  was  absolutely  assigned,  but 
it  appeared  by  a  bond  that  it  was  so  as  a  security 
for  the  debt  of  another,  and  the  assignor  had  for 
18  years  6ontinued  to  pay  the  interest  on  the  debt, 
remaining  in  possession  of  the  rents  of  the  premi- 
ses :  the  case  failing  in  proof  of  alleged  imposition, 
and  the  court  below  having  declared  the  assign- 
ment valid  as  a  security,  the  bill,  praying  a  re-as- 
signment or  redemption,  and  an  account,  &c., 
dismissed,  except  so  far  as  it  prayed  redemption, 
&c.,  and  the  judgment  affirmed  in  D.  Pr.  Gor* 
don  V.  Selby,  11  Bli.  N.  S.  (p.)  351. 

37.  Where  the  stamp,  ad  valorem^  extended 
only  to  the  amount  of  the  principal,  and  not  of 
the  rates  and  taxes  which  might  be  charged  on 
the  premises,  and  for  which  uso  the  mortage 
was  to  be  a  security,  held  that  it  was  sufficient, 
and  not  requiring  a  25£.  stamp,  as  on  a  deed  se- 
curing an  indefinite  sum.  Doe  v.  Bragg,  3  Nev. 
&.  P.  (<i.  B.)  644  ;  supporting  Doe  v.  Bnaith,  8 
Bing.  146 ;  and  Pruessing  v.  Ing,  4  B.  &  Aid. 
204. 


38.  Where  a  lessee  contracts  to  sell,  and  ano- 
ther to  purchase  his  lease,  no  equity  arises  thereon 
to  the  landlord  to  compel  the  seller  to  assign,  or 
the  purchaser  to  take  an  assignment ;  the  mere 
depositing  of  a  lease  as  a  security  for  a  debt, 
until  the  party  exercises  the  option  of  having  it 
assigned  or  sold,  if  there  be  an  agreement  for  a 
sale,  or  takes  possession  of  the  premises,  is  inef- 
fectual, and  he  remains  to  all  intents  and  pur- 
poses a  stranger,  and  the  landlord  has  no  right  to 
interfere  with  him ;  held,  therefore,  that  he  was 
not  liable  for  the  rent  and  covenants.  Moores  v. 
Cheats,  8  Sim.  (ch.)  506. 

And  see  the  case  of  Lucas  v.  Comerford,  (1 
Ves.  jun.  235,  and  3  Bro.  C.  C.  166,  reviewed.) 
lb. 

39.  Where  an  equitable  mortgagee  unsuccess- 
fully attempted  to  defend  the  possession  in  an  ac- 
tion at  law,  held  not  entitled  to  claim  the  costs 
out  of  the  estate.  Dryden  v.  Frost,  3  Myl.  &  Cr. 
(CH.)  670. 

40.  Where  a  mortgaged  estate  was  devised, 
with  a  direction  that  the  executors  should  pay  the 
mortgagee  interest  out  of  the  rents,  until  the 
mortgage  should  be  paid  off,  and  that  such  mort- 
gage should  be  the  first  discharged  by  his  execu- 
tors ;  held,  that  the  estate  was  liable  only  to  one 
year's  interest  from  the  death  of  the  testator. 
Beanland  p.  Hallewell,  1  Coop.  (ch.  c.)  344. 

41.  Upon  a  bill  filed  by  a  second  mortgagee  to 
redeem  and  foreclose,  afler  decree  made,  a  subse- 
quent mortgagee  assigned  his  interest  to  a  third 
party,  who  thereupon  filed  a  bill  against  all  tho 


2842 


[MORTGAGE— NEXT  OF  KIN] 


parties  to  the  ibrnier  suit,  praying  to  be  decreed 
entitled  to  the  benefit  of  that  aait,  and  to  redeem 
prior  and  foreclose  subsequent  mortgages:  bill 
dismissed  as  sgainst  all  but  his  assignor,  and  the 
plaintiff  declared  entitled  to  stand  m  his  place, 
and  to  prosecute  the  former  suit  in  his  name. 
Booth  V.  Creswicke,  8  Sim.  (cu.)  352. 

42.  Where  in  a  suit  of  foreclosure  by  the  as- 
signee of  the  original  mortgagor,  it  was  disco- 
Tered,  afler  a  motion  to  dismiss  an  undertaking 
to  speed,  that  between  the  mortgage  and  the 
assignment,  the  mortgagor  had  become  bankrupt, 
the  court,  as  the  bankruptcy  might  be  disputed, 
allowed  the  assignees  to  be  made  parties,  retaining 
the  bankrupt  as  a  defendant  on  the  record.  Han- 
son V.  Preston,  3  Younge  &  C  (ex.  t(i.)  229. 

43.  Where  mortgagor  and  mortgagee  gave  a 
joint  authority  to  a  party,  agent  of  the  mortga- 
gee, to  act  as  receiver,  to  receive  rents,  ffive  no- 
tices to  quit,  and  bring  actions,  &c. ;  held  suffi- 
cient to  enable  him  to  give  notice  to  the  tenant 
under  4  Geo.  4,  c.  28,  s.  1,  making  the  tenant 
holding  over  liable  to  double  rent.  Poole  v. 
Warzen,  3  Ney.  &  P.  (q.  b.)  693. 

44.  The  11  Geo.  4,  and  1  Will.  4,  c.  60,  being 
intended  only  to  provide  means  for  conveying 
the  legal  interest,  held  that  an  assignment  of  a 
mortgage  debt  was  not  within  the  act ;  nor  was 
ft  intended  to  apply  to  land  out  of  the  king's  do- 
jainions.    Price  v.  Dewhurst,  8  Sim.  (ch.)  617. 

45.  A  mortgagee  proceeding  on  his  bond 
against  the  personal  estate,  held  not  entitled  to 
the  costs  as  against  the  devisees.  Lewis  v.  John, 
1  Coop   (CH.  c.)  8. 

46.  Upon  a  decree  for  sale,  notwithstanding 
the  infancy  of  the  heir,  aa  moat  beneficial  to  him, 
held  to  be  within  the  11  Geo.  4,  and  1  Will.  4,  c. 
47,  a.  11,  and  that  the  court  had  jurisdiction  to 
order  the  infant  heir  to  convey  to  the  purchaser. 
Schloefield  v.  Ueafield,  8  Sim.  (ch.)  470. 

47.  The  ]  &  2  Vict  c.  69,  s.  3,  was  not  intend- 
^d  to  repeal  any  part  of  the  former  acts,  11  Geo. 
4,  and  1  Will.  4,  c  60,  and  4  dl&  5  Will.  4,  c.  33, 
hut  thoy  still  apply  to  the  cases  of  the  infant  heirs 
of  mortgagees.  Uathome,  in  re,  8  Sim.  (ch.) 
304. 

48.  A  mortgagee  resident  out  of  the  jurisdic- 
tion, held  not  a  case  within  the  statutes  enabling 
the  court  to  appoint  persona  to  eonvev  to  porcha- 
ten.     Green  r.  Holoer,  1  Beay.  (ch.)  207. 

49.  An  equitable  mortgagee  by  deposit,  with- 
out memorandum,  held  entitled,  as  against  the 
personal  representative  of  the  mortgagor,  to  the 
costs  of  sale.  Cornell  v*  Hardie,  3  i  ounge  6l 
a  (Kx.  K<i.)  582. 

50.  Where  the  mortgagee,  upon  an  agreement 
for  the  rebuilding  the  mortgaged  premises,  con- 
sented to  become  tenant  of  part,  when  rebuilt, 
on  a  lease,  at  a  premium  and  rent  stated,  from  the 
party  to  whom  the  mortgagor  had  assigned  his 
mterest  for  a  term,  and  the  mortgagee,  upon  the 
premises  being  rebuilt,  entered  mto  possession, 
bat  no  lease  was  ever  executed,  nor  the  premium 
nor  rent  paid ;  held,tthat  such  possession  was  to 
be  Ukken  in  reference  to  the  tananoy,  and  not  as 


of  mortgagee  in  possession;  and  that  in  the 
taking  the  mortgage  accounts  they  were  not  to  be 
taken  with  annuu  rests,  the  principle  not  being 
applicable  to  the  premium  or  rent ;  nor  did  an 
acknowledgment  of  a  balance  due  on  one  oeca- 
sion,  the  sum  made  up  partly  of  compound  inter- 
est, establish  it  as  a  settled  mode  of  dealing  be- 
tween the  parties ;  and,  qu/erc,  if  such  a  mode 
would  be  legal.  Page  v.  Lin  wood,  4  CI.  &.  Fi. 
(p.)  399. 

And  see  S.  C.  4  Russ  6,  and  2  Kuss.  &.  M. 
214,  the  judgment  wherein  affirmed. 

51 .  Where  a  petition  for  sale  of  an  eqnitaUe 
mortgage  became  necessary  from  a  mistaken  view 
by  the  assignees  of  their  rights,  held,  that  they 
were  entitled  only  to  costs  out  of  the  general  es- 
tate :  unless  parties  agree  upon  an  oraer  out  of 
court,  the  whole  case  must  be  heard  to  enable  it 
to  decide  the  question  of  costs.  Bate,  ex  parte, 
1  Mont.  &  Ch.  (B.)  58. 

52.  Reg.  Gen.,  as  to  advancing  foreclosure  suits 
for  hearing,  in  the  same  manner  as  other  causes. 
3  Reg.  Gen.  May,  1839.     1  fieav.  (ch.)  Ap.  x. 

53.  The  court  refused  to  advance  a  forecloenie 
suit,  and  heard  as  a  abort  cause,  without  the  con- 
sent  of  the  defendant.  Lewin  v.  Moline,  1  Beav. 
^ch.)  99. 

And  see  Administradon  ;  Bankrupt ;  Barcn  aud 
Feme;  Ejectment;  Fraud;  Interest;  Lamdlord; 
Lien;  Receiver;  Stamp;  Trustee. 


MORTMAIN. 

A  gifl  of  personal  residue  to  parties,  with  a 
request  that  they  would  intreat  the  lord  of  a  ma* 
nor  to  grant  waste  land  for  the  erection  of  build- 
ings for  a  charitable  purpose ;  held,  that  not  ex- 
eluding  the  purchase  of  land,  or  if  it  did,  yet  be> 
ing  given  as  an  indnceroent  to  draw  land  into 
mortmain,  such  gill  was  void.  Mather  v.  Sooit, 
2  Keene  (ch.)  172. 

And  see  Charity* 


NAME. 

Siee  Indictment. 


NEXT  OF  KIN. 

In  a  suit  for  administering  an  estate,  the  de- 
ceased having,  by  a  writing  purporting  to  be  a 
codicil,  given  a  legacy  to  a  party,  but  no  will  was 
found,  nor  was  any  executor  appointed  by  the 
codicil,  the  next  of  kin  having  been  ascertained 
by  the  master ;  held  that  they  most  enter  into 
approved  recognisances  for  reminding  in  case  of  a 
will  being  found  before  the  residoe  being  paid 
over  to>  them,  bat  that  no  reoognisanoa  need  be 
given  by  such  legatee ;  and  the  parties  so  proved 
to  be  next  of  kin,  although  not  parties  to  the  suit. 


(NEXT  OP  KIN— OUTLAWRY] 


3843 


allowed  the  costs  of  provingr.    Bakewelt  v,  Tft- 
gart,  3  Tounge  &  C.  (ex.  zq.)  173.  ^ 

And  wee  ^dminutratton;  LtmiUUion;  Marriage 
SeUUmaU;  fVUL  t 


NEWFOUNDLAND. 

1.  Where  lands,  alleged  to  have  been  "ships* 
rooms,"  in  Newfoundland,  had  been  held  under 
licence  from  the  Crown  since  1759,  and  conveyed 
down  to  the  respondent  for  yaluable  considera- 
tion, and  the  Judge  below  had,  upon  the  trial  of 
an  information  for  intrusion,  directed  the  jury  to 
find  for  the  respondent,  on  the  ffroond  that  the 
Crown  could  not  claim  under  the  51  Geo.  3,  c. 
45,  and  5  Greo.  4,  e.  51,  the  lands,  even  if  ships' 
rooms,  against  such  a  possession  as  would  have 
been  a  bar  to  that  claim,  had  they  not  been  cloth- 
ed with  that  character ;  the  judfirment  affirmed, 
and  held,  that  it  was  too  late  on  Uie  appeal  to  ob- 
ject that  the  defendant  oucrht  at  the  trial  to  have 
pleaded  such  title  specially.  Attorney- General 
of  Newfoundland  v.  Cuddily,  1  Moore,  (p.  c.)  82. 

2.  But  lands  there,  unoccupied  at  the  time  of 
the  passing  the  latter  Act,  held  within  it,  and 
grantable  as  waste  lands  under  s.  15,  notwith- 
standing enclosed  ajid  occupied  before  any  grant 
made.  Attorney- General  of  Newfoundland  r. 
Ryan,  1  Moore,  (p.  c.)  87. 


OATHS. 

Affirmations  permitted  to  be  used  in  lieu  of, 
in  certain  eases,  by  1  &>  2  Vict.  c.  77. 


OFFICER. 

1.  The  right  to  demand  a  poll  is  by  Uw  inci- 
dental to  the  election  of  a  parish  officer  by  show 
of  hands,  where  there  is  no  special  custom  to  ez- 
dnde  it;  and  the  demand  of  a  poU  may  be  prop- 
erly made  after  the  show  of  hands ;  at  any  rate, 
if  a  poll  be  afterwards  taken,  it  is  a  waiver  of  anv 
irregularity  as  to  the  demand.  Where,  althouffh 
the  usual  mode  of  election  had  always  been  by 
^ow  of  hands,  yet  there  being  no  evidence  of  a 
poll  ever  having  been  demanded,  and  so  no  cus- 
tom to  exdude  a  poll,  held  that  the  right  existed. 
A  local  Act  for  government  of  the  parish  having 
specially  reserved  the  powers  of  vestry,  and  of  any 
ancient  or  special  usage,  and  thereby  reserved  the 
right  demanding  a  poll ;  held,  that  the  taking  of  it 
was  to  be  ffovernea  by, the  law  then  in  being  (58 
Geo.  3,  c.  69),  which  gives  a  plurality  of  votes  ac- 
cording to  the  quantiiy  of  the  voter's  estate. 
Campbell  v.  Maund,  1  Nev.  A  P.  (k.  b.)  558 ; 
and  see  Anthony  v.  Seger,  1  Hagg.  Cons.  Rep.  9. 

2.  Where  a  party,  being  a  town  councillor,  his 
name  was  omitted  to  be  inserted  in  the  bunress 
roll  of  the  corporation,  and  the  office  was  mled 
up  by  another ;  held  that,  not  being  merely  col- 
oxaUe,  the  remedy  was  by  ftie  uarrtmiQ  and  not 

Vol.  IV.  72 


by  mandamut  to  restore.    R.  v.  Oxford,  Mayor, 
dLc,  1  Nev.  &  P.  (K.  B.)  474. 

3.  In  trespass  against  parish  officers  distrain- 
ing for  poor  rates,  held  tnat  the  defendant  (the 
plaintiff  being  nonsuited)  was  net  entitled  to  treble 
costs  either  under  43  £lix.  c.  2,  s.  19,  or  13  A  14 
Car.  2,  c.  12,  s.  20.  Charrington  v.  Meathering- 
ham,  2  Mees.  &  W.  (xx.)  142 ;  and  5  Dowl.  (p. 
c.)  313. 

4.  Where  a  police  officer,  although  not  present 
at  any  assault,  afterwards  on  Hm  renewal  of 
threats  to  break  into  a  house  forcibly,  took  the 
plaintiff  into  custody  at  the  defendant  s  instance, 
and,  in  an  action  for  the  assault  and  false  impris- 
onment, the  defendant  pleaded  the  previous  vio- 
lence, and  that  he  was  forced  and  obliged,  **  in 
order  to  preserve  the  peace,"  to  give  the  plaintiff 
in  charge,  held  that  such  plea  was  good  after  ver- 
dict Ingle  V.  Bel],  1  Mees.  &  W.  (xx.)  51(>; 
andlTyr.  A  Gr.  801. 

5.  Where  the  defendant,  a  police  constable, 
took  the  plaintiff  into  custody  on  a  charge  of  wil- 
ful and  malicious  trespass,  he  not  having  seen  the 
fact ;  held  that,  having  acted  under  tJoona  JuU 
and  supposed  authority  of  the  statute,  he  was  en- 
titled to  notice  of  action.  Ballinger  v»  Ferris,  1 
Mees.  Jk  W.  (xx.)  628 ;  and  1  Tyr.  &  Gr.  920. 

And  see  Corporatum;  Cotts ;  Injtautum  ;  Mm- 
damus. 


OUTLAWRY. 

1.  An  outlaw  cannot  appear  in  court  for  any 
purpose  but  to  reverse  his  outlawry ;  held,  there- 
fore, that  he  could  not  charge  a  plaintiff  in  execu- 
tion for  costs  in  a  different  action,  Aldridge  v. 
Buller,  2  Mees.  A  W.  (xx.)  412 ;  and  5  Dowl 
(p.  c.)  733. 

2.  Where  the  party  was  beyond  seas  at  the 
time  of  the  exigent  oeing  awarded,  the  court 
^adopted  the  rule  in  C.  P.  of  reversing  the  out- 
lawry on  payment  of  costs,  and^n  bail  being  pat 

1  M( 


in  in  the  alternative.    Levi  v.  Claggett, 

A  W.  (EX.)  647 ;  1  Tyr.  4i  Gr.937 ;  and  5  Oowl. 

(p.  c.)  322. 

3.  The  court  refused  to  set  aside  the  outlawry 
without  costs,  on  the  ground  that  a  party  receiv- 
ing an  annuity  for  the  defendant  under  a  power 
of  attorney,  and  not  being  his  general  attorney, 
had  not  been  first  appliea  to.  Hunter  9.  Whit- 
field, 3  Bing.  N.  S.  (c.  p.)  878. 

4.  Where  a  creditor  has  obtained  judgment  of 
outlawry,  he  can  obtain  no  interest  in  the  proper- 
ty until  he  has  obtained  a  grant  from  the  Crown, 
and  a  court  of  equity  can  give  no  relief  to  enable 
him  to  obtain  it.  Caddon  v.  Hubert,  7  Sim.  (ch.) 
485. 

5.  The  plaintiff  must  elect  at  the  time  he  issues 
his  writ,  either  to  compel  appearance  or  to  pro- 
ceed to  outlawry,  and,  if  he  issue  it  for  the  former 
purpose,  he  cannot  afterwards  use  it  for  the  latter. 
Vere  v.  Growar,  5  Dowl.  (p*  c)  404. 

6.  But,  where  the  plaintiff  had  issued  writs  of 
summons,  to  save  the  Statutt  of  Limitatiea*,  the 


2844 


[OUTLAWRY— PARTNER] 


court  allowed  a  distringas^  with  a  view  to  out- 
lawry, in  continaation  of  the  previous  writi.  Ray 
V.  Dow,  5  Dowl.  (p.  c.)  310. 

7.  The  court  refused,  on  a  motion  to  reverse 
outlawry  after  final  judgment,  to  impose  the 
terms  of  paying  interest  from  the  time  of  sifrning 
final  judgment  to  the  period  of  reversal.  Ibbot- 
son  V,  Fenton,  1  Nev.  &  P.  (k,  b.)  779. 

8.  Where  the  defendant  having  mortgaged  fee- 
farm  rents,  had  entered  into  a  contract  for  sale  to 
the  mortffa^e,  pending  which  the  latter  died, 
and  the  plamtiff,  his  representative,  had  proceed- 
ed to  outlawry  against  the  defendant  whilst  abroad, 
but  having  an  agent  here,  to  the  knowledge  of 
the  plaintiff,  the  court  reversed  the  outlawry  on 
terms,  with  costs.  Pigou  v.  Drummond,  4  Sc. 
(c.  p.)  573. 

9.  A  prisoner  in  custody  under  a  capias  udaga- 
tunt,  for  non-payment  of  damages  ana  costs  in  an 
action  for  crimmal  conversation,  held  entitled  to 
apply  to  be  discharged  under  the  7  Geo.  4,  c.  57, 
(Insolvent,)  although  the  outlawry  not  reversed. 
Reg.  V.  Insolvent  Commissioners,  in  re  Hamlin, 
3  Nev.  &.  P.  (q.  b.)  543. 

10.  An  outlaw  is  entitled  to  apply  to  a  court 
of  justice  to  remove  an  irregular  order,  by  which 
he  is  improperly  detained.  Hawkins  r.'Hall,  1 
Beav.  (CH.)  73;  and  affirmed  on  appeal. 

11.  Where  the  inquisition  was  returned  into 
the  remembrancer's  office,  an  application  to  tra> 
verse,  made  on  the  common  law  side  of  the  court, 
was  irregular.  In  re  Otho  Manners,  7  Dowl  (p. 
e.)  516. 

And  see  Arrest;  Practice^  (c.  l.) 


PARENT  AND  CHILD. 

1.  Where  the  father  was  induced  to  give  up  to 
the  plaintiff  the  custody  of  his  legitimate  cnild 
(born  after  the  elopement  of  its  mother,  and  about 
to  be  placed  by  the  defendant  in  a  foundling  hos- 
pital), and  he  entirely  relinquished  all  care  of  it ; 
field  to  negative  an  implied  contract  with  the 
plaintiff  to  pay  for  the  maintenance.  Urmston 
V.  Newcomen,  6  Nev.  &.  M.  (k.  b.)  454  ;  and  4 
Ad.  fk.  £11.  81)9.  Semb.^  a  parent  is  not  bound  by 
the  common  law  to  maintain  his  illegitimate  child, 
not  being  part  of  his  family. 

2.  Where  the  son  was  in  need  of  clothes,  and 
the  father  had  seen  him  wearing  those  fbrnished 
by  the  plaintiff ;  held  that  it  was  some  evidence 
to  leave  to  the  jury,  and  calling  upon  the  father 
to  show  that  his  son  was  supplied  with  necessa- 
ries ;  held  also,  that,  if  a  judge  thinks  fit  to  non- 
suit, counsel  are  not  bound  to  insist  on  the  case 
going  to  the  jury,  l^w  v.  Wilkins,  1  Nev.  &  P. 
(k.  b.)607. 

And  see  Action  on  the  Case ;  Baron  and  Feme  ; 
Infanl. 


PARLIAMENT. 

See  EUction  of  Members  of  Parliament ;  label ; 
PrasiicSi  (£^) 


PARTITION. 

1 .  Where,  afler  an  agreement,  by  parol,  of  {tu^ 
tition  of  copyhold  between  A.  and  B.,  having 
apparent  but  doubtful  title  as  tenants  in  common, 
A.,  the  elder,  taking  the  greater  portion, and  he 
afterwards  devised  Lis  portion  to  C. ;  upon  A.'i 
death,  it  was  discovered  that  at  the  time  of  the 
agreement  he  was  tenant  in  tail  and  IV  in  remain* 
der,  who  thereupon  repudiated  the  agreement, 
and  broufirht  ejectment  to  recover  the  whole ;  the 
court,  upTiolding  family  arrangements,  decreed  to 
support  the  agreement,  though  by  parol,  followed 
by  long  enjoyment,  and  that  B.  should  do  all  acti 
for  barring  the  entail,  and  vesting  the  portion  al- 
lotted to  A.  or  his  devisee.  Neale  r.  Neale,  1  K. 
(cH.)  672;  and  affirmed  on  appeal. 

2.  Upon  a  decree  of  partition,  the  court  regard 
the  equitable  as  well  as  legal  riehts  of  the  partiet 
interested,  and  where  C,  one  orseveral  tenants  in 
common,  (A.  B.  and  C.)  had  conveyed  hit  inter- 
est in  two  estates  to  two,  D.  and  £.,  seTerallj, 
the  court,  varying  a  former  decree,  directed  each 
estate  to  be  divided  into  three  parts,  and  each  put 
be  conveyed  to  A.  B.  and  D.,  and  to  A.  fi.  and 
E.,  respectively  :  in  decreeing  partition,  theconrt 
acts  upon  its  general  jurisdiction,  and  not  mini*- 
terially  in  obedience  to  the  call  of  the  parties  en- 
titled ;  and  it  will  have  regard  to  the  proTisinns  of 
the  8  &  9  Will.  3,  c.  31,  s.  4  :  held,  also,  that  a 
previous  tenant  for  life  of  the  estate  having  gran- 
ted a  lease,  which  two  of  the  tenants  in  common 
had  confirmed,  the  third  tenant  could  not  impeach 
the  lease  in  a  suit  for  partition  in  which  he  was  a 
co-plaintiff  with  his  co-tenants  in  common.  Sto- 
ry V.  Johnson,  2  Tounge  &  C.  (xx.  x^)586. 


3.  Where  one  of  three  tenants  in  common 
of  weak  intellect,  but  no  commission  had  been 
sued  out }  held,  that  the  court  would  nevertheleM 
direct  a  commission  of  partition,  and  that  the 
lands  should  be  held  in  severalty.  Hollingworth 
V.  Sidebottom,  8  Sim.  (cu.)  620. 

4.  The  court  refused  to  interfere  with  the  order 
of  the  commissioner,  on  the  ground  of  having 
awarded  the  mansion  to  the  testator's  heir  at  lav; 
nor  with  the  valuation,  unless  impeached  forgroB 
mistake  or  fraudulent  motives ;  the  assignmentof 
rights  of  way  is  legal  where  necessary  on  a  sepa- 
ration of  the  property ;  so  a  direction  to  erect 
fences,  the  object  being  that  each  may  enjoy  ii 
severalty,  which  may  1^  effected  by  proper  cof^ 
nants  to  erect  and  keep  in  repair  the  fenoei 
Lister  v.  Lister,  3  Tounge  &.  Cr.  (ex.  xq.)  541. 

And  see  Poioer. 


PARTNER. 

1.  In  an  action  against  a  retired  partner,  proof 
of  the  defendant  having,  by  advertisements  ii 
newspapers,  usually  read  by  the  plaintiff,  u* 
nounced  his  having  ceased  commercial  coonex* 
ions,  and  soliciting  the  suffrages  of  East  India 
Stock  proprietors,  together  with  evidence  of  hit 
having  executed  a  power  of  attorney  to,  and  nam* 
ing  md  new  membemof  the  partnenhip  fiiv \ 


[PARTNER] 


2845 


held  to  be  eTidenoe  of  the  defendant's  knowledge 
of  the  chance  in  the  firni,  and  adoption  of  the 
new  firm  as  his  debtors.  (Diss.  Bolland,  B.)  Hart 
V.  Alexander,  2  Mees.  &  W.  (kx.)  484  ;  and  7  C. 
&  P.  (N.  P.)  746. 

2.  Where  A.,  a  part-owner  and  manager  of  a 
ship,  which  was  sold  by  B.,  another  part-owner, 
ana  there  was  evidence  of  ship  accounts  between 
A.  and  B.  in  the  books  of  the  latter,  from  1799  to 
1805 ;  and,  in  1811  and  1812,  two  items  appeared 
on  the  debit  side,  not  appearing  to  relate  to  the 
ship,  and  there  was  evidence  of  frequent  calls  for 
the  accounts,  and  evasions  by  B. ;  in  a  suit  by  A. 
for  an  account  of  the  earnings  and  proceeds  of 
the  sale,  held  within  the  exception  of  the  statute 
of  merchants*  accoants,  and  that  there  was  no  suf- 
ficient ^ound  for  presuming  payment  or  satisfac- 
tion. Kobinson  v.  Alexander,  2  Ul.  &  Fi.  (p.) 
717. 

3.  Where  one  partner  in  an  agency  house  in 
India  directed  his  estate  to  be  called  in  and  invest- 
ed on  certain  trusts,  and  appointed  two  of  his 
partners  executors,  who  allowed  his  share  to  re- 
main in  the  house ;  afterwards  B.  and  C,  two 
other  partners,' were  admitted,  who  knew  of  the 
share  so  remaining,  and  the  trusts  it  was  subject 
to ;  they  subsequently  retired,  and  others  succeed- 
ed them,  and  ultimately  the  firm  failed ;  held, 
that  B.  and  C.  were  not  liable  for  the  breach  of 
trust  committed  by  the  executors.  Twyford  v, 
Traill,  7  Sim.  (ch.)  92. 

4.  Where,  afler  the  death  of  one  partner,  the 
surviving  partners  became  bankrupt;  held,  that  a 
creditor  was  entitled  to  resort  to  the  estate  of  the 
deceased  partner,  without  regard  to  the  state  of 
the  account  between  the  deceased  and  survivinff 
partners.  Devaynes  v.  Noble, 2  Russ.  &,  M.  (cu.) 
496 ;  affirming  the  decree  below. 

5.  Semb.,  the  rule,  that  there  is  no  contribution 
amongst  tort-feasors,  does  not  apply  when  they 
are  so  by  mere  inference  of  law,  but  is  confined 
to  cases  where  they  must  be  presumed  to  be  cog- 
nizant of  the  wrongful  act.  rearson  v.  Shelton, 
1  Mees.  &  W.  (ex.)  504 ;  and  1  Tyr.  6l  Or.  848. 

And  see  Adamson  v.  Jarvis,  4  Bing.  66 ;  and 
Woolley  V.  Bate,  2  C.  &  P.  417. 

6.  Where  upon  one  of  two  partners  retiring, 
the  other  entered  upon  the  same  business  wiSi 
Another,  and  it  was  agreed  that,  the  continuing 

partner  bringing  into  the  business  £ of  good 

debts  of  the  fate  firm  to  meet  the  debts  transferred 
to  the  Dew  one,  he  should  be  entitled  to  two- 
thirds,  and  the  new  partner  to  one-third ;  no  set- 
tlement of  acoouQts  was  made  for  14  years,  and 
dorinff  the  last  five  years  an  amount  equal  to  the 
■tipnlated  sum  was  paid  in  by  the  debtors  to  the 
old  firm,  although  not  so,  if  subsequent  advances 
to  them  by  the  new  firm  were  deducted  from  the 
payments ;  held,  that  the  agreement  was  perform- 
ed, the  monies  so  paid  in,  without  appropriation, 
bein^  to  be  applied  in  discharge  of^  the  oldest 
debts  ;  (reversing  the  judgment  below).  Tral- 
min  V.  Copeland,  2  CI.  &  Fi.  (p.)  681 ;  and  8  Bli. 
N.  S.  918.. 

7.  Where  the  clerk  of  stage-coaoh  proprietors 
made  np  the  aocounts  monthly;  held,  that  he 


was  to  be  deemed  the  clerk  of  all  parties  and 
need  not  be  called,  and  that  his  accounts  were 
evidence  against  all ;  and,  the  balances  not  being 
carried  forward,  the  partner  in  whose  favor  the 
balances  appeared  was  entitled  to  maintain  an  ac- 
tion in  respect  thereof.  Brierly  v.  Cripps,  7  C. 
&  P.  (N.  p.)  709. 

8.  Where  A.  and  B.,  partners  in  farming,  car- 
ried on  the  trades  of  malting  and  baking  there- 
with,which  they  afterwards  discontinued,  purchas- 
ed lands  with  partnership  monies,  some  of  which 
were  not  conveyed,  others  were,  as  to  one  moiety 
to  A.  in  fee  (bein^  a  bachelor),  as  to  the  other 
moiety  to  B.,  upon  trusts  to  bar  dower  (B.  being 
married) ;  held  that,  the  trade  being  collateral  to 
and  arising  out  of  the  principal  business,  the  es- 
tates so  purchased  were  not  to  be  considered  as 
personal  estates.  Randall  v.  Randall,  7  Sim. 
(cH.)  271 ;  reviewing  the  cases. 

9.  Where  a  partnership  is  proved  to  exist,  it  is 
to  be  presumed  that  the  parties  are  interested  in 
equal  moieties.  Farrar  v.  Beswick,  1  M.  &  Rob. 
(n.  p.)  527. 

10.  Where  it  was  clearly  established  that  there 
was  a  joint  interest  between  the  printer  and  pub 
lisher  in  particular  works,  for  which  paper  was 
furnished  by  the  plaintiffs,  and  delivered  to  the 
printer  by  orders  from  the  publisher,  who  after- 
wards became  bankrupt ;  held,  that  if  the  jury 
were  satisfied  that  at  the  time  when  the  goods 
were  furnished  the  defendants  were  partners  in 
the  concern  for  whose  benefit  they  were  furnish- 
ed, the  plaintiffs  were  entitled  to  recover,  other- 
wise not.  Gardiner  v.  Childa,  8  C.  di,  P.  (s.  p.) 
345. 

11.  Where  partners  assigned  all  their  joint  and 
separate  estates  on  trust,  out  of  the  proceeds  ot 
the  joint  estate,  to  pay  joint  creditors  at  the  expi- 
ration of  one  year,  and  the  surplus  to  be  after- 
wards applied  in  satisfibction  of  other  trusts  of  the 
deed ',  it  turned  out  that  the  joint  estate  was  suffi- 
cient to  pav  the  ioint  debts,  with  interest  at  four 
per  cent.,  from  the  time  appointed  for  payment ; 
and  held,  that  they  were  entitled  to  such  interest, 
although  the  greater  portion  of  the  joint  debts  did 
not  in  their  nature  bear  interest,  and  the  separate 
estate  was  insolvent.  Pearce  v.  Slocombe,  3 
Tounge  &>  C.  (xx.  xq.)  84. 

12.  The  court  will  interfere  to  dissolve  a  part- 
nership, on  the  ground  of  permanent  insanity  of 
one  of^the  partners,  but  as  the  proceeding  would 
be  on  the  ground  of  not  being  able  to  give  notice, 
the  court  will  require  strict  evidence,  and  if  insuf- 
ficient, will  refer  the  question  of  insanity  to  the 
Master.  Kirby  9.  Carr,  3  Tounge  &  C.  (xx.  x^.) 
185. 

And  see  Jones  v.  Noy,  2  Myl.  &,  K.  125;  and  - 
Sayer  v.  Bennett,  1  Cox.  107. 

13.  Where  the  defendant,  residing  in  this  coun- 
try, was  a  partner  in  a  house  abr<^,  held  that 
the  court  could  not  compel  him  to  set  forth  a 
schedule  of  books,  &c.  in  the  house  abroad,  be- 
ing an  order  which  it  could  not  enforce.  Marti- 
neau  v.  Cox,  2  Younge  &.  C.  (xx.  xq.)  638. 

14.  Where  the  plaintiff  and  defendant  had  been 
engaged  as  partners  in  particolar  pniehises  and 


9846 


IPARTNER— PATENT] 


itlei  of  woo],  and  having  had  nrntual  dealinga, 
■tated  an  account,  alaltng,  amongst  other  items, 
**  loaa  on  wool,"  and  having  a  balance  against  the 
defendant,  which  he  sign^  and  admiUed  to  be 
doe  from  him ,  held  sumoient  evidence  of  a  pro> 
mise  to  pay  it,  and  that  the  plaintiff  might  sue 
for  the  amount  of  that  item,  and  that  a  subse- 
quent assent  by  him  to  take  out  the  balance  in 
meat,  being  merely  matter  of  accommodation, 
did  not  preclade  him.  Wray  v.  Milestone,  5 
Mees.  &  W.  (vx.)  21. 

15.  Where  a  father,  seised  in  fee  of  the  premi- 
ses on  which  the  business  was  carried  on,  on  tak* 
ing  his  son  into  partnership  for  a  period,  conveved 
certain  shares  of  the  land  to  him,  to  be  treated  as 
joint  stock  ;  and  by  the  articles  it  was  stipulated 
(hat  if  either  died  or  retired  during  the  term,  the 
other  might  purchase  his  share  at  ue  value  slated 
in  the  last  yearly  account,  and  considerable  sums 
were  expended  during  the  term  in  improvements 
out  of  the  partnership  funds ;  after  the  terra  had 
expired,  the  parties  continued  to  carrv  on  the 
trade  without  any  new  agreement :  held,  tliat  on 
the  father's  deaths  the  right  of  pre>emption  ex- 
pired with  the  term,  and  that  the  father's  interest 
in  the  land,  after  payment  of  all  the  partnership 
debts,  retained  its  original  chartcter,  and  descend- 
ed to  his  heir  at  law.  Cookson  v.  Cookson,  8 
Sim.  (CH.)  539. 

16.  Where  the  concern  is  entirelv  put  an  end 
to,  and  nothing  left  but  to  get  in  the  debts  and 
settle  the  credita,  one  partner  cannot  pledge  the 
credit  of  the  others ;  but  where  a  retiring  partner 
gave  a  general  autiiortty  to  the  one  that  was  to 
wind  up  the  concern  to  do  what  he  thought  pro- 
per with  the  existing  securities  of  the  firm ;  held, 
that  the  latter  might  endorse  biUs  in  the  partner- 
nership  name,  and  it  was  not  necessary  that  such 
authority  should  be  by  deed  or  writing.  Smith 
9.  Winter,  4  Mees.  &  \V.  (ex.)  454. 

17.  Upon  a  bill  filed  against  the  executor  and 
a  survivmg  partner,  for  an  account  of  the  part- 
nership transactions,  charging  an  unfkir  valua- 
tion, and  that  there  was  no  settled  account,  or  if 
any,  that  it  was  fraudulent  and  collusive,  the  de- 
fendant pleaded  to  the  whole  bill,  (except  as  to 
the  fVaud  and  collusion,  which  he  denied,)  a  set- 
tled account  with  the  executor ;  held,  that  the 
plea  was  irregular,  as  being  only  to  part  of  the 
relief  and  discovery,  but  that  the  defendant  was 
not  bound  to  set  forth  the  settled  account,  or 
aver  that  he  had  delivered  over  the  vouchers  to 
the  executor,  and  that  although  the  alleged  un- 
fair valuation  was  not  denied  expressly,  yet,  not 
being  inconsistent  with  a  final  account,  unim- 
peachable ;  the  plea  did  not  cover  too  much. 
Davies  v.  Davics,  2  Keene,  (ch.)  534. 

18.  Where  A.,  one  partner,  retired,  leaving  his 
whole  capital  in  the  firm,  and  taking  a  warrant  of 
attorney  from  his  two  continuing  partners,  B. 
and  C,  to  himself  and  a  trustee,  but  tlie  accounts 
were  not  made  up,  and  he  continued  to  interfere 
in  the  concern,  and  raised,  by  mortgage  of  his 
own  property  and  policies  of  insurance  on  his 
life,  a  sum  for  the  purpose  of  paying  off  a  part- 
nership debt;  he  shortly  aflerwards  died,  leaving 
his  late  partners  his  executors,  directing  them  to 
appVy  the  amount  received  on  the  policies  in  car- 


rying on  the  trade,  giving  waeh  aeeuiity  U  his 
residuary  legatees  as  W.  might  approve;  W.  ie> 
fusing  to  act,  no  securi^  was  ever  given,  and 
upon  a  bill  filed  by  one  of'^the  residuary  legatees, 
held,  that  the  amount  of  the  policies  was  to  be 
deemed  a  debt  due  from  the  partners  to  A.*s  es- 
tate, and  that  it  could  onlv  be  applied  in  the 
trade  on  the  terms  of  the  will,  and  an  order  theie- 
fore  for  payment  of  that  sum,  and  a  balance  ad- 
mitted in  their  hands,  into  court  Coateker  t. 
Horrox,  3  Younge  Sl  Cr.  (ex.  e^.)  530. 

And  see  ^ccomU;  Action;  Mminis^viiim; 
Bankrupt;  Debts;  Injunction;  Joint  Stock  Cesi- 
pany;  Landlord;  Pleadings  (c.  L.);  Vend4fr  and 
Purchaser. 


PATENT. 

1.  In  case  for  infringing  a  patent  taken  out 
*'  for  an  improvement  in  the  manufacturing  of 
elastic  fabrics,"  in  the  specification  of  which  the 
patentee  staled  one  of  the  objects  to  be  the  pro* 
ducing  cloth  from  cotton,  flax,  or  other  materiab 
not  capable  of  feltmg,  in  which  should  be  inter- 
woven elastic  cords  of  India-rubber,  coated  round, 
Ac,  and  described  the  mode  of  effecting  that  ob- 
ject to  be  by  combining  the  strands  (coated  with 
filamentous  material,  %c.)  with  yarns  of  cotton, 
flax,  or  other  non-elastic  material,  the  strands  ts 
be  in  the  first  instance  stretched  to  their  ntmoMA 
tension,  ^d  rendered  non-elastic,  and  being  ia 
that  state  introduced  into  the  fabric,  they  acqoir- 
ed  their  elasticity  by  the  application  of  heat ;  held 
to  be  a  proper  subject-matter  of  a  patent,  and  to 
be  sufficiently  described.  Cornish  «.  Keene,  3 
Bing.  N.  S.  (c.  p.)  570 ;  and  4  Sc.  337. 

2.  Where,  on  a  bill  to  restrain  the  infiringement 
of  patents,  the  bill  was  retained,  with  liberty  to 
biing  actions  to  try  the  validity,  and  certain  ad- 
missions were  ordered  to  be  made,  and  doemDeoti 
produced ;  a  bill  of  discovery  was  afterwards  filed, 
which,  being  limited  only  to  subsequent  transae- 
tions,  the  defendants  failed  in  obtaining  the  pro> 
duction  of  certain  documents ;  held  that,  SQch 
bill  having  not  been  objected  to,  and  the  court 
having  acted  under  it,  the  benefit  of  diaeoveiy 
might  be  extended  to  all  matters  in  issue  ;  and  a 
supplemental  bill  filed  for  the  discovery  of  those 
documents  which  the  party  had  before  &t]ed  to 
obtain,  held  proper ;  and  simh.  the  first  bill,  beinf 
filed  without  leave  of  the  court,  was  irregular. 
Few  V.  Guppy,  1  Myl.  Sl  Cr.  (ch.)  487. 

3.  Where  the  plaintiff,  aflerwards  the  aaMnee 
of  a  patent  fi)r  an  improvement,  had  one  or  the 
machines  made  at  hia  own  manuikctory,  mndst 
his  own  expense,  but  under  the  direction  of  the 
patentee,  and  under  an  injunction  of  secieey, 
which  was  taken  abroad  and  used  in  a  concmi  of 
which  the  plaintiff  was  a  proprietor  and  principal 
manager ;  held  not  to  be  such  a  publication  as  ts 
avoid  the  patent  for  the  invention.  If  a  patent 
be  for  several  improvements,  and  the  jury  find 
one  not  to  be  so,  the  patent  is  void  altogether. 
Morgan  n.  Seaward,  2  Mees.  &  W.  (]ix.)  544. 

4.  Where  no  contract  for  remyneralioD  had 
been  made  by  a  patentee  for  inatraotiBg  the  King*t 


[PATENT— PAUPER] 


9647 


offioen  in  the  doek-yaids  to  make  anohora  ao- . 
cording  to  the  patent,  the  court  refoeed  a  mandor 
mus  to  the  Loids  of  the  Admiralty  to  fix  a  rea- 
■onable  compensation  for  the  uee  of  the  patent. 
Pering,  ex  parte,  6  Ney.  &,  P.  (k.  b.)  472 ;  5 
Dowl.  (p.  €.)  750  ;  and  4  Ad.  (k  £U.  d49. 

6.  Where  the  patentee  of  a  patent,  originally 
▼Old,  entered  a  disclaimer  and  memorandum  of 
alteration  ofpart  of  the  epecification,  under  5  &  6 
Will.  4,  c.  83 ;  held,  that  the  Act  was  not  retro- 
spectiye,  so  as  to  enable  him  to  maintain  an  ac- 
tion for  the  infringement,  prpvioos  to  the  time  of 
such  amendment.  Perry  v.  Skinner,  2  Mees.  A 
W.  (XX.)  471. 

6.  Where  the  specification  claimed  as  an  in- 
▼ention  the  application  of  a  self-adjustinff  lever- 
age to  the  back  and  seat  of  a  chair,  the  descrip- 
tion of  which  was  applicable  to  the  invention  oi 
another,  although  encumbered  with  some  addi- 
tional machinery ;  held  that,  although  the  patent 
might  have  been  supported  as  an  improvent  of 
the  latter,  it  conld  not  be  sustained  as  for  an  ori- 
ginal invention.  Minter  o.  Mower,  1  Nev.  db  P. 
(K.  B.)  595. 

7.  Where  several  parties  were  jointly  interested 
iu  a  patent  and  its  profits,  and  had  entered  into 
covenants  with  the  plaintiff,  in  consideration  of  a 
■urn  paid  by  him,  under  a  joint  contract,  and  all 
had  signed  the  receipt ;  held,  that  one  of  the  par- 
ties having  by  fraudulent  representations,  al- 
though wiUioutthe  knowledge  of  the  others,  oc- 
casioned losses  in  respect  of  the  patent,  they 
were  all  liable  to  repay  tn  solido  the  money  receiv- 
ed on  a  consideration  which  had  failed.  I*oveU 
«.  Hicks,2Younge  &  C.  (xx.  xq.)  4bl. 

8.  In  an  action  for  infringing  a  patent,  and  plea 
alleging  the  user  o£  the  invention  by  other  per- 
sons; held,  that  under  5^6  Will.  4,  c.  83,  s.  5, 
a  Judge  has  jurisdiction  to  order  a  further  notice 
of  objections,  but  not  to  order  the  names  and  ad- 
dresses of  all  those  alleged  so  to  have  used  it. 
Balnois  t?.  Mackenzie,  4  liing.  N.  S.  (c.  p.)  127; 
and  6  Dowl.  (p.  c.)  215. 

9.  Where  the  patent  was  taken  out  for  new 
machinery  for  macerating  flax  and  other  fibrous 
substances,  previous  to  orawin^  and  spinning  it, 
and  for  improved  machinery  in  drawing,  Ac. 
aAer  being  so  prepared,  at  a  shorter  reach  than 
had  been  oefore  practised,  and  it  appeared  that 
shortening  and  varying  the  reach  had  been  known 
and  practised  by  others  before ;  held,  that  the  lat- 
ter being  a  subject  for  which  a  patent  could  not 
be  taken  out,  the  wh<^  was  void,  and  the  patent 
not  valid  in  law.  Kay  v.  Marshall,  5  Bing.  N.  S. 
(c.  p.)  492. 

10.  In  case  for  infringing  a  patent,  plea,  inter 
alia  that  the  improvements,  or  some  of  them, 
were  in  use  long  before ;  held,  that  under  5  &  6 
Will.  4,  c.  83, 8.  4,  it  was  intended  that  the  defen- 
dant should  give  an  honest  statement  of  the  ob- 
jections on  which  he  meant  to  rely,  and  that  he 
must  state  with  precision  what  they  are ;  and 
where  as  ^neral  as  the  plea,  a  rule  absolute 
granted  for  nirtherand  better  particulars.  Fisher 
V.  Dewiek,  4  Bing.  N.  8.  (c.  p  )  706 ;  6  Sc.  587 ; 
and  8.  C.  6  Dowl.  (p.  c.)  739. 


11.  in  an  action  on  a  contract  between  the 

plain tifif  and  three  defendants,  stating  that  the 
plain tifif  and  each  of  the  defendants  were  seve- 
rally interested  in  patents,  and  that  it  had  been 
agreed  that  they  should  mutually  enjoy  the  bene- 
fit in  certain  proportions,  and  pay  the  plaintiff  a 
certain  annuity;  it  appearing  that  the  plaintifi" 
was  only  interested  in  his  own  patent  with  othera 
not  joined,  held,  on  demurrer,  that  a  plea  show- 
ing that  the  subject  of  the  plaintifi"s  patent  waa 
not  at  the  time  of  the  grant  a  new  invention, 
whereby  the  grant  was  void,  and  which  the 
plaintiff  at  the  time  of  the  agreement  well  knew^ 
was  a  bar  to  the  action  ;  held,  also,  that  the  ac- 
tion ought  to  have  been  brought  in  the  names  of 
all  the  parties  for  whose  benefit  the  contract  waa 
made,  although  the  plaintiff  only  was  to  receive 
the  consideration,  and  that  the  variance  between 
the  declaration  and  contract  was  a  fatal  objection,, 
and  ground  of  nonsuit.  Chanter  r.  Leese,  4 
Mees.  A  W.  (xx.)  295. 

12.  On  a  decree  in  a  suit  for  infringement  of 
an   invention,  for  the  use  of  which  the  plain- 
liflT  had  an  exclusive  right,  and  an  account  of 
profits  ordered   to    be  taken ;  upon  exceptions 
taken,  the  .Master  of  the  Rolls,  upon  referring^ 
back  the  report,  directed  the  Master  to  state  the 
grounds  upon  which  he  came  to  the  conclusion 
he  might  arrive  at ;  and  the  princple  of  the  cal- 
culation stated  in  the  orijpinal  report  appearing- 
to  be  founded  in  error,  the  appeal  against  the 
order  of  the  Master  of  the  Rolls  dismissed  with 
costs.    Crossley  v.  Derby  Gas  Light  Company^ 
3  Myl.  &  Cr.  (ch.)  428. 

13.  Amendment  of  laws  relating  to,  by  2  &  3- 
Vict.  c.  67. 

And  see  fFUncss. 


PAUPER. 

1 .  Where  the  plaintiff,  a  pauper,  after  notice  of 
trial,  withdrew  the  record  on  the  second  day  of 
the  assizes,  on  the  sronnd  of  amending,  without 
applying  to  the  Judge  for  leave  to  amend,  held 
vexatious,  and  a  ru&  to  dispauper  him  allowed. 
Facer  v.  French,  5  Dowl.  (p.  c.)  564. 

2.  Where  a  party  suing  as  a  pauper,  afterwards 
petitioned  to  be  discbar|^  under  the  Insolvent. 
Act,  the  court  refused  a  rule  for  security  for  coat* 
until  he  had  been  dispaupered.  Myktt  v.  Huck- 
er,  5  DowL  (b.  c.)  647. 

3.  Where  an  heir  at  law  defended  in  forma 
pauperisy  and  was  entitled  to  costs ;  held,  that  in 
the  absence  of  any  circumstances  to  take  the  cas& 
out  of  the  general  rule,  he  was  only  entitled  to  or- 
dinary pauper  costs.  Stafford  v.  Higginbotham^ 
2  Keene,  (ch.)  147. 

4.  An  order  to  sue  in  forma  mnmeris  is  a  nul- 
lity until  served,  and  tne  defendant  held,  on 
motion  to  dismiss  for  want  of  prosecution,  en- 
titled to  coats.  Ballard  v.  Catling,  2  Keene,  (ch.) 
906. 

5.  Where  the  plaintiff,  suing  in  forma  pauperis^ 
obtained  a  verdict  of  40ir .  on  the  first  iaaae,  and 


2848 


[PAUPER— PENALTIES] 


the  defendant  on  the  other ;  held,  that  the  plain- 
tiff was  not  liable  to  have  the  defendant's  costs 
set  off  against  the  costs  of  the  issue  found  for 
him  ;  and,  semb.  if  a  party  be  admitted  to  sue  in 
forma  pauperis  afler  the  commencement  of  the 
suit,  he  IS  not  exempt  from  costs.  Foss  v. 
Racine,  7  Dowl.  (p.  c.)  903;  and  4  Mees.  &  W. 
(ex  )  610. 

6.  A  party  cannot  stay  proceedings  in  a  suit 
where  the  plaintiff  is  permitted  to  sue  in  forma 
pauperis,  on  the  mere  payment  of  the  debt,  the 
pauper  being  entitled  to  his  costs.  Morgan  r. 
feastwick,  7  Dowl.  (p.  c.)  543. 

7.  Where  the  order  for  admission  to  sue  was 
made  afler  the  commencement  of  the  suit,  held 
irregular,  and  that  the  plaintiff  must  elect  to  be 
dispaupered  or  to  find  security  for  costs.  Love- 
well  V.  Curtis,  5  Mees.  &  W.  (ex.)  158. 

8.  Where  the  party  applying  was  possessed  of 
sufficient  skill  and  knowledge  in  the  business  of 
a  watchmaker  to  obtain  adequate  employment  and 
remuneration,  the  court  rejected  the  application  to 
carry  on  the  suit  for  divorce  in  forma  pauperis. 
Walker  v.  Walker,  1  Curt,  (coks.)  561. 


PAVING  RATE. 

Where  owners  of  property  within  a  district 
subject  to  a  local  Paving  Act,  erected  housps  on 
a  road  made  and  repaired  under  the  provisions  of 
a  subsequent  private  Act ;  held  that,  by  availing 
themselves  of  the  latter,  they  could  not  exempt 
themselves  from  contributing  to  the  general  pav- 
ingr  rate.    Young  v.  Grove,  2  Mees.  &  W.  (ex.) 


PAWNBROKER. 

1 .  In  trover  by  assignees  for  watches  belonging 
to  the  bankrupt,  plea,  that  they  were  deposited  as 
pledges  with  the  defendant  as  a  pawnbroker,  for 
monies  advanced,  replication,  alleging  a  corrupt 
contract  for  the  loan,  and  for  forbearance,  to  wit, 
one  whole  year  from  the  making  such  loan,  at  il- 
legal interest,  the  evidence  being  that  they  were 
deposited  from  time  to  time,  without  any  agree- 
ment as  to  the  time ;  held,  that  it  must  be  infer- 
red that  the  contract  was  meant  to  be  on  the  usu- 
al terms  of  a  pawnbroker.  Nickesson  v.  Trotter, 
3  Mees.  &  W.  (ex.)  130. 

2.  A  pawnbroker  is  not  entitled,  under  the  39 
&  40  Geo.  3,  c.  99,  s.  2.  allowing  the  rate  of  ^d. 
a  month  for  the  loan  of  2s.  6a.,  to  charge  by 
monthly  rests  as  on  a  monthly  contract;  and, 
qu4tre,  where  the  interest  involves  the  fraction  of 
\d.y  if  he  can  demand  the  full  farthing.  R.  v. 
Goodburn,  3  Nev.  &  P.  (q.  b.)  463. 

3.  Where  the  pawnbroker  had  not  complied 
with  the  requisites  of  the  Act,  held,  that  as  they 
precede  the  contract  and  accompany  it,  and  are 
not  collateral,  he  acquired  no  property  in  the 
pledge,  and  the  contract  being  void,  his  lien  was 


void  also.    FergiMon  v.  NomMn,  5  fiiof.  N.  B. 
(c.  p.)  76 ;  and  6  Sc.  794. 

And  see  Award. 


PAYMENT. 

V 

1.  A  creditor  is  entitled  to  exercise  his  discre- 
tion, whether  he  will  treat  a  check  as  payment; 
a  fortiori,  if  conditional,  as  when  expressed  to 
be  for  the  balance  of  account  Hough  «.  May,  6 
Nev.  &  M.  (K.  B.)  5a5;  and  4  Ad.  &  Ell.  954. 

2.  In  support  of  a  replication  of  payment  of  in- 
terest, in  answer  to  a  plea  of  the  statute,  a  wit- 
ness who  stated  that  he  settled  all  accounts  of  the 
defendant,  admitted  his  handwriting  to  an  ac- 
count having  the  item  of  payment  for  interest,  al- 
though he  swore  he  did  not  recollect  the  fact ; 
held  to  be  evidence  to  goto  a  jury.  Trentham  r. 
Deverill,  3  Bing.  N.  S.  (c.  p.)  397;  and  4  Sc.  128. 

3.  The  admission  of  money  received,  in  a  bill 
of  particulars,  cannot  be  taken  as  evidence  of  pay- 
ment,  without  a  plea  of.  payment.  Ernest  r. 
Brown,  3  Bing.  N.  S  (c.  p.)  674;  4  Sc.  386;  and 
5  Dowl.  (p.  c.)  637. 

4.  On  the  issue  of  payment  and  receipt  in  sat- 
isfaction, held  that  a  receipt  signed  by  the  London 
agent  for  Ithe  attorney,  of  the  debt  and  costs  in- 
dorsed on  the  writ  of  summons,  was  admissible, 
without  calling  the  agent.  Weary  r.  AlderBon, 
2  M.  Rob.  (w .  p.)  127. 

And  see  Landlord  and  Tenant ;  Pleading  (c.  l.) 


PEERAGE. 

A  writ  of  summons  and  sitting  in  the  Irish  Par- 
liament, where,  in  numerous  instances  of  the  de- 
scent falling  upon  females,  the  dignity  had  passed 
to  a  remote  cousin,  being  a  male  ;  held  not  suf* 
ficient  evidence  to  establish  the  claim  of  a  barony 
in  fee.     Slane  Peerage,  10  Bli.  N.  S.  (p.)  1. 


PENAL  ACTION. 
See  Pleading,  (c.  l.) 

PENAL  STATUTE. 
See  Pleadings  (c.  l.) 

PENALTIES. 

1 .  Commissioners  of  local  improvement  Acta, 
relief  from  penalties  and  liabilities,  by  1  &.  2  Vict, 
c.  65. 

2.  Where  the  corporation  (Gravesend  Pier 
Act)  were  empowered  to  appoint  clerks,  a  trea- 
surer, &c.,  but  prohibited  from  appointing  Ui« 


[PENALTY— PLEADING  (COM.  LAW)] 


2849 


clerk  to  be  treasuer,  and  imposed  a  penalty  on 
ainr  clerk  or  his  partner,  or  his  clerk,  who  should 
officiate  for  the  treasurers,  and  the  corporation 
had  appointed  the  clerk  to  be  assistant  treasurer, 
with  a  salary,  and  he  had  discharged  some  of  the 
duties  of  the  treasurer  ',  held,  that  it  was  for  the 

!'urv  to  say  whether  he  acted  banA  fide  in  the  be- 
ief  of  his  heme  appointed  an  independent  officer, 
or  only  colorably,  and  that  in  the  latter  case  only 
he  would  be  liable  to  the  penalty.  Hawkings  v. 
Newman,  4  Mees.  &  W.  (ex.)  613. 

And  see  Actum, 


PLEADING  (COM.  LAW.) 


[A]    DSCLARATION — SUFFICIEffCT   OF. 

[B]  Pleas — several. 
[G]  Repligatiom. 

[D]  Demurrer — ^rxplxadxr. 

[E]  Amendhsmt. 

[F]  Variance. 


[A]    DeCLARATIOH — SUFFICISHCT   OF. 

1.  Counts  for  work,  &c.,  done  by  the  plaintiff 
as  administrator,  may  be  joined  with  counts  for 

foods  sold,  and  work  and  labor  by  the  intestate. 
Id  wards  v.  Grace,  2  Mees.  &.  W.  (ex.)  190 )  and 
5  Dowl.  (p.  c.)  302. 

2.  Where  a  count  in  a  declaration  on  a  bill, 
after  averring  acceptance,  proceeded  to  state  the 
registration  of  the  protest,  and  issuing  of  process 
in  Scotland,  and  whereby  the  defendant  became 
liable,  &c.,  but  not  averrinsr  that  su>  h  registra- 
tion, &c.,  was  a  judgment ;  held  that,  there  being 
no  proof  of  the  bill,  the  plaintiff  was  not  entitled 
lo  recover.  Hay  v.  Fisher,  2  Mees.  &>  W.  (ex.) 
722. 

3.  An  omission  in  a  declaration  on  a  bill  or 
note,  that  the  defendant  promised  to  pay,  can  only 
be  taken  advantage  of  on  special  demurrer ;  and 
semble,  as  the  defendant  can  now  only  deny  by 
his  plea  some  matter  of  fact  alleged,  it  is  not 
necessary  to  allege  a  promise  to  pay.  Griffith  v. 
Roxbrough,  2  Mees.  Si.  W.  (ex.)  TM. 

4.  Where  the  agreement  was  to  purchase  goods 
on  the  valuation  of  two  persoos  named,  and  the 
declaration  merely  alleged  that  the  defendant  and 
M.,  his  valuer,  refused  to  value,  and  the  defend- 
ant to  appoint  another  valuer,  or  to  take  any  steps 
to  procure  the  goods  to  be  valued,  or  let  the  same 
be  valued  according  to  his  promise ;  held,  that 
the  declaration  was  bad  on  special  demurrer. 
Thnmell  v.  Balbimie,  2  Mees.  &  W.  (ex.)  786. 

5.  In  covenant  by  lessee,  stating  as  a  breach 
that  the  defendant  entered  upon  plaintiff's  pos- 
session, and  expelled  and  removed  him,  upon 
which  issue  was  joined,  and  it  appeared  that  the 
plaintiff  had  never  entered,  but  upon  coming  to 
take  possewion  under  the  denuBe  was  lefufed  ad* 


mission  by  the  defendant,  who  continued  to  oc- 
cupy the  premises ;  held,  that  the  plaintiff  could 
not  recover.  Hawkes  v.  Orton,  5  Ad.  &  £11.  (k. 
b.)367. 

6.  The  day  laid  in  assumpsit  on  a  parol  promise 
is  immaterial,  being  only  laid  for  form.  Arnold 
V.  Arnold,  3  Bing.  N.  S.  (c.  p.)  81 ;  3  Sc.  547  ; 
and  5  Dowl.  (p.  c.)  6. 

7.  The  statement  in  a  declaration  in  the  Ex- 
chequer of  the  plaintiff  being  a  debtor,  4lc.,  with 
the  quo  minus  conclusion,  held,  on  demurrer,  to 
be  mere  surplusaffe  and  matter  of  form.  Alder- 
son  f.  Johnson,  2  Mees.  &  W.  (ex.)  70;  and  5 
Dowl.  (p.  c.)  294. 

8.  Where  the  declaration  contained  two  counts, 
one  on  a  contract  to  carry  goods  from  B.  to  D., 
and  thence  to  the  port  of  L. ;  and  the  second,  on 
a  contract  to  carry  the  same  goods  from  the  place 
of  landing  at  L.  to  the  plaintiff's  place  of  busi- 
ness; held  not  to  be  a  violation  of  the  rule  5  Hil. 
4,  Will.  4,  which  allows  a  second  count  if  there 
be  a  second  and  distinct  contract  in  respect  of  the 
same  subject  matter.  James  r.  Bourne,  4  fiing. 
N.  S.  (c.  p.)  420. 

9.  In  an  action  by  two  plaintiffs  for  work,  &c., 
as  attornies,  who  carried  on  the  business  as  part- 
ners ;  held,  that  the  defendant  could  not  object, 
that  by  a  contract  inter  se,  one  was  to  be  secured 
a  certain  part  of  the  profits  at  all  events,  the  debt 
in  the  first  instance  being  the  joint  property  of 
both.     Bond  v.  Pittard,  3  Mees.  &  W.  (ex.)  357. 

And  see  Waogh  v.  Carver,  2  H.  Bl.  246. 

10.  Where  the  count  stated  the  defendant  to  be 
indebted  to  the  plaintiffs  and  their  deceased  part* 
ner  on  an  account  then  stated  between  them^  and 
after  alleging  a  promise  to  all,  assigned  as  a  breach 
that  the  defendant  had  not  paid;  held  sufficient. 
Debenham  v.  Chambers,  6.  Dowl.  (p.  c.)  101 ', 
and  2  Mees.  <&  W.  (ex.)  128. 

11.  Upon  a  declaration  against  defendants  as 
owners,  alleging  the  delivery  of  goods  to  be  car- 
ried by  the  defendants  as  owners,  and  charging 
damage  through  negligence,  and  plea,  non  as- 
sumpsit;  held,  that  tne  ownership  was  not  admit- 
ted, it  not  being  a  material  fact;  the  taking  issue 
on  one  fact  is  only  an  admission  of  the  other  ma- 
terial fiicts  necessary  to  be  proved.  Bennion  v. 
Davison,  3  Mees.  &,  W.  (xx.)  179. 

12.  Where  the  declaration  alleged  that  the  de- 
fendant at  O.  sent  an  order  to  the  plaintiffs  at  L., 
directing  them  to  purchase  and  send  goods  in  sta- 
ted quantities,  according  as  they  might  realize 
certain  prices,  and  that  the  plamtiffs  accepting 
the  order,  and  undertaking  to  perform,  &c. ;  the 
defendant  promised  to  receive  the  goods  to  be 

Cnrchased  by  the  plaintiflb,  and  accept  bills  drawn 
y  them  for  the  price  ;  it  then  alleged  a  purchase 
of  a  quantity  larger  than  that  specified,  and  that 
they  were  ready  to  be  delivered  to  the  defendant ; 
held  bad,  as  not  showing  that  the  plaintiffs  were 
ready  and  willing  to  deliver  the  specified  quanti- 
ty, and  for  which  the  bills  were  by  the  contract 
to  be  accepted.  Dixon  v.  Fletcher,  3  Mees.  &, 
W.  (EX.)  146. 

13.  Where  the  defendant  being  bail  for  P.,  in 
consideration  that  ibe  plaintiff  would  forego  bail 


'2860 


[PLEADING  (COM.  LAW)] 


on  S.  giTing  a  eogrumt^  andertook  that  in  ease  of 
default  of  payment,  to  render  S.,  within  fourteen 
days  afler  notice  of  a  writ  of  execution  issued 
against  him;  held, that  the  declaration  alleging 
notice  to  the  defendant  of  the  issuing  of  a  ca,  sa. 
was  sufficient,  without  going  on  to  alleffe  delive- 
ry of  the  writ  to  the  sheriff.  Tumor  v.  Standage, 
4  Bing.  N.  S.  (c.  p.)  208. 

14.  In  assum^sU  by  husband  and  wife,  alleg- 
ing an  account  stated  with  the  husband  and  wile 
afler  the  marriage,  of  monies  lent  by  the  latter 
before  marriage,  and  remaining  unpaid  at  and 
after  the  marriage,  and  that,  in  consideration  of 
the  premises,  the  defendant  promised  to  pay  on  a 
future  day ;  held  bad,  as  not  stating  that  the  debt 
remained  unpaid  at  the  time  of  stating  the  ac- 
count, and  alleging  a  different  promise  than  that 
which  was  raised  by  law,  without  showing  any 
new  consideration :  the  plea  stated  that  the  mo- 
ney due  was  secured  by  bond  to  the  wife,  payable 
on  a  certain  day,  and  that  the  account  stated  was 
of  the  money  thereon  supposed  at  the  time  to  be 
due,  but  not  in  fact,  held  a  j(ood  answer,  but  that, 
semUej  it  was  bad  for  duplicity,  in  alleging  that 
the  account  was  stated  erroneously ;  semb.,  also, 
that  the  action  was  properly  brought  by  both. 
Hopkins  r.  Logan,  7  Dowl.  (p.  c.)  &0. 

15.  Where  the  contract,  as  stated,  was  for  de- 
livery of  goods  (growing  potatoes)  within  a  rea- 
sonable time,  and  it  appeared  in  evidence  that 
they  were  to  be  taken  at  the  usual  time  of  dig- 

5ing;  held,  that  the  judffe  properly  directed  the 
ecTaration  to  be  amended  according  to  the  fact,* 
no  prejudice  to  the  defendant  being  shown  by 
the  amendment.    Sainsbury  v.  Matthews,  4  Mees. 
&  W.  (EX.)  343 ;  and  7  Dowl.  (p.  c.)  23. 

16.  The  count  on  an  account  stated  need  not 
allege  any  time  when  stated.  Leat  v.  Lees,  7 
DowL  (p.  c.)  189;  and  4  Mees.  <Sk  W.  (bx.)  579. 

And  see  Bingley  v.  Durham,  1  Perr.  &  D.  56; 
and  4  Mees.  &  W.  (ex.)  €08. 

And  see  ti^/ro. 

17.  Where,  in  an  action  on  an  agreement  of 
reference,  the  declaration  stated  that  the  costs 
were  to  abide  the  event,  omitting  a  further  pro- 
▼isioB  for  the  costs  of  making  the  agreement  a 
rule  of  court,  held  a  fatal  variance ;  but  that,  not- 
withstanding a  demurrer,  it  might  be  amended 
under  2  &,  4  Will.  4,  c.  42,  s.  23,  the  variance 
not  being  one  materiai  to  the  merits  of  the  case, 
and  by  which  th'&  defendant  could  be  prejudiced 
in  his  defence.  Duckworth  v.  Harrison,  7  Dowl. 
(p.  c.)  463. 

18.  On  demurrer  to  debt  on  an  account  before 
then  stated,  for  that  no  time  was  stated  when  the 
supposed  account  was  stated,  held  sufficient. 
Bingley  v.  Durham,  1  Perr.  A  D.  (^.  b.)  58. 

19.  In  case  for  disannexinff  from  a  factory,  to 
which  the  plaintiff  was  entiUed,  a  steam-eujgine, 
dec,  and  converting  to  defendant's  use,  with  a 
count  in  trover ;  semb.  not  a  violation  of  the  rule 
of  Hil.  4  Will.  4.  Weeton  v.  Woodcock,  5  Mees. 
&  W.  (El.)  143;  and  7  Dowl.  (p.  c.)  384. 

20.  Where,  in  trover  for  a  sheep,  the  venue 
was  laid  in  H.,  but  no  parish  or  place  stated  in 


the  declaration ;  the  defendant  pleaded  the  taking 
in  a  market  for  toll,  concluding,  qmm  ut  so^ca, 
&c,  with  a  verification  ;  held  bad,  on  special  de- 
murrer, as  containing  two  traverses  of  the  aane 
matter ;  and  mmb^.,  no  place  being  staled  in  the 
declaration,  the  latter  traverse  was  onnecpssaiy. 
Cardwardine  v.  Watkins,  7  Dowl.  (p.  c.)  484. 

21.  Since  tlie  new  rules  of  pleading,  the  in- 
ducement to  a  libel  is  taken  to  be  admitted  unless 
traversed.  Fradley  v.  Fradley,  8  C.  4t  P.  (v.  p.) 
572. 

And  see  Atmmty;  Arreat;  Atsuimvsii;  Mat^ 
ney ;  Bankrupt;  Baron  and  Feme ;  Bills;  Bond; 
Caoenanl;  Debt;  UM;  Falent;  Prescription; 
Slander, 


[B]  Pleas — several. 

1 .  Where  the  plea  set  up  a  contract  incompati- 
ble with  that  stated  in  the  declaration,  held  bad, 
as  amounting  to  the  general  issue.  Morgan  v. 
Pebrer,  3  Bing.  N.  S.  (c.  p.)  457 ;  and  4  Sc  890. 

2.  In  debt  for  goods  sold ;  plea,  stating  a  special 
contract  with  a  warranty,  and  payment  of  a  sum 
amounting  to  the  real  value ;  held  bad  on  demur- 
rer, as  amounting  to  the  general  issue.  Dickes 
V.  Neale,l  Mees.  &  W.  (ex.)  556;  1  Tyr.  ^  Gr. 
879 ;  and  5  Dowl.  (p.  c.)  176. 

3.  Where  the  plea,  plainly  professing  to  be 
pleaded  to  the  whole  declaration,  contained  an 
answer  only  as  to  part,  held  only  open  to  objec- 
tion on  special  demurrer.  Harvey  v.  Grabhain, 
5  Ad.  &  £11.  (k.  b.)  73. 

4.  Declaration  with  one  count  on  a  biU  by 
payee  against  acceptor,  and  another  on  an  account 
stated  ;  plea,  non-acceptance,  and  no  notice  taken 
of  the  second  count ;  held  bad,  on  special  demor- 
rer,  the  plea  beinff  pleaded  to  tbe  whole  declara- 
tion. Putney  «.  Swann,  2  Mees.  A  W.  (ex.)  72 ; 
and  5  Dowl.  (p.  c.)  256. 

5.  Plea  to  the  supposed  cause  of  action,  ^  if 
any  such  there  be."  held  not  a  sufficient  confes- 
sion to  support  a  plea  in  confession  and  avoidance. 
Margetts  v.  Bays,  6  Nev.  &  M.  (k.  b.)  228 ;  and 
4  Ad.  &  £11.  489. 

6.  Plea  to  an  action  for  an  attomev's  bill,  theft 
the  defendant  had  derived  no  benefit,  and  that 
the  plaintiff  had  advised  the  striking  a  docket, 
and  promised  to  indemnify  the  defendant ;  held 
bad,  as  amounting  to  the  general  issue.  Hill  v. 
Allen,  5  Dowl.  (p.  c.)  471. 

7.  Plea  to  debt  on  bond,  that  after  the  day  of 
payment,  and  before  action,  the  obligee  received 
certain  bills  of  exchange  not  yet  due  in  satisfac- 
tion as  to  part,  and  a  sum  of  money  as  to  the  reei- 
due;  held  bad,  on  demurrer.  Worthinglon  v. 
Wigley,3  Bing.  N.  S.  (c.  p.)  454;  3  Sc.  556; 
and  5  Dowl.  (p.  c.)  209.  504. 

8.  In  debt  for  penalties,  on  22  Geo.  2,  e.  46,  s. 
14,  for  acting  as  an  attorney  whilst  he  was  depvty 
clerk  of  the  peace ;  plea,  denying  that  be  was 
such  deputy,  nor  did  he  commit  any  of  the  svp* 
posed  offences  against  the  statute,  Ac. ;  held,  on 
demuner,  bad,  as  double.    And  somb^  in  an  ac- 


[PLEADING  (COM.  LAW)] 


2851 


tion  on  a  penal  atatnte,  the  plea  ^  not  guilty" 
would  be  a  good  plea,  notwithstanding  the  new 
rules  of  pleading.  Faulkener  v.  Chevcll,  6  Nev. 
&  M.  (K.  B.}  704  ;  and  5  Ad.  &  Ell.  213.  The 
word  "to"  being  erroneously  printed  for  "or,'* 
the  statute  is  not  confined  to  the  mere  suing  out 
process,  as  the  printed  copy  of  the  statute  imports. 

9.  In  debt  for  work,  &e.  by  the  plaintiff  as  an 
attorney  ;  held  that,  under  the  general  issue  nun- 
guam  tndeb.^  the  defendant  might  show  that  the 
plaintiff  had  agreed  to  conduct  the  suit  for  the 
sums  actually  disbursed,  and  that  the  payment  of 
a  sum  into  court  only  admitted  the  employment 
as  an  attorney,  but  not  that  he  was  to  be  paid  the 
ordinary  fees  payable  to  an  attorney.  Jones  v. 
Read,  1  Nev.  &  P.  (k.  b.)  18 ;  5  Ad.  &  £11. 529; 
and  5  Dowl.  (p.  c.)  216. 

10.  Where  in  case  for  injury,  by  the  defend- 
ant's coach  driving  against  the  plaintiff's  car- 
riage, the  defendant  pleaded  that  the  plaintiff's 
carriage  was  driven  by  one  of  his  sons,  and  in  so 
unskilful  a  manner  that  the  collision  happened 
therebV)  and  not  through  any  negligence  of  the 
defendant's  servant ;  held  bad,  on  demurrer,  as 
amounting  to  the  general  issue.  The  new  rules 
of  pleading  have  not  abolished  the  plea  of  the  gen- 
eral issue,  but  only  circumscribed  the  species  of 
evidence  which  may  be  given  under  it.  Gough 
V.  firyan,  2  Mees.  &  W.  (ex.)  770 ;  and  5  Dowl. 
(p.  c.)  765. 

11.  Where  in  case  for  injuring  a  bridge,  by 
negligence  in  navigating,  the  plea,  after  alleging 
that  Uie  plaintiffs  had  wrongfully  narrowed  the 
channel,  traversed  that  the  injury  was  occasioned 
by  any  carelessness  of  the  defendant;  held,  that 
they  were  at  liberty  under  such  plea,  upon  failing 
to  establish  any  default  in  the  plaintiffs,  to  show 
also  that  they  themselves  had  not  been  guilty  of 
negligence.  Cross  Keys  Co.  v.  Rawlings,  3  Bmg. 
N.  S.  (c.  p.)  71 ;  and  3  So.  490. 

12.  Where  tlie  defendant,  having  employed  the 
plaintiff  and  his  partner  in  the  sale  of  books  with- 
in six  years,  by  letter  acknowledged  the  return  of 
some  as  imperfect,  concluding,  "  which,  together 
with  the  cash  overpaid  on  the  settlement  of  your 

account,  amounts  to  £ ,  which  sum  1  will  pay 

you  within  two  years  from  this  date ;  held,  Ist, 
that  such  letter  amounted  to  a  promissory  note, 
and  was  evidence  of  an  account  stated  at  the  time 
when  signed,  and  that  the  cause  of  action  did  not 
accrue  until  two  years  aHer ;  2d]y,  thot  a  plea  of 
the  statute  must  conclude  with  a  verification ; 
3dly,  that  such  letter,  alUiough  stamped  with  an 
agreement  stamp  at  the  time  of  being  signed,  was 
within  the  exemption  of  r>5  Geo.  3,  c.  184,  s.  10, 
and  admissible  in  evidence.  Wheatley  v.  Wil- 
liams, 1  Mees.  &  W.  (ex.)  533. 

13.  Where  in  assumpsit  for  work,  <Su:.  the  de- 
fendant pleaded  rum  assumpsit j  except  aa  to  £ ; 

secondly,  tender  as  to  part  afler  the  debt  arose 
and  before  action  brought,  and  thirdly,  as  to  the 
isaid  other  parcel,  payment  before  action  brought; 
held  good  on  demurrer,  althongh  as  to  the  ten- 
der it  did  not  appear  to  have  been  made  af\er  the 
sum  paid,  and  so  of  all  admitted  to  be  due.  Quore, 
if  a  creditor  is  bound  to  accept  part  of  a  sum  due  ? 
Jones  V.  Owen,  6  Nev.  &  M.  (k.  b.)  620;  and  5 
Ad.  A  EU.  222. 

Vol-.  IV.  73 


14.  In  assumpsit  for  work,  &c.,  stating  the 
promise  to  be,  to  pay  on  request ;  plea,  that  it  was 
done  under  an  agreement,  that,  if  it  did  not  an- 
swer the  purpose  intended,  nothing  was  to  be 
paid;  held  bad,  as  amounting  to  the  general  is- 
sue. Where  the  defence  shows  a  different  con- 
tract from  the  one  declared  on,  it  may  be  gone  in- 
to upon  the  general  issue ;  the  distinction  is  be- 
tween a  plea  confessing  the  contract  stated,  but 
disclosing  matter  whicTi  exonerates  him  from  the 
performance  of  it,  and  a  plea  containing  an  alleffa- 
tion,  that,  for  the  reasons  specially  stated.  Die 
contract  does  not  exist  in  the  form  in  which  it  ia 
alleged,  and  wh^ch  latter,  being  only  an  argu- 
mentative denial  of  tlie  contract,  is  not  allowed. 
Hayselden  v.  Staff,  6  Nev.  &.  M.  (x.  b.)659  ;  and 
5  Ad  &  £}1. 153 ;  questioning  Edmonds  v,  Har- 
ris, 2  Ad.  &  EJl.  414. 

And  see  Taylor  v.  Hilarv,  1  Cr.,  Meea.  &  R. 
741. 

15.  In  assumpsit  on  a  charter  party,  aaaigning 
for  breaches,  not  loading  a  cargo,  not  paying 
£ per  ton,  and  not  P&ying  £  '  on  an  ac- 
count stated;   to  the  plaintiff^s  damage  jS300; 

plea,  as  to  £' ,  parcel  of  the  sums  in  the  decbr 

ration  mentioned,  payment  and  acceptance  in  sat- 
isfaction of  damages  as  to  that  sum,  held  bad  on 
demurrer,  as  not  showing  in  respect  of  what  part 
of  the  demand  it  had  been  received.  Lorymer  v, 
Vizeu,  3  Ring.  N.  S.  (c.  p.  i  222.  427 ;  and  4  Se. 
190. 

16.  In  use  and  occupation,  the  plaintiff  having 
claimed  iC105  in  the  declaration,  but  in  his  par- 
ticulars £32  10^.,  "being  the  balance  of  one 
year's  rent  due,"  &c. ;  the  defendant  pleaded  as 
to  all  but  £52  Ids.  non  assumpsit,  and  as  to  that 
sum  payment,  and  the  plaintifi  joined  issue  on  the 
first  plea,  and  entered  a  nolU  pros,  as  to  the  lat- 
ter ;  held  tiiat,  as  the  plaintiff  must  have  taken 
the  plea  as  amounting  to  a  part  payment  of  the 
whole  demand,  having  proved  the  whole  year's 
occupation,  although  the  defendant  proved  his 
plea  of  payment,  the  plaintiff  was  entitled  to  a 
nominal  verdict.  Nicnoll  v,  Williams,  2  Mees. 
&  W.  (EX.)  758. 

17.  But  where  the  plaintiff  declared  for  wages, 
and  pat  in  a  particular  for  wages  at  I5s.  per  week, 
amounting  to  £148,  and  gave  credit  for  payment 
of  £70,  and  the  defendant  at  the  trial  put  tht  par- 
ticulars in  evidence,  and  the  jury  found  that  the 
plaintiff  was  only  entitled  to  7s.  a  week;  held, 
tliat  the  particulars  were  properly  received  as  an 
admission  of  the  payment,  and  the  court  refused 
to  disturb  the  verdict  found  for  the  defendant. 
Kenyon  v.  Wakes,  2  Mees.  &  W.  (ex.)  764. 

18.  Upon  a  justification  in  trespass,  of  force  to 
remove  the  plaintiff  from  the  defendant's  hoase, 
when  making  a  noise  and  disturbance,  and  repli- 
cation de  injuria ;  held,  1st,  that  the  general  pro- 
position that  motive  and  intention  may  the  subject 
of  inquiry  on  the  general  traverse,  cannot  be  sup- 
ported ;  and  2dly,  that  the  plea  not  justifying  the 
excess  of  violence  and  wounding  used  towards  the 
plaintiff,  she  was  entitled  to  a  verdict  on  the  gene- 
ral issue.  Oakes  v.  Wood,  2  Mees.  &.  W.  (ex.) 
791 ;  questioning  Lucas  v,  Nockells,  10  Ring.  182. 

19.  Flea  in  trespass  for  breaking,  &c.,  that  the 


28S2 


[PLEADING  (COM.  LAW)] 


entiy  was  under  a  search-warrant  for  goods  clan* 
destinely  removed  by  W.  F.  to  the  plaintiff's 
house  to  avoid  a  distress ;  and  new  assi^ment, 
that  it  was  on  another  occasion,  at  a  different 
time  ;  to  which  the  defendant  pleaded  the  tenancy 

of  W.  F.  at  the  rent  of  £ ,  that  one  year's  rent 

was  due,  and  that  W.  F.  fraudulently  removed 
the  goods  as  before ;  held,  that  the  new  assign- 
ment  was  not  an  admission  of  the  truth  of  the 
matter  previously  pleaded,  which  was  to  be  taken 
to  relate  to  another  trespass,  and  that  the  defend- 
ant was  bound  to  prove  the  demise  at  the  rent 
stated,  and  of  the  rent  in  arrear,  as  alleged  in  the 
new  assignment.  Norman  v,  Wescoml^,  2  Mees. 
&  W.  (EX.)  349. 

20.  Where,  in  trespass,  to  plea  of  leave  and  li- 
eense^  the  replication  de  injurih  concluded  to 
the  country,  without  any  "  ^c,"  and  no  similiter 
was  added ;  held,  that  after  verdict  for  the  plain- 
tiff it  was  too  late  to  take  advantage  of  the  mfor- 
mality.  Stockdale  v.  Chapman,  4  Ad.  <SEl  £11.  (k. 
B.)  419;  and6Nev.  &M.  711. 

21.  Plea,  in  trespass  for  breaking,  &c.  closes 
'*  of  and  belonging  to  the  plaintiff,"  denying  that 
plaintiff  at  the  said  times,  when,  &c.,  was  pos- 
sessed of  the  said  closes,  in  manner,  &c.,  and 
concluding  to  the  country ;  held  proper.  Flem- 
ing V.  Cooper,  5  Ad.  &.  £11.  (k.  b.)  221. 

22.  In  case  against  a  railway  company  for  in- 
jury to  the  plaintiff's  reversionary  interest,  the 
court  refused  to  allow  the  general  issue  to  be 
pleaded,  with  the  pleas,  first,  that  the  defendant 
was  not  possessed  of  the  reversion,  and,  secondly, 
that  the  party  stated  in  the  declaration  to  be  ten- 
ant was  not  tenant.  Fisher  v.  Thames  Junction 
Railway  Company,  5  Dowl.  (p.  c.)  775. 

23.  Two  pleas  of  stannary  customs,  one  plead- 
ed without  qualification,  and  the  second  with  a 
qualification ;  held,  within  the  rule  Hilary,  4 
Will.  4,  and  not  pleadable  together.  Bastard  v. 
Smith,  1  Nev.  &  P.  (k.  b.)  242. 

24.  The  particulars  not  being  considered  part 
of  the  declaration,  held  that,  upon  plea  of  pay- 
ment into  court  in  assumpsit  in  its  general  form, 
for  work  as  an  agent  in  letting  certain  houses, 
the  defendant  was  not  precluded  from  contesting 
his  liability  as  to  certain  items  in  the  particulars, 
the  plea  to  such  a  general  demand  being  to  be 
taken  to  admit  only  some  cause  of  action,  within 
the  description  in  the  declaration,  to  the  extent 
of  the  money  paid  into  court.  Booth  v.  Howard, 
5  Dowl.  (p.  c.)  438. 

25.  In  case,  where  special  damage  is  stated,  and 
is  the  foundation  of  the  action,  being  traversable, 
if  not  traversed  by  the  plea,  it  is  admitted.  Per- 
ring  V.  Harris,  2  M.  «&  Rob.  (it.  p.)  5. 

26-  In  case  for  damage  by  negligence  in  con- 
ducting railway  carriages,  plea,  that  the  damage 
was  occasioned  by  the  negligence  of  both  parties ; 
held  bad  in  substance,  as  amounting  to  the  gener- 
al issue.  Armitage  r.  Grand  Junction  Railway 
Company,  6  Dowi.  (p.  c)  340 ;  S.  C.  3  Mees.  & 
W.  (kx.)  244. 

27.  The  formal  commencement  of  the  declara- 
tion in  ejectment  held  immaterial,  and  the  omis- 
sion therelore  of  the  quo  minus  clause  not  irregu- 


lar.   Doe  d.  Bloxam  v.  Roe,  3  Mees.  A  W.  (ix.) 
187 ;  and  6  Dowl.  (p.  c.)  388. 

28.  In  case  against  the  sheriff  for  a  false  return, 
the  debtor  havmg  become  bankrupt,  held,  that 
although  the  fiat  did  not  issue  until  aAer  the  aeix- 
ure,  yet,  the  soods  belonging  to  the  assignees  by 
relation,  the  sheriff  could  not  be  allowed  to  plead, 
first  traversing  the  seixure  of  the  goods  of  the 
debtor,  and  also  a  plea  stating  the  dates  of  the  act 
of  bankruptcy,  and  of  the  date  of  the  £a<.  Wright 
V.  Lainson,  6  Dowl.  (p.  c.)  152;  and  3  Meet.  & 
W.  (EX.)  44. 

29.  Plea,  in  debt  on  simple  contract,  that  the 
plaintiff  covenanted  to  forbear  ^uing ;  held,  that 
although  the  breach  might  render  him  liable  to 
action,  it  was  not  pleadable  in  bar.  Thimbleby 
».  Barron,  3  Mees.  &  W.  (ex.)  210. 

30.  Where  the  sheriff  having  seized  goods  of 
the  plaimiff  under  a^.  /a.,  on  a  joint  warrant  of 
attorney  of  the  plaintiff's  and  R.,  to  a  party  as 
trustee  for  the  defendant,  and  thereupon  the  plain- 
tiff executed  two  warrants  of  attorney,  one  for  the 
amount  recoverable  upon  the  judgment,  and  the 
other  for  a  debt  due  to  the  defendant  from  the 
plaintiff's  father,  and  in  consideration  thereof  the 
defendants  undertook  to  procure  the  re-delivery 
of  the  goods  seised  :  and  breach  in  assumpsit  for 
not  re-delivering  within  a  reasonable  time,  to 
which  the  defendant  pleaded  that  the  original 
warrant  was  not  given  to  the  said  party  as  trus- 
tee for  the  defendant,  in  manner  and  /orm,  &c. , 
on  demurrer,  held  bad,  as  putting  in  issue  an  im- 
material fact,  the  subsequent  warrants  forming  a 
^ood  consideration  for  the  defendant's  undertak- 
ing, whether  the  former  was  held  by  a  trustee 
for  the  defendant  or  not.  Radford  r.  Smith,  3 
Mees.  &  W.  (ex.)  254  ;  and  6  Dowl.  (p.  t.)  381. 

31 .  In  an  action  upon  a  contract  for  the  sale  of 
not  less  than  5,000,  and  not  more  than  6,000  trees 
of  a  stated  size,  to  be  delivered  ;  averment  that 
the  plaintiff  took  up  and  delivered,  at  the  proper 
time  of  the  year,  6,000  trees,  and  tendered,  hot 
the  defendant  refused  to  accept  them ;  plea,  that 
the  plaintiff  did  not  properly  take  up,  or  tender 
or  offer  to  deliver  6,0lX)  trees ;  held,  on  demurrer, 
that  the  traverse  in  the  plea  of  the  delivery,  &c. 
of  the  number  stated  in  the  declaration,  did  not 
render  it  bad  ;  but  that  tendering  a  traverse  on 
the  taking  up,  &c.,  and  offer  to  deliver,  was  bad 
for  duplicit;^.  Smith  v.  Dixon,  2  Nev.  &  P.  (x. 
B.)  1 ;  and  6  Dowl.  (p.  c.)  47. 


32.  In  an  action  on  a  check,  plea,  that  it 
given  for  a  gambling  debt;  held,  on  general  de- 
murrer, that  the  replication  de  injuriay  was  good. 
Curtis  V.  Marquis  Headfort,  6  Dowl.  (p.  c.)  496. 

33.  In  assumpsit  for  goods,  plea,  coverture; 
teplication,  that  the  defendant  was  living  separ- 
ate in  adultery,  without  the  knowledge  of  the 
plaintiff,  and  that  he  dealt  with  her  as  a/em/*  Arfe, 
and  that  she,  afler  the  death  of  her  husband,  pro- 
mised to  pay  ;  held  bad,  as  a  departure,  the  prom- 
ise in  the  declaration  being  void,  and  tliat  alleged 
in  the  replication  amounting  only  to  a  moral  (Sli> 
gation.  Meyer  v.  Haworth,  3  Nev.  &  P.  la.  t.) 
462.  ^ 

34.  In  assumpsit  for  goods  sold  and  deliveied, 


r 


[PLEADING  (COM.  LAW)] 


2863 


plea,  a  sale  on  Sunday ;  replication,  the  subae- 
(juent  retainer  of  the  goods,  whereby  be  became 
liable  to  pay  for  them  on  a  quatitum  valebant ;  held 
bad,  on  demurrer,  no  subsequent  promise  being 
alleged  after  such  retainer.  Simpson  v.  Nicholls, 
6  Dowl.  (p.  c.)  a55 ;  and  3  Mees.  A.  W.  (».)  240. 

35.  Where  the  bankrupt  agreed  to  take  stones 
firom  the  plaintiff's  quarry  at  a  certain  price,  for  a 
building  contract,  which  the  defendants,  his  as- 
signees, adopted,  and  took  stones  to  the  amount 
of  401 ,  for  the  purpose ;  in  assumpsit,  against 
them,  plea,  as  to  the  agreement  with  the  bank- 
rupt, noH  assumpsit^  and  as  to  the  residue  of  the 

causes  of  action,  payment  into  court  of  £ , 

and  acceptance  by  the  plaintiff  of  that  sum  in  sat- 
isfaction ;  the  jury  having  found  for  the  defendant 
on  the  first  issue,  held,  uiat  the  plaintiff  was  not 
entitled  by  the  admission  in  the  plea  of  payment 
to  have  a  verdict  entered  on  the  other  issue. 
Twemlow  v.  Askey,  3  Mees.  &  W.  (zx.)  495. 

36.  Plea  in  assumpsit  for  500Z.  for  money  paid, 
Ac,  that  the  defendants  were  the  holders  of  a  bill 
for  5002.,  drawn  by  defendants  on,  and  accepted 
by  one  M  ,  and  that  in  consideration  the  defen- 
dants would  indorse  and  deliver  the  same  to  the 
plaintiffs,  they  would  pay  the  said  sum  of  500^., 
as  the  defendants  should  direct,  and  would  retain 
the  bill  for  and  on  account,  and  as  payment  of 
the  said  sum  of  500/.,  averring  that  the  monies 
paid,  &c.,  were  so  in  pursuance  of  the  said  agree- 
ment; held  bad,  as  amounting  to  the  general 
issue.  Maude  v.  Nesham,  3  Mees.  ik,  W.  (ex.) 
502. 

37.  Plea  of  payment  into  court,  new  form  of, 
and  proceedings  after  by  plaintiff;  Reg.  €ren.  3 
Nev.  &  P.  (<i.  B  )  380. 

38.  Payments  credited  in  the  particulars  need 
not  be  pleaded,  except  where  only  a  balance  is 
claimed,  nor  can  payment  be  in  any  case  given 
in  evidence  in  reduction  of  damages,  but  must 
be  pleaded  in  bar.  Where  the  general  issue  is 
pleaded  under  any  statute,  to  be  noted  in  the  mar- 
gin of  the  issue.    Reg.  Gen.  3  Nev.  &,  P.  (k.  b.) 

39.  In  assumpsit  on  an  agreement  for  wages  as 
a  courier  for  five  months  certain,  at  five  guineas 
a  month,  and  in  case  of  discharge  before  that  period, 
to  pay  fifty  guineas,  and  the  expenses  of  return, 
assigning  a  double  breach,  the  dismissal  before 
the  expiration  of  the  five  months,  and  the  refusal 
to  pay  the  fifty  guineas,  or  any  sum  for  expenses ; 
there  was  also  a  count  for  wages  generally  ;  pleas, 
first,  except  as  to  2H.,  that  the  defendant  wrong- 
folly  quitted  the  service ;  2dly,  as  to  the  first 
count,  except  as  to  21/.,  dismisssJ  for  improper  con- 
duct 3dly.  As  to  the  second  count,  except  as 
to  211.,  nan  assumpsit ;  and  4thly,  payment  into 
court  on  the  whole  declaration ;  replications,  join- 
ing issue  on  the  first  and  thira  pleas;  to  the 
second,  de  injuria,  and  to  the  fourth,  damages 
ultra  ;  at  the  trial,  the  jury  found  for  the  plaintiff 
on  the  first  and  fourth  issues,  and  for  the  defend- 
ant on  the  others ;  held,  that  there  being  no  com- 
plete answer  to  the  first  issue,  without  referring 
to  the  plea  of  payment  into  court,  which  was  to 
be  taken  to  go  to  the  whole  declaration,  and  ad- 
mitted the  contnet  as  stated  In  the  fint  count, 


and  that  something  was  due  on  both  the  causes 
of  action  therein  stated,  on  each  of  which  an  un- 
defined portion,  not  exceeding  21/.,  was  left  un- 
answered, the  plaintiff  was  entitled  to  nominal 
damages.  Fidcner  v.  Aide,  3  Mees.  6l  W.  (ex.) 
486. 

40.  Whether  there  be  a  plea  of  payment  or  not, 
each  issue  must  be  tried  by  itself,     lb. 

41.  Under  the  new  rules,  a  plea  is  to  be  taken 
as  pleaded  to  the  whole  action,  unless  otherwise 
expressed ;  and  where  pleaded  to  part,  or  only 
against  the  further  maintenance  of  the  action  as 
to  that  part,  the  plea  must  commence  in  the  form 
prescribed.  Upward  v.  Knight,  5  Bing.  N.  S. 
(c.  p.)  338. 

42.  In  trespass  and  false  imprisonment  on  a 
charge  of  felony,  several  pleas,  alleging  distinct 
offences,  in  justification  of  the  apprehension  of 
the  plaintiff,  allowed,  the  plaintifit  refusing  to  al- 
low the  subject  matters  of  them  to  be  given  in 
evidence  under  the  plea  first  pleaded.  Currie  v. 
Almond,  5  Bing.  N.  S.  (c.  p.)  224. 

43.  In  assumpsit,  with  counts  on  four  causes 
of  action,  and  one  promise  and  breach  laid,  plea, 
as  to  jC— - — ,  parcel  of  the  said  several  sums,  Ac, 
payment  and  acceptance  in  satisfaction  of  all  the 
damages,  by  reason  of  the  non-performance  of 
the  said  promises  as  to  the  said  sum  of  jS  , 
held,  on  special  demurrer,  good,  although  not 
stating  to  which  cause  of  action  it  applied. 
Mitchell  V.  Townley,  7  Ad.  &,  Kll.  (<i.  b.)  164. 

44.  So,  where  there  were  several  counts  in  os- 
sumpsit,  the  damages  in  each  being  £100,  and  the 

defendant  pleaded  as  to  £ ,  parcel,  &c.,  a 

set-off  on  a  bill  of  exchange ;  held  good,  although 
not  pleaded  as  to  any  particular  count  Noel  v. 
Davis,  4  Mees.  &  W.  (ex.)  136 ;  and  7  Dowl.  (p. 
c.)  48. 

45.  The  plea  of  payment  into  court  on  indtih. 
counts,  for  use  and  occupation  for  goods  and  fix- 
tures, and  the  money  counts,  held  to  amount  te 
an  admission  only  that  so  much  was  due  on  some 
one  of  the  contracts  stated  to  the  extent  paid  in ; 
and  if  the  plaintiff  fails  to  esteblish  the  contract 
alleged,  he  cannot  recover ;  but  such  a  plea  to  a 
special  count  would  admit  the  contract  therein 
stated.  Kingham  v.  Robins,  7  Dowl.  (p.  c.)  352 ; 
5  Mees.  A  W.  (ex.)  M  ;  questioning  Walker  v, 
Rawson,  5  C.  &  P.  486 ;  and  Merger  «.  Smith, 
4  B.  &  Ad.  673 

46.  In  assumpsit,  by  the  assignees  of  an  insol- 
vent, plea,  alleging  an  accounting  before  the  in- 
solvency, and  allowance  of  a  debt  due  to  the 
defendant,  and  se^off  and  discharge  of  the  pre 
mises  in  the  declaration  mentioned,  replicatiOD, 
that  the  insolvent  was  not  indebted  to  the  defen- 
dant mode  et  forma;  held,  that  on  demurrer  the 
replication  was  good,  and  that  it  was  not  neces- 
sary also  to  traverse  the  accounting  alleged  in  the 
plea.  Learmouth  v.  Grandine,  4  Mees.  &.  W. 
(EX.)  658. 

47.  In  assumpsit  for  commission  and  wages, 
on  a  contract  for  services  on  a  voyage  to  B.,  and 
not  to  assist  in  the  trading  of  an^  other  ship,  and 
in  default,  to  forfeit  such  commission,  A.C.,  plea 
alleging  a  fraudulent  agreement  by  the  plaintiff 


2854 


[PLEADING  (COM.  LAW)] 


with  others  to  act  as  a^nt  for  them,  and  to  aid 
and  astiist  in  the  trading  of  their  8hi{Hi  in  the  like 
cargoes,  replication  de  injuria ;  held,  that  the 
plea  was  bad,  showing  only  an  intended  breach 
of  the  agreement,  and  the  acts  of  assisting  others, 
as  alleged,  not  being  such  as  were  specified  iu 
the  agreement ;  if  the  plea  had  been  good,  the 
replication  would  have  been  also  good,  such  plea 
bemg  only  matter  of  excuse  for  non- performance 
of  the  contract.  Hemingway  v.  Hamilton,  4 
Mees.  &  W.  (ex.)  115. 

48.  In  debt,  with  several  counts,  plea,  that  the 
defendant  had  paid  to  the  plaintiff  several  sums, 
in  the  whole  amounting  to  a  large  sum,  to  wit, 
the  amount  of  the  several  debts  in  the  declaration 
alleged  \  held,  that  the  plaintiff  need  not  new 
assign,  but  was  entitled  to  recover  the  balance 
between  amount  of  debt  proved  and  payment 
made.  Freeman  v.  Crofts,  4  Mees.  &,  W.  (ex.) 
1 ;  and  6  Dowl.  (p.  c.)  698. 

49.  Plea,  that  after  the  debt  accrued,  and  be- 
fore the  action  was  commenced,  the  plaintiff  be- 
came a  bankrupt ;  held,  an  issuable  plea.  Willis 
o.  Uallett,  5  Bmg.  N.  S.  (c.  p.)  465. 

50.  Where,  in  debt  for  iCl50,  on  three  counts 
for  jC50  each,  plea  actio  non^  because  the  defen- 
dant had  paid  various  sums  amounting  to  £50 ; 
held,  only  demurrable,  and  that  it  wos  irregular 
to  sign  judgment  of  nil  dicit  as  to  the  part  not 
answered  by  the  plea.  Wood  v.  Farr,  5  ioing.  N. 
8.  (c.  p.)  247;  and  7  Dowl.  (p.  c.)  263. 

51.  in  debt  for  goods  sold,  <&c.,  plea  as  to  all 
except  3t3f .  6<2.,  never  indebted,  and  as  to  the  resi- 
due, the  Court  of  Requests  Act ;  held,  that  the 
plea  was  not  bad,  as  going  to  the  whole  declara- 
tion, but  that  as  to  the  issue  raised  upon  the  first 
part,  not  being  immaterial,  and  not  being  one 
which  could  m  traversed,  was  bad  ;  the  correct 
and  usual  form  is,  that  the  plaintiff  was  not  in- 
debted in  any  sums  amounting  to  40«.,  or  to  that 
amount.  Burroughs  v.  Hodgson,  1  Perr.  &,  Da  v. 
{a.  B  )  328. 

52.  In  debt  for  work,  &c.,  plea,  tliat  the  defen- 
dant was  indebted  in  a  certain  sum  for  work,  &c., 
and  an  agreement  to  do  further  work,  and  to  take 
out  the  amount  of  both,  partly  in  malt  and  partiv 
in  beer,  and  averring  that  he  was  ready  and  wil- 
ling, &c. ;  held  bad,  as  with  respect  to  the  pre- 
Tious  debt  amounting  to  accord  without  satinac- 
tion,  and  as  to  the  subsequent  work,  to  the  gene- 
ral issue.    Collingbourne  v»  Mantell,  7  Oowi.  (p. 

c.)  5ia 

53.  Plea,  in  debt  for  work,  Jtc ,  except  as  to 
£15,  «im^.  indeb.y  and  as  to  that  sum,  actio  non^ 
and  a  lender  in  the  usual  form,  held  good.  Wil- 
lis e.  Prudht,  7  Dowl  (p.  c.)  460. 

54.  Where,  in  case  by  the  owner  of  goods 
against  the  shipowner,  for  loss  by  unskilful 
loading  them,  and  also  for  contribution,  it  ap- 
peared that  it  had  been  agreed  merely  to  try  the 
question  as  to  a  particular  custom  of  loading 
such  goods,  and  the  defendant  having,  by  plead- 
ing a  set-off,  endeavored  to  snap  a  verdict,  the 
court  set  aside  the  plea,  on  payment  of  the 
amount  claimed  by  it  into  court.  Grould  r. 
Oliver,  4  Bing.  N.  S.  (c.  p.)  676;  and  6  So. 
684. 


55.  In  case  against  a  tenant  for  carrying  away 

hay  off  tlie  farm,  without  bringing  back  manure, 
in  an  untenantable  manner,  and  contrary  to  the 
custom  of  the  country,  plea,  no  such  custom ; 
held  good  on  demurrer.  Hartley  v.  Burkitt,  4 
Bing.  rf .  S.  (c.  p.)  687 ;  and  6  Sc.  497. 

56.  Plea,  in  trover  for  a  bill,  that  the  plaintiff 
indorsed  it  in  blank,  and  that  it  came  into  the 
hands  of  a  third  party,  who  deposited  it  with  the 
defendant  as  a  security  for  a  debt,  and  that  the 
defendant  accepted  '  such  deposit,  believing  that 
the  party  had  authority  so  to  do,  replication, 
that  the  defendant  well  knew  that  the  party 
had  no  authority  to  pledge,  &.c. ;  held  good,  as 
traversing  the  material  allegation  of  the  plea,  it 
nowhere  appearing  on  the  plea  that  he  had  any 
title  to  the  bill.  Hilton  v.  Swan,  7  Dowl.  (p.  c) 
417. 

57.  A  count  alleging  a  delivery  by  Y.  of  a 
horse  to  the  defendiuit,  to  be  kept  and  deliveied 
by  defendant  on  the  request  of  Y.,  on  satisfaction 
of  all  claims,  and  stating  a  request  by  Y.  to  de- 
fendant to  deliver  it  to  the  plaintiff,  and  who  paid 
all  claims,  alleging  that  the  defendant  wrongfully 
detained  the  horse  ;  held  bad^  in  arrest  of  judg- 
ment, the  duty  arising  to  deliver  to  Y.  only  ;  and 
the  refusal  not  being  a  conversion  in  itself^  al- 
though evidence  of  it,  it  could  not  be  taken  ana 
count  in  trover.  Tollit  r.  Shenstone,  7  Dowl.  (p. 
c.)  457. 

58.  In  trover  by  assignees  of  a  bankrupt,  al- 
leging a  joint  conversion,  plea,  admitting  the 
property  in  the  plaintiffs  by  operation  of  law,  bat 
alleging  a  bona  fide  purchase  by  one  of  the  de- 
fendants, above  two  months  before  the  issuing  of 
the  ^t  without  notice  of  an  act  of  bankruptcy 
and  the  joint  conversion ;  held,  that  amounting 
to  a  confession  and  avoidance,  the  traverse  in  the 
pleaof  the  plaintiff 's  title  was  bad.  Peataonv. 
Rogers,  I  Perr.  &  Dav.  (q  b.)  302. 

59.  In  trespass  for  breaking  plaintiff's  close, 
and  issues  on  the  pleas,  of  freehold  of  the  defend- 
ant, and  ieave  and  license,  it  appearing  that  the 
premises  had  been  let  by  defendant  to  the  plain- 
tiff from  year  to  year,  from  16th  November;  held, 
that  an  amemcnt  to  five  up  the  possession 
whenever  me  plaintiff  should  require,  could  not 
be  gone  into,  on  replication  to  a  plea  of  demise 
by  the  plaintiff,  but  should  have  been  lejoin- 
ed,  nor,  as  being  part  of  the  original  bargain, 
could  it  be  received  on  the  plea  of  leave  and  li- 
cence. Tomktns  v  Lawrance,  8  C.  dEt  P.  (h.  p.) 
729. 

60.  In  case  for  wrongfully  dischorgtng  from 
the  defendant's  service,  plea,  that  the  psrtv  q1>- 
stinately  refused  to  work,  wherefore  he  aischarg«- 
ed,  Slc.  ;  held  bad,  as  not  showing  a  disobedience 
of  reasonable  commands  of  the  defendant.  Jac- 
qoot  V.  Bourra,  7  Dowl.  (p.  c.)  348. 

61.  Pleas  as  to  £ ,  part,  &c.,  payment  and 

acceptance  afler  action  commenced,  in  satiafoc- 
tion  of  the  debt  and  all  damages^  wherefore  plain- 
tiff ought  not  further  to  maintain,  &c. ;  held 
good.    Corbett  v.  Swinburne,  3  Nev.  dk  P.  (q.  b.) 

62.  In  a  penal  action  to  recover  the  dooble 
value  of  goods  removed  to  avoid  a  distnoi ;  liald. 


[PLEADING  (COM.  LAW)] 


3855 


that  the  plea  of  the  general  iwae  (tul  debet)  put 
all  the  facts  in  issue,  and  that  the  new  rales  did 
not  apply  to  penal  actions  ;  held,  also,  that  the 
81  Jac.  1,  c.  4,  s.  4,  is  applicable  to  subsequent 
statutes.  Jones  v.  Williams,  4  Mees.  &  W.  (ax.) 
375  ;  and  7  Dowl.  (p.  c.)  207. 

63.  Semb.,  the  general  replication  de  injuria  is 
good  in  deift»      Hebden  v.  Ruel,  6  So.  (c.  p.)  442. 

64.  Where  the  defendant  pleaded  payment  of 
a  sum,  and  acceptance  in  full  satisfaction,  to 
which  the  plaintifi'  replied  that  he  did  not  accept 
the  said  sum  in  full  satisfaction,  &.c. ;  held  to  put 
in  issue  tlie  payment  as  well  as  the  acceptance. 
Ridley  r.  Tindall,  7  Ad.  &,  £11.  (q.   b.)  134. 

65.  Where  in  assumpsil  for  a  salary  for  ser- 
vices, the  defendant  pleaded  payment  of  a  sum  in- 
to court ;  held,  that  he  could  not  give  in  evidence, 
in  mitigation,  circumstances  of  misconduct,  which 
might  have  been  pleaded  in  bar.  Speck  v.  Phil- 
lips, 7  Dowl.  (p.  c.)  470. 

66.  Where  there  is  a  special  demcrrer  to  the 
whole  declaration,  and  one  count  or  breach  is 
good,  if  the  demurrer  be  too  large,  the  plaintiff  is 
entitled  to  judgment  on  the  whole  declaration ; 
and  if  the  bad  count  or  breach  is  good  afler  judg- 
ment, he  may  recover  by  entering  a  rtolle  pros.^ 
If  bad,  or  having  the  damages  separately  assessed 
and  entering  a  remittitur  damna.  Boy  dell  v. 
Jones,  4  Mees.  Sl  W.  (ex.)  451 ;  and  7  Dowl.  (p. 
c.)  810 ;  correcting  Ferguson  v.  Mitchell,  2  Cr. 
M.  &  R.  692. 

And  see  Accourd  ;  Injunction  ;  Tithes. 


«  \Q\  RXPLICATIOR. 

RenlicatioQ  to  a  plea  of  coverture  of  the  plain- 
tiff, tAather  husband  had  been  absent  and  not 
been  beard  of  for  seven  years;  held  bad,  as  stat- 
ing evidence  only  for  the  presumption  of  his  non- 
existence. Lake  v.  Ruffle,  6  Nev.  6l  M.  (k.  b.) 
684. 


[D]    DeMUARER — REPLEADER. 

1.  Where  the  demurrer  is  too  large,  held  that 
the  plaintiff  is  entitled  to  judgment  generdlly, 
and  may  enter  a  nolle  pros,  as  to  any  count  which 
may  be  bad,  to  prevent  error.  Wainwright  v. 
Johnson,  5  Dowl.^(p.  c.)  317. 

2.  Where  the  plea  tendered  an  issue,  held  that 
an  informal  conclusion  could  on\j  be  taken  ad- 
vantage of  by  special  demurrer.  Smith  v.  Smith, 
5  Dowl.  (p.  c.)  b4. 

3.  in  an  action  by  indorsee  against  drawer ; 
plea,  that  one  I.  £.  made  and  indorsed  the  bills 
in  defendant's  name,  without  authority  ;  replica- 
tion, that  the  bills  were  not  made  or  indorsed  by 
i.  £.,  to  which  the  defendant  demurred ;  held, 
that  the  plaintiff  could  not  treat  the  demurrer  as 
a  nullity,  and  sign  judgment  as  for  want  of  plea. 
"Walker  v.  Catley,  5  Dowl.  (p.  c.)  592. 

4.  Wbeie  in  debt,  on  award,  the  plea,  not  con^ 


iessing  the  action,  raised  an  immaterial  issue, 
which  the  jury  found  for  the  defendant ;  held, 
that  the  proper  course  was  to  award  a  repleader, 
and  not  to  give  judgment  non  obst.  vered.  So, 
where  there  are  several  pleas  and  issues  taken, 
but  the  action  is  confessed  in  none,  if  one  be  im- 
material, the  court  may  award  a  repleader.  Plum- 
mer  v.  Lee,  2  Mees.  Hl  W.  (ex.)  495  ;  and  5  Dowl. 
(p.  c.)  755. 

5  Plea  of  "  never  did  promise,"  in  debt^  held  a 
nullity.     Kingv.  Myers,  5  Dowl   (p.  c.)  667. 

6.  Where  on  a  demurrer  to  the  whole  declara- 
tion, one  count  is  ffo^d,  the  plaintiff  is  entitled  to 
judgment  generally  ;  and  semb.^  the  count  on  an 
account  stated,  need  not  aver  the  time  when  it 
was  stated.  Webb  v.  fiaker,  3  Nev.  &  P.  (<i.  b.) 
87. 

7.  Where  the  declaration  by  indorsee  against 
drawer,  containing  one  count  on  the  note,  and 
one  on  an  account  stated,  alleged  only  one  prom- 
ise to  pay  the  said  several  sums,  a  demurrer,  on 
the  ground  of  no  promise  to  pay  the  note,  set 
aside  as  frivolous.  Chevers  v.  Parkington,  & 
Dowl.  (p.  c.)  75. 

And  see  Action;  Action  on  the  Case;  Arrest ; 
Assumpsit;  Dill;  Bond;  Carrier;  Insurance ;^ 
Sheriff;  Trespass, 


[£]  Ahendmeict. 

1.  Where  from  the  omission  of  the  similiter^  no 
issue  was  joined,  the  court  held  that  they  would 
consider  it  a  misprision  of  the  clerk,  and  allow  the 
record  to  be  amended.  Siboni  v.  Kirkman,  & 
Dowl.  (p.  c.)  98;  and  3  Mees.  &  W.  (ex.)  46. 

2.  Where  the  declaration  on  a  charter  party,, 
with  memoranda  indorsed  thereon,  stated  a  fur- 
ther promise,  on  the  part  of  the  defendant,  to  have 
an  agent  at  C ;  helcf,  that  if  such  promise  weie 
beyond,  and  in  addition  to  the  charter  party,  th» 
variance  was  fatal,  but  being  merely  a  torntal 
statement  of  the  legal  effect  of  the  instrument^ 
although  mistakenly,  that  the  added  promise 
might  oe  struck  out,  or  amended  by  stating  the 
legal  eflfect  truly.  Whitwill  v.  Scheer,  3  Nev« 
&  P.  (q.  B.)  398. 

• 

3.  Where  the  issue  contained  an  **  Ac.*'  after 
the  replication,  and  no  similiter  was  added,  but 
it  was  properly  added  on  the  nisi  prius  record  ; 
held,  that  there  was  sufficient  to  justify  the  pre- 
sumption of  a  perfect  record,  or  that  the  party 
would  make  a  perfect  one,  and  rule  for  arresting 
the  judgment  discharged  ;  and  semb.^  the  rule  oT 
Trin.  2'Will.  4,  s.  65,  was  intended  only  to  apply 
to  cases  tried  in  term.  Brook  v.  Finch,  6  DowU 
(p.  c.)  313. 

And  see  Abatement;  Replevin, 


[F]  Variance. 

In  case  against  the  sheriff  for  a  false  return, 
the  declaration  being  dated  in  the  reign  of  ihe 
Queen,  alleged  the  judgment  in  the  reign  of  the 


2866         [PLEADING  (COM.  LAW)— PLEADING  (IN  EaUITY)] 


late  King,  as  appeared  by  the  record  **  still  re- 
maining in  the  said  court  of  onr  said  lord  the  late 
King;'  held,  that  there  being  such  a  record, 
there  was  no  variance.  Lewis  v.  Alcock,  6 
l)owl.  (p.  0.)  78;  and  3  Mees.  &  W.  (ex.)  188. 


PLEADING  (IN  EQUITY). 


[A]  Bills — parties — suppplemental — mul- 
tifariousness. 


[B]  Answers. 

[C]  Pleas. 

[D]    EXCEPTIOKS. 

[E]  Amendments. 


[A]  Bills — parties — supplemental — multi- 
fariousness. 

1.  Where  the  word  "  decree,'^  in  the  prayer  of 
process,  was  omitted  in  a  bill  of  discovery,  held 
that  the  word  ^* order'*  was  to  be  considered  to 
mean  such  order  as  waa  consistent  with  the  gen- 
eral scope  of  the  case  made  by  the  bill.  Baker  r. 
Bramah,  7  Sim.  (ch.)  17. 

2.  Misjoindure  of  a  merely  formal  party,  the 
objection  not  being  raised  by  tne  answer,  or  made 
until  afler  argument  on  the  merits,  not  allowed  to 
prevail.    RaSety  v.  King,  1  K.  (ch.)  619. 

3.  Where  the  devisees  and  legatees,  charged 
on  estates  in  mortgage,  filed  a  bill  for  an  adminis- 
tration account  and  redemption  against  the  ex- 
ecutors and  mortgagee,  charging  collusion  ;  held 
multifarious,  as  seeking  something  to  be  done 
with  which  the  mortgagee  had  no  concern,  and  a 
demurrer  allowed  ;  such  a  bill  could  only  be  sus- 
tained when  confined  to  the  payment  of  the  debt 
due  to  the  estate.  Pearse  v.  Hewitt,  7  Sim.  (ch.) 
471. 

4.  Where  the  defendant,  an  infant,  attained  his 
age  subsequently  to  the  filing  of  the  bill,  held 
that  the  plaintiff  was  entitled  to  file  a  supplement- 
al bill,  in  order  to  get  a^  answer  as  to  material 
facts,  which  he  couui  not  obtain  from  the  answer 
by  guardian  to  the  original  one.  Waterford,  Mar- 
quis of,  V.  Knight,  9  Bli.  N.  S.  (p.)  307. 

5.  Where  the  intestate  had  entered  into  con- 
tracts for  the  sale  of  lands,  which,  at  the  time  of 
his  death,  were  valid  but  incomplete,  and  the  ad- 
ministrator and  heirs-at-Iaw  had  agreed  that  the 
proceeds  should  be  deemed  and  divisible  as  per- 
sonal property  ;  in  a  suit  by  the  other  next  of  tin, 
alleging  the  receipt  of  rents  and  proceeds  of 
timber  by  the  administrator,  and  seeking  to  have 
them  invested  ;  held,  on  demurrer,  that  the  pur- 
chasers, who  would  be  entitled  to  an  account  of 
them  when  settling  for  the  purchases,  were  ne- 
cessary parties,  and  that  the  bill  would  not  be 
multifarious  by  joining  them.  Lumaden  v.  Fra- 
■er,  1  Myl.  &  Or.  (ch.)  589. 

6.  Where  two  defendants  were  trostees  under 


one  deed,  and  another  under  another  deed,  and  all 
three  executors  of  a  will,  and  entitled  to  the  food 
as  to  which  the  defendants  were  all  accoonting 
parties ;  held,  that  an  objection  for  multifarious 
ness  could  not  be  supported,  on  the  ground  that 
the  defendants  were  not  all  parties  to  all  the  instro- 
nients,  in  respect  of  which  the  relief  was  prayed; 
and  demurrer  properly  overruled.  Campbell  v. 
Mackay,  1  Myl.  &  Cr.  (ch.)  603;  reviewing  the 
decisions  upon  the  subject  of  multifariousness. 

7.  Where  the  suit  related  to  the  wife's  separate 
property,  held  that  it  ought  not  to  be  by  her  and 
her  husband  as  co-plaintiis,  but  by  her  alone  by 
her  next  friend.      Sigel  v.  Phelps,  7  Sim.  (ch.) 

8.  Where  the  two  defendants  obtained  a  lease 
of  mines,  in  which  the  plaintiff  acquired  certain 
shares,  and  the  defendants  afterwards,  without 
his  knowledge,  sold  the  whole  interest,  receiving 
the  price  partly  in  money  and  partly  in  shares  in 
a  new  company  of  adventurers,  formed  by  the 
purchasers  ;  held,  that  the  plaintiff,  seeking  noth- 
ing as  against  the  new  adventurers,  was  not  bound 
to  make  them  parties  to  his  bill  a^rainst  the  de- 
fendants, with  reference  to  such  interest  as  re- 
mained in  them  ;  and  whether  the  plaintiff  should 
receive  compensation  in  money  or  shares  in  the 
new  concern  reserved  to  the  defendants.  Maie 
V.  Malachy,  1  Myl.  &  Cr.  (ch.)  550;  reversing 
the  judgment  below. 

9.  Where  a  purchaser  under  a  decree  confirm- 
ed, had  contracted  for  the  sale  of  his  lots,  and 
died,  his  heir  being  abroad,  the  court,  with  coa- 
sent  of  the  parties  in  the  cause,  allowed  the  party 
contracting  to  be  substituted  as  the  purchaser. 
Pearce  r.  Pearce,  7  Sim.  (ch.)  138. 

10.  Upon  bequests  of  a  reversionary*  interest  in 
stock,  after  the  death  of  testator's  wife,  by  A.  to 
B.,  and  by  B.  to  C.  and  C.  to  D.,  who  upon  the 
death  of  A.'s  wife  filed  a  bill  against  the  trustees 
to  have  it  transferred,  alleging  successive  assets 
to  the  bequests  by  the  executors  of  A.,  B.  and  C. ; 
held,  thai  they  were  not  necessary  parties.  Smith 
r.  Brooksbank,  7  Sim.  (ch.)  18. 

11.  Where  an  executor  had  become  liable,  by 
breach  of  trust,  to  make  good  legacies ;  held, 
that  the  suit  of  a  legatee  was  in  fact  a  creditor's 
suit,  and  that  it  could  only  be  maintained  on  be- 
half of  himself  and  all  other  parties  interested,  or 
by  making  those  persons  parties.  Alexander  v. 
MuUins,  S  Russ.  &  M.  (ch.)  568. 

12.  Where  A.,  the  widow  of  an  intestate  in  In- 
dia, who  died,  leaving  a  daughter  B.,  afterwards 
married  there,  and  had  a  son  C,  the  plaintiff,  and 
her  second  husband,  dying,  appointed  her  his  sole 
executrix,  and  she  took  out  administration  in 
£ngland  by  the  defendant,  as  her  attorney ;  dur- 
ing her  second  marriage  the  daughter  dying,  she 
orner  husband  possessed  themselves  of  the  estate 
of  the  first  husband ;  a  bill,  filed  by  the  son, 
claiming  a  moiety  of  his  half-sister's  share  of  her 
father's  property,  dismissed  for  want  of  joming 
A.  as  party  to  the  suit,  although  out  of  the  ju- 
risdiction, and  leave  to  amend  refused ;  as  the  bill 
could  be  shaped  in  no  way  to  obtain  anj  relief 
against  the  defendant,  as  representative  of  the 
seoond  husband,  ts  whatever  part  of  tJbe  estate 


[PLEADING  (IN  EaUITY)] 


2857 


had  come  to  hit  hands  during  the  corertare  had 
alto  paaaed  again  to  A.,  the  repregentative  of  the 
inteatate,  and  who,  if  within  the  iuriadiction, 
would  alone  be  liable.  Tjler  v.  Bell,  2  Mjl.  & 
Cr.  (cu.)  89;  and  1  K.  (ch.)  826. 

13.  An  estate  cannot  be  administered  in  the 
absence  of  the  personal  representative,  and  who 
must  obtain  his  right  to  represent  the  estate  from 
the  Ecclesiastical  Court  in  this  country.     lb. 

14.  A  party  seeking  to  obtain  the  benefit  of  an 
interest  accruing  by  intestacy,  roust  not  only 
make  the  personal  representative  a  party  to  the 
suit,  but  allege  that  there  is  a  surplus  after  pay- 
ment of  debts  and  charges  ;  held  also,  that  upon 
leave  to  amend  by  adding  parties,  all  such  mat- 
ters as  constitute  the  equity  against  such  new  par- 
ty may  be  charged ;  held,  also,  that  where  the 
amended  bill  puts  forward  a  new  case,  the  defen- 
dant may  meet  the  new  matter  either  by  demurrer 
or  plea.  Stephens  v.  Frost,  2  Tounge  (ex.  sq ) 
303. 

15.  Where  A.,  one  of  a  firm,  was  engaged 
with  M.  in  a  joint  speculation,  and  deposited 
deeds  with  the  firm  as  a  security  for  money  bor- 
rowed, and  aAerwards  died  intestate,  leaving  an 
infant  heir ;  on  a  bill  filed  by  tlie  surviving  part- 
ners, affamst  the  heir  and  M.  for  a  sale  of  the 
estate,  held,  that  the  personal  representative  of 
A.  ought  to  have  been  a  party  ;  held,  also,  that 
on  a  decree  for  sale,  in  case  of  an  equitable  mort- 
gage, the  infant  heir  ought  not  to  be  allowed  the 
six  months  to  show  caui<e  against  the  decree  on 
coming  of  agre ;  aliter  in  case  of  a  decree  of  fore- 
closure. Scholetiuld  v.  Heafield,  7  Sim.  (lh.) 
667. 

16.  Upon  a  bill  for  specific  performance  of  a 
contract  for  sale  of  the  legal  and  equitable  estate 
from  the  supposed  owner  of  the  equity  of  re- 
demption ;  held,  that  neither  a  mortgagee,  nor  a 
person  claiming  an  interest  in  the  equity,  no  par- 
ties to  the  contract,  were  necessary  parties  to  the 
suit ;  and  that  the  circumstance  of  the  mortgagee 
not  objecting  to  being  a  party,  but  requiring  the 
sanction  of  the  person  so  claiming  before  joming 
in  the  conveyance,  did  not  make  such  person  a 
necessary  party.  Tasker  v.  Small,  3  Myl.  ik  Cr. 
(CM.)  63. 

17.  Where  the  plaintiff  agreed  to  sell  an  estate 
W.  to  B.,  upon  an  agreement  that  B.  should 
mortgage  it,  with  another  estate  of  his  own,  to 
the  plamtiff,  and  the  conveyances  were  executed, 
but  a  deed  of  feoffment  left  in  the  possession  of 
B.,  who  subsequently  mortgaged  the  W.  estate 
to  the  defendant ;  held,  that  B.  was  a  necessary 
party  to  a  suit  for  foreclosure  of  the  latter  estate ; 
semo.j  the  defence  of  purchase  for  valuable  con- 
sideration, without  notice,  would  be  available  as 
a  defence  against  a  party  relying  on  mere  legal 
title.  Pnyne  r.  Compton,  2  Tounge  <&  C.  (ex. 
£q.)  457. 

18.  In  a  creditor's  suit  instituted  under  3  &  4 
Will  4,  c.  104,  the  bill  not  praying  the  will  to  be 
established,  held,  that  the  heir  was  not  a  necessa- 
ry party.     Weeks r.  £van8,7  Sim.  (ch.)  546. 

19.  Where  a  bill  of  discovery  in  aid  of  a  de- 
fence to  an  action  at  law,  contains  a  prayer  for 


relief,  in  addition  to  the  ordinary  prayer,  the  de- 
fendant is  not  bound  to  give  any  further  discove- 
ry than  that  which  is  incidental  to  the  relief 
sought  by  the  bill.  Desborough  v.  Corlewis,  3 
Younge  &.  C.  (ex.  x(i.)  175. 

20.  Where  the  defendant,  an  infant,  put  in  his 
answer  by  guardian,  hot  did  not  make  the  requi- 
red discovery  :  afler  his  coming  of  age,  held,  that 
the  plaintiff  might  file  a  supplemental  bill,  alleg- 
ing the  existence  of  new  facts  and  praying  disco- 
very and  relief  Waterford,  Marquis,  v.  knitrht. 
3Cri.  &Fi  (p.)  270. 

21 .  Where  a  bill  was  filed  by  the  trustees  of  a 
life  assurance  company,  to  have  a  policy  deliver- 
ed up  to  be  cancelled  on  the  ground  of  fraud  ; 
held,  that  having  no  interest  in  the  profits  of  the 
company,  and  lM*ing  liable  to  the  costs  of  an  ac- 
tion on  the  policy,  they  were  properly  made  the 
sole  plaintiffs,  and  the  shareholders  co-defendants ; 
the  bill  being  filed  against  the  shareholders,  who 
were  very  numerous,  and  alleging  that  the  plain- 
tiffs did  not  know,  and  coulcT  not  ascertain  the 
names  of  all,  it  was  unnecessary  to  make  them 
parties :  the  policy  not  being  void  on  the  face  of 
it,  held  that  the  suit  was  properly  brought  in  the 
lifetime  of  the  assured,  and  gave  the  plaintiffs  a 
better  equity  than  if  they  had  waited  until  the 
claims  arose  on  the  death  of  the  party.  Fenn  v. 
Craig,  3  Tounge  d^  C.  (ex.  cq.)  216. 

22.  Where  funds  were  distinctly  appropriated 
by  a  testator,  held  that  the  parties  might  sue  re- 
spectively for  their  shares,  without  making  the 
others  entitled  parties  to  the  suit.  Hutchinson  r. 
Townsend,  2  Keene,  (ch.)  G75. 

23.  A  legacy  being  given  to  two,  in  equal  moie- 
ties, each  held  entitled  to  file  a  bill  for  his  moiety, 
without  making  the  other  a  party.  Hughson  v. 
Cookson,  3  Tounge  &  C.   (ex.  e^.)  578. 

24.  Where  the  suit  is  for  the  recovery  of  the 
wife  s  exclusive  property,  the  husband  ought  not 
to  be  joined  as  a  co-plaintiff.  Owden  v.  Camp- 
bell, 8  Sim.  (cH.)  554. 

25.  Where  the  husband  files  a  bill  to  recover 
property  of  the  wife,  he  must  make  her  a  party, 
although  the  amount  be  under  £200;  but  where 
the  record  was  amended,  by  simply  joining  her  as 
a  co-plaintiff,  held  that  it  was  a  new  record,  and 
no  issue  being  joined  upon  it,  the  cause  could  not 
be  heard :  and  where  the  court  sees  that  the 
cause  cannot  be  brought  to  a  hearing,  through 
defect  of  parties,  the  party  through  wkose  fault 
the  defect  has  occurred,  will  be  liable  to  costs. 
Bailey  v.  Dennett,  3  Tounge  &  C.  (ex.  iq.)  459. 

26.  Where  the  suit  for  tithes  was  instituted  by 
the  vicar  and  his  lessee,  and  the  answer  admitted 
the  demise  to  the  latter,  the  court,  in  the  absence 
of  any  evidence,  would  constrne  the  term,  **  de- 
mised," as  by  parol,  as  giving  eflfect  to  the  bill, 
and  in  which  case  the  vicar  was  rightly  joined  as 
a  co-plaintiff.    Foot  v.  Bessant,  3  Tounge  &,  C. 

(EX.    E(l.)320. 

27.  Where  the  widow  as  administratrix  claimed 
for  arrears  of  an  annuity  due  to  her  late  husband, 
held  that  she  might  be  a  party  in  respect  of  her 
interest  in  havinsr  the  accounts  taken.  Smith  v. 
Farr,  3  Tounge  &  C.  (ex.  £<i.)  328. 


1 


53658 


[PLEADING  (IN  EQUITY)] 


28.  Where  one  of  two  tenants  in  common  hav- 
ing brought  an  ejectment,  but  discovered  that  a 
term  was  outstanding,  filed  a  bill  praying  for  ac- 
counts, and  the  delivery  np  of  title-deeds,  held 
that  the  other  tenant  was  a  necessary  party,  al- 
though out  of  the  jurisdiction,  but  not  the  trustee 
of  the  outstanding  term.  Brookes  v.  Burt,  1 
Beav.  (CH.)  lOd 

2D.  Where  upon  an  agreement  for  separation 
the  husband  agreed  to  pay  an  annuity,  and  assign- 
ed property  to  a  trustee  to  secure  it,  but  the  hus- 
band paid  it  without  the  interference  of  the  trus- 
tee, and  the  wife  afterwards  borrowed  money  on 
the  faith  of  the  annuity,  and  the  lender  aflerwards 
£led  a  bill  against  the  husband  and  wife  for  pay- 
ment of  his  debt  out  of  the  annuity ;  held  that  the 
truatee  was  a  necessary  party,  and  that  a  suit  by 
the  husband  against  the  trustee  and  the  lender 
was  not  sustainable,  either  as  a  bill  quia  timet,  or 
-of  interpleader,  the  original  suit  not  being  sus- 
tainable in  its  existing  frame.  Palmer  v.  Fraser, 
3  Younge  &  C.  (ki.  e<i  )  491. 

30.  Where  a  ieme  covert  married  the  testator, 
and  be  gave  all  his  real  and  personal  estate  ^  to 
his  dear  wife  CD.,''  and  appointed  her  sole  ex- 
ecutrix, and  she  after  his  death  contracted  a  third 
marriage  ;  on  a  bill  to  set  aside  the  will,  and  for 
an  account,  held  that  the  first  husband  was  a 
necessary  party,  although  he  had  never  interfered, 
but  not  the  last,  although  he  had  possessed  him- 
self of  part  of  the  estate.  M'Kenna  r.  Everitt, 
1  Beav.  (cH.)  134. 

31.  Where  a  bill  for  payment  of  an  annuitv 
charged  upon  real  estate  sought  a  discovery  of  all 
prior  incumbrances ;  held,  that  a  plea  of  want  of 
such  parties  could  not  be  sustained ;  held  also, 
that  in  order  to  jud^e  of  the  validity  of  a  second 
plea,  the  court  will  consider  the  original  and 
Amended  bill  as  one  record,  and  look  at  the  whole 
of  the  proceedings :  and  where  the  plea  alleged 
that  an  incumbrance  was  vested  in  a  party,  it 
•ought  to  be  alleged  to  be  so  at  the  time  of  the  bill 
being  filed.  Rawlins  v,  Dalton,  3  Tounge  (k.  Cr. 
<xx.  E^.)  447. 

32.  Where  in  a  suit  for  the  administration  of 
an  estate,  one  of  the  executors  had  become  bank- 
rupt, but  his  official  assignee  had  not  been  made 
A  party,  the  Court  allowed  the  plaintiff  to  amend 
by  adding  parties ;  and  semble,  under  such  an  or- 
der be  might  file  a  supplemental  bill.  Wood  v. 
Wood,  3  Younge  &  Cr.  (ex.  Eq.)  580. 

33.  Where  the  original  bill  was  filed  by  three 
alleged  to  have  an  interest  in  tlie  account  sought, 
one  of  them  afterwards  mortgaged  his  interest, 
and  became  insolvent,  and  a  supplemental  bill 
was  filed  by  the  other  two  original  parties  and 
the  assignees  of  the  third  against  the  mortgagee ; 
held,  that  the  original  defendants,  the  accounting 
parties,  ought  to  have  been  made  parties  to  the 
■upplemental  suit,  as  entitled  to  know  to  what 
parties  they  were  accountable^  Feary  v,  Ste- 
phenson, 1  Beav.  (cu.)  42. 

34.  Where  after  answer  put  in  to  a  bill  origi- 
nally multifarious,  the  plaintiff  amended  his  bill, 
but  did  not  materially  vary  the  case,  and  retained 
a  great  portion  of  statement  which  had  been 
answered;  ^eld,  upon  a  demurrer  to  the  whole 


bill,  that  the  court  would  look  into  the  record  ta 
see  if  it  were  so,  and  that  being  admitted,  the 
answer  overruled  the  demurrer.  Ellioe  v.  Good- 
son,  3  Myl.  &  Cr.  (cb.)  653. 

35.  Where  one  of  several  defendants  demurred 
for  multifariousness,  which  was  allowed,  and  the 
other  defendants  then  pleaded  the  allowance  of 
the  demurrer ;  held,  that  the  plea  was  bad ;  al- 
though the  bill  might  be  multifarious  as  to  oae 
defendant,  it  did  not  follow  that  it  was  so  as  to 
the  rest.  Attorney  General  v.  Craddock,  8  Sim. 
(cH.)  467. 

36.  Where  parties  were  added  by  supplemental 
bill,  where  the  original  bill  'might  have  been 
amended,  the  original  defendants  not  being  made 

fiarties  to  the  supplemental  bill,  held  not  irregu- 
ar.     Lloyd  r.  Russell,  1  Coop.  (ch.  c.)  258. 

37.  Where  the  plaintiff  being  the  porcbaaer  of 
an  estate  conveyed  by  way  of  mortga^  on  trust, 
with  a  general  power  to  the  trustee,  by  sale  or 
mortgage,  to  pay  off  the  mortgage,  and  to  briag 
actions  in  the  name  of  the  mortgajfor,  and  to  ap- 
point other  trastees  in  his  atead ;  his  trustee  after- 
wards instituted  a  suit  in  the  name  of  plaintifi^ 
to  enforce  a  contract  with  a  purchaser  of  the  ei- 
tates,  and  subsequently  appointed  another  trustee, 
who  carried  on  the  suit,  plaintiff  having  entered 
into  an  arrangement  with  the  purchaser  withoot 
the  consent  of  the  new  trustee,  the  soil  was  sus- 
pended ;  held,  that  the  new  trustee  could  not  bv 
petition  interfere,  but  only  by  a  supplemental  biM, 
and  the  petition  dismissed  with  costs.  Pentlssd 
V.  Quarrington,  3  Myl.  &  Cr.  (ch.)  249. 

And  see  Baron  and  Feme  ;  Charity  ;  Iiuolvent; 
Patent;  Set-off;  Trustee. 


[B]  Answers. 

1.  Where  a  general  answer  includes  also  an 
answer  to  a  particular  charge,  it  is  aofficient 
Anon.    2  Younge,  (ex.  e^O  310. 

2.  Where  the  defendants  suing  on  a  bill,  given 
as  a  consideration  for  executing  a  deed  of  compo- 
sition, in  fraud  of  creditors,  were  alleged  by  the 
plaintiffs,  on  a  bill  for  an  injunction  and  discov- 
ery, to  be  merely  trustees  for  the  owners  of  the 
hill,  stating  certain  facts ;  held,  that  an  answer 
denying  only  those  facts,  and  omitting  to  deny 
the  general  charge  as  to  their  being  trustees,  was 
insufficient.  Culverhouse  v,  Alexander,  2  Yonngo 
(kx.  kq.)  218. 

3.  Where  the  plaintiff  amended  the  bill  before 
taking  exceptions ;  held,  that  after  a  demurrer  to 
part  of  the  bill  overruled,  he  was  not  precluded 
from  calling  for  an  answer  to  those  parts  of  the 
bill  covered  by  the  demurrer.  Taylor  v.  Bailey, 
3  Myl.  &  Cr.  (ch.)  677. 

4.  Where  the  bill  anticipating  a  legal  bar,  in  the 
shape  of  a  plea  of  the  statute  of  limitations,  in- 
troduced  a  charge  which,  if  true,  would  remove 
the  bar  by  preventing  the  operation  of  the  statute, 
and  the  defendant  pleaded  the  legal  bar,  but  did 
not  answer  the  charge  introduced  for  the  purpose 
of  meeting  and  displacing  the  contemplated  mt; 


r 


[PLEADING  (IN  EQUITY)— POOR] 


ple«  orerraled,  snpportinir  the  deeiBion  of  the 
Vice  Chftocellor,  and  leave  to  withdraw  the  an* 
awer  refused.  Foley  v.  Hiil,  3  Myl.  &  Cr.  (ch.) 
475. 

5.  On  a  bill  for  sattafaction  of  an  annoity  pay- 
able out  of  rents,  and  of  a  sum  secured  by  bond 
and  mortgage,  the  defendant  having  by  nis  an- 
swer set  up  equitable  circumstances  as  a  defence, 
and  examined  witnesses  in  support  of  it ;  held, 
that  it  was  too  late  to  set  up  an  objection  to  the 
jurisdiction,  on  the  sround  that  Uie  plaintiff's 
remedy  was  at  law.  Williama  v.  Down,  1  Coop. 
(cH.  c.)  360. 

6.  Where  the  plaintiff  sets  down  for  argument 
a  plea  of  a  suit  pendin£[  in  another  court  for  the 
same  matter,  the  plea  will  be  allowed,  unless  de- 
fective in  form ;  and  if  he  does  not  obtain  an  or- 
der to  refer  it  to  the  Master,  to  inquire  if  the  suit 
be  for  the  same  matter,  the  defendant  may,  after 
a  month,  move  to  dismiss  ;  but  upon  the  allow- 
ance of  the  plea  to  the  whole  bill,  the  cause  is 
not  out  of  court  until  a  subsequent  order  for  dis- 
missing it  obtained,  and  the  pioceedingii  are 
BobstantiaUy  the  same  in  the  Ezcheqoer.  iWle- 
ton  V.  Baxnea,  2  Keene,  (ch.)  632. 


[C]  Pleas. 

1.  In  a  suit  by  the  heir  of  a  devisee,  the  bill 
praying  discovery  and  restraint  of  setting  up  out- 
standing terms,  ckc. ;  plea,  that  there  were  none, 
and  also  a  demurrer  for  want  of  title ;  the  defend- 
ant also  demurred  ore  tenus,  for  want  of  equity ; 
held,  that  the  plea  was  good,  but  that  the  demur- 
rer on  record,  being  applicable  to  the  whole  bill, 
was  bad,  and  therefore  to  that  covered  by  the 
plea ;  a  defence  applicable  to  the  whole  bill  can- 
not stand  with  anotner  defence  applied  to  another 
distinct  part  of  the  bill ;  but  held  also,  that  such 
objection  did  not  apply  to  the  demurrer,  ere  tenusy 
which  the  court,  being  of  opinion  that  the  plain- 
tiff was  not  entitled  to  the  discovery  and  relief 
sought,  allowed.  Crouch  v.  Hickin,  1  K.  (cb.) 
385. 

2.  A  negative  plea,  professing  to  be  to  the 
whole  bill,  except  certain  parts,  travening  some 
of  those  jMrts,  ^Id  bad.  Denys  v.  Locock,  3 
Myl.  &  Cfr.  (chT)  206. 

3.  A  plea,  of  proceeding  pending  in  another 
court  of  competent  jurisdiction,  must  show  not 
only  that  the  same  issue  was  joined,  but  that  the 
subject  matter  was  the  same,  that  the  proceedings 
were  for  the  same  purpose,  and  that  the  result 
would  be  conclusive  to  bind  the  judgment  of  ev- 
ery other  court.  Behrens  «.  Sieveking,  2  Myl. 
dk  Cr.  (cH.)  602. 


4.  Where  a  bill  was  filed  for  the  delivering  up 
a  biU  on  which  an  action  had  been  brought  and 
Judgment  recovered,  demurrer  allowed.  Thral- 
foil  9.  Liunt,  7  Sim.  (ch.)  6ti7. 


[D]  ExcxPTions. 

1.  Where  upon  ezeeptions  taken  to  the  answer 
Vol.  IV.  74 


and  examination  on  two  ioterrogatoriesy  both 
which  the  Master  reported  sufficient,  and  one  gen- 
eral exception  was  taken  to  the  report ;  the  Vice- 
Chancellor,  holding  the  answer  and  examination 
insufficient  as  to  one,  overruled  the  exception,  but 
refused  to  make  any  order  as  to  costs,  but  gave 
the  plaintiff  the  deposit.  Ward  o.  Fitzhngn,  7 
Sim.  (cH.)  42. 

2.  A  party  excepting  to  a  separate  report  must 
do  so  by  fihng  exceptions  in  the  usual  manner, 
and  not  by  petition.  Drever  v.  Maudesley,  7 
Sim.  (cH.)  240. 


[£]  AMSiTDifxirrs. 

1.  Where  the  perty,  two  days  before  the  argu- 
ment, gave  notice  ofsubmiiting  to  a  demurrer  for 
want  of  parties,  held,  that  he  could  not  amend 
his  bill  without  a  speciid  application.  Lewth* 
waite  V.  Clarkaon,  2  Yonnge  (sx.  x«.)  370. 

2.  Where  the  demurrer  for  want  of  eonity,  if 
allowed,  the  bill  stands  dismiswd.    lb.  375. 

And  see  Ckarihf. 


POUCE. 

1.  Police  of  the  metropolis,  and  regulation  and 
extension  of  powen  of  courts  of  police,  2  db  3 
Vict.  c.  47.  71. 

2.  The  new  police  Bill  contemplates  the  separ- 
ation of  the  civil  and  criminal  iurisdiction  of  the 
magistrates,  and  that  some  of  the  present  number 
may  be  specially  appointed  to  the  former  doty  ui 
a  separate  court. 


POOR. 

[A]  SXTTLXMXMT. 

(a)  By  eMttUe^-parentage. 

(b)  RmUing  a  tenemmU. 
(o)        .^pprenUeetkip. 

(d)  JERrifi^  and  urmee, 

(e)  Serving  an  ofice. 

'  (f)        PaymaU  of  rates, 

[B]  RXMOVAL. 

[C]  RXLIXF. 

[D]  Rats. 

[£]   ApfXAL — ^VOTICX  OF. 
[F]   OVERSSERS. 


[A]  Settlehemt. 


'«. 


(a)  By 


1.  Where  the  pauper's  husband  devised  all 
real  and  perscmal  estate  to  trustees  to  sell,  and. 


[POOR] 


•ftar  i^jBWiit  of  hw  debts,  to  pay  the  reaidue  to 
the  pauper,  and  added,  "  and  1  gnre  and  bequeath 
the  same  money  and  premises  accordihgly  •,''  held, 
first,  that  she  had  an  equitable  estate  in  the  lands, 
as,  if  the  personalty  were  sufficient  to  pay  the 
debts,  she  would  be  entitled  to  a  coveyance,  and 
the  sessions  were  not  competent  to  go  into  the 
sufficiency  of  assets ;  and,  secondly,  that,  by  resi- 
dence in  Uie  parish  where  the  estate  was  situate, 
it  was  the  same  as  if  she  resided  on  the  estate,  the 
possession  of  the  trustees  not  being  adverse.    R. 

^  ^?!*^^^'  ^  N«^-  ^  M.  (K.  B.)  &2;  and  5  Ad. 
&  Ell.  800. 

2.  Where  the  pauper,  being  seised  of  freehold 
and  copyhold  lands  in  the  parish  wherein  he  resi- 
ded, conveyed  them  to  trnstees  for  sale  and  pay- 
ment of  hie  debts,  and  to  pay  any  surplus  to  him, 
with  covenants  to  surrender  the  lands,  and  before 
any  snrrender  to  a  purchaser,  he  resided  above 
40  days  withm  the  parish,  but  not  on  any  part  of 
the  property ;  held,  that  having  the  legal  estate 
he  ffained  a  settlement  by  such  residence.  R.  ». 
Ardleigh,  2  Nev.  &  P.  (k.  b.)  240. 

And  Me  R.  ».  Dontone,  1  East,  296. 
And  vid.  infra, 

3.  Where  the  sessions  book  contained  a  regu- 
lar caption,  stating  the  authority  of  the  sessions, 
and  the  order  set  out,  it  not  appearing  that  there 
was  ever  any  other  record,  held  admissible  to 
prove  the  quashing  of  the  order  of  removal  of  the 
pauper's  parent  to  the  appellant  parish  j  held,  also, 
that  such  an  adjudication  in  1824  was  prima  facie 
evidence  of  the  parent's  settlement  being  in  some 
other  parish ;  and  it  appearing  that  the  child  was 
^°«n{ancipated  in  1617,  the  court  must  presume 
that  be  cimtinned  so,  although  it  was  not  shown 
that  be  had  returned  to  his  parents'  family  whilst 
nnder  21.    R.  v.  Yeavely,  1  Perr.  4t  D.  {fi.  b.) 


entire  rent,  and  let  off  one,  the  one  he  oeeoined 
himself  with  the  land  being  of  the  value  of  £10) 
held  insufficient  to  gain  a  settlement.  R.  «. 
Berkswell,  1  Nev.  &  P.  (k  b.)  432. 

6.  Where  the  pauper  occupied  and  paid  lOf. 
rent,  held  that  his  settlement  was  not  invalidsttd 
by  the  fact  that  the  titlie,  amounting  to  6f.,  wh 
paid  by  the  landlord.  R.  v.  St  John's  Bediw*> 
dine,  3  Nev.  A.  P.  (<i.  b.)  302. 

And  see  R.  r.  Thurmaston,  1  B.  &  Ad.  731. 

6.  Under  the  words  **  separate  and  distinct,"  in 
6  Geo.  4,  c.  57,  the  tenant  must  be  uncoDoected 
with  any  other  person,  and  be  a  separate  oeea- 
pier;  held,  therefore,  that  no  settlement  wu 
gained  when  the  tenement  was  hired  by  distinct 
persons  as  joint  tenants,  although  the  quota  paid 
oy  the  pauper  amounted  to  102.  Reg.  e.  Caveit- 
wall,  1  Perr.  &,  Dav.  (q.  b.)  426. 


(b)  By  renting  a  UntmmU* 

1.  Where  a  house  consisted  of  three  floors,  and 
the  access  to  each  was  by  separate  outer  doors ; 
held,  that  the  occupier  of  one  floor  had  a  distinct 
tenement  within  the  statute.  R.  «.  Usworth  and 
Biddick,  5  Ad.  «t  Ell,  (k,  b.)  261. 

2.  Where  the  pauper  hired  a  granary,  consisting 
of  an  entire  floor  above  another,  but  having  no 
communication  with  it,  and  only  entered  exter- 
nally by  a  ladder  from  the  ground ;  held  not  to 
be  a  separate  and  distinct  tenement  to  confier  a 
settlement  R.  ».  Henley-upon-Tbames,  1  Nev. 
&  P.  (K.  B.)  445. 

3.  Where  an  agreement  throughout  had  refer- 
ence to  wages  and  service,  and  tlie  sessions  had 
found  that  the  occupation  of  a  cottage  was  in  the 
character  of  servant  and  not  of  tenant,  the  court 
refused  to  interfere  with  their  decision.  R.  v. 
Snape,  1  Nev.  &  P.  (k.  b.)  429. 

4.  Upon  the  construction  of  1  Will.  4,  c.  18, 
the  subject-matter  which  forms  the  tenement 
must  be  oeenpted ;  where,  therefore,  the  pauper 
hired  two  oottages  and  three  acres  of  land  at  an 


(c)  By  Apprmticeghip, 

1.  Where  the  binding  was  within  a  local  iurii- 
dictton,  but  over  which  the  county  justices  had  a 
concurrent  one,  an  order  of  rilowance  by  two 
county  justices  only  held  sufficient ;  and  the 
court  will  presume  notice  to  have  been  duly  pro?- 
ed  before  them,  without  which  they  would  cot 
have  nroperly  allowed  the  indentures.  R.  v.  WA- 
nev,  6  Nev.  A,  M.  (k.  b.)  552 ;  and  5  Ad.  &  EIL 

2.  The  indenture  is  not  made  void  by  hmg 
antedated,  the  8  Anne,  c.  9,  s.  35,  imposinga 
penalty  only,  and  not  including  Bach  among  wb 
cases  in  which  the  Act  declares  them  void ;  and 
the  notice  required  to  be  printed  at  the  ibot  by  5 
Geo.  3,  c.  46,  s.  19,  does  not  of  itself  operate  m 
an  enactment  rendering  them  void  R.  v.  Hi^ 
rington,  6  Nev.  St  M.  (k.  b.)  165 :  and  4  Ad.  k 
EU.618. 

3.  The  56  Geo.  3,  c .  139,  requiring  only  notice 
to  be  given  on  a  binding  into  another  parish  bj 
indenture,  held,  that  it  was  not  necessary  in  ca» 
of  an  Qjssignment;  held  also,  that  the  intention 
being  clear  by  the  terms  of  the  indorsemeDt,  it 
was  a  sufficient  acceptance,  although  the  pauper 
was  misnamed  therein.  R.  v.  Btminster,  I  Kef. 
&  P.  (K.  B.)  603. 

4.  Where,  at  the  time  of  tlie  binding  to  a  car- 
penter, the  master  declared  he  would  take  no  ap* 
prentice  unless  they  would  agree  to  work  on  toe 
land  as  well  as  at  the  trade,  and  the  sessions  foood 
that  it  was  a  contract  of  hiring  and  service; 
the  court,  upon  the  facts,  held  that  it  was  a  de- 
fective contract  of  apprenticeship,  and  quashed 
the  order  of  sessions.  R.  v.  Iffhtnam,  6  Nev.  & 
M.  (X.  B.)  320 ;  and  4  Ad.  &  Ell.  937. 

5.  Where  the  pauper,  bein^  of  age,  entered  iots 
a  contract  of  apprenticeship  in  a  foreign  country, 
under  which  he  served  and  resided  in  this  eooa- 
try  40  days  under  it ;  held  to  confer  a  settlement 
R.  r.  Closworth,  1  Nev.  &  P.  (k.  b.)  437. 

6.  Where  the  service  was  under  the  indenture 
with  a  second  master,  expressly  with  the  assent 
of  the  original  one ;  held,  that  it  was  immaterial 


r 


[POOR] 


3861 


that  the  second  roaster  knew  of  the  pauper  heing 
an  apprentice  or  not  R.  v.  Sandhurst,  1  Nev.  & 
P.  (K.  B.)  296. 

And  see  R.  v.  Banbury,  5  B.  A^  Ad.  176. 

7.  Where  a  parish  apprentice  received  a  general 

Eermiasion  from  his  master  to  seek  work  where 
e  could,  and  he  did  so,  and  resided  above  40 
days  in  the  appellant  parish  prior  to  the  passing 
50  Geo.  3,  c.  139,  and  aller  which  his  master 
was  made  acquainted  with  and  expressed  his 
assent  to  such  service ;  held,  not  to  be  an  assent 
(by  relation  back)  to  the  particnlar  service  prior 
to  the  statute,  and  after  which  no  valid  assign- 
ment could  take  place  but  with  assent  of  justices. 
R.  V.  Maidstone,  6  Nev.  &  M.  (x.  b.)  545;  and 
6  Ad.  &.  Ell.  326. 

8.  Where  the  indentares  were  (raudnlently  ante- 
dated, with  the  view  of  contravening  5  Eliz.  c.  4, 
B.  31,  held,  that  they  were  altogether  void,  and 
defeated  the  settlement,  although  the  appellant's 
parish  was  no  party  to  the  fraud.  R.  v.  Barm- 
oton,  3  Nev.  A  P.  (q.  b.)  167. 

9.  Where  the  pauper  returned  to  his  father  in 
oonsequence  of  illness,  and  resided  above  40  days, 
VDtil  the  indentures  were  cancelled,  during  which 
time  his  master  occasionally  visited  him,  and 
asked  him  to  carry  about  and  sell  tickets  for  the 
disposal  of  articles  manufactured  by  him,  bv  way 
c^  lottery,  giving  him  Is.  a  ticket;  held,  that 
aoch  residence  and  service  was  connected  with 
the  apprenticeship,  and  a  settlement  gained  in 
the  father's  parish,  and  was  not  affected  by  any 
illegality  of  such  employment.  R.  v.  Somerby, 
1  Perr.  &  D.  (q.  b.)  180. 

And  see  .ilAiuiaiiiiif . 


(d)  By  kiring'  and  sermu, 

1.  Where  the  pauper  served  under  a  monthly 
hiring  until  Michaelmas  1833,  when  she  enga^d 
for  a  year  (the  4  d^  5  Will.  4,  c.  76,  s.  65,  coming 
into  operation  on  14  August  1834) ;  held  that,  the 
Gontnict  of  hiring  and  service  not  having  been 
completed  at  the  time  of  the  Act  passing,  no  set- 
tlement was  obtained  R.  «.  Rettenden,  1  Nev. 
A  P.  (K.  B.)  448. 

2.  Where  the  pauper  was  hired  from  5  April  to 
5  April,  to  do  the  work  of  a  colliery,  to  forfeit 
the  same  for  the  days  he  should  lay  himself  idle, 
as  he  should  receive  when  laid  idle  by  the  pro- 
prietors, except  on  pay  Saturdays  (every  alternate 
one),  when  the  pit  was  ffoing  single  shaft,  and 
that  he  should  do  a  full  day's  work  on  every 
working  day ,(a  day  of  12  hours  being  single  shifl,) 
and  when  working  all  the  24  houra  (being  double 
abift,)  or  forfeit  2^.  6d.  for  every  default;  when 
the  pit  was  working  double  shift,  the  men  made 
12  snifts  of  12  hours  in  alternate  fortnights  re- 
spectively, and  the  proviso  as  to  working  sinjgle 
■nifl  on  par  Saturdays,  applied  to  men  workmg 
double  shift ;  the  pauper  worked  sometimes  single 
and  sometimes  double  shift ;  held,  that  the  hinng 
was  exceptive.  R.  v.  Cowpen,  5  Ad.  Sl  £11.  (x. 
B.)  333 ;  and  6.  Nev.  &,  M.  559. 


3.  Where,  by  the  terms  of  the  contract  with 
the  father,  the  son  was  to  serve  the  master  for  a 
certain  period  in  his  business  of  a  wheel-wright, 
at  the  expiration  of  the  term  the  master  to  nay 
bl.  to  the  son,  the  father  to  find  his  son  clotnes 
and  other  necessaries,  and  the  master  meat  and 
lodging ;  held  to  amount  to  a  contract  of  hi^ 
in^  and  service  only,  and  not  of  an  apprentice- 
ship. Where  the  sessions  lay  before  tne  court  a 
written  document,  it  is  a  question  of  law  as  to 
what  is  its  effect ;  where  the  hiring  and  service 
are  made  viva  voce^  it  is  a  question  of  fact ;  and 
the  court  cannot  attend  to  anything  which  takes 
place  at  the  sessions  which  is  not  stated  in  the 
case,  as  whether  conversations  at  the  timed*  the 
contract  were  receivable  or  not.  R.  v.  Billing- 
hay,  1  Nev.  &  P.  (K.  B.)  149. 

4.  Where  the  notice  of  appeal  stated  as  the 
ground,  that  the  contract  of  service  in  8.  con- 
tained a  stipulation  that  the  pauper  should  be 
allowed  **  two  days"  holidays  at  S.  club-feast,*' 
and,  at  the  hearing,  the  pauper  proved  that  he 
bargained  **  for  one  day  s  holiday  to  ffo  to  U. 
fair ;"  held,  that  such  evidence  was  inacunissibley 
the  parties  being  held  strictly  to  the  notice  given ; 
and  the  sessions  having  found  it  an  exceptive 
hiring,  quashed  the  order,  and  the  court  quashed 
the  order  of  sessions.  R.  v.  Holbeach,  1  Nev. 
&  P.  (X.  B.)  137. 

5.  Service  under  a  hiring  for  a  year,  during 
which  the  4  &  5  Will.  4,  c.  76,  passed,  held  not 
to  be  united  with  previous  service,  although  com- 
pleting a  year  before  the  passing  of  the  act.  Reg. 
V.  St.  John  the  evangelist,  6  Ad.  &  £U.  (^.  b.) 
300,  n. 

6.  Where,  upon  the  hiring,  the  servant  told 
his  master  he  should  want  some  time  to  go  to  his 
feast,  and  the  master  agreed  he  shoulcThave  a 
holiday  for  that  purpose,  held  to  be  an  exceptive 
hiring.  Reg.  v.  Threkingham,  8  Ad.  A  £11.  (^. 
B.)  8to. 


(e)  Serving  an  office. 

A  verbal  appointment  by  the  rector  to  the 
office  of  parish  clerk  and  sexton  is  sufficient,  and 
the  exeeution  of  the  duties  and  receipt  of  the 
emoluments  held  to  give  a  settlement,  although 
at  the  time  of  the  appointment  the  party  was  not 
settled  there ;  and  sanJble^  no  notice  need  be  given 
to  the  parish.  R.  v.  Bobbing,  1  Nev.  dt  P.  (x.  b.) 
166. 


(f )  Payment  of  rales. 

Where  the  occupation  of  the  tenement  rated  is 
such  as  to  satisfy  the  provisions  of  6  Geo.  4,  c. 
57,  held  that  the  settlement  is  not  affected  by  the 
1  Will.  4,  c.  18.  R.  o.  Stoke  Dammarel,  1  Nev. 
&  P.  (K.  B.)  453. 


[B]  Removal. 
1.  The  4  dt  5  Will.  4,  c.  7$.  s.  57,  r^dering 


3803 


[POOR] 


the  husband  liable  to  maintain  the  children  of 
the  wife  by  a  former  marria^,  and  that  they 
shall  be  deemed  part  of  his  fimily  ;  held  not  to 
change  the  settlement  of  such  children,  or  give 
justices  power  to  remove  them  to  the  husband's 
parish.  R.  Walthamstow,  1  Nev.  &  P.  (k.  b.) 
46D.  ^ 

9.  The  3  d&  4  WUl.  4,  c.  40,  continued  until  1 
Maj  1839,  by  7  Will.  4,  c.  10. 

3.  Where  the  pauper  had  been  removed,  with 
a  copy  of  his  examination,  in  which  he  had  stated 
a  hiriujg  with  Mr.  F.,  and  service  with  the  wife, 
on  which  statement  a  notice  of  appeal  was  given, 
and  the  prround  alleged  that  no  settlement  appear- 
ed on  the  examination;  held,  that  the  respon- 
dents could  not  introduce  a  new  state  of  facts, 
which  if  communicated  might  have  induced  the 
appellants  to  have  withdrawn  their  appeal,  or 
have  prepared  themselves  with  fresh  evidence. 
R.  V.  Misterton,  2  JNev.  &  P.  (k.  b.)  109 :  and  6 
Ad.  Sl  Ell.  878. 

4.  Under  4^5  Will.  4,  c.  76,  s.  79,  the  notice 
of  chargeability  must  be  served  by  the  removing 
parish;  tosfether  with  the  copy  of  the  nrder  of  re- 
moval.   R.  V.  Brixham,  3  Nev.  Jk  P.  (q.  b.)  408. 

6.  Where  the  wife  resided  in  the  parish  where 
her  husband  was  confined  in  gaol,  but  she  had 
access  to  him,  held  that  an  order  of  removal  of  her 
and  her  children  was  bad,  as  a  separation  of  man 
and  wife.  Reg.  r.  Stogomber,  1  Perr.  db  Dav. 
(<l.  B.)  409. 

6.  The  children  of  a  former  marriage  not  with- 
in the  a^  of  nurture,  and  left  chargeable  to  the 
parish  m  which  they  are  residing  by  the  step- 
iather,  who  had  absconded,  held  to  be  removeable 
to  the  place  of  settlement  of  their  own  father, 
notwithstanding  the  obligation  of  the  stepfather 
to  maintain  them  unfl]  the  age  of  16,  under  4  and 

5  Will.  4,  c.  76,  s.  57.    Reg  v.  StaflTord,  1  Perr. 

6  Dav.  (q.  B.)  414. 

7.  The  Foundling  Hospital,  not  being  extra-pa- 
rochial, and  the  objects  received  there  being  with 
the  approval,  and  under  certain  regulations,  by 
the  directors;  where  a  child  had  been  left  at  the 
fate,  thouffh  afterwards  taken  care  of,  on  the  re- 
fusal by  the  parish  to  take  it  into  the  poorhouse, 
held,  that  the  child  had  not  been  so  received  by 
the  Hospital  as  to  relieve  the  parish  from  the  bur- 
den of  providing  for  it  as  casual  poor.  R. «.  St 
Pancras  Directors,  7  Ad.  Hl  Ell.  (q.  b.)  750. 


[C]  Relixf. 

).  Under '4  &  5  Will.  4,  c.  76,  s.  .%,  39,  the 
Poor  Law  Commissioners  have  not  jurisdiction 
to  make  an  order  for  the  election  of  a  board  of 
guardians  in  single  parishes,  where  the  adminis- 
tration of  the  poor  laws  is  already  vested  by  a 
local  act  in  a  board  of  directors.  (Williams,  J. 
diss.)  R.  r.  Poor  Law  Commissioners,  1  Nev.  & 
P.  (K   B.)  371. 

2.  Where  the  pauper  came  into  the  respondent 
oansh,  aniffw  morandi^  and  met  with  an  accident, 
by  reason  whereof  he  became  chargeable,  and  for 


a  considerable  time  could  not  he  ezaauBed  or  re- 
moved ;  held,  that  such  chargeability  was  not  to 
be  deemed  as  of  casual  poor,  but  whereon  an  o^ 
der  of  removal  and  suspension  might  have  been 
made,  and  the  appellant  parish  therefore  liable 
to  the  expenses  incurred  during  such  satpen- 
sion ;  aUter,  if  he  had  nM  come  with  intent  to  in- 
habit, or  was  a  foreigner,  having  no  other  settle- 
ment. R.  V.  Oldland,  3  Nev.  &.  M.  (x.  b.)  529; 
and  4  Ad.  6l  Ell.  929. 

3.  Facilities  for  the  purchase  of  lands  for  poor- 
houses,  under  4  &  5  Will.  4,  c.  76,  and  5  &6 
Will.  4,  c.  69,  amended  by  1  Vict,  c  50. 

4.  Where  a  parish  consisted  of  a  royal  borgk 
and  a  landward  district,  both  of  which  bad  been 
always  considered  as  one  district  for  the  manage- 
ment of  the  poor,  and  no  distinction  ever  made 
as  to  questions  of  settlement  or  assessment;  held, 
that  in  questions  turning  upon  statutory  enact- 
ments, although  where  the  enactments  are  clear, 
usage  would  have  no  efiect,  yet  that  when  ailent, 
or  expressed  in  terms  of  doubtful  import,  it  may 
afibrd  the  construction,  as  affording  a  cotempora- 
neotts  exposition,  and  the  usage  havinv  been  on- 
interrupted,  the  poor  were  entitled  to  relief  indii- 
criminately  from  the  parish  ftinds.  Dunbar  Cor 
poration  «.  Roxburghe,  Duchess  of,  3  CI.  A  R. 
(p.)  335. 

5.  Where  part  of  a  parish  was  by  a  local  Act 
separated  and  made  a  diatinct  parish  by  the  name 
of  G.,  for  ecclesiastical  purposes  only,  but  con- 
tinned  for  all  other  parocnial  purposes  part  of  the 
original  one,  although  in  many  acta  they  were 
spoken  of  as  united  parishes,  the  administration 
being  vested  in  a  board  elected  from  them  jointlj, 
and  they  jointly  maintained  their  own  poor; 
held,  that  they  were  not  to  be  deemed  a  uimo 
incorporated  by  any  local  act  within  the  meaains 
of  the  exception  in  s.  32  of  5  As  6  Will.  4,  e.  Wi 
but  the  whole  to  he  taken  as  a  single  parish,  and 
which  the  commissioners  might  unite  with  otfaen 
without  the  consent  of  two-Uiirds  of  the  existing 
board  of  guardians.  Reg.  v-  Poor  Law  Commii* 
sioners,  in  re  Holbom  Union,  3  Nev.  &  P.  (Q* 
B.)  77;  and  6  Ad.  &  Ell.  (k.  b.)  56. 

&  Under  4  d^  5  Will.  4,  c.  76,  s.  26,  the  com- 
missioners  are  empowered  to  include  in  uaiom 
an^  parish  or  district  having  a  local  act  lor  nan- 
aging  the  poor,  althouffh  the  guardians  or  tni' 
tees  do  not  consent.  R.  r.  Poor  Law  Commii- 
sioners,  in  re  Whitechapel  Union,  2  Nev.  A  P. 
(K.  B.)  8;  and  6  Ad.  ^k  EU.  34. 

7.  And  where  the  acts  directed  bv  the  Poor 
Law  Commiasioners  are  dearly  within  their 
power,  the  court  will  not  entertain  the  qoeatioB 
whether  thev  have  exercised  a  sound  discretioB. 
R  r.  Poor  Law  Commissioners,  in  re  Newport 
Union,  6  Ad.  ^  EU.  (a.  b.)  54. 

6.  The  notice  under  4  &  5  Will. 4,  c.  76,  s.  73, 
of  an  application  for  an  order  of  maintenance  of 
a  bastard  child,  signed  by  overseers  of  a  town- 
ship, but  not  by  its  own  church  officers  (chapel* 
wardens), held  sufficient;  and  qu/tre  if  neccisaiy 
for  all  the  overseers  to  sign  it  R.  n.  Yorkshiie 
Justices  of  North  Riding,  3  Nev.  Sc  P.  (x.  s.) 
103.  ^ 


[POOR] 


8863 


9.  RepftjmeiitoflotiwferbaililingwoiUioiMef, 
Ac.  regalated  by  I  AH  Viet.  c.  25. 

10.  Atsijrnment  of  army  or  naval  pensione  to 
guard iana  of  poor,  by  2  &  3.  Vict. «.  SU 


[D]  Ratb. 

1.  UDcler  an  incloaure  Act,  ffiying  the  rector  of 
a  corn-rent  in  lieu  of  tithes,  ana  directing  that,  in 
the  valnation,  they  should  be  deemed  to  be  equal 
in  value  to  one-fifth  of  the  annual  net  value  of 
auch  lands ;  held,  that  he  was  liable  to  be  rated, 
there  being  no  clause  of  exemption.  R.  v.  Wes- 
tow,  6  Nev.  &  M.  (k.  b.)  567  :  and  5  Ad.  &  £11. 
250. 

And  see  R.  v.  Boldero,  4  B.  &  Or.  467. 

2.  Where  paving  commissioners  were  empow- 
ered to  erect  gas  works,  and  let  out  or  grant  lights, 
the  rents  of  which  were  applicable  to  defray  the 
expenses  of  such  works,  and  the  surplus  to  be  ap- 
plied to  the  other  purposes  of  the  Act ;  held,that  the 
commissioners,  holding  premises  for  the  purposes 
of  such  works,  were  not  rateable  as  proprietors  or 
occopiers  thereof.  R.  v,  Beverley  Gas  Works,  1 
Nev.  A  P.  (K.  B.)  646. 

And  see  R.  v.  Liverpool,  7  B.  &  Cr.  61. 

3.  Where  by  a  local  Act  the  guardians  were 
directed  to  value  the  lands,  dt c,  Tor  the  purpose 
of  rating  to  the  relief  of  the  poor,  and,  by  the  cus- 
tom of  rating  under  the  Act,  machinery  erected 
was  not  rated,  nor  the  buildings  as  mcreased 
thereby  in  value,  and  a  gas  company,  having 
their  gas  manufactory  out  of  the  parish,  laid  their 
pipes  only  by  the  licence  of  the  paving  commis- 
aioiiess,  without  any  property  in  the  soil ;  the  com- 
pany were  rated  for  the  houses  and  lands  to  which 
the  gasholders  were  attached,  also  for  the  gas- 
holctera,  and  then  for  the  pipes  separately ;  held, 
that  such  rate  was  bad,  by  reason  of  the  omission 
to  rate  other  property  in  the  parish,  according  to 
the  increased  value.  R.  «.  Birmingham  Gas 
Company,  1  Nev.  &  P.  (k.  b.)  691. 

4.  Where,  prior  to  the  passing  a  local  Inclosure 
Act,  the  freemen  of  a  certain  ward  were  entitled 
to  right  of  stray  and  average  over  a  moor,  which 
rights  were  extinguished  by  the  Act,  and  allot- 
ments in  lieu  thereof  made  ;  and  it  appeared  that 
the  regulation  of  the  exercise  of  the  rights  were  in 
certain  pasture-masters  and  wardens,  appointed 
by  the  mayor  and  aldermen,  of  whom  the  mayor 
was  always  one,  the  test  being  aldermen,  and 
who  audited  their  accounts ;  held  that,  although 
they  received  no  benefit  in  their  corporate  capaci- 
ty, except  as  any  of  them  might  be  entitled  as 
such  freemen,  the  corporation  were  the  parties 
rateable.  R.  v.  York  Mayor,  &c.,  1  Nev.  &  P. 
(X.  B.)  530. 

5.  Where  a  local  Act  for  rebuilding  a  church, 
empowered  the  trustees  to  make  a  rate  on  the 
bouses,  Ac,  and  hereditaments  **  rated  or  rate- 
able to  the  poor ;"  held,  that  tithes  were  rateable, 
and,  beinff  clearly  so,  a  numdanmt  lay  to  justices 
to  eompefthe  issuing  a  distress  warrant  against  a 


tithe  oceupier  refbsing  to  pay  the  rate.    R.  i^. 
Bucks  Justices,  1  Ner^A  P.  (k.  b.)  503. 

6.  Where  one  of  two  overseers  refused  to  con- 
cur in  making  a  poor's  rate,  held  that  the  other 
might  apply  for  a  mandamus  directed  to  all ;  and 
that  the  1  Will.  4,  c.  21,  s.  6,  makes  no  alteration 
as  to  the  parties  who  may  obtain  the  writ,  but 
only  with  regard  to  the  costs  on  such  applica- 
tions.   R.  V.  Gadsby,  1  Nev.  &  P.(x.  b.)  B7it 

7.  A  mandamus  granted  absolutely  in  the  first 
instance,  against  the  churchwarden  and  overseiSr 
of  a  district  of  the  parish  refusing  to  concur  in  a 
poor-rate,  unless  certain  lands  were  stated  therein 
to  be  in  a  particular  district.  R.  v.  fidlaston 
Overseers,  &c.,  1  Nev.  A  P.  (x.  b.)  20. 

8.  Where  governors  of  poor  rented  premises  oat 
of  their  district,  and  occupied  them  as  lodgings 
for  their  poor,  which  were  rateable  in  the  parish 
where  situated ;  held,  that  the  occupation  being 
only  for  the  disposal  of  the  poor,  was  not  a  ffround 
of  exemption  from  rateabilitv  to  the  reliel  of  the 
poor  of  such  parish.  Bristol  Governors,  &c.  r. 
Wait,  6  Nev.  &  M.  (k.  b.)  383 ;  and 5  Ad.  A  Ell. 

9.  Where  the  local  Act  imposed  the  rate  on  all 
persons  occupying  and  enjoying  any  land,  &c., 
tenement  or  hereditament;  held  to  mean  only 
snoh  hereditaments  as  were  capable  of  actual  cor- 
poreal occupation,  and  not  to  incorporeal  heredit- 
aments, for  which  the  party  would  not  have  been 
liable  to  be  rated  under  43  Cliz.  c.  2.  Colebrook 
V.  Walker,  6  Nev.  A  M.  (k.  b.)  483 ;  and  4  Ad. 
A  Ell.  916. 

10.  Trustees  of  a  road  made  under  a  local  Act. 
although  beneficially  interested  in  the  tolls,  held 
exempt  from  rate  in  respect  thereof,  under  3  Geo. 
4,  c.  126,  s.  51.  R.  V.  Dover-sireet  Trustees,  1 
Nev.  A  P.  (X.  b.)  167. 

1 1 .  Where  a  gas  company  had  laid  down  pipes, 
&c.  for  the  supply  of  gas,  through  various  par- 
ishes and  certam  collets,  Ac,  extra-parochial, 
held,  1st,  that  the  principle  of  rating  the  compe* 
ny  in  one  parish  upon  what  amount  a  responsiole 
tenant  would  give  for  the  whole  apparatus,  afler 
making  deductions  for  the  wear  and  tear  of  ma- 
chinery, Ac.  was  the  correct  criterion  of  rating ; 
2dly,  that  the  proper  deduction  from  such  rent 
was  such  an  annual  sum  as  would  replace  the 
works  when  worn  out ;  3dly,  that  a  claim  of  de- 
duction for  **the  profits  in  trade,*'  of  the  compa- 
ny, being  independent  of  and  beyond  the  rent, 
was  properly  disallowed ;  4thly,  that  the  distribu- 
tion of  the  assessments  in  each  parish,  in  propor- 
tion to  the  amount  of  profits  received  in  each  re- 
spectively, was  wrong,  the  company  being  liable 
to  be  rated  in  respect  of  its  occupation  m  each 
parish,  and  that  none  could  be  imposed  upon  such 
parts  as  were  in  extra-parochial  places,  the  pro- 

Sortion  of  which  was  to  be  deducted.  R.  v.  Cam- 
ridge  Gas  Company,  3  Nev.  A  P.  (^.  b.)  2b2. 

12.  Where  upon  the  original  hiring  of  the  ap- 
pellant as  a  brewer's  servant,  at  a  salary,  and  to 
occupy  premises  belonging  to  his  employers,  free 
of  rent  and  taxes,;  he  continued  to  occupy  fi>r 
some  time,  and  then  lefl  it  and  took  a  house,  for 
which  his  employers  paid  the  rent  and  ntes,  but 


2(<64 


[POOR] 


f 


not  beloiiffin^  to  them,  and  the  appellant  was  aa- 
aessed  in  his  own  name  for  the  ICing'a  taxes  and 
poor-rate,  he  also  paid  the  registration  fee,  and  vo- 
ted as  the  occupier ;  held  to  have  been  properly 
rated,  he  being  in  fact  the  tenant  of  the  houfie, 
and  the  payment  of  the  rent  by  his  employers 

iving  them  no  control  over  it.  R.  v.  Wall- Lynn, 

Nev.  &P.  (K.  B.)4U. 

13.  Where  a  bridge,  standing  in  the  parishes  of 
A.  and  W.,  consisted  of  a  wooden  structure  rest- 
ing on  piles  in  the  bed  of  the  river,  and  brick 
abutments  on  the  sides,  and  in  the  parish  of  A. 
resting  on  piles  in  the  river,  was  a  tnll-house,  oc- 
cupied by  the  collector  of  the  bridge  tolls ;  the 
repairs  had  been  from  time  to  time  done  by  the 
appellant,  who  repaired  also  the  planking  of  the 
carriage  way,  but  not  the  road  itself  upon  the 
bridge,  and  who,  as  grantee  from  the  crown,  re- 
ceived the  bridge  tolls.  It  appeared  that  he  de- 
mised them  by  parol  agreement  to  £.  from  year 
to  year,  at  a  rent  to  be  paid  by  monthly  instal- 
ments, and  secured  by  a  warrant  of  attorney,  but 
there  was  no  grant  or  demise  executed;  and 
held,  that  there  bein{[  no  demise  of  land  eo  nam- 
in«,  and  the  tolla  passmg  only  by  deed,  no  inter- 
est passed  out  of  the  appellant,  who  was  to  be 
considered  as  still  in  possession  of  them,  and 
therefore  properly  rated ;  held,  also,  that  as  it 
appeared  ne  took  under  a  grant  by  the  descrip- 
tion of  a  toil  traverae,  and  that  it  waa  so  de- 
flcribed  in  ancient  documents,  that  the  sessions 
were  warranted  in  so  treating  it.  R.  r.  Marquis 
of  Salisbury,  3  Nev.  &>  P.  (^.  b.)  476. 

14.  Real  property  is  to  be  rated  according  to  its 
actual  value,  as  combined  with  the  machinery  at- 
tached! to  it,  without  considering  whether  such 
machinery  be  real  or  personal  property  so  as  to 
be  liable  to  distress  or  seizure  under  n.fi.  fa.^  or 
whether  it  would  belong  to  the  heir  or  executor, 
landlord  or  tenant,  at  the  expiration  of  the  lease. 
R.  V.  Guest,  2  Nev.  &  P.  ((i.  b.)  663 ;  8  Ad.  &. 
£U.  (q.  B.)  950. 

And  see  R.  v.  Birmingham  and  Staffordshire 
Cku  Comp.  6  Ad.  &  £11.  634. 

15.  Where  the  rents  and  profits  of  lands  vested 
an  the  corporation,  by  the  5  d&  6  Will.  4,  c.  76 
(Municipal  Corporation  Act),  were  received  by 
the  treasurer  of  the  borough  to  the  account  of  the 
borough  fund,  and  under  s.  92,  applicable  to  pub- 
lic purposes,  held  not  rateable  to  the  poor.  Reg. 
V.  Liverpool,  Mayor,  &c.,  1  Perr.  ^  Dav.  (q.  b.) 
234. 

16.  Where  the  original  relation  was  that  of  lord 
and  commoners,  and  there  was  nothing  to  show 
that  the  interest  of  the  freemen  of  a  corporation 
over  wastes  was  more  than  that  of  commoners, 
although  with  large  and  unusual  enjoyments,  and 
nothing  more  than  an  incorporeal  hereditament, 
held  that  the  rate  could  not  be  sustained.  Reg. 
«.  Alnwick  Chamberlains,  Ac,  1  Perr.  &,  Dav. 
(q.  B.)  343. 

17.  Upon  the  construction  of  the  several  Acts 
regulating  the  Leeds  and  Liverpool  Navigation 
Company,  held,  that  they  were  liable  to  be  rated 
lor  the  (and  occupied  by  the  canal,  basins  and 
towing  paths,  according  to  the  genera]  value  of 
tbfi  land  immediately  adjoining  them;  that  for 


branches,  not  being  part  of  the  original  line,  but 
communicating  therewith,  they  were  to  be  cohm- 
dercd  as  part  of  the  whole  navigation,  and  to  be 
rated  according  to  their  amount  m  value  as  merB 
land  at  the  time  of  rating ;  and  that  the  whurli 
and  quays,  as  well  as  warehouses,  &c.  were  to  be 
rated  according  to  the  talue  of  similar  propertj 
in  the  parish.  Reg.  v  Leeds  and  Liverpool  Na- 
vigation Company,  2  Nev.  &  P.  (q,.  b.)  540;  and 
7  Ad.  ^  Ell.  671 ;  reviewing  and  supporting  the 
case  of  R.  v.  Monmouthshire  Canal  Corop&nv,  3 
Ad.  &  £11.  619;  5  Nev.  &  M.  68. 

18.  Assessment  and  collection  of  rate  regali- 
ted  by  2  &  3.  Vict  c.  84. 

And  see  Mandamus;  Officer, 


[E]    ApPZAL — ROTICK  OF. 

1 .  Service  of  the  notice  of  appeal  on  an  attor- 
ney, although  appearing  to  be  the  attorney  of  the 
respondent  parish,  hela  insufficient ;  but  the  let- 
sions  having  a  power  to  adiourn,  hield  that  Hbej 
miffht  receive  tne  appeal,  although  no  stateroeat 
of  tne  grounds  had  been  given ;  the  4  &•  5  WiJL 
4,  c.  76,  s.  81,  only  prevents  the  appeal  being 
heard :  the  statement  of  grounds,  and  notice  i 
appeal,  are  to  be  considered  separate  instruments. 
R.  V.  Kimbolton,  1  Nev.  dk  P.  (k.  b.)  606. 

2.  Where  the  notice  only  stated  the  groondf  ts 
be  that  the  paupera  were  settled  in  anotner  pariali, 
without  ffoing  on  to  state  the  nature  of  that  let- 
tlement,  held  a  sufficient  compliance  with  4  &  5 
Will.  4,  c.  76,  s.  81 ;  and  a  mukdamMs  to  the  ■es- 
sions  to  enter  continuances  and  hear  the  appesL 
R.  V.  Cornwall  JuaUoea^d  Ad.  dk£ll.  (k.  b.)  131; 
and  1  Nev.  dk  P.  20. 

3.  But  where  the  statement  of  the  groondi  of 
appeal  alleged  that  the  pauper  gained  a  settle- 
ment by  hiring  and  service  in  a  third  parish ;  heM, 
too  general  and  insufficient,  and  the  sessions  hsT- 
ing  refused  to  hear  the  appeal,  the  court  refused 
a  mandamus  to  them  to  enter  continuances  sad 
hear  it ;  held  also,  that  the  notice  and  statement 
signed  bv  the  two  overseen  was  sufficient,  al- 
though there  was  also  one  churchwarden.  R  a* 
Derbyshire,  Justices  of,  1  Nev.  &  P.  (k«  b.)  703. 

4.  Where,  flrom  the  copy  of  the  examination,  it 
appeared  that  the  pauper  atated  that  his  &tllerb^ 
longed  to  the  parish  of  C,  and  that  fae  waa  a  ee^ 
tificated  man  from  C. ;  held  that,  under  this  as* 
ttce,  a  settlement  of  the  father  by  apprenticeship 
in  C.  might  be  shown.  R.  v.  Helvedon,  I  Nev. 
&  P.  (a.  B.)  138. 

5.  The  grounds  of  appeal  required  to  be  stated 
in  the  notice  are  not  confined  to  those  on  which 
evidence  is  to  be  given,  and  the  sessions  therefore 
held  justified  in  refusing  to  hear  objection  aa  to 
defects  on  the  face  of  an  order  of  removal.  Qiuere, 
if  the  omission  to  state  the  names  and  ages  of 
children  removed  is  necessarily  bad  ?  R. «.  Wit- 
heenwick,  1  Nev.  d^  P.  (a.  b.)  423. 

6.  The  mere  fact  of  being  left  ontof  the  rate, 
where  no  undue  motive  appeara,  does  not  of  itself 
import  a  grievance  to  ground  an  appenL  R.  f^ 
George,  f  Nev.  A  P.  (a.  b.)  451. 


[POOR] 


3865 


7.  Where  the  seBsioM  grant  a  ease  upon  an  ap- 
pealf  it  being  a  complete  remedy  agamst  a  mis- 
decision,  the  court  will  not  grant  a  mandamus  to 
them  to  enter  continuances  and  hear  the  appeal. 
R.  V.  Suffolk  Justices,  1  Nev.  &  P.  (k.  b.)  306. 

6.  Where  a  pauper  was  removed  with  his  wife 
and  six  children  (named)  by  an  order  confirmed 
on  appeal,  and  by  a  subsequent  order,  a  child 
born  during  the  marriage,  but  not  named  in  the 
first  order,  and  unemancipated,  was  removed  to 
the  same  parish ;  held,  on  appeal  against  the 
latter  order,  that  although  the  former  one  was 
conclusive  as  to  all  the  facts  stated  in  it,  it  was 
competent  to  the  appellants  to  show  a  state  of 
facts  which  had  arisen  subsequently,  viz.  that 
by  a  decision  of  the  Ecclesiastical  Court  the 
marriage  had  been  declared  void  ab  initioy  and  so 
to  defeat  the  derivative  settlement.  Reg.  v. 
Wye,  3  Nev.  &  P.  (q.  b.)  6. 

9.  The  5  Ae;  6  Will.  4,  c.  76,  s.  81,  requiring 
the  statement  of  tlie  grounds  of  appeal  to  be  de- 
livered 14  days  at  least  before  the  first  day  of 
the  sessions,  held  to  mean  14  clear  da^s,  exclu- 
sively of  the  day  of  delivery  and  the  first  day  of 
the  sessions.  R.  v.  Salop  Justices,  3  Nev.  ol  P. 
(q.  B.)  286. 

10.  The  parish  being  only  aggrieved  by  the 
actual  removal,although  they  may  be  contingently 
liable  to  expenses  and  costs  under  4  &  5  Will.  4, 
c.  76,  s.  7!),  held  that  an  appeal  to  the  sessions 
next  after  the  removal  was  a  sufficient  time. 
Reg.  V.  Salop  Justices,  6  Dowl.  (p.  c.)  28. 

11.  An  appellant  having  given  a  statement  of 
the  grounds  of  appeal  rightly  signed  by  the 
parish  officers,  held  not  estopped  from  showing 
that  it  is  by  the  proper  number,  although  the 
notice  of  appeal  may  have  been  signed  by  a  great- 
er number ',  held,  also,  that  the  order,  good  on 
the  face  of  it,  having  been  quashed  at  the  mstance 
of  the  respondents,  from  not  being  prepared  with 
proof  of  facts,  it  was  to  be  taken  as  having  been 
quashed  on  the  merits,  and  the  decision  of  the 
sessions  conclusive.  Reg.  v.  Church  Knowle,  2 
Nev.  &  P.  U.  B.)  359. 

12.  The  statement  of  the  grounds  of  appeal, 
signed  by  the  maiority  of  the  parish  officers,  is 
sufficient,  and  semJb.y  service  on  one  only,  if  with- 
out fraud.  R.  V.  Warwickshire  Justices,  2  Nev. 
&  p.  (K.  B.)  153;  and  6  Ad.  &  £11. 873. 

And  see  R.  v.  Derby  Justices,  1  Nev.  &  P. 
708;  and  6  Ad.  &  £11.  885. 

13.  The  appellants  cannot  insist  on  any  point 
for  quashing  tne  order,  not  stated  in  the  grounds 
of  appeal;  neld  therefore,  that  the  respondents 
were  not  obliged  to  give  evidence  of  the  settle- 
ment on  which  the  removal  was  made,  where  the 
notice  was  of  a  settlement  in  a  third  parish.  Reg. 
V.  Bockworthy,  2  Nev.  &  P.  (<i.  b.)  383. 

14.  Where  the  copy  of  the  examination  sent 
with  the  order  of  removal  stated  a  hiring  and  ser- 
vice in  1813,  but  the  proof  at  the  hearmg  of  the 
appeal  was,  that  it  took  place  in  1810,  held  a  fa- 
tal variance,  and  the  sessions  right  in  rejecting 
the  evidence  of  the  hiring  in  1810.  Broseley,  ex 
parte,  2  Nev.  &  P.  (^.  b.)  355. 


15.  Where  a  local  road  act,  giving  a  power  of 
appeal  against  assessments  to  any  party  thinking 
himself  aggrieved,  empowered  also  the  trustees  to 
sue  and  be  sued  in  the  name  of  any  one  or 
more ;  held,  that  a  notice  of  appeal  by  one  on  be* 
half  of  the  trustees,  was  sufficient,  although  no 
authority  proved,  they  having  made  no  disclaimer. 
R.  V,  Surrey  Justices,  5  Ad.  Sl  £11.  (k.  b.)  701,  it. 

16.  Where  the  sessions  quashed  an  order,  and 
refused  to  state  a  case,  and  the  orders,  notices, 
and  a  statement,  were  brought  up  by  certiorari^ 
when  the  notice  of  appeal  under  4^5  Will.  4, 
c.  74,  s  81,  appeared  to  be  defective,  the  court  re- 
fused to  interfere  with  the  order  of  justices,  which 
appeared  good  on  the  face  of  it.  Reg.  v.  Aber- 
gele, 3  Nev.  «&  P.  (q.  b.)  406. 

17.  Where  the  order  of  removal  was  served  on 
the  8th  June,  the  sessions  being  on  the  28th,  and 
the  practice  requiring  fourteen  days'  notice  of  ap- 
peal, and  none  having  been  given,  the  removal 
was  made  on  the  2SKh,  when  notice  was  given  for 
the  October  sessions ;  held,  that  the  sessions  were 
bound  to  hear  the  appeal,  the  parish  not  being  ag- 
grieved until  the  actual  removal.  R  r.  Carpen- 
ter, 2  Ad.  6l  Ell.  (K.  B.)  894. 

18.  Where  a  township,  having  a  chapel  and  its 
own  chapelwardens,  was  wholly  independent  of 
the  parish,  except  contributing  a  small  sum  to  the 
repair  of  the  church,  held  not  to  be,  by  virtue  of 
the  office,  overseers,  and  a  notice  signed  by  the 
overseers  of  the  township  onlyi  valid :  upon  an 
objection  that  the  notice  was  not  signed  by  the 
assistant  overseer,  the  party  must  show  that  it 
was  his  duty  to  sign.  R.  v.  Yorks,  North  Riding, 
6  Ad.  &.  £11.  (K.  B.)  863. 

19.  An  assistant  overseer  being  a  servant  of  the 
vestry,  though  with  a  limited  authority,  an  appeal 
lies,  against  his  accounts;  held,  also,  that  the 
time  for  giving  notice  of  appeal  to  the  next  gener- 
al sessions  is  to  be  calculated  from  the  time  of  the 
parish  having  the  opportunity  of  knowing  the 
contents  of  the  account,  and  that  the  allowance  of 
the  account  is  to  be  considered  as  published  at  the 
time  when  deposited  (according  to  17  Geo.  2,  o. 
38,  8.  2,)  with  the  parish  officers  for  public  inspec* 
tion  ;  where,  therefore,  that  was  done  on  the  8tb 
of  May,  the  June  sessions  were  the  proper  ses- 
sions to  which  the  appeal  was  to  be  made.  Reg. 
e.  Watt,  2  Nev.  &  P.  (<i.  b.)  367. 

And  see  Sessions, 


[F]    OVSRSBXBS. 

1.  The  4  &  5  Will.  4,  c.  76,  prohibiting  a  parish 
officer  from  supplying  goods  by  way  of  relief  to 
any  person  in  the  parish,  semb.  repeals  thepenalty 
under  the  former  Act,  55  Geo.  3,  c.  137,  s.  6; 
held,  therefore,  that  an  action  could  not  be  main- 
tained under  the  latter  Act  against  an  officer  for  a 
supply  to  an  individual  pauper.  Henderson  e. 
Sherborne,  2  Mees.  dc  W.  (ex.)  237 ;  supporting 
Proctor  V.  Mainwaring,  3  B.  ^  Ad.  145. 

2.  An  item  in  overseers'  accounts  for  defending 
an  appeal  against  their  accounts,  held  to  be  in  no 
suppossble  case  allowable.  R.  v.  Johnson,  6  Ad. 
&  £11.  (K.  B.)  340. 


9666 


[POOR— PORTIONS] 


3.  Where  cottejges  were  erected  on  lands  pur- 
choBed  with  charitable  funds  given  for  the  use  of 
the  poor,  and  others  were  afterwards  added  from 
fVinOB  arising  from  the  sale  of  waste  lands  under 
an  incloBure  act,  directed  to  be  applied  to  the 
relief  of  the  poor ;  the  repairs  were  afterwards 
paid  out  of  the  poor-rates,  and  the  rents,  which 
were  always  collected,  were  accounted  for  as 
rates;  held,  that  such  cottages  were  not  to  be 
deemed  workhouses  within  the  4  &  5  Will.  4,  c. 
76,  and  5  &,  6  Will.  4,  c.  69,  which  the  guardians 
were  entitled  to  take,  although  in  occasional  in- 
stances paupers  had  been  placed  in  such  cottages, 
it  not  being  the  general  purpose  to  which  they 
were  applied.  Cantrell  v.  Windsor  Union,  4 
Bing.  N.  S.  (c.  p.)  348. 

4.  Where  the  putative  father  of  a  bastard  paid 
a  sutn  to  the  defendants,  bein^  then  parish  offi- 
cers, in  exoneration  of  all  claim,  ana  the  child 
dying  before  the  year  expired,  they  paid  over  the 
balance  not  expended  to  their  successors ;  held, 
that  the  money  paid  being  on  a  transaction  origi- 
nally illegal  and  void,  was,  from  the  first,  money 
in  the  hands  of  the  defendants,  had  and  received 
to  the  use  of  the  plaintiff,  and  he  was  entitled  to 
recover  it  back  from  them.  Chappell  v,  Poles,  2 
Mees.  &.  W.  (ex.)  867. 

And  see  Townson  v.  Wilson,  1  Camp.  396. 

5.  Where  a  parish  consisted  of  six  separate 
districts,  five  of  them  having  been  always  dis- 
tinct chapelries,  disconnected  with  each  other, 
and  separately  maintaining  their  own  poor  ;  the 
sixth  was  also  divided  into  two  districts,  one,  F., 
having  no  church,  but  the  inhabitants  attending 
the  church  of  St.  A.,  the  other  district;  but  r. 
had  a  constable,  and  collected  its  own  church, 
highway,  county,  and  constable's  rates  ;  St.  A. 
hi^  two  overseers,  and  the  vicar's  churchwarden; 
P.  elected  the  other,  and  had  also  one  overseer ; 
the  poor-rates  for  the  two  districts,  P.  and  St  A. 
were  separately  made  and  collected,  but  formed 
a  common  fund,  and  the  poor  were  maintained 
in  a  common  workhouse  in  St.  A  :  held,  that  P. 
was  not  a  separate  district,  entitled  to  the  benefit 
of  43  Eliz.,  c.  2,  and  that  an  appointment  of  two 
overseers  for  it  was  bad.  Reg.  v.  Worcestershire 
Justices,  3  Nev.  &  P.  (<i.  b.)  434. 

6.  In  trespass  for  levying  a  poor  rate  under  a 
warrant  of  distress  issued  dv  the  defendants  as 
justices,  the  rate  being  alleged  void  on  the  ground 
of  the  overseers  having  been  unduly  and  traudu- 
lently  appointed  at  a  meeting  of  borough  justices ; 
the  jury  having  negatived  Uie  fraud,  a  new  trial 
refused ;  the  appointment  being  a  judicial  act,  and 
the  validity  of  the  appointment  questionable  on 
an  appeal  to  the  sessions,  it  could  not  be  question- 
ed  in  a  collateral  way.  Pinney  v.  Slade,  5  Bing. 
N.  8.  (c.  p.)  319. 

And  see  Dittress^  7. 


PORTIONS. 

1.  Where,  on  the  marriam  of  one  danghter, 
the  father  covenanted  to  mue  her  fortune  equal 
to  that  of  her  tisteni  and  by  his  will  gave  bera 


•am  equal  to  that  given  to  them,  hot  limitoB  their 
shares  to  them  for  life,  with  lemaindere  to  their 
issue,  with  survivorship  among  them  oo  one  dy- 
ing  without  issue ;  held,  that  the  absolute  interest 
given  to  such  daughter  being  equivalent  to  the  in* 
terest  given  to  the  others  and  their  issae,  with 
the  contingent  interest  on  the  share  of  each  other, 
upon  the  death  of  one  without  issue,  the  first  had 
no  title  to  claim  a  further  provision  in  respect  of 
the  addition  accruing  to  ner  sisters.  Ciegg  e. 
Clegg,  2  Russ.  ^  M.  (ch.)  570. 

2.  Where    estates  were  limited  in  a   settle- 
ment for  a  term,  to  raise  £ ^  fi>r  portioos 

of  all  the  children  of  the  marriage,  except  an 
eldest  or  only  son,  to  be  vested  and  paid  at  such 
times  as  the  husband  should  appoint,  and,  in  de- 
fault of  his  appointment,  at  twenty-one,  hat  not 
to  be  paid  until  after  his  death,  with  proviso  that 
if  any  son  should  become  an  eldest  or  only  son 
before  the  time  appointed  for  payment  of  his 
portion,  that  then  his  share  should  go  to  the 
others ;  the  events  were,  that  an  eldest  son  at- 
tained twentv  one,  and  afterwards,  with  the  fip 
ther,  suffered  a  recoveir,  and  re-settled  the  es- 
tates to  the  use  of  the  nither  for  life,  reniainder 
to  the  son  in  fee ;  the  other  children,  a  son  and 
three  daughters,  all  attained  twenty-one,  and  the 
eldest  died  intestate  and  without  issue,  and  the 
fsther  appointed  the  sum  amongst  the  surviving 
son  and  tnree  daughters,  directing  that  the  shares 
should  vest  on  the  execution  of  the  deed,  but  not 
be  paid  until  after  his  death ;  and  the  second  son 
also  died  before  his  father :  held,  that  the  share 
so  appointed  to  him  did  not  go  over  to  the  sistera. 
Spencer  v.  Bpencer,  8  Sim.  (ch.)  87. 

3.  Where  by  settlement  the  estate  was  limited 
on  the  husband  for  life,  then  on  the  wife  fer  fife, 
and  from  and  afler  her  decease  to  trustees  fiir  a 
term,  for  the  raising  and  levying  younger  child- 
ren's portions,  to  be  paid  at  twenty-one,  or  mar- 
riage ;  the  wife  died,  leaving  vounger  children, 
who  all  attained  twenty-one ;  neld,  that  the  por- 
tions were  raiseable  immediately,  and  the  term 
saleable  in  the  lifetime  of  the  father ;  in  the  coo- 
structton  of  settlements,  the  court  will  ooUeet 
the  intention  of  the  settlor  from  the  instmment 
taken  altogether,  and  not  from  any  views  of  ex- 
pediency  of  its  own.    Smyth  v.  Foley,  3  Yoonge 

^  C.  (KX.  E^.)  142. 

4.  Where,  in  a  settlement,  a  term  was  created 
for  raising  portions  for  younger  children,  which 
upon  the  request  of  the  husband  might  be  raised 
during  the  lives  of  the  husband  and  wife,  but  the 
intention  was  clear  that  the  portions  should  not 
be  payable  until  after  their  deaths,  and  amongst 
suoh  as  came  within  the  terms ;  in  case  of  sons, 
of  attaining  twenty-one,  or  leaving  isssoe ;  and, 
if  daughters,  attaining  eighteen,  or  of  marriage, 
and  to  survive,  to  the  survivor  and  snrvivors  of 
them ;  held,  that  npon  the  principle  of  the  intent 
governing  such  instruments,  a  daughter  who  at- 
tained eighteen,  but  died  before  the  husband  and 
wife,  was  not  entitled  to  a  portion.  Whatibid  v. 
Moore,  7  Sim.  (ch.)  574. 

5.  Where  by  settlement,  estates  were  limited 
to  the  setUor  for  life,  remainder  to  the  first  and 
other  sons  in  tail,  and  a  term  created  for  laieisg 
portions  fer  younger  children,  the  intemttobe 


[PORTIONS— POWER] 


«»7 


vetted  m  tons  at  31,  payable  aAer  the  determina- 
tion of  the  estate  for  life ;  the  eldest  son  attained 
21,  safiered  a  recovery,  and  barred  the  estate  in 
remainder,  but  djin^  during  the  continuance  of 
the  estate  for  life,  he  devised  it  to  his  brother  for 
life ;  and  held,  that  the  second  son  never  having 
acquired  a  vested  interest  in  the  portion,  and  the 
interest  in  the  estate  having  b^n  defeated  by 
means  incident  to  the  estate  created  by  the  settle- 
ment before  he  acquired  the  character  of  an  eldest 
son,  he  was  not  entitled  to  any  share  of  the  por- 
tion.   Peacocke  v.  Pares,  2  Keene  (ch.)  689. 

6.  Where  a  testator,  clearly  intending  to  pro- 
vide for  his  daughters  eqoallv,  bv  will  devised 
each  100^.,  and  a  rentcharge  or  50t.  out  of  the  es- 
tate bequeathed  to  his  son,  to  arise  on  the  death 
of  the  mother,  and  continent  as  to  the  amount 
on  the  event  of  survivorship,  and  he  afterwards, 
by  a  codicil,  devised  an  afler-purchased  estate  to 
them  as  tenants  in  common,  and  on  their  respec- 
tive marriages,  he  advanced  the  one  by  money 
or  bond,  and  the  other  by  a  settlement  of  an  es- 
tate, and  also  by  an  advance  of  money,  held,  that 
the  latter  did  not  amount  to  an  ademption  :  mere 
diflference  of  amount,  or  slight  circumstances  of 
difference  in  tlie  times  of  payment  would  not  pre- 
vent the  presumption  of  tJie  one  being  an  ademp- 
tion of  the  other  :  but  the  principle  does  not  ex- 
tend to  devises  of  real  estate,  which  would  be  to 
repeal  the  statute  of  frauds,  nor  does  the  beouest 
ofa  residue  fall  within  the  rule.  Davys  r.  Bou- 
cher, 3  Tounge  A  Cr.  (ex.  sq.)  397. 

7.  The  case  of  Whatford  r.  Moore,  7  Sim.  574, 
affirmed  by  Lord  Chancellor,  3  Miln.  dk.  Cr.  (ch.) 
270. 

And  see  Legacy;  Marriage  SetUemenL 


POWER, 

1.  An  appointment  under  a  power  to  one  of  the 
objects  of  the  power,  upon  an  understanding  be- 
tween them  that  the  fund  shall  be  lent  to  the  ap- 
pointor, held  bad.  Arnold  v.  Hardwick,  7  Sim. 
(cH.)  343. 

2.  Where  a  testatrix,  having  a  power  to  appoint 
property  under  the  will  of  her  mother,  oSier  giv- 
ing specific  legacies,  and  reciting  that  the  amount 
oflier  property  was  not  yet  ascertained,  the  same 
awaiting  Uie  settling  of  her  mother's  affairs,  di- 
rected that,  if  her  money  and  personal  estate 
should  not  turn  out  sufficient  to  pay  the  legacies 
in  full,  they  should  abate,  and  she  then  disposed 
of  her  furniture,  &c.  and  the  residue  of  her  money 
and  personal  estate,  no  reference  being  made  to 
the  power  or  the  subject  of  it ;  held  not  an  execu- 
tion of  the  power,  ouxton  v.  Buxton,  1  K.  (ch.) 
753. 

3.  Where  the  appointment  was  to  be  by  will, 
signed,  sealed  and  published  in  the  presence  of, 
and  attested  by  three  or  more  credible  witnesses ; 
and  the  party  executed  an  instrument,  commenc- 
ing, '*  I  do  publish  and  declare  this  to  be  my  last 
will,"  Ac,  and  concluded,  **  In  witness  whereof, 
I  have,  to  this  my  last  will,  dte.,  set  my  hand  and 
seal—Witness,  A.  B.,  C.  D.,  £.  F. ;"  held  a  good 

Vol.  IV.  75 


execution  of  the  power,  and  that  after  30  years, 
on  the  production  of  it,  the  attestation  was  suffi- 
ciently proved,  without  calling;  one  of  the  attest- 
ing witnesses  who  was  still  alive.  Doe  d.  Spils- 
bury  V.  Burdett,  4  Ad.  &,  EU.  (k.  b.)  1 ',  and  6 
Nev.  &,  NL.25Q,  ^ 

And  see  S.  P.  Buller  r.  Birt,  lb.  281. 

4.  The  use  of  the  term  *'  witnesses"  in  the  at- 
testation clause,  operates  as  an  affirmance  of  what 
has  been  done  in  the  presence  of  the  witnesses, 
and  stated  in  the  body  of  the  instrument    lb. 

5.  Where  the  will  did  not  refer  to  the  power, 
and  the  testatrix  was  possessed  of  property  to 
which  the  language  of  the  will  would  properly 
apply ;  held,  tha\  a  gift  of  articles  which  might  or 
might  not  have  been  subjects  of  the  power,  was 
not  sufficient  to  make  Uie  will  operate  as  an  exe- 
cution of  it.  Hughes  v.  Turner,  3  Myl.  Sl  K. 
(cH.)  GG6. 

6.  Where,  upon  partition  by  coparcenera  and 
their  husbands,  the  share  of  one  was  limited,  af- 
ter life  estates  to  the  parents,  to  the  nse  of  the 
children  for  ever,  without  words  of  inheritance^ 
**  subject  to  such  divisions,  directione,  orders  and 
appomtments  as  the  husband,  by  deed  or  will, 
should  think  fit  to  direct  or  appoint :"  held  to  be 
construed  as  if  limited  to  sucn  uses  as  he  should 
bv  deed  or  will  appoint,  and,  in  default,  to  the 
cnildren  as  joint-tenants  for  life,  and  to  amount 
to  a  general  power  of  appointment  in  him  of  the 
reversion,  and  not  merely  of  distribution.  Doe 
d.  Chadwick  v.  Jackson,  1 M.  dk  Rob.  (v.  r.)  653. 

7.  Where,  by  a  devise,  power  was  given  to  the 
tenant  for  life  to  grant  leases,  at  the  best  yearly 
rciit  that  could  be  reasonably  got  without  taking 
any  fine,  and  that  there  should  be  a  clause  of  re- 
entry for  non-payment  of  the  rent;  under  which 
power  a  lease  was  granted  to  hold  from  11  Oct. 
18S3,  at  the  rent  of  £ ,  payable  by  equal  half- 
yearly  payments,  viz.  on,  &c.,  in  every  vear, 
**  except  the  last  half- year's  rent,  which  was  there- 
by reserved  and  agreed  to  be  paid  on  the  Ist  Au- 
gust next,  before  the  determination  of  the  term;" 
and  it  contained  a  clause  of  re-entry,  if  the  rent 
should  be  unpaid  for  42  days  after  it  became  due  ; 
held,  that  it  was  a  valid  execution  of  the  power. 
Doe  V.  Rutland,  2  Mees.  A  W.  (xx.)  661. 

8.  Where,  upon  marriage,  the  husband's  estate 
was  settled  to  his  use  for  life,  remainder  to  the 
use  of  all  and  every,  or  such  one  or  more  of  the 
children,  or  for  such  estates,  &c.,  and  charged, 
&c.,  as  be  should  appoint ;  and  he  appointed  to 
trustees  upon  trust  to  pay  the  rents,  Slo.  to  his 
daughter  for  her  sole  and  separate  use  durin^r  the 
life  of  her  husband,  without  power  of  anticipa- 
tion ;  held  to  be  a  valid  execution  of  the  power. 
Thornton  r.  Bright,  2  Myl.  A  Cr.  (ch.)  230. 

9.  Where  a  power  was  |o  be  executed  by  any 
writing,  attested  by  two  or  more  witnesses,  or  bv 
will,  attested  by  three  or  more  witnesses ;  held, 
that  an  execution  by  a  testamentary  paper,  attest- 
ed by  tu)o  only,  was  not  valid.  Bainbridge  v. 
Smith,  8  Sim.  (ch.)86. 

10.  Where  a  married  woman  was  to  execute 
the  power  by  her  will,  signed  and  puUished  in  the 
presence,  ftc. ;  held,  that  it  was  well  executed, 
although  the  attestation  stated  the  will  to  have 


966S 


IPOWER] 


been  trgned,  waled,  and  tUHvered^  delivery  being 
equivalent  to  the  pablication  of  a  will.  Curteta 
V.  Eenrick,  3  Mees.  &  W.  (ex.)  461. 

11.  Upon  a  bequest  of  a  fund  to  the  testator's 
daughter  for  life,  and  aAer,  to  his  niece,  to  be 
transferred  if  unmarried,  but  in  case  she  should 
then  be  married,  to  transfer  to  such  persons  as  she, 
whether  sole  or  married,  should  appoint,  and  in 
default  thereof  over ;  the  niece  married  in  the 
lifetime  of  the  daujg;hter,  and  during  coverture, 
bj  will  executed  the  power  given  her;  held  a 

food  execution  of  thefpower.    Ashford  v.  Caie, 
Sim.  (cH  )  641. 

12.  A  power  of  appointment  by  husband  and 
wife,  held  not  revoked  by  the  cAnve^ance  by  the 
busband  only  to  his  provisional  assignee,  on  his 
Uking  the  benefit  of  the  Insolvent  Act ;  but  that 
a  subsequent  conveyance  by  both  in  execution  of 
their  joint  power  of  appointment  to  trustees,  for 
Uie  benefit  of  his  creditors,  was  a  valid  appoint- 
inent  Joneav.Wmwood,3Mee8.&' W.(kx.)6S3. 

13.  Where  a  feme  covert j  entitled  to  an  ftnnui- 
tj^  assigned  to  trustees  in  trust,  to  pay  to  such 
persons  as  she  should  appoint,  but  so  as  not  to  de- 
prive hersel'f  of  the  benefit  of  it  by  sale  or  an- 
ticipation, and  for  want  of  such  appointment  to 
pay  the  same  to  her  separate  use ;  held,  that  she 
Dad  both  a  limited  power  of  appointment,  and  also 
the  uncontrolled  dominion  over  the  property. 
Baxiymore  v.  Ellis,  8  Sim.  (oh.)  1. 

H.  A  trustee  having  power  to  nominate  any 
other  to  succeed  him  in  the  trust,  held  that  he 
inight  appoint  three.  Sands  v.  Nngee,  8  Sim. 
(cH.)  130. 

15.  Where,  upon  the  marriage  of  the  bankrupt, 
estates  were  limited  to  him  for  life,  and  after  pro- 
tiding  a  jointure  for  the  wife,  a  power  was  given 
to  them  jointly,  or  to  the  survivor,  to  appoint  t^) 
the  children  of  the  marriage, and  in  default  there- 
of, the  limitation  was  to  such  children  as  should 
be  living  at  the  death  of  the  surviving  parent, 
with  an  ultimate  remainder  to  the  husband  in  lee  ; 
before  any  appointment,  he  became  bankrupt, 
after  which,  with  the  wife,  he  executed  an  ap- 
pointment in  favor  of  the  children,  and  afler  his 
death,  and  after  the  filing  of  the  bill,  the  wife 
executed  an  appointment  to  the  like  usesj  held, 
that  as  the  bankruptcy  and  assignment  would 
have  extinguished  the  power  if  it  liad  been  to  be 
exercised  by  the  husband  only,  he  could  not,  by 
joining  his  wife,  defeat  the  efiect  of  the  act  of 
law  to  which  his  estate  had  become  subiect,  his 
own  disqualification  rendering  it  impossible  that 
the  joint  power  should  be  exercised ;  held,  also, 
that  the  wife  having  survived,  and  no  life  estate 
limited  to  her,  the  liraiUtion  to  the  children  at 
the  death  of  the  survivor  failed,  and  no  appoint- 
inent  made  by  her  alone  could  be  valid.  Hole  v. 
£seott,2  Keene,  (ch.)  444. 

16.  Where,  by  settlement,  a  power  was  given 
to  the  wife  of  appomting,  "  amongst  her  children, 
or  remoter  issue,"  and  she  appointed  to  the  chil- 
dren, including  one  at  the  time  under  age,  and 
unmarried,  but  subseouenlly  limited  the  interest 
to  Uiat  daughter  for  life,  and  after  her  decease 
amongst  her  issue,  held  that  such  limitation  was 
too  remote,  and  the  appointment  bemg  complete, 


she  took  an  absolute  interest.    Kampt  v.  Jones,  S 
Keene  (cb.)  756. 

17.  Where  the  testator  gave  to  his  widow  a 
power  of  sale  for  the  benpfit  and  advantage  of  his 
children,  and  declared  that  he  empowered  her  to 
sell  **  all  my  estates  whatsoever,  and  the  money 
arising  therefrom,  with  my  personal  estate,  my 
said  wife  shall  divide  and  proportion  amongst  my 
said  children  as  she  may  think  proper ;  held, 
that  she  took  a  life  interest,  and  that  it  was  imper- 
ative on  her  to  execute  that  power,  and  by  impli- 
cation gave  the  money  to  the  children,  and  hav- 
ing survived  them  all  without  having  made  any 
appointment,  the  gift  of  the  fund  to  the  grand- 
children was  not  an  execution  of  the  power; 
held,  also,  that  the  direction  to  sell  operated  as  a 
conversion  of  the  real  estate,  and  that  the  chil- 
dren were  entitled  to  lake  the  proceeds  of  the  sale 
as  personalty.  Grieveson  v.  Kirsopp,  2  Keene 
(cH.)  65.3. 

18.  Where  lands  were  devised  on  trusts  as  to 
one-fifth  to  the  testator's  son  for  life,  and  on  his 
death  to  be  conveyed,  with  certain  limitations, 
to  hiii  children  ;  and  as  to  another  fiftii,  in  trust 
for  his  daughter,  until  she  attained  25,  or  was 
married,  and  then  to  be  conveyed  and  settled  to 
her  use  as  they  might  think  proper;  held,  that 
the  events  havmg  taken  place  on  which  the  trusts 
were  to  be  performed,  the  trustees  liaving  omitr 
ted  to  perform  them,  the  power  was  at  an  end  by 
the  determination  of  the  trusts  as  intended  by  the 
testator  :  the  trust,  although  existing,  was  not  a 
continuance  of  the  trust  intended  by  the  will,  and 
reposed  in  the  trustees  by  the  testator.  Wood  v. 
White,  2  Keene  (ch.;  664. 

19.  Bequest  of  three  per  cent,  stock  in  tmst  Tot 
testator's  daughter  for  life,  and  afti>rwards  for  suck 
persons  and  purposes  as  she  should,  by  deed,  or 
her  will,  signed  and  published,  and  attested  by 
two  witnesfies,  appoint,  and  in  default  of  her  ap- 
pointment in  trust  for  her  children  :  the  daughter 
died  unmarried,  and  by  will,  signed  and  sealed 
only,  but  attested  by  three  witnesses,  directed 
certain  pecuniary  legacies  to  be  paid  ont  of  the 
monien  invested  in  her  name,  **  in  the  fovr  per 
cent.  Government  securities,"  she  having  no 
stock  of  any  kind,  except  the  stock  standing  in 
the  names  of  the  trustees  under  her  father's  will, 
nor  any  other  fond  to  satisfy  the  legacies,  held, 
that  the  party  producing  her  will  to  witnesses, 
who  attested  the  signing  and  sealing  it  in  ha 
presence,  was  to  be  taken  as  a  publication,  and 
the  power  therefore  duly  executed  in  form :  held, 
also,  that  the  description, though  erroneous,  suffl- 
ciently  pointed  out  the  property  upon  which  she 
meant  her  power  to  operate,  and  wa3  a  good  exe- 
cution in  substance.  Mackinley  v.  Sison,  8  Sim. 
(tH.)  561. 

20.  Where,  by  settlement,  funds  were  ▼eated 
in  trust  for  the  widow,  and  afterwards  to  transler 
in  such  parte  and  shares  among  the  children  of 
the  testator,  and  subject  to  such  regulations  witii 
regard  to  the  settling  such  shares  of  the  appoin- 
tees in  their  separate  use,  as  the  widow  shoaM 
appoint,  held,  that  an  appointment  to  the  husband 
of  one  of  the  objecte  of  the  power,  after  deducting 
a  sum  due  to  the  appointor,  was  not  a  valid  exe- 
cution of  the  power ;  nor  did  the  p6trer  a:iztlior- 


[POWER— PRACTICE  (COM.  LAW)] 


he  an  appointment  to  the  grandchildren,  bnt  that 
an  alternative  g'lfi  over  by  surviving  children,  in 
case  any  deed  in  the  lifetime  of  the  appointriz 
without  issue,  was  good.  Hewitt  v.  Lord  Dacre, 
2  Krene  ((  h.)  62S2. 

And  see  Devises;  Lease. 


PRACTICE  (COM.  LAW). 

[AJ  Process — servicx. 

[B]  Appearance — distrikgas  to  compel. 

[C]    DeCLARATIOK VE5DE STRIKING    OUT 

COUNTS — IRRXGULARITir. 

[D]  Pleas — several — adding— rules   to 

PLEAD — TIME    FOR — NOTICE    OP — DE- 
MAND op — OTEB. 

]E]  Demurrer. 

[F]  Amendment. 

[G]  Particulars. 
[H]  Affidavits. 

[I]  Orders — rules — motions — service  of. 

[K]  Stating  proceedings. 

[L|  Attachments. 

[M]  Eiamination   of  witnesses— commis- 
sions  FOR — PRODUCTION  OF  PAPERS — 

admissions. 
[N]  Issues. 

£0]  Trial — notice   of — counsel — right 

TO      BEGIN examination WITH- 
DRAWING    JUROR VERDICT NEW 

TRIAL. 

[P]  Judgment. 

[d]  Costs — tazatio.'c  of. 


[A]  Process — service. 

1.  The  Uniformity  of  Process  Act  requiring 
the  oopy  of  the  eavias  to  be  delivered  to  the  de- 
fendant ''forthwith'*  afler  the  arrest;  held,  that 
a  delivery  at  aeven  in  the  evening,  where  the  ar- 
rest took  place  at  nine  in  the  morning,  was  not  a 
compliance  with  the  statute.  Shearman  v.  Mc- 
Knight,  5  Dowl.  (p.  c)  572. 

2.  It  is  not  necessary  that  the  capias  should  be 
returned  previous  to  issuing  the  alias,  it  is  only 
so  in  order  to  prevent  the  operation  of  the  Statute 
of  Limitations,  or  of  proceeding  to  outlawrv. 
Gregorv  v.  Des  Anges,  3  Bing.  N.  S.  (c.  p.)  85 ; 
3  Sc.  534 ;  and  5  Dowl.  (p.  c.)  193. 

3.  A  mistake  in  the  year  in  the  teste  of  the 
oopy  of  writ,  the  writ  itself  beinff  correct,  is  mere- 
ly an  irregularity,  and  waived  by  tlie  defendant 
not  applying  beiore  the  time  for  appearing  has 
elapsed.    ]£l wards  v.  Collins,  5  Dowl.  (p.  c.)  227. 

4.  Where  a  defective  copy  of  the  process  is 
served  on  the  defendant,  he  is  not  bound  to  show 
that  a  similar  defective  copy  was  delivered  to  the 
riberifT;  and,  unlefs  an  ans w«r  ia  givien  by  the 


plaintiff,  the  defendant  will  be  discharged  out  of 
custody.    Hodd  v.  Langridge,  5  Dowl.  (p.  c.)  72L 

5.  Where  the  writ  contained  no  other  descrip- 
tion of  the  defendant  than  his  surname,  held  ir- 
regular, and  the  defendant  entitled  to  be  discharg- 
ed out  of  custody.  Margetson  v.  Tugghe,  5  Dowl. 
(p.  c.)  9. 

6.  So,  where  no  place  of  residence  was  gives. 
Ward  t;.  Watts,  lb.  94. 

7.  Bui  held  immaterial  in  the  Exchequer, 
where  no  rule  requires  the  indorsement  of  the  de- 
fendant's residence.  Strong  v.  Dickenson,  6 
Dowl.  (p.  c.)  99. 

8.  Where  the  writ  of  summons  was  not  truly 
stated  in  the  writ  of  trial ',  held  irregular,  and  all 
subsequent  proceedings  set  aside,  although  tha 
defendant  did  not  appear  at  the  trial.  Wmte  v. 
Farrar,  2  Mees.  Sl  W.  (ex.)  288. 

9.  Where  the  capias  was  indorsed  as  issued  by, 
&c.,  *' agent  for  the  plaintiff  in  person,  who  re- 
sides at  B.,"  held  irregular.  Lloyd  v.  Jones,  1 
Mees.  A  W.  (ex.)  549 ;  and  5  Dowl.  (p.  c.)  161. 

10.  A  return  to  a  capias,  **  he  is  not  to  he  found 
in  my  bailiwick,"  held  unusual  and  irregular ;  but 
held,  that  want  of  due  diligence  in  making  the 
arrest  is  not  a  ground  for  an  attachment.  R.  v. 
Sheriff  of  Kent,  2  Mees.  db  W.  (ex.)  316;  and  5 
Dowl.  (p.  c.)  451. 

11.  Where  the  process  was  issued  by  the  agent 
of  the  plaintiff  in  person,  and  omitted  to  state  the 
particulars  of  the  plaintiff's  residence,  held  in- 
sufficient   Lloyd  V.  Jones,  5  Dowl.  (p.  c.)  161. 

12.  A  misdirection  of  the  writ  to  the  constable 
of"  Castle  of  Dover,"  instead  of  "  Dover  Castle  ;'* 
lield  no  ground  for  discharge  of  the  defendant. 
Frank  v.jaroes,  5  Dowl.  (p.  c.)  723. 

13.  The  court  refused  to  set  aside  the  proceed- 
ings on  the  ground  that  the  writ  of  summonf 
against  Thomas  G.  was  served  on  William  G. 
Griffin  v.  Gray,  5  Dowl.  (p.  c.)  331. 

14.  The  Act  not  having  defined  what  shall  be 
deemed  personal  service,  it  is  sufficient  if  the 
court  is  satisfied,  from  the  eiroumstanoes  shown, 
that  the  defendant  had  possession  of  the  procew. 
Williams  v.  Piggott,  1  Mees.  &.  W.  (ex.)  574 ;  1 
Ty r.  &  Gr.  953 ;  and  6  Dowl.  (p.  c.)  390. 

And  see  Rhodes  v.  Innes,  7  Bing.  3S9. 

15.  Where  the  writ  of  summons  had  been  only 
served  on  an  ftgent  of  the  defendant,  the  distriM^ 
gas  refused.  Gridley  v.  Thorn,  5  Dowl.  (p.  c.) 
383. 

16.  The  affidavit  of  service  of  notice  upon  a 
creditor  by  leaving  it  with  a  person  who  resided 
in  the  house,  who  informed  the  deponent  it  had 
been  delivered,  not  going  on  to  allege  a  belief  of 
such  statement ;  held  insufficient.  Itobinson  o. 
GomperU,  4  Ad.  Sl  £11.  (k.  b.)  82. 

17.  Where  the  distringas  was  served  with  a 
notice  subscribed,  that  it  was  to  compel  an  ap- 
pearance, held  that  it  could  not  be  made  the  foun- 
dation of  subsequent  process  of  ootlawry.  Veie 
0.  Gowar,  3  Bing.  N.  8.  (c.  ?.)  503;  5  Dowl.  (f. 
c.)  494 ;  and  4  8c.  287. 


8870 


[PRACTICE  (COM.  LAW)] 


18.  A  plaintiff  is  entitled  to  a  distringas  in 
continuation  of  former  writs  for  the  purpose  of 
proceeding  to  outlawry,  although  they  may  have 
Deen  sued  out  only  to  save  the  Statute  of  Limita- 
tions.   Reay  v,  Youdp,  2  Mees.  St,  W.  (ex.)  188. 

19.  A  distringas  issued  afler  the  four  months 
during  which  Die  summons  was  returnable,  set 
aside.  Abbotts  r.  Kelly,  3  Bing.  N.  S.  (c.  p.) 
478 ;  4  Sc.  256 ;  and  5  Dowl.  (p.  c.)  476. 

20.  Where  the  copy  served  commenced,  "  Wil- 
liam Fourth,"  &c.,  instead  of,  **  Victoria,"  &c. ; 
service  set  aside  with  costs.  Drury  v.  Daven- 
port, 6  Dowl.  (p.  c.)  162;  and  3  Mees.  &  W. 
(XX.)  45. 

21.  The  rule  requiring  indorsement  of  the 
amount  of  debt  and  costs  on  the  writ,  held  not  to 
apply  to  an  action  of  debt  for  penalties  for  bri- 
bery under  the  Municipal  Corporation  Act,  (5  & 
6  Will.  4,  c.  76,  s.  54.)  Davies  v.  Lloyd,  6  Dowl. 
(p.  c.)  173;  and  3  Mees.  &,  W.  (kz.)  69. 

22.  It  is  not  irregular  to  sue  out  separate  writs 
of  summons  against  separate  defendants  for  the 
same  cause  or  action,  provided  they  be  issued 
upon  one  praeipB,  and  bear  the  same  date.  An- 
gus f .  Coppard,  6  Dowl.  (p.  c.)  137 ;  and  3  Mees. 
A  W.  (EX.)  57. 

23.  Writ  of  kab.  corp.  sued  out  by  a  prisoner 
amended  by  substituting  7  Will.  4,  (the  year  of 
the  reign,)  for  1  Vict.,  as  the  court  would  take 
notice  that  the  queen  did  not  then  reign.  Davies, 
ex  parte,  4  Bing.  N.  S.  (c.  p.)  17 ;  3  So.  241 ; 
and  6  Dowl.  (p.  c.)  181. 

24.  Where  by  the  affidavit  for  a  distringas  to 
compel  appearance  to  a  writ  of  summons,  it  ap- 
pears that  the  defendant  is  abroad,  the  entry  of 
appearance  and  judgment  signed  thereon  held 
iiregular,  the  proper  course  wing  by  f  rocess  of 
out&wiy.  Partridge  v.  Wallbank,  2  Mees.  &,  W. 
(XX.)  m. 

25.  Where  the  process  could  not  be  served 
personally,  the  defendant  being  lunatic,  and  his 
keeper  not  allowing  him  to  be  seen,  the  court 
refused  to  allow  an  appearance  to  be  entered 
Qpon  the  return  of  nulla  bona  and  mm  est  inventus. 
Starkie  v.  Skilbeck,  6  Dowl.  (p.  c.)  52. 

96l  Where  the  affidavit  in  support  of  a  distrim- 
gas  to  compel  appearance  only  deposed  as  to  in- 
quiry at  the  defendant's  supposed  place  of  resi- 
dence, held  insufficient  Esoaile  v.  Marshall,  4 
Bing.  N.  8.  (c.  p.)  172. 

27.  Upon  such  an  application,  the  affidavit 
must  show  expressly  that  the  deponent  believes 
the  party  to  be  resident  in  £nghind ;  and  held 
insumcient  where  it  only  alleged  inquiries  to 
have  been  made  at  the  last  place  of  abode. 
S.  C,  6  Dowl.  (p.  c.)  400. 

28.  Where  the  service  of  the  writ  of  summons 
was  irregular,  held  that  a  rule  to  set  aside  the 
service  and  copy  of  the  writ,  did  not  ask  too 
much.  Argent  v.  Reynolds,  6  Dowl.  (p.  c.) 
480. 

29.  Where  three  defendants  were  arrested  on 
baiUble  process,  and  one,  being  administratrix, 
was  discharged,  and  the  plaintifl  declared  against  I 


the  other  two ;  held,  that  after  they  had  obtained 
time  for  pleading,  and  they  had  pleaded,  it  was  a 
waiver  of  irregularity.  Bartrum  v.  Willia  iis,  4 
Bing.  N.  S.  (c.  p.)  301;  and  6  Dowl.  (p.  c.) 
397. 

30.  Description  of  the  defendant  in  the  writ 
and  declaration,  by  the  initial  of  his  Christian 
names  only,  held  only  a  ground  for  amending  at 
the  plaintitT's  costs,  and  not  of  setting  aside  the 
writ  and  subsequent  proceedings.  Rush  v.  Ken- 
nedy, 7  Dowl.  (P.  c.)199;  and  4  Mees.  &  W. 
(Kx.)  586. 

31.  The  description  of  the  last  place  of  the  de* 
fendant's  abode,  when  his  actual  residence  can- 
not be  found,  is  sufficient,  the  indorsement  there- 
of being  for  the  benefit  of  the  defendant  and  not 
of  the  sheriff:  where  no  additioDal  place  was  in- 
dorsed on  the  CO.  sa.,  held  irregular.  Bettyes  t, 
Thompson,  7  Dowl.  (p.  o.)  222. 

32.  Description  of  the  defendant  as  of  Neweai- 
tle-upon-Tyne,  within  the  county  of  Northumber- 
land, a  part  of  that  place  being  now  within  that 
county,  held  not  bad  on  the  face  of  the  writ 
Rippon  V.  Dawson,  5  Bing.  N.  S.  (c.  r.)  206 ;  and 
7  Dowl.  (p.  c.)  247. 

33.  Where  the  capias  described  the  defendtst 
with  the  addition  of  "  gentleman,"  which  vu 
omitted  in  the  copy  served,  held  bad,  as  not  com- 
plying with  2  Will.  4,  c.  39,  s.  4,  although  the 
addition  need  not  have  been  inserted.  Cooke  v, 
Vaughan,  4  Mees.  dk  W.  (ex.)  69;  and  6  DowL 
(p.  c.)  695. 

34.  The  description  of  the  cause  of  action  sta- 
ted as  '*  an  action  on  the  case  promises,"  held 
insufficient  Toulton  v.  Hall,  7  Dowl.  (p.  c.)  186 ; 
and  4  Mees.  &  W.  (ex.)  582. 

35.  A  plaintiff  is  authorized,  where  the  defen- 
dant's place  of  residence  is  unknown,  to  treat  the 
place  mentioned  in  the  promissory  notes  on 
which  the  action  is  brought  as  the  supposed  mi- 
dence  of  the  defendant;  held,  also,  that  a  writ  of 
alias  or  pluries^  or  a  distringas  thereon,  may  issue 
by  leave  of  the  court  or  of  a  Judge,  and  bear  test* 
after  the  previous  writ  or  summons  has  expired ; 
and  where  the  plaintiff  had  taken  out  an  atiss 
pluriss  to  compel  appearaoce,  whilst  a  distringas 
for  the  purpose  of  proceeding  to  oottawiy  was 
pending,  but  which  nad  never  been  delivered  to 
the  sheriff,  and  was  in  fact  abandoned,  held,  that 
the  distringas  was  not  to  be  considered  as  an  ex- 
isting writ,  so  as  to  prevent  the  plaintiff  froD 
continuing  his  writs  of  summons.  Norman  s. 
Winter,  5  Bing.  N.  S.  (c.p.)279;  6  Sc.  37d; 
and  7  Dowl.  (p.  c.)  304. 


36.  Where  the  defendant,  whose  real  name 
H.  D.  R.,  was  described  in  the  process  as  H.  R., 
and  the  affidavit  for  an  application  to  set  aside  the 
distringas  was  entitled  as  in  a  cause  against  H. 
D.  R ,  sued  as  H.  R.,  held  incorrect,  there  being, 
until  appearance,  no  such  cause  as  that  deaeribed 
in  the  affidavit  Borthwick  v.  Ravenscroft,  5 
Mees.  &  W.  (xx.)  31 ;  and  7  Dowl.  (p.  c.)  393. 

37.  Where  the  summons  had  the  date  of  the 
month  inserted,  but  not  of  the  year,  the  last  figuie 
being  omitted,  held  that  it  was  not  a  nullity.  Sol- 
omon V.  Nainley,  7  DowL  (p.  c.)  459. 


r 


[PRACTICE  (COM.  LAW)] 


W71 


38.  Whefe,  in  an  tetion  of  trover  in  the  Com- 
mon Ple«8t  an  affidayit  was  sworn  before  a  com- 
miflsioner  of  that  Court,  during  the  circuit,  and  an 
application  made  for  an  order  for  the  arrest,  be- 
fore the  Lord  Chief  fiaron,  the  judge  at  chambers, 
held  that  such  affidavit  was  a  business  depending 
within  the  meaning  of  11  Geo.  4,  c.  70,  s.  4,  and 
that  the  Lord  Chief  Baron  had  jarisdiction.  Grif- 
fin V.  Taylor,  6  Dowl.  (p.  c.)  62L 

39.  An  indorsement  on  the  writ  as  issued  bj  J. 
R.,  10,  Gray*s  Inn  Square,  Holbom,  held  a  suffi- 
cient description  of  the  attorney's  residence. 
Toulton  r.  Hall,  7  Dowl.  (p.  c.)  17o  ;  and  4  Mees. 
&  W.  (EX.)  582. 

40.  Serviee  of  the  writ  in  the  county  of  C,  al- 
though the  party  was  described  in  it  as  of  the 
county  of  the  borough  of  C,  held  immaterial ; 
held,  also,  that  10  days  after  the  service  was  too 
Jste  to  move  to  set  it  aside,  but  that  entering  an 
appearance  for  the  defendant  under  the  statute 
was  not  suoh  a  step  in  the  cause  as  to  prevent  an 
application  to  set  aside  the  service  for  irregularity. 
Davis  V.  Sherlock,  7  Dowl.  (p.  c.)  530. 

41.  Service  on  the  defendant's  attorney,  who 
was  prosecuting  a  cross-action,  cannot  be  made 
good  service,  although  the  defendant  be  keeping 
out  of  the  way  to  avoid  service,  but  the  prooeeif 
ing  must  be  by  distringas,  as  in  any  other  case. 
Farmeter  v.  Reid,  7  Dowl.  (p.  c.)  545. 

42.  Writs,  new  forms  of,  Reg.  Gen.,  1  Perr.  A 
Dav.  («.  B.)  313 ;  and  3  Tounge  A  C.  (xx.  kq.) 
App.  V. 

And  see  Jhrrest ;  AtUirmaf. 


[B]  Appxaranck — DirrniifGAS  to  compel. 

1.  To  ground  the  distringas^  it  must  appe&r 
that  the  defendant  was  at  home  or  in  tbe  neigh\ 
borhood  when  the  calls  were  made.    Williams  v. 
Hosier,  1  Tyr.  &  G.  (ex.)  805. 

2.  An  affidavit  that  the  defendant  keeps  out  of 
tbe  way  to  avoid  service,  does  not  dispense  with 
the  rule  of  making  three  calls,  &c.,  in  order  to 
obtain  the  distringas.  Clayton  v.  Marsham,  5 
J>owl.  (P.  G.)  542. 

3.  But  where  the  defendant's  residence  cannot 
be  discovered,  service  at  his  last  known  place  of 
residence  and  appointments,  and  with  an  agent 
receivini^  his  rents  and  stating  himself  to  be  in 
communication  with  him,  held  safficient.  Grind- 
ley  9.  Thorn,  5  Dowl.  (p.  c.)  544. 

4.  In  making  the  appointment,  it  is  indispensa- 
ble that  the  hour  should  be  mentioned.  Atkin- 
son V.  Clean,  5  Dowl.  (p.  c.)  252. 

5.  Where  the  distringas  issoed  upon  a  Judge's 
order,  and,  noon  an  application  to  set  it  aside,  the 
defendant  din  not  deny  that  the  letter  containing 
the  demand,  and  notice  of  calling  again  hsd  been 
received,  the  conrt  refused  to  set  aside  the  Judge's 
order.  Gale  v.  Winkes,  3  Biog.  N  S.  (c.  p.) 
295 ;  3  Sc.  GG7 ;  and  5  Dowl.  (p.  c.)  348. 

6.  On  motion  to  set  aside  the  distringas^  the 
•  only  question  is  whether  there  appean  enough  on 


tbe  face  of  the  phintifr's  affidavit  to  have  jnalified 
the  issuing  it,  the  court  cannot  enter  into  the  in- 
quiry ss  to  whether  the  defendant  has  sustained 
no  substantial  injury.     White  v.  Johnson,  5  Tyr. 

(XX.)  i(m, 

7.  Service  of  the  rule  to  compute,  by  ]eavin|r 
it  at  the  defendant's  apartments  when  no  one 
therein,  held  insufficient.  Chafiers  v.  Glover,  5 
Dowl.  (p.  c.)  81. 

8.  Where  the  defendant  omits  to  appear,  the 
plaintiff  has  four  terms  from  the  service  of  the 
writ  in  which  to  enter  it  for  him.  Leddel  v. 
Cranch,  5  Dowl.  (r.  c.)  GG2. 

9.  Where,  after  a  distringas  issued,  but  not 
■erved,  the  defendant  admitted  the  aervice  of  the 
summons ;  held,  that  the  plaintiff  might  enter  an 
appearance  for  him.    Saunders  v.  De  Chastelain, 

5  Dowl.  (p.  c.)  154. 

10.  Where  one  defendant  had  been  discharged 
on  the  ground  of  a  defect  in  the  affidavit,  and 
nothing  said  in  tbe  rule  about  sppearance,  held 
that  the  plaintiff  was  not  entitled  to  enter  one 
for  him.    Wilkins  v.  Parker,  5  Dowl.  (p.  c.)  150. 

11.  The  penal  clause  of  9  Will.  3,  c.  25,  s.  33, 
for  not  having  entered  an  appearance,  held  to 
have  been  repealed  by  the  effect  of  the  later  sta- 
tutes, and  an  application  dismissed,  with  costs. 
Thomas  v.  Nokes,  5  Dowl.  (p.  c)  650. 

12.  Where  the  plaintiff  irregularly  enters  an 
appearance,  the  defendant  is  bound  to  apply  as 
soon  as  steps  are  taken  showing  an  intention  to 
proceed  on  iL  Strange  v.  Freeman,  5  Dowl.  (r. 
c.)407.  *  ^ 

13.  A  rule  to  plead  is  necessary  in  all  cases, 
whether  the  defendant  has  appeared  or  not,  bat 
the  objection  held  to  be  waiveo  by  a  summons  for 
time ;  held  also,  that  the  rule  as  to  notice  of  taxa- 
tion does  not  apply  unless  the  defendant  has  ap- 
peared.   Bolton  V,  Manning,  5  Dowl.  (p.  c.)  769. 

14.  Where  the  time  for  entering  an  appearance 
had  expired,  held  no  objection  that  the  affidavit  of 
no  appearance  was  not  made  until  four  days  after 
the  search  made.  Waugh  r.  Pry,  7  Dowl.  (p.  c.) 
376. 

15.  Where  a  defendant,  more  than  four  months 
after  the  issuing  the  writ  against  him,  gave  a  cog' 
novii,  held  that  it  authorised  the  plaintiff's  attor- 
ney to  enter  an  appearance,  notwithstanding  the 
lapse  of  time.  Ricliardson  v.  Rigglesfbrd,4  Mees. 

6  W:  (ax.)  384  ;  and  7  Dowl.  (p.  c.)  25. 

16.  The  affidavit  for  a  distringas  to  compel  ap- 
pearance must  state  a  belief  of  deponent  that  the 
defendant  is  not  out  of  the  country.  Norman  v. 
Winter,  4  fiing.  N.  S.  (c.  p.)  637 ;  6  Sc.  378 ;  and 

7  Dowl.  (p.  c.)  304. 

17.  After  three  calls,  and  two  appointments, 
although  the  copy  of  the  process  was  lefl  at  the 
second  instead  of'^the  last  call,  and  the  defendant 
sworn  to  keep  out  of  the  way  to  avoid  service,  a 
distringas  allowed.  Webb  v.  Jenkins,  7  Dowl. 
(p.  c.)  135. 

18.  So,  where  it  was  sworn  that  the  defendant 
had  been  living  in  lodgings,  and  it  was  not  known 

1  where  be  then  lived,  but  a  oopy  of  the  writ  had 


2873 


[PRACTICE  (COM.  LAW)] 


been  lent  to  the  party  aotlng  as  attorney  for  him, 
and  which  by  a  letter  appeared  to  have  come  to 
the  defendant's  hands,  and  the  attorney  had  sta- 
ted that  he  had  no  intention  of  appearinjLr,  but 
was  prepared  to  defend  when  the  proper  lime  ar- 
rived, held  a  sufficient  gfroilnd  for  a  distringas; 
Moody  V.  Morgan,  7  Oowl.  (p.  c;  144;  and  tiSc. 
(c.  p.)  842. 


[C]    DeCLARATIOH TENDE STRIKING   OOT 

COUNTS — IRREGULARITY. 

1.  Where  the  action  was  brought  under  a  power 
of  attorney  signed  in  America,  and  with  the  ini- 
tial only  of  one  of  the  christian  names  of  the  plain- 
tiff, the  court  refused  to  set  aside  the  declaration 
for  not  inserting  it.  Lindsay  v.  Wells,  3  Bing. 
N.  S.  (c  p.)  777;  and  5  Dowl.  (p.  c  )  618. 

2.  Delivery  of  declaration  a  day  afler  it  bears 
date,  contrary  to  tlie  Reg.  1,  Uil.,  4  Will.  4  ;  held 
an  irregularity,  but  waived  by  not  applying  from 
the  26Ui  October  to  the  9th  November.  Newn- 
ham  V.  Hanny,  5  Dowl.  (p.  c.)  259. 

3.  Where,  in  an  action  on  a  bill  drawn  in  Lon- 
don, the  venue  was  laid  in  Surrey,  for  the  purpose 
of  a  speedier  trial,  and  the  Master  had  disallowed 
the  costs  of  going  to  the  assizes,  the  court,  in  the 
absence  of  any  case  of  oppression  suggested, 
made  a  rule  absolute  for  reviewing  the  taxation 
Vare  v.  Moore,  3  Bing.  N.  S.  (c.  p.)  261 ;  and  S. 
C.  3  Sc.  646. 

4.  A  rule  to  change  the  venue  and  plea  may  be 
delivered  at  the  same  time,  although  the  issue 
joined  would  prevent  the  plaintiff  from  giving 
material  evidence  in  the  original  county,  or  from 
fulfilling  it  Phillips  v.  Chapman,  5  Dowl.  (p.  c.) 
250. 

5.  Where  the  venue  is  retained  on  the  usual 
undertaking,  and  the  plaintiff  fails  therein,  the 
objection  must  be  taken  at  the  trial,  and  cannot 
be  made  the  ground  of  a  subsequent  motion  for  a 
nonsuit.  How  v.  Pickard,  2  Mees.  db;  W.  (ex.) 
373 ;  and  5  Dowl.  (p.  c)  606. 

6.  The  rule  to  strike  out  counts  must  be  drawn 
•op  on  reading  the  declaration,  or  on  affidavit 
•tating  the  nature  and  effect  of  the  different 
«ount8.  Roy  v.  Bristowe,  2  Meet.  &,  W.  (ex.) 
«41. 

7.  Where  the  first  count  charged  the  defendant 
as  making  false  representation  as  asent,  and  a 
flecond  as  principal ;  held  that  the  plamtiff  might 
vecover  on  either.    S.  C.  5  Dowl.  (p.  c.)  452. 

8.  Where  the  declaration  contained  one  count, 
on  an  undertaking  by  the  defendants  to  be  re- 
sponsible for  the  proceeds  of  a  sale  with  the  auc- 
tioneer, and  anotner  by  themselves  without  the 
auctioneer ;  held,  that  the  subject-matter  of  the 
two  counts  not  appearing  to  be  distinct,  one  must 
be  struck  out,  unless  a  Judge  at  chambers  might 
allow  it  to  stand  conditionally,  under  Reg.  7,  Hil. 
4  Will.  4.  Cholmondeley  v,  Payne,  3  Bing.  JN. 
S.  (c.  p.)  708 ;  and  5  Dowl.  (p.  c.)  638. 

9.  Keeping  the  declaration  until  just  before  the 
^leftndant  was  boond  to  plead,  held  not  a  Mraiver 


of  an  objection  on  the  ground  of  variance  between 

the  writ  and  the  declaratioD.     Cumming  o.  £!• 
wyn,  3  Bing.  N.  S.  (c.  i .)  682. 

10.  Where  the  affidavit  of  the  defendant,  on 
motion  to  set  aside  tiie  service  of  declaration, 
Hiniply  stated  that  he  had  not  been  served,  with- 
out going  on  to  swear  that  the  process  never 
came  to  bis  knowledge,  rule  refused.  Giles  v. 
Hemming,  6  Dowl.  (p.  c.)  :^25. 

11.  The  court  allowing  notice  of  declaration  to 
be  .stuck  up  in  the  office,  refused  to  allow  the 
service  of  future  rules  and  notices  to  be  made  in 
the  same  way.  Layton  v.  Mason,  6  Dowl.  (p.  c.) 
275. 

12.  Where,  in  an  action  on  a  warranty  of  a 
horse,  the  venue  had  been  changed  from  M.  to 
W.,  held,  that  a  letter  written  1^  the  plaintiff's 
attorney  in  M.,  informing  the  defendant  of  the 
breach  of  warranty,  and  that  the  horse  was  stand- 
ing at  his  expense,  the  receipt  of  which  letter 
was  admitted  by  the  defendant's  agent  in  M.,  was 
a  sufficient  compliance  with  the  undertaking  to 
give  materia]  evidence  in  M.,  on  bringing  back 
the  venue.  Collins  o.  Jenkins,  4  Bing.  N.  S.  (c. 
p.)  225. 

13.  On  an  information,  under  6  Geo.  4,  c.  108, 
for  being  concerned  in  the  unshipping  of  prohibi- 
ted goods,  which  were  received  on  board  on  the 
high  seas,  in  prosecution  of  an  agreement  arranged 
at  R.  and  in  London,  and  carried  strictly  into 
effect,  and  the  goods  landed  in  Ireland  ;  held, 
that  the  latter  was  an  unshipping,  in  which  the 
defendant  was  concerned,  in  England,  within  the 
meaning  of  the  Act,  and  the  offence  properly 
triable  in  England.  Attorney- General  c.  Catt,  3 
Mees.  &  W.  (ex.)  7. 

14.  Where  the  venue  had  been  changed,  in  an 
action  by  husband  and  wife,  from  Middlesex  into 
another  county  ;  held,  that  the  husband  having 
since  become  a  barrister  did  not  give  the  privilege 
of  bringing  it  back  again,  it  being  confined  to  the 
party  on  whose  account  the  action  is  brought 
Newton  v.  Harland,  4  Bing.  N.  S.  (c.  p.)  406. 

15.  In  an  action  for  the  non-execution  of  works 
on  the  Bedford  level,  an  affidavit  showing  that  a 
large  proportion  of  the  lands  in  Cambridgeshire 
was  liable  to  the  rates  imposed  by  the  corporation 
of  the  level,  was  not  a  sufficient  ground  for 
changing  the  venue  from  Cambridgeshire.  Thorn- 
ton V.  Jennings,  5  Bing.  N.  S.  (c.  p.)  485;  and  7 
Dowl.  (p.  c.)  449. 

16.  The  privilege  of  an  attorney  to  retain  the 
venue  is  confined  to  Middlesex ;  when  laid  in 
London,  held,  that  he  was  not  entitled  to  retain 
it  there,  where  the  action  had  been  removed  on 
the  usual  affidavit.  Bradshaw  v.  Burton,  7  DowL 
(P.  e.)  329. 

17.  Where  it  appeared  clearly  that  the  only 
question  to  be  triea  affected  the  right  to  costs,  the 
debt  having  been  tendered  and  accepted,  the 
Court  allowed  the  venue  to  be  chanired,  although 
before  issue  joined.  Dowler  v.  CaDer,  7  DciwL 
(p.  c.)  55 ;  and  4  Mees.  &,  W.  (ex.)  531. 

18.  Where  the  venue  had  been  changed  to  the 
county  of  G.  on  the  usual  affidavit,  the  eoazt  le- 
fiised  to  dischiige  the  rule,  although  mpotii  that 


[PRAC5T1CE  (COM.  LAW)] 


8873 


the  eauae  of  action  aroae  partly  in  that  county 
and  partly  in  Ireland.  Ftaber  v.  Waring,  1  Sc. 
(c.  p.)  377. 

19.  Tberp  being  no  more  than  29  special  jurors 
within  the  county,  held  not  a  sufficient  ground  for 
changing  the  venue.  Doe  v.  Williams,  5  Bing. 
N.  S.  (c.  p.)  205. 

And  see  Contract ;  Replevin  ;  Writ  of  Right. 


[D]  PlKIS— SETERAL— ADDI90->RULES  TO  PLEAD 
— TIME   FOR — NOTICE    OF — DEMAND   OP — OYER. 

].  A  plea  commencing  with  a  formal  defence, 
the  part  objected  to  allowed  to  be  struck  out.  Ba- 
con V.  Asbton,  5  Dowl.  (p.  c  )  94. 

S.  The  Judge  at  nisi  prius  has  no  digcretion  to 
refuse  or  accept  a  plea,  puis  darr.  contin.^  if  pro- 
perly verified,  although  plradcd  nirrely  lor  d«  Iny. 
Liudlow  Corporation  v.  Tyler,  7  C.  &.  1'.  (h.  y.) 
537. 

3.  In  assumpsit  on  a  banker's  check,  the  time 
for  pleading  ha\«ng  cxpirt'd,  leave  rt»tusrd  to  add 
a  plea  that  it  was  t'aUdy  dated,  and  drawn  ut  a 
place  more  tlian  fiileen  miles  from  the  place  when' 
payable.  M'Dowall  v.  Lyster,  2  Mees.  &,  W. 
(EX.)  52. 

4.  In  assumpsit  against  an  attorney  for  negli- 
gence in  tiiking  an  insufficient  security  on  behalf 
of  his  client,  the  plamliflT,  whereby  he  sustained 
a  loss,  the  court  allowed  a  plea,  denying  the  spe- 
cial dania^  as  alleged,  to  be  pleaded  wiUi  non  as- 
sumpsit ;  but  that  with  respect  to  a  traverse  of 
the  consideration  for  the  retainer,  the  plea  of  non 
a9sumpsit  would  suffice.  Wright  v.  Newton,  3 
Sc.  (c.  P.)  595. 

5.  No  rule  to  plead  several  matters  is  required 
when  the  pleas  are  added  under  a  judge's  order. 
Monck  V.  Sbenstone,  3  Sc.  (c.  p.)  661. 

6.  Afler  a  consent  given  by  the  plaintiff  to  a 
rule  to  plead  several  matters,  he  cannot  apply  to 
■et  aside  any  of  such  pleas.  Uowen  v.  Carr,  5 
Dowl.  (p.  c.)  305. 

7.  SembU,  there  is  no  difference  between  the 
effect  of  a  plea  of  payment  into  court,  and  pay- 
ment under  the  old  rule,  with  respect  to  adinis- 
sibn  of  the  liability.  Lucy  r.  Walrond,  3  Bing. 
N.  S.  (c.  p.)  841. 

8.  The  summons  for  further  time  to  plead,  re- 
turnable at  half-past  ten,  during  term,  cannot  be 
treated  as  a  nullity,  and  judgment  set  aside 
Bebb  V.  Wales,  5  Dowl.  (p.c.)  458. 

9.  The  rule  to  plead  ought  hot  to  be  left  at  the 
office  until  after  the  defendant  is  served  with  no- 
tice of  declaration  filed.  Bennett  v  Smith,  3 
Bing.  N.  S.  (c.  p.)  305;  3  Sc.  673;  and  5  Dowl. 
<r. «.)  353. 

10.  After  a  rule  nisi  for  leavte  to  pTead,  cover- 
ture puis  darr.  cant  ,the  court  afterwards  refused, 
without  consent,  to  introduce,  as  a  term  into  the 
rule,  the  dispensing  with  the  affidavit,  that  the 
l^rouAd  of  pka  arose  within  eight  days  before  the 


pleading  of  the  plea.    Powell  o.  Duncan,  6  DowL 

(p.  c.)  &0. 

1 1 .  A  demand  of  oyer,  not  describing  the  de- 
fendant as  executor,  held  a  nullity.  Poole  r. 
Coates,  3Sc.  (c.  p.)  768. 

12.  A  notice  to  plead  requiring  no  date,  an  er- 
roneous one  held  not  to  vitiate.  Wyatt  v.  Mac- 
donald,  3  Sc.  (c.  p.)  768. 

13.  A  plea  of  plene  adm.,  held  not  to  reouire  to 
be  signed  by  counsel.  Reed  v.  Spurr,  2  Mees.  & 
W.  (EX.)  76;  and  5  Dowl.  (p.  c.)  330. 

14.  The  terms,  "  pleading  issuably,"  on  an  or- 
der for  time  to  plead,  held  not  to  extend  beyond 
the  plea,  and  do  not  bind  the  defendant  as  to  the 
subsequent  proceedings.  Woodman  v.  Goble,  3 
Mees.  &,  W.  ^ex.)  304  ;  and  6  Dowl.  (p.  c)  371. 

15.  A  plea  that  aOer  the  commencement  of  the 
suit  one  of  the  bcvrral  plaintiffs  became  bankrupt, 
held  not  an  isfsuablo  plea  within  the  iernis  of  plead- 
ing issuably,  and  not  alUiwed  to  I)e  joined  with 
the  general  issue.  Sin  pics  v.  Iloldsworth,  4 
Bing.  N.  S.  (c.  V.)  143;  and  6  Dowl.  (p.  c.)  196. 

16.  A  rule  to  plead  may  be  entered  before 
actual  service  of  notice  of  declaration,  if  on  the 
some  day.  Aitman  v.  Conway,  6  Dowl.  (p.  c.) 
76;  and  3  Mees.  A  W.  (ex.)  71. 

17.  A  rule  to  plead  given  before  notice  of  dec- 
laration is  irregular,  but  the  taking  out  a  sum- 
mons for  time  to  plead  held  a  waiver  of  the  irregu- 
Urity ;  held,  also,  that  where  the  defendant 
has  not  appeai«>d,  no  notice  of  taxation  of  costs 
is  necessary.  Pope  v.  Mann,  2  Mees.  ik,  W.  (xx.) 
881. 

1^.  Where,  upon  the  5th  September,  the  de- 
fendant obtained  a  month's  further  time  for  plead- 
ing, undertaking  to  take  short  notice  of  trial  for 
the  first  sittings  in  term ;  held,  that  the  time  for 
pleading,  nevertheless,  did  not  commence  until 
afler  the  24th  October,  and  judgment  signed  for 
want  of  plea  was  irregular.  Le  Fevre  «.  Mol> 
inenx,  6  Dowl.  (p.  c.)  153. 

19.  Plea,  nunq.  indeb.  as  to  all  but  part,  and 
tender  as  to  that ;  held  to  constitute  bvt  one 
answer,  and  no  rule  to  plead  several  matters  necea* 
sary.  Archer  v.  Garrard,  6  Dowl.  (P.  c.)  132  ; 
and  3  Meea.  &.  W.  (ex.)  63. 

20.  Where  on  the  day  the  time  for  pleading 
expired,  the  defendant  delivered  pleas,  wiih  a 
summons  for  leave  to  plead  several  matters,  re- 
turnable in  two  days,  and  the  plaintiff  petBrned 
the  pleas  and  signed  judgment  as  for  want  of 
plea,  the  court,  on  an  affidavit  of  merits,  set  aside 
the  judgment,  without  costs;  but  held,  that  pend- 
ing the  rule  for  setting  aside  the  judgment,  an 
order  obtained  by  the  defendant  to  plead  several 
matters  was  irregular,  and  set  sside.  Wilkes  v, 
Ottley,  2  Nev.  &  P.  (k.  b.)  99. 

21.  Where  the  shnUUer  etaly  is  added,  held, 
that  the  role  requiring  the  date  of  the  tetm  does 
not  apply,  the  rule  is  confined  to  the  case  where 
the  party  pleading  is  the  party  delivering  the 
plea.  Sbackel  o.  ItaDger,  3  Meea.  &  W.  (u.) 
409. 


2874 


[PRACTICE  (COM,  LAW)] 


22.  In  assumpgit^  for  not  accepting  and  paying 
for  railway  shares,  the  court  refusea  to  allow  se- 
veral pleas  .  Rrst,  a  sale  of  goods,  and  no  con- 
tract in  writing;  or  earnest;  and,  second,  that  it 
was  a  sale  of  an  interest  in  land.  Sykes  v. 
Reeves,  6  Dowl.  (p.  c.)  384. 

23.  Plea  in  assumpsit  by  indorsee  against  ac- 
ceptor, that  the  acceptances  were  for  accommoda- 
tion of  a  party  who  gave  other  bills  to  the  plain- 
tiff, and  that  the  latter  BLsrreed  to  forbear  to  sue  on 
the  first  bills  until  derault  in  payment  of  the 
latter  ;  held,  that  the  plea  alleging  matter  in  ex- 
cuse, and  not  denying  the  contract,  the  replica- 
tion de  imvriA  was  proper.  Reynolds  v.  Black- 
bum,  2  Nev.  &>  P.  (k.  b.)  136. 

24.  Power  to  the  judges  to  alter  forms  of 
pleadings  continued  by  1  &  2  Vict.  c.  100. 

25.  The  effect  of  the  rule  of  Hil.  4  Will.  4, 
rule  8,  where  the  last  day  on  which  the  time  for 
pleading  the  plea  jruis  darr.  cent,  is  on  a  Sunday, 
IS  to  extend  the  time  of  pleading  to  nine  days. 
Dudden  v.  Priquet,  7  Dowl.  (p.  c.)  371 ;  and  4 
Mees.  (Sl  W.  (kx.)  676. 

26.  Where  the  same  facts  were  differently  sta- 
ted in  different  pleas,  leading  to  different  conclu- 
sions in  law,  and  furnishing  different  pounds  of 
defence,  held,  that  they  were  not  witbm  the  rule 
of  Hil.  4  Will.  4,  8.  5,  and  therefore  allowed  to 
stand.    Curry  v.  Arnott,  7  Dowl.  (p.  c.)  249. 

27.  Where  the  defendant,  under  an  order  to 
plead  issuably,  pleaded  inter  aJia,  that  the  plain- 
tiff had  petitioned  for  his  discharge  under  the  In- 
solvent Act,  and  the  right  of  action  vested  in  his 
assignee,  held  not  an  issuable  plea.  Wettenhall 
r.  (xraham,  4  Ring.  N.  S.  (c.  p.)  714;  6  Sc.  603; 
and  6  Dowl.  (p.  c.)  746. 

28.  The  court  refused  to  strike  out  a  plea  on 
«n  affidavit  of  its  falsehood,  still  less  would  it  set 
«side  a  demurrer,  where  arguable ;  where  to  a 
plea,  that  the  defendant  drew  and  accepted  a  bill, 
and  that  the  plaintiff  received  it  in  satisfaction  of 
his  demand,  the  plaintiff  replied,  denying  the 
drawing,  accepting,  or  receiving  iL  Ac.  to  which 
the  defendant  demurred  for  mmtinuriousness,  the 
icoqrt  refused  to  set  it  aside.  Edwards  v.  Green- 
wood, 5  Ring.  N.  S.  (c.  p.)  476. 

'29.  A  plea  bearing  date  previous  to  the  date  of 
delivery  date,  is  only  an  irregularity,  and  does 
not  entitle  the  plaintiff  to  treat  it  as  a  nullity  and 
.sign  judgment.  Hodson  v.  Pennell,  4  Mees.  A 
W.  (EX.)  373;  S.  U.  7  Dowl.  (p.  c.)  208. 

30.  Where  a  demurrer,  not  absolutely  frivolous, 
viras  clearly  intended  for  delay,  the  court  ordered 
it  to  be  placed  at  the  bead  of  the  paper.  Dawson 
«.  Parry,  6  Sc.  (c.  p.)  80. 

31.  Special  demurrers  semb.  are  within  the  rule 
Teauiring  the  points  to  be  stated  in  the  margin, 
although  it  may  be  sufficient  to  state  that  the 
points  relied  on  are  those  stated  in  the  demurrer. 
Verbecke  r.  Pearse,  6  Sc.  (c.  p-)  406. 

32.  Where  afler  joinder  in  demnrrer,  notice  of 
trial  of  issues  in  faot  was  given,  held  too  late  to 
move  to  set  aside  the  demurrer  as  frivolous.  Nor- 
ton V.  Mackintosh,  7  Dowl.  (p.  c.)  529. 

And  see  Abatement. 


[£]  Demurrxb. 

1.  Obtaining  time  to  plead  on  the  terms  of 
pleading  issuably,  held  not  to  preclude  a  demur- 
ring for  good  cause.  Rarkerv.  Gleadow,  5  DowL 
(p.  c.)  134. 

2.  The  Reg.  Hil.  4  WiU.4,  requiring  the  poinU 
to  be  stated  in  the  margin,  applies  to  special  as 
well  as  general  demurrers.  Lyndhurat  v.  Pound, 
5  Dowl.  (p.  c.)  459. 

3.  A  statement  in  the  margin  of  the  causes 
specially  assigned  for  demurrer,  held  a  sufficient 
compliance  with  Reg.  Hil.  4  Will.  4.  Berrid^ 
V.  Priestly,  5  Dowl.  (p.  c.)  306;  8.  P.  Whttmors 
V.  Nicholls,  5  Dowl.  (p.  c;  521. 

4.  The  court  will  set  aside  a  demurrer,  if  the 
matter  to  be  argued  is  not  stated  in  the  margin; 
but  it  seems  that  it  would  be  sufficient  to  state 
that  the  points  were  those  stated  in  the  demurrer 
itself  Lindus  v.  Pound,  2  Mees.  &  W.  (ex.) 
240. 

5.  Upon  demurrer  to  a  replication ;  held,  that 
the  plea  could  not  be  attacked  upon  a  point  not 
marked  for  argument  Rayley  v.  Homan,  3  8c. 
(c.  r.)  384. 

6.  Demurrer  to  several  counts  for  money  leal, 
had  and  received,  and  on  an  acooant  staled,  oa 
the  ground  that  no  time  was  staled ;  held  tm 
large,  and  set  aside  as  frivolous.  Jackson  r. 
Cawley,  6  Dowl.  (p.  c.)  388. 

7.  The  delivery  of  a  demurrer  is  a  prooeediof 
in  a  cause  within  the  rule  of  Easter,  2  Will.  4; 
and  held,  that  to  a  replication  delivered  so 
Wednesday  before  Easter-day,  a  demurrer  de- 
livered on  the  Wednesday  following  was  in  time. 
Harrison  r.  Ueathom,  4  6ing.  N.  S.  (c.  p.)  443. 

8.  Where  the  plaintiff  obtained  jodgment  on 
demurrer  to  several  pleas,  the  court  refused  leave 
to  withdraw  a  replication  to  other  pleas  suMioaed 
to  be  unsustainable,  on  the  same  erounds,  and 
demurrer  thereto.  Delegal  «.  Highley,  4  Binf. 
(c.  P.)  114 ;  6  Dowl.  (p.  c)  194 ;  and  3  8c.  3M. 


[F]  Ahendkevt. 

1.  The  power  of  amending  under  3  <Sk  4  Willi, 
c.  42, 8.  23,  is  not  confined  to  any  stage  of  the  pro- 
ceedings; held,  therefore,  that  the  judge  might 
amend  the  nisi  prius  record,  by  inserting  the  ute 
of  the  writ  of  sununons.    Cox  v.  Painter,  1  Nev. 

&,  P.  (K.  B.)  581. 

2.  Where  the  defendant  may  have  been  preju- 
diced by  the  contract  not  having  been  properly  sla- 
ted, the  judge  will  not  allow  the  variance  to  be 
amended,  fvey  v.  Toung,  1  M.  &  Rob.  (x.  p.) 
545;  and  5  Dowl.  (p.  c)  450. 

3.  Where  the  date  of  the  suing  oat  the  writ, 
the  commencement  of  the  action,  was  not  stated 
on  the  record,  the  judge  allowed  the  plaintiff  to 
amend,  by  annexing  the  writ  thereto  at  the  tiiaL 
Cox  V.  Painter,  7  Cf.  &  P.  (m.  p.)  767. 

4.  Where  the  record  at  the  trial  appeared  to  be 


[PRACTICE  (COM.  LAW)] 


9876 


defective,  for  want  of  a  $imUiter,  amendinent  al- 
lowed by  insertinff  it,  bat  the  jury  re-sworn.  Dy- 
son V,  Warris,  1  M.  &  Rob.  (if.  p.)  474. 

5.  The  Lord  Chief  Justice  refused  at  the  trial 
to  allow  an  amendment,  by  atrikinf  out  several 
innuendoes,  admitted  to  have  no  reference  to  the 
plaintiff.  Prudhonime  v.  Fraser,  1  M.  &  Rob. 
(H.  p.  c.)  436 ;  S.  C.  2  Ad.  ik,  £11.  (c.  b.)  645. 

6.  in  case  for  a  fraudulent  misrepresentation, 
the  declaration  being  substantially  proved,  the 
Judge  allowed  the  statement  of  the  terms  of  the 
representation  to  be  amended  under  3  d:  4  Will. 
4,  c.  42,  s.  23.  Mash  v.  Densham,  1  M.  dSt  Rob. 
(f.  p.)  448. 

7.  The  record  allowed  to  be  amended  by  in- 
serting a  count  for  goods,  which  was  in  the  de- 
claration, and  issue  delivered.  Ernest  v.  Brown, 
SI  M.  &  Rob.  (v.  p.)  13. 

8.  A  variance  between  the  issue  and  the  writ 
of  trial  may  be  amended  at  any  time.  Farwig  v. 
Cockerton,  6  Dowl.  (p.  c.)  ZST ;  and  3  Mees.  &, 
W.  (EX.)  169. 

9.  It  is  as  much  of  course  to  allow  amend- 
ment in  a  penal  as  in  other  actions,  unless  there 
has  been  unnecessary  delay ;  and  the  court,  in  an 
action  for  penalties  under  18  Greo.  2,  c.  20,  s.  3, 
against  a  magistrate  for  acting  without  Qualifica- 
tion, allowed  the  declaration  to  be  amended  afker 
a  former  application,  and,  although  the  plaintiff 
was  sworn  to  be  in  indigent  circumstances,  re- 
fused to  impose  the  term  of  security  for  costs. 
Jones  V.  Edwards,  3  Mees.  &  W.  (ex.)  218 ;  and 
6  Dowl.  369. 

■10.  Amendment  allowed  at  nui  pritts  by  in- 
dorsing on  the  distringas  the  execution  by  the 
sheriff,  and  the  record  re-entered.  Masters  v, 
JLewis,  2  M.  &  Rob.  (ir.  p.)  59. 

11.  Where  the  judge  on  the  trial  had  directed 
the  jury  that  the  plaintiff  was  entitled  toJiominal 
damages,  as  to  one  count  at  least,  and  they  gave 
a  verdict  of  ]«.,  which  was  entered  generally  on 
the  posfea;  held,  that  the  jodce  might  amend  the 
r«cor«<  according  to  (he  manifest  intention  of  the 
jury,  by  directing  the  verdict  to  be  entered  on 
one  count,  with  damages,  for  the  plaintiff,  and  for 
the  defendant  on  the  others.  Ernest  v.  Brown, 
6  Bing.  N.  S.  (c.  p.)  162. 

12.  Where  the  particulars  showed  the  exact 
•mount  claimed,  the  judge  allowed  the  declara- 
tion to  be  amended,  by  increasing  the  sums  stated 
in  each  count  Dew  v.  Katz,  8  C.  &  P.  (v.  p.) 
315. 

13.  Where  in  assumpsit  the  declaration  stated 
the  undertaking  to  erect  a  building,  and  fit  it  up 
according  to  certain  plans,  by  a  day  stated,  for  the 
sum  of  £30,  plea  non  assvmpsit^  and  that  the 
agreement  was  rescinded;  the  contract  proved 
was  ibr  the  erecting  certain  seats  (for  the  corona- 
tion) to  be  completed  four  or  five  days  before, 
ite.j  for  the  sum  of  £25,  and  it  appeared  that  no 
plans  were  ever  agreed  upon;  held,  that  the 
judge  properly  allowed  the  record  to  be  amended 
according  to  the  true  contract,  it  not  being  mate- 
rial to  the  merits  of  the  case.  Ward  e.  Pearson, 
5  Mees.  &  W.  (ex.)  16;  and  7  Dowl.  (p.  c.)  382. 

And  see  BiU  ;  Cotenant, 

Vol.  IV.  76 


[G]  Particulars. 

1.  Where  the  particulars  were  for  goods  sold 
in  January,  and  the  evidence  was  of  goods  sold 
in  May,  there  appearing  no  claim  for  any  other 
foods,  the  Court  refused  to  set  aside  the  verdict 
found  for  the  plaintiff.  Flemming  v.  Crisp,  5 
Dowl.  (p.  c.)  454. 

2.  In  an  action  to  recover  back  a  deposit,  the 
particular  stated  it  to  be,  for  the  defendant  not 
oeing  able  to  make  a  good  title ;  and  a  summons 
for  a  better  particular  tiaving  been  dismissed  on 
the  ground  that  the  objections  were  matter  of  law 
only ;  a  notice  was  anerwards  delivered,  that  the 
objections  were  set  forth  in  the  plaintiff's  snswer 
to  a  bill  in  equity,  filed  by  the  defendant,  and 
at  the  trial  it  appeared  that  the  objection  was 
matter  of  fact;  tne  court  refused  a  new  trial, 
the  defendant's  attorney  declining  to  swear  he 
had  been  misled.  Correll  v.  CatUe,  5  Dowl.  (p. 
c.)  598. 

3.  In  debt  by  the  assignee  of  a  lease  against  the 
tenant  for  breaches  of  covenant,  non-payment  of 
rent  and  non-repair,  the  Court  refused  to  compel 
a  particular  as  to  sums  and  dates.  Sowter  v. 
Hitchcock,  5  Dowl.  (p.  c.)  724. 

4.  A  particular  of  a  bill  of  exchange  will  not 
be  given  where  the  declaration  contains  only  one 
count,  unless  under  special  circumstances.  Brooks 
V.  Fairlar,5  Dowl.  (p.  c.)  361 ;  3  Bing.  N.  8.  (c. 
p.)  291 ;  and  3  Sc.  654. 

5.  In  an  action  on  two  bills  for  250Z.  each, 
with  counts  on  each,  and  the  particulars  only 
stated  the  action  to  be  brought  for  5002.,  the 
amount  of  the  bills  set  out  in  the  declaration, 
and  it  appeared  that  the  defendant  had  been 
arrested  only  for  240/.,  and  that  the  bills  were 
given  as  a  security  for  mone^  paid  by  the  draw- 
er, the  Court  (^Iderson,  B.,  diss.)  granted  a  rule 
for  further  and  better  particulars.  Dawes  v. 
Anstruther,  5  Dowl.  (p.  c.)  738. 

6.  In  assumpsit  to  recover  damages  sustained 
by  the  non-performance  of  an  agreement  to  assi^ 
premises,  the  court  refused  to  compel  the  plain- 
tiff to  furnish  a  particular  of  the  special  damage. 
Retallick  o.  Hawkes,  1  Mees.  dt  W.  (xx.)  573; 
and  1  Tyr.  &  Gr.  1134. 

7.  In  order  to  obtain  a  particular  in  the  action 
of  trespass,  trover  or  case,  an  afiidavit  should  be 
made  that  the  defendant  does  not  know  what  the 
plaintiff  is  going  fbr.  Snelling  «.  Cbennells,  5 
Dowl 


m  IS  going 
.  (p.  c.)  80. 


8.  In  an  action  against  attomies  fi)r  negligence 
in  assigning  leasehold  premises,  by  the  plain- 
tiff, his  client,  in  permitting  him  to  enter  into  un- 
qualified covenants,  stating  the  grounds  per  quod 
the  plaintiff  sustained  damages,  Uie  court  remsed 
to  compel  a  particular  of  the  plaintiff's  demand. 
Sunnard  r.  Ullithome,  3  Binff.  N.  8.  (c.  p.)  326; 
3  Sc,  771 ;  and  5  Dowl.  (p.  c.)  370. 

9.  Where  the  plaintiffs  attorney  gives  credit 
in  the  particulars  for  a  sum  set  up  as  a  cross-de- 
mand, the  Court  will  allow  them  to  be  amended. 
Preston  v.  Whiteheart,  5  DowL  (p.  c.)  720. 


2876 


[PRACTICE  (COM.  LAW)] 


10.  Particulars  of  set-off  intituled  in  another 
court,  held  immaterial.  Lewis  v.  Helton,  5  Dowl. 
(p.  c.)  267. 

11.  Where  the  order  for  particulars  of  set-off  re- 
quired it  to  be  with  dates,  and  the  one  delivered 
stated  only  from  January  1828  to  January  1834, 
the  J  udge  refused  to  allow  evidence  to  be  gone 
into  of  the  set-off.  Swaine  v.  Roberts,  1  M.  d£ 
Rob.  (N.  p.)  452. 

12.  Where  the  particular  delivered  was  calcu- 
lated to  mislead  the  defendant  as  to  the  real  na- 
ture of  the  demand,  and  to  which  he  might  haVe 
pleaded  specially,  the  court  granted  a  new  trial, 
with  liberty  to  tne  plaintiff  to  amend  the  particu- 
lars, and  the  defendant  to  plead  de  iu>vo,  Stevens 
V.  Willingale,  4  Sc.  (c.  p.)  255  j  and  7  C.  &  P. 
(H.  p.)  702. 

13.  The  refusal  of  a  plaintiff  to  comply  with  a 
judge's  order  for  particulars,  is  no  ground  for  dis- 
charging the  defendant  out  of  custody.  Graff  r. 
Willis,  5  Dowl.^(p.  c.)  715.  * 

14.  In  assumpsit  for  money  had,  Ac.  to  recover 
back  the  deposit,  on  the  ground  of  objection  to 
the  title,  the  court  will  oblige  the  plaintiff  to  give 
a  particular  of  all  objections  to  the  abstract  aris- 
ing upon  matters  of  fact,  but  not  of  law,  which 
must  find  out  themselves.  Roberts  v.  Rowlands, 
3  Mees.  &.  W.  (ex.)  543. 

15.  A  defendant  cannot  be  compelled  to  deliver 
the  particulars,  pursuant  to  a  judge's  order,  the 
refusal  to  obey  having  the  effect  of  preventing 
his  proceeding  in  the  cause.  Cane  v.  Spinks,  7 
Dowl.  (p.  c.)  27. 

16.  Afler  an  order  for  particulars,  and  before 
delivery  a  demand  of  declaration,  with  notice  at 
the  foot  of  the  ord(*r  being  abandoned,  held  irreg- 
ular, and  judgment  of  nonpros,  set  aside.  Wipk- 
ens  V.  Cox,  4  Mees.  &  W.  (ex.)  67  &  68  Dowl. 
(p.  c.)  693. 

17.  Upon  a  plea  of  payment  of  a  sum  in  satis- 
faction of  the  plaintiff's  demand,  the  defendant 
ordered  to  furnish  particulars,  as  in  case  of  set 
off.  Ireland  v.  Thompson,  4  Bing.  N.  S.  (c.  p.) 
716,  &  6  Sc.  601. 

18.  In  assumpsit  for  money  had  and  received 
as  plaintiffs  clerk  abroad,  and  particulars  deliver- 
ed according  to  an  account  stated  by  the  defen- 
dant, but  the  suit  having  been  suspended  for  sev- 
eral years,  by  the  bankruptcy  of  one  of  the  plain- 
tiffs and  absence  of  the  other,  the  Court  allowed 
the  particulars  to  be  amended  by  inserting  items  of 
demand  accruing  in  the  interval.  Staples  v.  Hold- 
sworth,  4  Bing/N.  S.  (c.  p.)  717 ;  6  Sc.  605 ;  and 
8  Dowl.  (p.  c.)  715. 

19.  In  debt  for  1801.  for  two  years'  rent,  plea, 
as  to  135/.,  parcel,  &c.,  payment  to  a  superior 
landlord,  to  avoid  a  distress,  which  the  replication 
admitted,  but  alleged  to  have  been  allowed  and 
deducted  from  previous  rent  due,  end  that  135Z. 
was  still  due,  over  and  above  the  sum  so  deducted, 
on  v/hich  issue  was  taken;  the  particulars  of  de- 
inaiul  ijave  credit  for  payment  of  two  years'  rent, 
minu.^  \6I.  C)s.  2<2  ,  and  the  plaintiff  established  in 
ertdi'ncf  that  aHor  allowing  the  defendant  al!  piiy- 
ments,  a  sum  uf  106^.   16f.  6d.  was  duv  to  him  ; 


held,  (before  Reg.  Trin.  1838)  that  the  particu- 
lars were  not  to  be  taken  as  embodied  in  the  dec- 
laration, but  the  plea  to  be  taken  as  pleaded  to 
the  balance,  and  the  replication  in  terms  stating 
the  payments  set  up  by  the  plea,  as  applicable  to 
the  balance,  were  to  be  applied  to  prior  rent.  Fer- 
guson V.  Mason,  1  Ferr.  Sl  Dav.  (q.  b.)  194. 

• 

20.  So,  on  a  declaration  for  goods  sold  to  the 
amount  of  883/.  IO5.,  and  admitting  664/.  3^.  6d.  to 
have  been  paid,  claimed  a  balance  remaining  un- 
paid ;  one  plea  pleaded  generally  payment  of  all 
the  sums  in  the  declaration  mentioned,  the  repli- 
cation as  to  175/.  175.,  new  assigned  that  the  sum 
so  paid  was  in  respect  of  other  sums  than  the 
causes  of  action  stated  in  the  declaration,  and  de- 
nied the  payment  of  the  residue  ;  and  issues  were 
taken  on  the  general  plea  of  payment,  and  dental 
that  the  causes  of  action  were  other  and  different; 
held,  that  the  plea  to  ihe  declaration  was  not  to 
be  taken  as  pleaded  to  the  balance  only,  and  that 
the  replication  did  not  admit  the  payment  of  the 
sum  stated,  as  part  of  the  balance,  so  as  to  enable 
the  defendant,  by  proof  of  payments,  making  up 
the  difference  between  the  sum  claimed  and  the 
payment  admitted,  to  be  entitled  to  the  verdict; 
and  the  jury  having  found  that  the  plaintiff  had 
not  paid  all  that  was  due,  a  rule  for  a  nonsuit  was 
refused.  Alston  v.  Mills,  1  Perr.  &  Dav.  (q.  b.) 
197. 

And  see  Patent;  Pleadings  (c.  L.) 


[H]  Affidavits. 

1.  An  affidavit  intituled  in  the  name  of  one  de- 
fendant only  *^  and  others,"  held  bad.  Tomkins 
V.  Geach,  5  Dowl.  (p.  c.)  509. 


2.  Although  an  affidavit  is  defective  as  to 
of  the  deponents,  but  correct  as  to  the  other,  the 
latter  raav  be  read.  Edmonds,  ex  parte,  5  Dowl. 
(p.  c.)  702. 

3.  Where  it  is  not  made  by  the  defendant,  his 
attorney  or  agent,  it  must  be  by  some  one  who 
has  sufficient  knowledge  of  or  connexion  with 
the  case,  as  enables  him  to  speak  to  the  metita. 
Rowbotham  v.  Dupree,  5  Dowl.  (p.  c  )  557. 

4.  Where  the  deponent  described  himself  as 
clerk  to  the  attorney  whose  name  and  residence 
were  given,  lield  sufficient  Strike  v.  Blanchard, 
5  Dowl.  (p.  c.)  216. 

5.  Affidavit  describing  the  deponent  merely  as 
clerk  to  the  defendant's  attorney,  held  insufficient. 
Daniels  v.  May,  1  Tyr.  &  6r.  (ex.)  834 ;  and  S 
Dowl.  (p.  c.)  83. 

6.  Affidavit  to  set  aside  a  judgment  on  a  cogmo- 
vit,  made  by  the  defendant  s  attorney  only,  and 
not  stating  that  he  believed  the  truth  of  the  iep> 
resentation,  not  allowed  to  be  read,  and  the  tw 
discharged.    Preedy  v.  Lovell,  1  Tyr.  &,  Gr.  (kx.) 

7.  Where  the  affidavit  was  made  before  a  cleric, 
not  of  the  attorney  on  the  record,  but  of  the  land- 
lord seeking  to  be  made  a  party,  held  not  withiB 
I  lii'ir.  Mil.  2  Will.  4,  s.  6.  Doe  d.  Grant  c.  Roe, 
r»  Dowl.  ^p  c.)  409. 


[PRACTICE  (COM.  LAW)] 


2877 


8.  The  court  of  C.  P.  beine  the  only  court  id 
which  motioos  under  3  &  4  Will.  4,  c.  74,  s.  91, 
can  be  heard,  it  is  not  essentially  necesssary  that 
the  affidavit  should  be  intituled  in  that  court. 
Bates,  in  re,  4  Sc.  (c.  p.)  396. 

9.  In  order  to  support  the  objection  that  an 
affidavit  has  been  sworn  before  the  attorney  in  the 
cause,  it  must  be  shown  that  he  was  so  at  the 
time  of  the  taking  the  affidavit,  and  not  merely 
at  the  time  of  the  objection  taken.  Kidd  v.  Da- 
vis, 5  Dowl.  (p.  c.)  5i[>8. 

10.  The  court  allowed  affidavits  wrongly  inti- 
tuled to  be  taken  off  the  file  and  amended,  tne  de- 
fendants having  leave  to  file  affidavits  in  reply, 
with  costd  of  opposing  the  application.  R.  v, 
Warwick  Justices,  5  Dowl.  (p.  c.)  382. 

11.  An  affidavit,  altered  afler  it  is  sworn,  can- 
not be  used.  Wright  v.  Skinner,  5  Dowl.  (p.  c.) 
92. 

12.  It  is  too  late  to  object  to  the  intituling  affi- 
davits after  a  motion  has  been  substantially  dis- 
posed of  and  stands  over  to  ascertain  a  fiict. 
Viner  v.  Langton,  5  Dowl.  (p.  c.)  92. 

13.  Where  the  affidavit  of  service  only  stated 
*•  with  a  true,"  but  not  going  on  "  copy  of  the 
rule,"  but  went  on  to  state  that  the  deponent  at 
the  same  time  showed  the  original ;  held  suffi- 
cient   R.  V.  Stafford  Sheriff,  5  Dowl.  (p.  c.)  238. 

14.  In  showing  cause  a^inst  a  rule,  if  no 
stated  time  be  fixed  for  filing  the  affidavits  in 
reply,  it  is  no  objection  that  they  are  sworn  afler 
the  day  when  the  rule  is  due.  Graham  v.  Beau- 
mont, 3  Sc.  (c.  p.)  2«7;  and  5  Dowl.  (p.  c)  49. 

And  see  Hoer  v.  Hill,  1  Chitt  Rep.  27. 

15.  Where  the  Master  reported  that  matter  had 
been  added  to  an  affidavit  afler  it  had  been  sworn, 
the  court  refused  to  treat  it  as  a  nullity  and  dis- 
charge the  rule,  but  allowed  only  the  original  part 
to  be  read.  White  v.  Skinner,  1  Tyr.  &  Gr.  (ex.) 
597. 

16.  Affidavits  may  be  read  wiiihout  taking 
copies,  but  to  be  filed  the  last  day  of  each  term, 
and  alphabetically  indexed.  Reg.  Gen.,  3  Nev. 
A  P.  (q.  B.)  2. 

17.  Affidavits  sworn  before  a  country  commis- 
sioner or  a  judge  of  assize,  may  be  read  in  any 
of  the  courts,  or  a  jud^e  at  chambers,  or  any 
master,  and  the  party  nling  not  obliged  to  take 
copies  thereof.  Reg.  Gen.,  4  Bing.  N.  S.  (c.  p.) 
367;  and  3  Mees.  <&  W.  (xx.)  153. 

18.  Affidavits  read  before  a  judge  or  a  master 
to  be  filed  with  the  masters  of  the  said  courts, 
and  be  alphabetically  indexed,  and  be  delivered 
to  the  masters,  in  order  to  be  filed,  four  times  in 
each  year,  t.  e.  on  the  last  day  of  each  term. 
Reg.  Gen.  4  Bing.  N.  S.  (c.  p.)  367 ;  and  3  Mees. 
6l  W.  (ex.)  153. 

19.  An  affidavit  to  hold  to  bail  being  made  to 
set  process  in  motion,  held  to  be  a  business  de- 
pending in  court  within  the  meaning  of  the  11 
Geo.  4^1  Will.  4,  c.  70,  s.  4,  and  over  which 
all  the  judges  have  a  common  jurisdiction.  Drif- 
fiU  o.  Taylor,  4  Bing.  N.  S.  (c.  p.)  369. 


20.  The  time  for  deciding  whether  a  party  will 
use  affidavits,  is  at  the  time  of  filing,  and  if  he 
does  file  them,  and  the  opposite  party  takes  copies, 
he  has  a  right  to  use  them,  whether  the  party 
filing  them  does  so  or  not.  Price  v.  Hayman,  4 
Mees.  6l  W.  (xx.)  &  7  Dowl.  (p.  c)  47. 

21.  The  affidavit  made  by  plaintiff  or  defendant 
requires  no  further  addition;  and  where  it  de- 
scribed a  party  as  R.  J.,  late  of  W.,  victualler, 
but  now  of,  &c.,  held,  that  it  was  sufficient  with- 
out adding  to  the  second  description  of  place,  that 
of  the  party's  occupation.  Angell  v.  lhler,5  Mees. 
&  W.  (XX.)  163. 

22.  An  affidavit  on  a  motion  to  set  aside  a  ver- 
dict, dtc,  stating  only  the  belief  that  he  had  a 
good  substantial  and  available  defence  to  the  ac- 
tion ;  held  insufficent.  Page  v.  South,  7  Dowl. 
(p.  c.)  412. 

23.  Where  it  appeared  from  the  statements  of 
the  party  applying,  that  the  person  before  whom 
the  affic(avit  was  sworn  was  acting  as  her  attor- 
ney ;  held  sufficient  to  prevent  the  affidavit  be- 
ing read.  Haddock  v.  Williams,  7  Dowl.  (p.  c.) 
327. 


[1]    OrDKKS  —  RULES — MOTIOHS 

or. 


SERVICE 


1 .  The  court  will  not  review  the  decision  of  a 
Judge,  whether  an  application  to  set  aside  pro- 
cess for  irregularity  is  made  in  proper  time.  Tftd- 
man  v.  Wood,  4  Ad.  &  £11.  (k.  b.)  1011. 

2.  So,  as  to  the  proper  description  of  the  par- 
ty's attorney ;  but  the  Judge  bavins  set  aside  the 
writ  and  service,  the  court  amended  the  order  by 
setting  aside  the  copy  of  the  writ  and  service,  lb. 

3.  No  motion  can  be  made  to  set  aside  a  Judge's 
order  without  producing  a  copy  of  the  order. 
Hoby  V.  Pritchard,  5  Dowl.  (p.  c.)  390. 

4.  The  court  will  take  judicial  notice  of  a 
Judge's  order  being  in  the  cause.  Where  the 
issue  had  been  delivered  in  the  usual  form  as  for 
trial  at  the  sittings,  and  the  notice  of  trial  before 
the  secondary,  the  court  refused  to  set  them  aside 
for  irregularity.  Atwell  v.  Baker,  2  Mees.  Sl  W. 
(ex.)  272;  and  5  Dowl.  (p.  c.)462. 

5.  A  party  cannot  move  to  enlarge  a  rule 
which  is  drawn  up  with  a  stay  of  proceedings. 
Wyatt  V.  Prabble,  5  Dowl.  (p.  c.)  268. 

6.  A  defect  in  a  rule  by  the  slip  of  the  officer 
of  the  court  will  be  supplied  without  costs. 
Downing  v.  Jennings,  5  Dowl.  (p.  c.)  373. 

7.  Where  the  defendant  vras  relieved  on  mo- 
tion from  arrest,  on  the  terms  of  bringing  no  ac- 
tion, and  afterwards  applied  in  the  outer  court  to 
set  aside  so  much  of  tne  rule,  on  the  ground  that 
the  plaintiff's  demand  (an  attorney^  bill)  had 
been  reduced  on  taxation  more  than  half,  the 
court  refused  the  application.  Sheriff  v.  Gresley, 
6  Nev.  Sl  M.  (k.  b.)  446. 

Semh,  the  case  of  Stephenton  v.  Watson,  1  B. 
&  P.  3^,  not  accurately  reported. 

8.  Before  an  order  of  nut  prius  can  bs  moved 


2878 


[PRACTICE  (COM.  LAW)] 


to  be  amended,  the  order  mast  be  made  a  rale  of 
court.    Craoch  v.  Tregon'mg,  5  Dowl.  (p.  c.)  230. 

9.  A  sammons  for  time  to  plead,  returnable  at 
a  jadge's  chambers  at  an  hour  when  it  ts  known 
he  is  not  attending  there,  cannot  be  treated  as  a 
nullity,  and  operates  as  a  stay  of  proceedings. 
Byles  V.  Watts,  5  Dowl.  (p.  c.)  232. 

10.  Affidavit  of  service  of  the  rule  to  compute, 
8h«)winff  a  copy  left  at  the  defendant's  lodgmgs, 
which  he  had  quitted  and  gone  it  was  not  known 
where,  and  a  copy  having  been  stuck  up  at  the 
office  ;  held  sufficient  for  a  rule  ntn.  iJlack  v. 
Cloup,  5  Dowl.  (p.  c.)  270. 

11.  Service  of  a  rule  to  compute  on  the  land- 
lady of  the  house  at  which  the  defendant  lodged, 
held  insufficient  Salisbury  v.  Sweetheart,  5 
Dowl.  (p.  c.)  243. 

12.  So,  on  a  workman  on  the  defendant's  pre- 
mises.   Hitchcock  V.  Smith,  lb.  248. 

13.  But  on  a  servant  at  the  defendant's  resi- 
dence, held  sufficient.  Thomas  v.  Lord  Ranelagh. 
lb.  258. 

14.  The  rule  to  compute  refused  in  an  action 
for  breach  of  covenant  to  pay  rent  and  land-tax. 
Morris  v.  Thompson,  4  Sc.  (c.  p.)  295. 

15.  Service  of  a  rule  to  compute  left  at  the  de- 
fendant's chambers,  and  a  party  residing  there 
stating  it  to  have  been  sent  to  the  defendant,  held 
sufficient  Carew  v.  Winslow,  5  Dowl.  (p.  c.) 
643. 

16.  Rules  of  court  delivered  out  in  vacation  to 
state  the  day  of  the  month  and  week,  but  be  en- 
titled as  of  the  term  preceding.  Reg.  Gen.,  4 
Ring.  N.  S,  (c.  p.>  367;  3  Mees.  <&  W.  (ex.)  154; 
and  3  Nev.  dt  P.  (t^.  a  )  2. 

17.  Where  a  rule  had  been  disposed  of,  the 
court  refused  to  re-open  tlie  question  on  a  sugges- 
tion of  new  facts  not  brought  before  the  court, 
but  known  before  the  rule  obtained,  fiodfield  v. 
Padmore,  5  Ad.  Sl  £11.  (k.  b.)  785,  n. 

18.  The  court  refused  to  open  a  rule  obtained 
before  a  singte  judge  in  the  Bail  Court,  in  the 
term  aAer  the  judgment  pronounced,  although 
with  the  sanction  of  the  judge.  Todd  v.  Jeffery, 
2  Nev.  &>  P.  («.  B.)  443. 

10.  Where  the  party  resided  so  iar  from  town 
that  he  could  not  be  served  before  the  day  for 
showing  cause,  being  the  day  before  the  term  ex- 
pired ;  held,  that  the  rule  might  be  revived  in 
the  next  term.  Rowbottom  i>.  Ralphs,  6  Dowl. 
(P.O.)  291. 

20.  Where  the  judge  directed  what  costs 
alu>uld  be  paid  npon  an  order  to  amend,  held,  that 
kb  had  authority  so  to  do.  Collins  v.  Aron,  4 
Bing.  N.  S.  (c.  p.)  233 ;  aod  6  Dowl.  (p.  c)  423. 

21.  It  is  not  a  matter  of  right  to  show  cause 
against  a  rule  in  the  first  instance,  although  no- 
tice may  have  been  given.  Doe  v.  Smith,  3  Nev. 
&  P.  U.  B.)  335. 

22.  Service  of  the  rule  7ujrt  to  compute  on  two 
of  three  joint  makers  of  a  note,  held  sufficient 
for  the  rule  absolute  against  all.  Carter  j.  South- 
all,  3  Mees.  Sl  W.  (ex.)  129. 


23.  Payment  in  an  action  for  goods  and  on  a 

{iromissory  note,  *^  on  account  of  the  cause," 
eaving  a  balance  due  less  than  the  amount  of  the 
note ;  held,  tliat  a  nolU  pros,  must  be  entered  ss 
to  the  first  count,  betbre  the  plaintiff  could  have 
a  rule  to  compute.  Jones  v.  shiel,  3  Mees.  Sl 
W.  (EX.)  433. 

24.  Judges'  orders  to  return  writs,  whether  of 
final  or  mesne  process,  and  to  bring  in  the  body, 
to  be  drawn  up  without  any  affidavit  Reg.  Geo., 
3  Mees.  &  W.  (ex.)  401. 

25*  Single  judges  empowered  to  dispose  of 
at  chambers  matters  arising  oat  of  any  court,  by 
1  dE.  2  Vict.,  c.  45. 

26.  Afler  a  case  has  been  disposed  of  in  the 
Bail  Court,  the  Court  will  not  allow  a  second  ap- 
plication in  full  court,  although  on  fresh  affida- 
vits disclosing  new  facts.  Russel  v.  Hartley,  7 
Ad.  &  £11.  {q,.  B.)  522,  n. 

27.  Where  the  rule  and  copy  had  been  sent  by 
the  post,  and  the  original  was  a  few  days  aAer- 
wards  received  back,  indorsed  with  a  receipt  of 
**  Copy  of  the  within  rule,"  and  signed  by  the 
defendants ;  held  sufficient  for  making  the  rule 
absolute.  Smith  t,  Campbell,  6  Dowl.  (p.  c.) 
728. 

28.  The  Court  refused  a  rule  to  compute  on  a 
bill,  without  production  of  it  before  the  Master  \n. 
the  first  instance,  leaving  it  to  his  discretion. 
Sanderson  v.  I^ee,  7  Dowl.  (p.  g.)  97, 

29.  The  rule  allowed  on  a  banker*s  check. 
Bentham  v.  Lord  Chesterfield,  5  Sc.  (c.  p.)  417. 

30.  Where  the  rule  had  been  served  on  one, 
and  the  copy  on  another  defendant,  and  the  rule 
obtained  from  the  former  was  produced  attached 
to  the  affidavit,  and  the  defendant  had  stated  be 
should  take  no  steps  in  the  matter,  held  safficient 
Grant  v.  Stoneham,  7  Dowl.  (p.  c)  126. 

31 .  The  rule  to  enter  the  issue  is  by  the  op- 
eration of  15  Reg.  Gen.  Hil.  4  Will.  4,  abolished. 
Hodges  V.  Diley,  2  Dowl.  (p.  c.)  555. 


[K]  Staying  pbocxbdimgs. 

1.  Where  in  an  action  for  dilapidations  the  de- 
fendant paid  money  into  Court,  and  the  pTaintiflT 
replied,  further  damages,  and  the  defendant  after- 
wards obtained  a  rule  for  judgment  as  In  case  of 
nonsuit,  the  court  allowed  the  plaintiff  to  aeeepC 
the  money  paid  in,  on  payment  of  the  defendant's 
costs  incurred  subsequently.  Kelly  o.  Flint,  5 
Dowl.  (p.  c.)  293. 

2.  Where,  after  the  writ  of  samroom  iasne^, 
the  defendant  paid  the  debt  surreptitioasiy  to  a 
clerk  of  the  plamtiff,  the  court  stayed  proceedtngs 
on  payment  of  the  costs  of  the  writ  Wyllie  r. 
Phillips,  3  Bing.  N.  S.  (c.  p.)  776;  and  5  Dowl. 
(p,  c.)  644. 

3.  Where  the  affidavit  of  merits,  on  a  motioo  to 
stay  proceedings  on  the  hail-bond,  is  madn  l^  an 
atU^ney,  it  must  state  expressly  that  he  is  the  at- 
torney of  the  defendant  Bonnefer  •.  Rowell,  S 
Dowl.  (i*.  G.)  546. 


[PRACTICE  (COM.  LAW)] 


2879 


4.  A  snmmonB  to  plead  seTeral  matten,  taken 
ont  on  the  day  the  time  for  pleading  expires,  re- 
turnable on  the  following  day  at  11  o'clock  ;  held 
that,  until  disposed  of,  it  operated  as  a  stay  of 
proceedings,  although  the  time  for  pleading  had 
been  enlarged.  Spenceley  v.  Shouls,  5  Dowl. 
(p.  c.)  562. 

5.  Where  the  plaintiffs,  two  ofllicers  of  a  bank- 
ing company,  were  joined,  the  statute  7  Geo.  4, 
c.  46,  8.  9,  requiring  one  only  to  be  sued,  the 
court  allowed  the  plaintiffs  to  set  aside  the  pro- 
ceedings, on  payment  of  costs,  even  after  issue 
delivered.  Holmes  v.  fiinney,  4  Bing.  N.  S.  (c. 
p.)  454. 

6.  A  stay  of  proceedings  cannot  be  incorporated 
in  the  rule  msi  for  costs  of  thn  day,  for  not  pro- 
ceeding to  trial.  Eagar  r.  Cuthill,  6  Dowl.  (p. 
c.)  125,  and  3  Mees.  &,  W.  (ax.)  60. 

7.  Where  the  cause  was  in  such  a  state  that 
issue  might  be  joined  before  the  rule  was  disposed 
of,  the  court  allowed  a  rule  for  taking  out  money 
deposited  in  lieu  of  bail,  with  a  stay  of  proceed- 
ings.   Bloor  V.  Coz,  6  Dowl.  (p.  c.)  268. 

8.  On  motion  for  costs  of  the  day,  for  not  pro- 
ceeding to  trial,  the  proceedings  cannot  be  stayed 
until  payment  of  those  costs.  Gibbs  v.  Goles, 
7  Dowl.  (p.  c.)  385. 

9.  Where  a  proceeding  is  irregular  the  party 
has  a  right  to  have  it  set  aside,  and  if  it  be  not 
made  a  term  at  the  time  of  disposing  of  the  rule, 
the  Court  has  no  power  afterwards  to  restrain  the 
defendant  from  bringing  an  action.  Abbott  v. 
Greenwood,  7  Dowl.  (p.  c.)  534. 


[L]  Attachments. 

1.  In  order  to  bring  the  party  into  contempt  for 
non-payment  of  costs,  pursuant  to  the  allocatur,  a 
copy  of  the  rule  must  be  lefl.  Dalton  v.  Tucker, 
5  Dowl.  (p.  c.)  550. 

2.  On  a  motion  for  an  attachment  for  not  obey- 
ing a  Judge's  order,  held  that  the  rule  of  court 
having  been  served  was  sufficient,  without  ser- 
vice of  the  order.  Greenwood  v.  Dyer,  5  Dowl. 
(p.  c.)  255. 

3.  An  attachment  is  to  be  considered  as  grant- 
ed, when  the  rule  has  been  obtained,  and  after 
which  the  proceedings,  being  on  the  Crown  side, 
are  properly  intituled  Rex,  &c,  R.  v.  Sheriff  of 
Middlesex,  2  Mees.  &  W.  (ax.)  107. 

4.  Where  the  affidavit  of  service  of  a  rnle  nisi 
lor  an  attachment,  stated  the  delivering  it  to  the 
■on,  who  refused  to  say  where  his  father  was,  and 
ftn  appointment  made  tu  call  on  another  day ; 
held  uisuffioientto  dispense  with  personal  service. 
Ibbertaon,  in  re,  5  Dowl.  (p.  c.)  160. 

5.  An  attachment  for  non-payment  of  costs  on 
the  aUocatvr  may  be  grounded  on  a  demand  by 
the  attorney  in  the  cause,  to  whom  they  would 
bepayable.    Cox  v.  Salmon, 2  Mees.  &  W. (ex.) 

6.  Where  the  defendant  had  been  examined 
before  the  maater,  who  had  reported  that  the  de- 


fendant had  cleared  himself  of  the  contempt,  the 
court  refused  to  discuss  the  correctness  of  the  re- 
port, unless  it  appeared  from  the  interrogatories 
and  answers  that  he  had  been  mistaken ;  and 
^ffiiA.,  itis  not  a  sufficient  ground  for  reviewing 
it,  that  it  is  against  the  opinion  of  the  judge  who 
granted  the  attachment  R.  v.  Morley,  4  Ad.  &. 
£11.  (k.  b.)  849. 

7.  To  found  an  attachment  for  non-pa vment  of 
costs,  it  is  not  sufficient  that  the  demand  is  made 
by  the  party  authorized  by  the  attorney.  Clark 
V.  Dignum,  3  Mees.  &.  W.  (ex.)  319. 

8.  Where  the  affidavit  for  an  attachment  for 
non  payment  of  money,  pursuant  to  a  rule  of 
cour^  described  it  throughout  as  an  **  order," 
held  insufficient.  Turner,  in  re,  6  Dowl.  (p.  g.) 
6. 

9.  The  party  being  an  attorney  is  no  ground 
for  dispensing  with  the  rule  for  personal  service, 
to  found  an  attachment.  Wilkinson  v.  Penning- 
ton, 6  Dowl.  (p.  c.)  183 ;  and  3  Sc.  (c.  p.)  401. 

10.  A  motion  to  set  aside  proceedings  for  irreg- 
ularity, on  the  ground  of  variance  between  the 
process  and  declaration,  must  be  made  promptly 
and  in  vacation,- to  a  Judge  at  chambers;  and 
where  he  refused  to  interfere,  held,  that  to  pre- 
vent judgment  being  signed,  a  plea  should  be 
delivered  under  a  protest.  Tory  v.  Stevens,  6 
Dowl.  (p.  c.)  275. 

11.  Where  the  date  of  the  writ  of  summons 
was  omitted  in  the  issue,  although  supplied  in 
the  writ  of  trial,  held  irregular,  and  not  waived 
by  appearance  at  the  trial  and  allowing  the 
cause  to  proceed  under  protest.  Blissett  v.  Ten- 
ant, 6  Dowl.  (p.  c.)  436. 

12.  Where  the  plaintiff,  without  consent  or  au- 
thority, inserted  in  the  writ  of  trial  the  date  of 
the  writ  of  summons,  which  was  not  in  the  issue 
delivered,  and  at  the  trial  the  defendant  objected 
to  the  variance,  which  the  sheriff  over-ruled,  and 
the  trial  proceeded  under  protest  by  the  defen- 
dant; held,  that  such  objection  was  fatal,  and 
that  the  defendant  defending  under  protest  was 
not  to  be  taken  as  a  waiver  of  it.  Lycett  v.  Ten- 
ant, 4  Bing.  N.  S.  (c.  p.)  168 ;  supporting  Wor- 
thington  v.  Wigley,  5  Dowl.  209. 

13.  A  judgment  on  demurrer,  held  not  an  order 
within  the  rule  of  Mich.,  1  Will  4,  and  the  omis- 
sion to  comply  with  it  no  ground  for  setting  aside 
the  )udgment  and  execution.  Taylor  v.  Murray , 
6  DowL  (p.  G.)  80 ;  and  3  Meea.  &  W.  (ex.)  141. 

14.  Application  to  set  aside  the  service  of  a 
writ  of  summons  must  be  made  within  the  time 
limited  for  appearance.  Child  v.  Marsh,  3  Meea. 
&  W.  (EX.)  433. 

15.  The  rule  requiring  a  term's  notice  before 
taking  any  step  in  a  cause  afler  the  lapse  of  four 
terms,  applies  only  to  proceedings  towards  judg- 
ment, and  not  to  a  motion  to  set  aside  proceed- 
ings for  irregularity.  Lumley  v.  Thompson,  3 
Mees.  &.  W.  (ex  )  632. 

16.  To  bring  the  party  into  contempt  for  non- 
payment of  money,  pursuant  to  rule  of  Court,  if 
the  demand  is  made  ny  power  of  attorney,  a  eopy 


S880 


[PRACTICE  (COM.  LAW)] 


of  the  power  mast  be  left  at  the  time  oF  demand. 
Doe  V.  Johnson,  7  Dowl.  (p.  c.)  550. 


[MJ     ExiMINATIOf     OF    WITNESSES — COHMI88IOM 
FOR— PRODUCTION  OF  PAPERS — ADMISSIONS. 

1.  It  is  sufficient  to  obtain  a  commission,  that 
the  witnesses  are  out  of  the  jurisdiction  ;  and  it  is 
immaterial  that  the  action  is  of  a  criminal  nature. 
Norton  v.  Lord  Melbourne,  3  Bing.  N.  S.  (c.  p.) 
67;  3  Be.  398;  and  5  Dowl.  (p.  c.)  181. 

2.  An  order  for  a  commission  to  examine  wit- 
nesses abroad  allowed  to  be  extended  to  liberty  to 
cross-examine  viv&  voce,  such  examinations  to  be 
reduced  into  writingr,  and  returned  with  the  com- 
mission. Poll  V.  Rodgers,  3  Bing.  N.  S.  (c.  p.) 
780 ;  and  5  Dowl.  (p.  c.)  632. 

3.  Where  the  note  on  which  the  action  was 
brought  was  misdescribed  as  to  its  date  in  the  no- 
tice to  admit  the  handwriting,  but  the  defendant 
could  not  be  misled ;  the  verdict  having  been 
found  for  the  plaintiff,  the  court  refused  to  set  it 
aside.    Field  r.  Flemming,  5  Dowl.  (p.  c.)  450. 

4.  To  authorize  the  judge  to  impound  docu- 
ments offered  in  evidence  on  the  trial,  the  appli- 
cation must  be  made  during  the  progress  of  the 
cause,  and  it  is  too  late  afterwards  to  do  so.  Bos- 
ton V.  Ockford,  7  C.  &  P.  (w.  p.)  547. 

5.  "Where  the  delay  bad  been  ccasioned  by 
the  refusal  of  the  defendant  to  accept  the  amend- 
ed issue,  and  the  object  appeared  to  be  to  delay 
the  plaintiff,  the  Court,  in  granting  a  commission 
abroad  to  examine  the  defendant's  tvitnesses,  or- 
dered the  money  to  be  brought  into  court,  and 
limited  the  time  for  the  return  of  the  commission. 
Sparkes  v.  Barrett,  3  Sc.  (c.  p.)  402. 

6.  Where  the  answer  returned  by  the  commis- 
sioners under  1  Will.  4,  c.  22,  is  inadmissible  as 
evidence,  it  will  be  struck  out,  and  so  of  illegal 
questions ;  but  the  party  putting  a  question  must 
take  the  answer.  Hutchinson  v.  Bernard,  2  M. 
Sl  Rob.  (n.p.)  1. 

7.  Rule  for  examining  a  witness  going  abroad^ 
on  interrogatories,  not  discharged  merely  on  the 
ground  of  the  plaintiff  not  having  proceeded 
promptly.    Weekes  v.  Pall,  6  Dowl.  (p.  c.)  462. 

8.  Where  lessee  for  lives  occupied  and  paid  the 
rent  up  to  the  expiration  of  the  lease,  when  he 
obtained  the  lease  from  third  parties,  and  delivered 
it  to  the  lessor,  from  whose  custody  it  was  pro- 
<hiced  at  the  trial ;  held  to  have  c(»nie  from  the 
proper  custody.  Rees  v.  Walters,  3  Mees.  ^  W. 
(EX.)  527. 

9.  Where  the  attorney  of  a  devisee  of  lands, 
his  client,  held  the  will,  held  that  being  part  of 
the  muniments  of  his  client  he  was  not  bound  to 

Eroduce  it,  notwithstanding  it  was  sugTOsted  to 
e  a  will  of  personalty  also.    Doe  v.   James,  2 
M.  &  Rob.  (H.  p.)  47. 

10.  Inspection  granted  of  an  agreement  on 
which  the  action  for  money  had  and  received  was 
founded.    Ghamock  v.  Lumley,  5Sc.  (c.  p.)  438. 

11«  In  an  Action  upon  a  contract  for  building 


a  chapel ;  the  Court  refused  a  view.    Newham 
V,  Taite,  6  Sc.  (c.  p.)  574. 

12.  Where  the  commission  required  that  when 
tlie  examinations  were  taken  the  same  should  lie 
sent ;  held,  that  copies  taken  by  the  foreign  court 
of  commerce,  to  whom  the  commission  had  been 
directed,  and  certified  by  their  officer,  and  trans- 
mitted under  the  seal  of  the  court,  could  not  be 
read.  Clay  r.  Stephenson,  7  Add.  &  £11.  (^.  b.) 
185. 


[N]  Issues. 

1.  Where  in  the  issue  the  date  of  the  writ  of 
summons  was  mis-staied,  and  the  word  defendant 
instead  of  defendants,  and  th(^  venire  directed  to 
the  ikai  sheriff;  held  no  ground  for  setting  aside 
the  issue,  but  that  plaintiff  might  apply  at  cham- 
bers to  amend  it  at  the  plaintiff's  costs.  Ikin  v. 
Plevin,  5  Dowl.  (p.  c.)  594. 

2.  Where  the  plaintiff  concludes  to  the  conntry, 
although  he  may  now  add  the  gimilUer  without 
rule  to  rejoin,  he  is  not  bound  to  do  so ;  but  if  he 
does  not,  the  defendant  is  not  entitled  to  judgment 
as  in  case  of  nonsuit.  Brook  v.  Lloyd,  1  Mees. 
^  W.  (EX.)  552 ;  and  1  Tyr.  &  Gr.  J)24. 

3.  Since  the  rule  15  of  Hil.  4  WiU.  4,  the  plain- 
tiff cannot  be  ruled  to  enter  the  issue.  Wilks  v, 
Dodd,  3  Sc.  (c.  p.)  769. 


[O]  Trial — notice   of— counsel — right  to 

BEGIN — examination  OF  WITNESSES — WITH- 
DRAWING  JUROR — VERDICT — NEW  TRIAL. 

1.  Where  notice  of  trial  is  countermanded,  the 
record  need  not  be  resealed,  unless  the  alteration 
is  made  to  a  day  after  the  return  of  the  wriL 
Chandler  v.  Bezward,  2  Mees.  (Sl  W.  (ex.)  206. 

2.  If  the  plaintiff  avails  himself  of  short  notice 
of  trial,  he  has  no  power  of  countermand,  and 
must  pay  the  costs  of  not  proceeding  to  trial  up  to 
the  time  of  countermand.  Doncaster^?.  CyardweU, 
2  Mees.  <&  W.  (ex.)  390;  and  5  Dowl.  (f.  c.)  581. 

3.  Upon  a  joint  plea  of  not  guilty,  counsel  of 
each  defendant  not  allowed  either  to  cross-exam- 
ine or  address  the  jury  separately.  Scale  v.  £t. 
ans  and  another,  7  C.  &  r.  (n.  p.)  593. 


4.  Where  several  defendants  rely  on  the 
ground  of  defence,  only  one  counsel  can  add 
Uie  jury.    Mason  v.  Ditchbourne,  1  M.  db  Rob. 
(n.  p.)  462. 

5.  Where  the  order  for  trial  of  an  issue  directs 
all  witnesses  to  be  examined,  and  the  plaintiff, 
conceiving  his  case  made  out,  declines  calling 
some,  the  judge  will  do  so,  and  the  plaintiff  may 
make  observatiuns  thereon,  and  the  defendant 
mav  reply  on  such  observations.  Groom  v.  Cham- 
beii,  2  M.  &  Ayr.  (b.)  742. 

6.  The  court  will  look  at  the  substance  oftbe 
issue  in  deciding  on  which  party  is  to  begin. 
Where,  in  covenant  for  not  leaving  in  repair,  the 
plaintifTalleged  that  the  piemiaea  were  left  dilapi- 


[PRACTICE  (COM.  LAW)] 


S881 


dated,  and  the  defendant  that  they  were  not,  the 
plaintiff  was  held  entitled  to  begin.  Soward  v. 
Leggatt,  7  C.  &  P.  (N.  P.)  613. 

7.  In  assumpsit,  for  not  delivering  hay  «»f  cer- 
tain qualrty ;  plea,  that  defendant  tendered  hay 
of  that  quality,  and  that  plaintiff  refused  to  re- 
ceive it ;  held,  that  being  a  traverse  of  an  allega- 
tion in  the  declaration,  the  issue  lay  on  the  plain- 
tiff.    Crowley  v.  Page,  7  C.  &  P.  (n.  y.)  7SJ0. 

8.  In  assumpsit  J  on  breach  of  promise  of  mar- 
riage, the  defendant  pleaded  only,  unchaste,  Ac. 
conduct  of  the  plaintiff  after  the  promise,  the 
plaintiff  held  entitled  to  begin.  Harrison  v. 
Gould,  7  C.  <fc  P.  (N.  p.)  580. 

9  In  assumpsit,  for  breach  of  contract  to  do 
certain  work  in  a  workmanlike  manner,  and  isbue 
whether  the  work  was  so  done,  held  that  the 

Slaintiff  was  to  begin.     Amos  v,  Hughes,  1  M.  di 
Lob.  (m.  p  )  464. 

10.  The  test  is  whether,  if  the  particular  allega- 
tion on  which  the  issue  arises  be  struck  oat  of 
the  plea,  there  will  or  will  not  be  a  defence  to  the 
action,  and  not  merely  whether  the  allegation  be 
affirmative  or  negative.    lb.  n. 

And  see  Mills  v.  Barber,  1  Mees.  &  W.  41^. 

11.  In  ejectment  by  heir  against  a  party  claim- 
ing under  a  will,  held  that  the  latter  was  entitled 
to  l>egin  (having  admitted  the  lessor  of  plaintiff 
to  be  neir),  notwithstanding  the  plaintiff  profess- 
ed to  claim  under  an  outstanding  term  of  part  of 
the  premises.  Doc  v.  Smart,  1  M.  dc  Rob.  (n.  p.) 
476. 

12.  Where  the  affirmative  of  the  issue  in  cove- 
nant lay  on  the  defendant,  held  that  he  was  enti- 
tled to  begin,  although  the  damages  were  unas- 
certained. Reeve  v.  Underbill,  1  M.  &  Rob.  (m. 
p.)  440. 

13.  So,  where  in  covenant  the  issue  is  on  the 
defendant,  he  is  to  begin.  Wootton  v.  Barton,  1 
M.  &,  Rob.  (N.  p.)  51ti. 

14.  The  same  rule  held  to  prevail  in  replevin 
as  in  other  actions,  that  where  any  one  issue  is 
on  the  plaintiff,  he  is  entitled  to  begin.  James  v. 
Salter,  1  M.  <&  Rob.  (n.  p.)  501. 

15.  Either  party,  at  any  period  of  trial,  may 
require  witnesses  to  be  ordered  out  of  court. 
Southey  v.  Nash,  7  C  &  P.  (k.  p.)  632. 

16.  Where  plaintiff's  witness  had  in  chief 
stated  the  defendant  to  be  the  party  with  whom 
he  contracted  on  behalf  of  plaintiff,  which  was 
contradicted  by  the  defendant,  the  defendant 
having  afterwards  coroeJnto  court;  held,  that 
the  witness  could  not  be  re-exammed  to  speak 
more  positively  as  to  identity.  Roe  v.  Day,  7  C 
&  P.  (n.  p.)  705. 

17.  Afler  evidence  is  given  implicating  all  the 
defendants  in  trespass,  held  that,  although  the 
defence  of  one  might  be  complete,  the  court  would 
not  take  the  acquittal  separatelv,  in  order  to  let 
in  the  party  as  a  witness.  Leach  v.  Wilkinson,  1 
M.  &  Rob.  (5.  p.)  537. 

18.  In  trespass  for  taking  goods  which  in  one 
plea  the  defendants  justified  on  the  ground  of 


their  having  been  fraudulently  removed  to  avoid 
distress,  held  that  the  plaintiff  might  reserve  bis 
answer  in  reply.     Ashmore  v.  Hardy,  7  C  de.  P. 

(N.  p)501 

10.  And  the  plaintiff  was  not  bound  to  prove 
title  to  the  goods,  it  being  enough  that  they  were 
taken  out  of  his  possession,     lb.  - 

20.  Where  a  juror  was  withdrawn  on  reference 
of  the  accounts  to  an  arbitrator,  held,  that,  as  it, 
under  the  circumstances,  finally  determined  the 
action,  the  award  being  set  aside,  the  parties 
could  not  go  on  again  in  the  action.  Harris  8. 
Thomas,  2  Mees.  dc  W.  (xz.)  37. 

21 .  Where  a  verdict  was  inadvertently  taken 
in  an  undefended  cause  for  the  mortgage  princi- 
pal, without  the  interest,  held  that,  although  the 
court  miffht  set  aside  the  verdict,  it  could  not  be 
increased  in  the  absence  of  the  defendant.  Baker 
r.  Brown,  2  Mees.  Ol  W.  (ex.)  199 ;  and  5  Dowl. 
(p.  c.)  313. 

22.  So,  where  the  verdict  was  taken  by  consent 
on  the  calculation  of  counsel,  the  court  could  not 
interfere  on  the  ground  of  a  wrong  basis  of  calcu- 
lation having  been  taken.  Hilton  v.  Fowler,  5 
Dowl.  (p.  c.)  312. 

23.  In  debt  for  goods,  &c. ;  plea,  as  to  part,  a 
set-off;  as  to  other  part,  goods  returned,  and,  as 
to  the  residue,  payment  into  court,  and  the  defen- 
dant proved  sufficient  to  cover  the  amount  claim- 
ed in  the  particulars,  bgt  less  than  he  had  alleg- 
ed in  his  set-off;  held,  that  the  plaintiff  was  en- 
titled to  a  verdict  for  that  deficiency.  Green  v. 
March,  5  Dowl.  (p.  c.)  669. 

24.  Where,  in  ejectment  for  forfeitures  by 
breach  of  covenant,  the  Judge  directed  the  jury, 
that  if  they  were  of  opinion  that  a  nuisance, 
created  by  an  erection  on  the  premises,  had  been 
increased,  they  should  find  for  the  plaintifff  and, 
upon  their  retiring  to  deliberate,  the  Judge  and 
counsel  quitted  the  court,  and  the  associate,  upon 
the  return  of  the  jury  finding  in  the  affirmative, 
entered  the  verdict  for  the  plaintiff,  although  sev- 
eral expressed  their  dissent  from  this  construc- 
tion ;  held,  not  to  amount  to  a  special  verdict,  and 
that  the  verdict  was  properly  entered.  Doe  v. 
Baster,  1  Nev.  Sl  M.  (k.  b.)  541 ;  and  5  Ad.  dk 
Ell.  129. 

25  Where  a  plea  of  justification  of  libel  alleg- 
ed three  several  distinct  facts,  and  the  jury  were 
told  by  the  Judge  that,  in  order  to  find  for  the 
defendant,  they  must  be  satisfied  that  all  the  al- 
legations had  been  proved  in  substance,  and  the 
jury,  after  great  deliberation,  found  for  the  defen- 
dant; the  court  refused  to  interfere  upon  the 
suggestion  that  the  jury  had,  in  answer  to  a  ques- 
tion, expressed  an  opinion  the  other  way  as  to  one 
of  the  facts.  Napier  v.  Daniel,  3  Bing.  N.  S.  (c. 
p.)  77;  and  3  Sc.  417. 

26.  Where,  on  a  question  of  seaworthiness,  a 
new  trial  had  been  granted  on  the  ground  of  the 
verdict  for  the  plaintiff  being  against  the  weight 
of  evidence,  and  the  jury  again  on  the  same  evi- 
dence, found  for  the  plaintiff,  the  court  were 
equally  divided  on  an  application  for  a  third  trial, 
and  the  rule  therefore  discharged.  Foster  o. 
Steele,  3  Bing.  N.  S.  (c.  p.)  892. 


8882 


[PRACTICE  (COM.  LAW)] 


37.  And  afterwards  refuBed  an  application  to 
open  the  consolidation  rule,  in  order  to  try  the 
same  question  against  another  underwriter. 
^Vaughan,  J.,  diss.)     Foster  v.  Alves,  lb.  896. 

28.  Where  the  cause  was  tried  in  the  absence 
of  the  defendant's  attorney  before  the  hour  stated 
on  the  notice  of  trial,  the  court  set  aside  the  ver- 
dict without  an  affidavit  of  merits.  Hanslow  v. 
».  Wilks,  5  Dowl.  (p.  c.)  21)5. 

2.9.  Where  the  plaintiff  was  nonsuited  for  the 
non production  of  a  document  out  of  the  jurisdic- 
tion, and  which  had  been  sent  for,  but  did  not  ar- 
rive in  time,  the  court  set  aside  the  nonsuit  upon 
payment  of  costs.  Atkins  v.  Owen,  6  Nev.  & 
M.  (K.  B.)  229 ;  and  4  Ad.  &  £11  819. 

30.  Where  the  plaintiff  was  nonsuited  in  con- 
sequence of  the  defendant's  refusal  to  admit  docu- 
ments which  had  been  agreed  to  be  admitted  by 
the  defendant's  attornejrs  agent,  a  new  trial 
granted,  with  costs  to  be  paid  by  the  defendant; 
out  the  court  would  not  visit  them  on  his  attor- 
ney, who  was  nut  present  at  the  trial,  and  had 
not  instructed  cqunsel  to  object.  Doe  d.  Tindal 
,v.  Roe,  6  Dowl.  (p.  c.)  420. 

31.  In  trespass  and  false  imjirisonment  against 
the  marshal ;  plea,  first,  leave  and  licence  (to 
^hich  the  similiter  had  been  omitted) ;  secondly, 
pleas  justifying  the  detention  until  payment  of 
^certain  fees,  on  which  the  issues  were  regularly 
made  up,  and  the  plaintiff  obtained  a  veroict  and 
^lamages ;  the  court  refused  an  application  for  a 
new  trial  on  the  ground  of  the  defect  in  the  re- 
joord,  the  question  having  in  fact  been  involved 
in  the  other  issues  and  been  tried.  Stockdale  v. 
Chapman,  6  Nev.  &  M.  (k.  b.)  711 ;  and  4  Ad.  & 
£1L  419. 

32.  Where  time  for  peading  was  obtained  on 
terms  inter  alia  of  taking  short  notice  of  trial,  ^  if 
necessary  ;"  held,  that  in  the  case  of  trial  before 
the  sheriff,  the  plaintiff  is  bound  to  give  a  short 
notice  for  the  first  sittings  after  the  date  of  the 
order  obtained.  Dignam  v.  Ibbotson,  3  Mees.  & 
W.  (EX.)  431. 

33.  Where  a  second  notice  of  trial  is  treated  as 
^  continuanoe  of  one  in  the  same  term,  it  cannot 
tie  afterwards  treated  as  an  original  notice,  so  as 
io  evade  the  rule  that  not  more  that  one  continu- 
^mce  shall  be  allowed  in  one  term.  Wyatt  v. 
Btocken,6  Ad.  &  Ell.  (k.  b.)  803. 

34.  Where  in  an  action  on  a  contract  for  the 
tturehase  of  goods,  to  be  paid  for  by  approved 
bills,  and  after  issue  ioined  the  defendant  became 
bankrupt,  and  the  plaintiff  having  proved  under 
the  commission  for  the  price  of  the  goods,  forbore 
to  proceed  in  the  action ;  held  that  the  proof  not 
being  strietJy  of  the  claim  in  respect  of  which 
the  action  was  brought,  the  defendant  was  not 
precluded  from  taking  the  cause  down  by  pro- 
viso ;  but  a  alet.  processus  allowed  on  payment  of 
costs  of  the  demurrer.  Whittaker  v.  Mason,  4 
Bing.  N.  S.  (c.  p.)  303 ;  and  6  Dowl.  (p.  c.)  429. 

36.  Where  the  witnesses  had  not  arrived  when 
the  cause  came  on  in  its  turn ;  held,  that  the  plain- 
tiff must  either  proceed  or  withdraw  the  record, 
and  having  done  the  latter,  and  his  witnesses  ar- 
rived during  the  trial  of  the  next  cause,  the  jadge 


allowed  it  to  be  re-entered,  unlets  an  affidarit 
were  produced  that  the  defendant  had  sent  away 
,8ome  of  his  witnesses.    Lean  r.  Smith,  2  M.  db 
Rob.  (m.  p.)  126. 

36.  Where  the  defendant  struck  the  special 
jur^,  but  took  no  steps  to  summon  them,  and  the 
plaintiff,  to  insure  the  trial,  did  so ;  held,  that  it 
was  nevertheless  the  defendant's  jary,  and  he 
was  liable  to  pay  them.  Wilson  v.  Butler,  2  M. 
&Rob 


Die  lo  pay  i 
.  (w.  p.)  78. 


37.  No  rule  for  a  special  jury  to  be  granted  on 
behalf  of  a  defendant,  or  plamtiff  in  replevin, 
except  on  affidavit,  stating  that  no  notice  of  trial, 
or  for  what  day,  given,  and  in  the  latter  case  un- 
less the  application  made  six  days  before  that  day ; 
but  a  judge  may  order  a  rule  for  a  special  jury 
to  be  drawn  up  at  any  time.  Reg.  Gen.,  4  Bing. 
N.  S.  (c.  p.)  367;  and  3  Mees.  &  W.  (ex.)  154. 

38.  Where  only  a  part  of  the  special  jury  ap- 
pear, the  plaintiff  is  entitled  to  pray  a  taUSf  with- 
out the  defendant's  consent.  Gatliffe  v.  Bourne, 
2  M.  &  Rob.  (N.  p.)  100. 

39.  Where  different  defendants  appear  bjae|Hi- 
rate  counsel,  the  issues  raised  by  their  respective 
pleas  being  the  same,  only  one  counsel  will  be 
allowed  to  address  the  jury.  Sparkes  v.  Barrett 
and  another,  8  C.  &.  P.  (if.  p  )  442. 

40.  The  right  to  begin  is  not  so  entirely  for  the 
disposal  of  the  judge  at  nisi  jnitu  but  that  if  hia 
decision  were  clearTy  wrong,  the  court  would  in- 
terfere. Huckman  v.  Fernie,  3 Mees.  dk>  W.  (£z.) 
512. 

41.  {n  an  action  on  a  life  insurance  policy, 
upon  the  issue  that  the  party  was  in  good  health 
at  the  time  of  effecting  the  policy ;  held,  that  it 
lyin^  on  the  plaintiff  to  establish  the  condition  of 
the  insurance,  he  was  entitled  to  begin ;  in  such 
a  claim,  only  one  counsel  can  be  heard  on  a  side. 
Rawlins  v.  Desborough,  2  M.  &  Rob.  (n  p.)  70 ; 
andSC.  d^P.  321. 

42.  Where  a  declasation  for  false  imprisonment 
consisted  only  of  one  count,  part  of  which  tbe 
jury  negatived,  the  Judce  refused  to  have  so 
much  of  the  issue  found  lor  the  defendant  enter- 
ed for  him.  Myers  v.  Goodchild,  8  C.  db  P.  («. 
p.)  313. 

43.  Where  the  cause  had  been  bronght  on  accord- 
ing to  the  notice  of  trial,  and  been  announced  in 
the  marshal's  list  as  to  be  taken  as  an  undefended 
cause,  and  no  notice  was  given  to  the  plaintifE^  or 
counsel  instructed  that  it  was  to  be  defended,  the 
court  refused  to  set  aside  the  verdict  for  inega* 
larity ;  but  on  an  affidavit  of  merits,  granted  a 
new  trial,  on  payment  of  costs ;  on  such  a  term 
imposed,  the  court  will  not  fix  a  day  for  the  pay- 
ment. Bland  v.  Warren,  2  Nev.  &»  P.  (s.  b.) 
97;  and  6  Dowl.  (p.  c.)  21. 

44.  A  rule  nisi  for  a  new  trial,  held  not  a  nul- 
lity because  obtained  by  a  difibrent  attorney  firom 
the  one  on  record,  without  any  order  ibr  ohang* 
ing.     Doe  v.  Branson,  6  Dowl.  (p.  c.)  490. 

45.  Where  the  under-sheriff  on  executing  n 
writ  of  inquiry  in  an  action  of  slander,  had,  in 
answer  to  a  question  of  the  jury  as  to  what  da- 
mages wonld  entitle  the  plamtiff  to  coets,  told 


[PRACTICE  (COM.  LAW)] 


them  that  the  smallest  sam  would  be  soffieient ;  |     56.  Where  there  wae  a  misjoinder  of  eoonte 
held,  that  being  merelj^  an  intimation  on  a  subject   against  the  defendant  in  his  own  right,  and  also 


mdffe  refused  to 
HaU  V.  Milligen, 


over  which  the  jurynad  no  power,  it  was  not 
euch  a  misdirection  to  justify  a  second  inquiry.* 
Grater  v.  Gollard,  6  DowL  (r.  c.)  503. 

46.  Where  theclerk  of  the  olain  tiff's  attorney, 
before  the  adjournment  was  nzed,  was  informed 
at  the  office  that  it  would  be  on  the  8th,  but  it 
was  afterwards  fixed  for  the  6th,  and  the  plaintiff' 
not  appearing  on  the  7th,  when  the  csuse  was 
called  on,  was  nonsuited,  the  jud 
allow  the  eanse  to  be  restored 
8  C.  &  P.  (n.  p.)  314. 

47.  Where  notice  of  trial  was  given  for  the  sit^ 
tings  aAer  Easter  term,  which  began  on  12  May, 
being  only  an  adjournment  day  to  the  16th  ;  held, 
that  notice  of  countermand  on  the  14th  was  too 
late.  Cooper  r.  Whitmarsh,  4  Mees.  &  W.  (ex.) 
73  ;  and  6  Dowl.  (p.  c.)  695. 

48.  Upon  issues  in  fact,  and  of  law  raised  upon 
pleas  to  the  same  count,  where  the  entrj  of  venire 
was  only  dd  triandum^  and  not  also  of  ad  inqui' 
rendum,  the  court  set  aside  the  issue,  with  costs. 
Codrington  v*  Lloyd,  1  Pefr.  A  0.  (a.  b.)  157. 

49.  The  court  relbeed  to  dischar^  a  rule  for  a 
special  jury,  merely  on  the  suggestion  that  it  had 
heen  ootamed  for  delay.  Bui  v.  Pinkus,  5  So. 
(c.  p.)  617. 

50.  Where  the  action  invoWed  a  question  of 
great  local  interest  in  a  small  county,  the  court 
granted  a  suggestion  for  remoTing  the  trial  to  the 
adjoining  eounty,  and  the  defendants  not  entitled 
to  the  costs  of  the  mdtion.  Jones  v.  Price,  (p.  c.) 
103. 


51.  Where  in  trover  the  inry  found  for  the 
plaintiff,  but  accompanied  their  verdibt  with  a 
statement  in  writing,  that  whether  the  goods  were 
delivered  to  the  defendant  as  a  loan  or  gift,  they 
oitfht  to  have  been  returned,  which  the  associate 
refused  to  receive ;  held  that  he  was  right,  it 
amountingto  a  mere  expression  of  the  private 
opinion,     whittett  v.  Bradford,  5  Sc.  (c.  p.)  711. 

52L  Where  an  1  O  U  instrument  had,  whilst 
counsel  were  engaged,  been  inadvertently  read, 
held  that  it  was  too  late  afterwards  to  object  to 
the  want  of  a  stamp,  and  withdraw  it  from  the 
jury.    Foss  v.  Wagner,  6  Ad.  &  £11.  (q.  s.)  116. 

53.  Where  the  jury  found  only  20s.  damages 
in  a  case  of  slander,  although  very  gross,  the 
oourt  refused  a  new  trial  on  the  crround  of  the 
smallneas  of  the  damages.  RendaU  v.  Hayward, 
5  Bing.  N.  S.  (c.  p.)  4M. 

54.  Where  one  of  the  defendants  was  in  court 
when  the  cause  was  called  on  in  its  turn  and 
tried  as  an  undefended  cause,  being  eighth  on  the 
list,  no  briefs  having  been  delivered,  and  the  ver- 
dict beinff  for  7/.,  a  new  trial  refused  on  any 
terms.  Watson  v.  Reeve,  5  Bing.  N.  S.  (c.  p.) 
112 ;  6  Sc.  783 ;  and  7  Dowl.  (p.>c.)  127. 

55.  Where,  from  the  pressure  of  business,  the 
intended  motions  for  new  trials  are  put  into  the 
usual  list  to  be  made  after  the  first  four  devs,  it 
is  necessary  to  give  notice  to  the  other  side,  or 
judgment  signed  on  the  fifth  day  before  the 
motion  is  made  will  be  regular.  Doe  v.  £d-l 
wards,  7  Dowl.  (p.  c.)  547. 

Vol,  IV.  77 


as  executor,  held  that  a  venire  de  novo  could  not 
be  awarded,  but  the  judgment  be  arrested,  and 
that  the  application  having  been  made  for  the  for- 
mer on  a  subsequent  day  in  the  same  term  in 
which  a  rule  for  the  latter  was  moved  for  and  ob- 
tained, was  not  too  late.  Corner  v.  Shew,  4 
Mees.  &  W.  (ex)  163 ',  and  6  Dowl.  (p.  c.)  688. 

And  see  Leach  v.  Thomas,  9  Mees.  db  W.  497. 

57.  Where,  at  the  trial,  a  verdict  was  taken  and 
the  cause  referred,  but  from  the  neglect  in  deliv* 
ering  the  order  of  nin  priuM  to  the  arbitrator  in 
time,  the  defendant  refused  to  proceed;  held, 
that  until  the  verdict  was  got  rid  of,  the  cause 
could  not  be  tried  again,  and  that  the  cross-exam- 
ination of  a  witness  upon  interrogatories  under  an 
order  under  1  Will.  4,  e.  22,  s.  4,  did  not  amount 
to  a  waiver  of  the  irregularity  of  the  second  trial, 
as  it  mtj^ht  have  taken  place  on  a  supposition  that 
proceedings  would  be  taken  to  try  the  eanse  reg- 
ularly. Hall  V.  Rouse,  4  Mees.  A  W.  (ix.)  24 ; 
and  6  Dowl.  (p.  c.)  656. 

58.  Assiies  may  be  held  in  adjoining  counties : 
2  &  3  Vict.  c.  72. 

And  see  Aaion  on  tke  Can> 


[P]  JUDOMCJIT. 


1.  Under  rule  3,  Hil.  4  Will.  4,  the  court  or  % 
Judge  can  only  direct  judgment  to  be  entered 
nunc  pro  tune  in  cases  as  before,  where  the  delav 
is  by  the  act  of  the  court.  Lanman  v.  Lord  Ami- 
ley,  2  Mees.  A  W.  (xx.)  535 ;  S.  C.  5  Dowl.  (p. 
c  }  596. 

2.  The  Judge  in  the  Bail  (^ourt  may  review 
the  decisions  at  chambers.  King  v,  Myers,  5 
Dowl.  (p.  c.)  687. 

3.  Where  the  plaintiff  signed  judgment  on  the 
23d,  and  the  defendant  took  out  a  summons  to  set 
it  aside  on  the  25th,  which  was  dismissed  on  the 
26th  ;  held,  that  he  was  not  too  late  in  applying 
to  the  court  on  the  ■29th.  lb. 

4.  A  party  seeking  to  set  aside  an  interioontory 
judgment  is  bound  to  come  promptly,  and  the 
time  begins  to  run  flrom  bis  receiving  notice  of 
judgment  being  signed.  Grant  v.  Flower,  '^ 
Dowl.  (p.  c.)  419. 

5.  J udgnnent  signed  before  an  appearance  en- 
tered, held  irregular,  and  not  cured  by  a  cognovit 
having  been  given  to  the  plaintiff's  attorney  to 
enter  it,  who  entered  it  nunc  pro  tune,  Watson 
e.  Dore,  9  Mees.  &  W.  (ex.)  386 ;  and  5  Dowl. 
(p.  c.)583. 

6.  Afler  leave  given  at  the  trml  to  move  to  re- 
duce the  damages,  the  court,  upon  the  plaintiff's 
consenting  to  forego  the  sum  disputed,  allowed 
judgment  and  execution  forthe  residue.  Hellings 
V.  Young,  3  Sc.  (c.  p.)  770. 

7.  Afler  declaration  delivered  on  28th  Octoberi 
with  notice  to  plead  in  four  days,  a  summons  was 
taken  out  for  further  time  to  plead,  and  on  the 
29th,  by  a  Judge's  order,  it  was  granted  on  terms. 


38ti4 


[PRACTICE  (COM.  LAW)] 


to  have  four  days'  time  to  plead ;  held,  that  the 
time  was  to  be  computed  from  the  date  of  the 
order,  and  that  judgment  signed  on  the  3d  Nov. 
was  regular.  Lane  v.  Parsons,  3  Bing.  N.  S.  (c. 
p.)  264 ;  3  So.  652;  and  5  Dowl.  (e.  c  )  359. 

8.  Where  the  declaration  in  an  action  against 
the  sheriff  was  for  an  escape,  and  the  evidence 
was  of  omitting  to  arrest,   having  opportunity, 
which  was  found  specially  by  the  jury,  and  m 
dorsed  upon  the  record  ;  held,  to  be  within  the 

4  Will.  4,  c.  42,  8.  24,  and  that  the  court  might 
give  judgment  according  to  such  finding,  and 
that  they  could  not  impose  terms  on  the  party  in 
whose  favor  it  was  given.  Geast  v.  Elwes,  6  Nev. 
&  M.  (K.  B.)  433;  and  5  Ad.  <&  £11.  118. 

9.  Where  the  plaintiff,  having  signed  judgment 
too  soon,  gave  notice  of  his  intention  to  abandon 
it,  but  did  not  strike  it  out  of  the  book,  the  court 
discharged  the  rule  on  the  part  of  the  defendant, 
to  set  it  aside  as  unnecessary.  Robinson  v,  Stod- 
dart,  5  Dowl.  (p.  c  )  266. 

10.  Where  the  declaration  in  assumpsit,  for  lOZ., 
for  instruction,  in  one  count,  and  for  10/.  oA  an 
account  stated ;  and  the  defendant  pleaded,  1st, 
non  assumpsit,  2dly,  payment  of  10/.  in  satisfac- 
tion of  the  promises,  <&c.,  the  plaintiff  entered  a 
nMe  pros,  as  to  the  second  count  and  the  defen- 
dant nad  a  verdict  on  the  plea  of  payment ;  held, 
that  the  record  was  to  be  looked  at  as  it  stood  at 
the  trial,  and  the  issue  being  only  as  to  the  first 
count,  the  plaintiff  was  not  entitled  to  Judgment 
non  obst.  vertd.  Wright  v.  Acres,  1  Nev.  <&  P. 
(k.  b.)  761. 

11.  Where  the  plaintiff  had  obtained  a  verdict, 
and  the  defendant  a  rule  nisi  for  a  new  trial, 
which  aAer  the  lapse  of  a  year  was  discharged, 
and  the  defendant  in  the  interval  died;  judgment 
ordered  to  be  entered  nunc  pro  turui,  although 
more  than  two  terms  had  elapsed  afler  discharg- 
ing the  rule,  the  delay  arising  from  the  taxation 
of  the  costs,  and  no  fault  in  the  plaintiff.  Blew- 
ett  V.  Tregonning,  4  Ad.  &  YA\,  (k.  b.)  1002 ;  and 

5  Dowl.  (p.  c.)  404. 

12.  A  defendant  cannot  sign  judgment  of  non 
pros,  afler  notice  of  trial ;  and  where  he  had  done 
so  for  not  entering  the  issue  pursuant  to  a  rule, 
held  that  it  was  an  answer  to  a  motion  for  a  judg- 
ment as  in  case  of  nonsuit,  that  the  time  for  pro- 
ceeding to  trial  expired  pending  a  rule  for  setting 
aside  the  judgment  of^  non  pros.  Howell  v. 
Jacobs,  5  Dowl.  (p.  c.)  394. 

13.  Pleas  in  trespass,  the  general  issue  and  a 
justification ;  replication  and  new  assignment, 
and  demurrer  thereto,  and  on  the  trial  the  plain- 
tiff obtained  a  verdict  and  damages  on  the  first 
issue  ;  heldyithat  he  could  not  enter  a  noUe  pros. 
as  to  the  new  assignment  only.  Strotlier  v.  Ran- 
derson,5  Dowl  (p.  c.)  280. 

14.  Where  a  nolle  pros,  wos  entered  as  to  cer- 
tain of  the  pleas,  and  money  taken  out  of  court ; 
held,  that  the  defendant  being  entitled  to  some 
costs,  the  court  would  not  at&rwards  allow  the 
the  propriety  of  the  pleas  to  be  contested.  Wil- 
liams V.  Sharwood,  3  Bing.  N.  S.  (c.  p.)  331 ;  3 
Sc.  761 ;  and  5  Dowl.  (p.  c.)  371. 

15.  Declaration  delivered  on  the  9th,  indorsed 


to  plead  in  four  days,  and  plea  demanded  on  the 
same  day,  and  judgment  signed  for  want  of  plea  at 
one  o'clock  on  the  14th,  held  regular.  BlundeU 
V.  Hanson,  2  Mees.  Sl  W.  (kx  )  ^3 ;  and  5  DowL 
(P.O.)  457.  Overruling  Kemp  r.  Tyson,  3  DowL 
(p.  c.)  265. 

16.  The  plaintiff  cannot  sign  judgment  as  for 
want  of  pica  until  the  time  for  pleading  ha  ex- 
pired, although  irregular  pleas  delivered.     Smith 
V.  Rathbone,  o  Dowl.  (p.  c.)401. 

17.  Where  afler  obtaining  a  week's  further 
time  to  plead,  the  defendant  took  out  several  som- 
monses  for  further  time,  the  last  returnable  on 
the  day  afler  the  week's  time  expired,  but  no  or- 
der taken  on  either ;  held,  that  the  plaintiff  was 
entitled  to  sign  judgment  on  that  day.  Bass  p. 
Cooper,  2  Mees.  &  W.  (kx.)  310. 

18.  Where  imparlance  is  abolished,  a  notice  to 
plead  is  still  necessary  before  judgment  for  wmnt 
of  plea  can  be  signed.  Fenton  «.  Aostin,  5 
Dowl.  (p.  c.)  113. 

19.  Where  in  assumpsit  for  goods ;   plea, 

assumpsit,  except  as  to  £ ,  and  as  to  £!^ 

part  thereof,  payment  before  action  brought ;  as 
to  other  part  of  that  sum,  payment  into  ooart, 
and  as  to  the  residue,  a  set-off;  the  plaintiff 
accepted  the  sum  paid  into  court,  but  took  no  no- 
tice of  the  other  pleas ;  the  court  directed  that 
the  plaintiff  should  amend,  or,  if  he  would  not 
consent  to  allow  the  defendant  to  tax  his  costs  as 
if  a  noUe  pros,  had  been  entered  as  to  the  other 
pleas,  that  the  defendent  miffht  sign  judgment  as 
for  want  of  a  sufficient  replication.  Topham  v. 
Kidmore,  5  Dowl.  (p.  c.)  676. 

20.  Afler  the  defendant  has  once  demanded  a 
declaration,  if  the  plaintiff  obtains  further  time, 
no  fresh  demand  is  necessary  to  entitle  the  de» 
fendant  to  sign  judgment  of  non.  pros,  on  the 
expiration  of  the  last  oMer.  Fenton  v.  Grant,  5 
Dowl.  (p.  c.)  153. 

21.  Where  the  similiter  was  intituled  in  a 
wrong  court,  and  so  no  issue,  no  rule  for  judg- 
ment as  in  case  of  nonsuit  allowed.  Ray  r. 
Good,  5  Dowl.  (p.  c.)  295. 

22.  Where  issue  was  joined  in  a  town  cause 
in  Hil.  vacation,  and  an  order  obtained  to  try  iie- 
fore  the  sheriff ;  held,  that  application  forjudge 
ment  as  in  case  uf  nonsuit  in  tlie  following  Easter 
Term  was  too  early,  although  several  sheriff's 
court  days  had  passed  since  the  order.  Skacey  c. 
Jeffrys,  5  Dowl.  (p.  c.)  324. 

23.  So,  where  issue  in  a  town  cause  joined  in 
Trin.  vacation,  with  the  like  order,  and  no  notice 
of  trial  given,  the  motion  in  Hil.  'Term  following 
was  too  early.  Fox  v.  M'Culloch,  5  Dowl.  (p.  c.) 
526. 

24.  The  rule,  to  make  a  judge's  order  for  JQdff> 
ment  as  in  case  of  nonsuit  a  rule  of  court,  is  ab- 
solute in  the  first  instance  ;  but  it  cannot  be  made 
part  of  the  same  rule  for  entering  up  judgment 
and  issuing  execution.  Doe  v.  Savage,  5  Uowl. 
(p.  c.)  507. 

25.  Where  the  pUuntiff  had  once  taken  down 


[PRACTICE  (COM.  LAW)] 


2865 


the  catifle,  and  a  new  trial  bad  been  granted,  and 
notice  of  trial  ffi^en,  but  not  proceeded  in  ;  held, 
that  the  defendant  could  not  move  for  judgment,, 
but  must  take  down  the  cause  by  proviso.     Haw« 
ley  r.  Sherley,  5  Dowl.  (p.  c.)  393. 

26.  Where  issue  was  joined  in  vacation  and  no 
notice  of  trial  given,  it  not  being  shown  to  be  a 
country  cause ;  held  too  early  to  apply,  in  the 
next  term  but  one  atler  issue  joined,  for  judgment 
as  in  case  of  nonsuit.  Heale  r  Curtis,  2  Mees. 
&.  W.  (EX.)  76;  and  5  Dowl.  (p.  c.)  2M. 

27.  Where  the  motion  was  made  in  the  same 
term  as  the  default  made,  held  too  early.  Grip- 
per  V.  Lord  Templemore,  5  Dowl.  (r.  c.^  408. 

28.  Judgment  cannot  be  moved  for  until  two 
actual  terms  have  elapsed  afler  issue  is  joined. 
Gough  V.  White,  2  Mees.  &.  W.  (ex.)  363. 

29.  Where  the  plaintiff  was  not  bound  to  go  to 
trial  until  the  sittings  after  term,  and  he  gave  a 
notice  for  the  sittings  in  term,  but  did  not  proceed 
thereon  or  countermand,  but  gave  notice  for  the 
the  sittings  after ;  held,  that  the  defendant  was 
Dot  entitled  to  judgment  as  in  case  of  nonsuit. 
Ranger  v.  Bligh,  5  Dowl.  (p.  c.)  235.  S.  F.  Fell 
v.Tyne,ib.  246. 

30.  Notice  of  trial  before  the  sheriff  being  given 
for  a  day  in  term,  the  plaintiff  cannot  move  for 
judgment  for  not  proceeding  to  trial  in  that  term. 
So,  semb.  in  town  causes ;  but  costs  of  the  day  in- 
curred  may  be  moved  for  by  distinct  motion  in 
such  term.  Linley  v.  Poulden,  5  Tyrw.  (ex.) 
8L9. 

31.  The  defendant  having  since  the  commence- 
ment of  the  action  taken  the  benefit  of  the  Insol- 
Tent  Act,  is  a  sufficient  answer  to  a  motion  for 
judgment  as  in  a  case  of  nonsuit,  and  the  court 
will  discharge  it  with  costs,  unless  a  stet  processus 
it  consented  to.  Smith  v.  Babcock,  5  Dowl.  (p.  c .) 
91. 

32.  Where  the  plaintiff's  right  of  action  became 
by  his  bankruptcy  vested  in  his  assignees,  who 
refused  to  proceeo  in  the  suit,  the  court  refused  to 
discharge  the  rule  for  judgment  as  in  case  of  non- 
suit, unless  security  were  given  for  costs.  Tay- 
lor V,  Montague,  2  Mees.  dk.  W.  (ex.)  315. 

33.  It  'is  no  answer  to  an  application  for  judg- 
ment, afler  a  peremptory  undertaking,  that  the 
cause  was  made  a  remanet  through  the  illness  of 
the  judge,  as  the  party  ought  to  have  applied  to 
the  court  to  relieve  him  from  it  Ward  v.  Tur- 
ner, 5  Dowl.  (p.  c.)  22. 

34.  Upon  an  application  to  enlarge  a  peremp- 
iory  undertaking,  after  several  defaults,  the  Court 
wiU  make  the  plaintiff  pay  the  costs  of  the  last 
application.  De  Rutxen  v.  Jehn,  5  Dowl  (p.  c.) 
400. 

35.  It  is  no  answer  to  the  application  that  the 

Elattttiff  swears  the  action  commenced  without 
is  knowledge  or  authority.    Barber  v.  Wilkins, 
5  Dowl.  (P.O.)  305. 

36.  Where  the  plaintiff,  aAer  default  made,  on 
the  14th  gave  a  fresh  notice  of  trial  for  the  18th, 
when  the  plaintiff  obtained  a  verdict,  but  the  de- 
fendant cibt^ned  a  mle  for  jadgment  as  in  case  of 


nonsuit  on  the  15th  ;  the  court  set  aside  the  ver- 
dict and  discharged  the  rule  for  judgment,  on  a 
peremptory  undertaking,  and  payment  of  costs  of 
the  day  on  the  first  default,  and  of  the  rule.  Semb. 
since  the  rule  of  Hil.  2  Will.  4,  s.  68,  one  day's 
notice  of  the  motion  for  judgment  does  not  ope- 
rate as  a  stay  of  proceedings.  Jones  v.  Howe,  2 
Mees.  &.  W.  (ex.)  379;  and  5  Dowl.  (p.  c.)  600. 

37.  Plea  afler  that  of  set-off,  that  the  plaintiff 
ought  not  further  to  maintain,  4&c.,  allegmg  that 
he  was  willing  and  offered  to  tender,  but  that  the 
plaintiff  dispensed  with  an  actual  tender,  and  the 
defendant  brings  the  money  into  court,  ^ko. ; 
held  to  amount  to  an  informal  plea  of  tender, 
and  not  a  payment  into  court ;  and  the  plaintiff 
having  taken  out  the  money,  and  entered  a  nolle 
pros.,  the  defendant  having  succeeded  on  the 
other  issues,  was  entitled  to  judgment  on  the 
whole  record.  Turner  v.  Crossley,  3  Mees.  &  W. 
(ex.)  43. 

38.  A  plea  of  payment  6f  money  into  court 
under  a  judo's  order,  although  stating,  unneces- 
sarily, that  it  had  been  done  before  declaration, 
held  not  bad,  nor  the  plaintiff  entitled  to  judg- 
ment non  obst,  vered.  Edwards  v.  Price,  6  Do\;d. 
(p.  c.)  487. 

39.  Judgment  may  be  signed  on  the  mominff 
of  the  day  afler  time  for  pleading  has  expired.  4 
Bing.  JN.  S.  (c.  p.)  366. 

40.  Where  the  service  of  declaration  was  on 
Saturday,  held,  that  Sunday  was  to  be  reckoned 
in  computing  the  time  for  signing  judgment  for 
want  of  plea.  Shoebridge  v.  Irwin,  6  Dowl.  (p. 
c.)126. 

41.  In  debt  for  £75  on  five  counts  for  jC15 
each,  and  giving  credit  for  iClO,  concluded  for  a 
balance  of  £65,  the  particulars  giving  credit  also 
for  £10,  and  stating  a  balance  of  £12  1  \s.  6<2.  as 
due,  to  which  the  £fendant  pleaded,  first,  nunq. 
indeb.f  except  as  to  £10  135.,  parcel,  ^c. ;  sec- 
ondly, as  to  £10,  other  parcel,  payment  before 
action  brought ;  and,  thirdly,  payment  of  that 
sum  into  court,  in  discharge  of  the  cause  of  ac- 
tion in  the  declaration  mentioned:  replication, 
that  plaintiff  accepted  the  said  sum  of  £10 13s.  in 
satisfaction  of  the  causes  of  action,  and  taxed  his 
costs :  held,  that  the  defendant  was  entitled  to 
sign  judgment  of  rum  pros,  as  to  the  other  pleas. 
Emmott  V.  SUnden,  3  Mees.  &  W.  (sx.)  495. 

42.  The  14  Geo.  2,  c.  17,  entitling  defendant 
to  judgment  as  in  case  of  nonsuit,  extends  to 
ejectments.    Doe  v.  Docker,  6  Dowl.  (p.  c.)  478. 

43.  The  affidavit  in  support  of  the  motion, 
stating  notice  of  trial  given,  is  sufficient  without 
alleging  that  the  cause  was  at  issue.  Corbyn  v. 
He^worth,  6  Dowl.  (p.  c.)  181 ',  and  3  Sc.  (c.  p.) 

44.  The  rule  for  judgment  afler  a  peremptory 
undertaking,  to  be  absolute  in  the  first  instance. 
Reg.  Gen  ,  4  Bing.  N.  S.  (c.  p.)  365. 

45.  Where  in  a  country  cause  no  notice  of 
trial  has  been  given,  held,  that  the  motion  cannot 
be  made  until  afler  the  second  assize  has  passed. 
Smith  V.  Miller,  6  Dowl.  (p.  c.)  154 ;  and  3  Mees. 
&  W.  (ex.)  69. 


S886 


[PRACTICE  (COM.  LAW)] 


46.  The  new  nulet  make  no  difierenee  as  to 
the  time  of  moving  for  judgment,  as  in  case  of 
nonsuit ;  where  therefore  issue  is  joined  in  a 
country  cause  in  a  term  next  preceding  the  as* 
si^B,  the  motion  cannot  be  made  until  after  two 
assizes  have  elapsed  -,  but  if  it  be  joined  before 
or  in  a  non-issuable  term,  and  no  notice  of  trial 
is  given,  the  motion  may  be  made  in  the  term 
next  afler  the  assizes.  Evans  v.  Bernard,  3 
Mees.  A  W.  (kx.)  276;  and  6  Dowl.  (p.  c.)  967. 

47.  The  new  rule  of  Hil.  !^  Will.  4,  n.  65,  as  to 
feppltcations  for  arrest  of  judgment  on  a  venire  dt 
nowy  being  made  within  the  first  four  days  of  the 
term  occurring  next  af\er  the  trial,  held  to  apply 
to  trials  out  orterm  as  well  as  in  term.  Thomas 
V.  Jones,  4  Mees.  d&  W.  (ex.)  28;  and  6  Dowl. 
(p.  c.)  663. 

48.  A  judgment  signed  whilst  the  parties  were 
attending  the  judge  at  chambers,  on  a  summons 
for  further  time  to  plead,  although  the  time  for 
pleading  had  expired;  held  irregular,  and  set 
aside,  with  costs.  Abemethy  v.  Paton,  6  Sc.  (c 
r.)5e6. 

49.  A  rule  to  enter  and  docket  the  judgment 
must  be  addressed  to  the  plaintiff,  and  not  u»  bis 
attorney.  Engler  v.  Twisden,  4  Bing  N.  S.  (c.  p.) 
714;  and  6  Se.  580. 

50.  The  3^4  Will.  4,  c.  42,  s.  43,  having  pas- 
sed afler  the  rule  8  Uil.,  2  Will.  4,  is  to  be  con- 
iidered  as  a  qualification  of  it ;  where  a  declara- 
tion was  filed  on  24  Dec,  with  notice  to  plead  in 
four  days,  and  judgment  was  signed  on  the  2!)th, 
held  irregular.  Wheeler  v.  Green,  7  Dowl.  (p. 
c.)  194. 

61.  Where,  tfterihe  time  for  delivery  of  plea 
had  expired,  and  the  plaintiff's  attorney's  clerk 
had  left  an  order  to  proceed  to  sljgn  judgment,  the 
defendant's  attorney  called  with  the  plea,  but 
Judgment  was  st^ed  in  ignorance  of  it,  the  court 
reftised  to  set  aside  the  judgment,  but  on  terms  of 
payment  of  costs.  Stafford  v.  Nichols,  4  Bing.  N. 
8.  (0.  p.)  693;  and  6  Sc.  577. 

52.  Where  a  noUe  prosequi  is  entered  on  a  plea 

Soing  to  the  whole  cause  of  action  ;  held  that  the 
efendant  is  entitled  to  judgment  on  the  whole 
record.    Peters  p.  Croft,  6  Sc.  (c.  p.;  897. 

53.  Where  a  rule  for  judgment  has  been  obtain- 
ed, the  defendant  having  Secoroe  insolvent  since 
the  actien  commenced,  the  rule  will  be  discharged 
with  Gcats,  unless  a  mUI  vroeessut  be  accepted. 
Holland  v.  Henderson,  4  Mees.  A  W.  (kx.)  587. 

54.  Where  the  defendant  was  sworn  to  be  in- 
solvent, and  it  did  not  appear  that  the  plaintiff 
was  aware  of  it  when  he  brought  the  action,  the 
court  would  discharge  the  rule,  unless  a  stetpro- 
eesttts  consented  to.  Leman  v.  Hopson,  6  Dowl 
(p.  c.)  795. 

55.  An  affidavit  by  the  plaintiff  that  he  had 
been  unable  to  proceed  to  trial  for  want  of  funds, 
but  that  he  expected  to  be  able  to  proceed  at  any 
time  after  1st  Joly  ;  held  a  sufficient  ground  for 
discharging  the  rule  on  a  peremptory  undertaking 
to  try  in  Mich.  Term.  Radford  v.  Smith,  4  Mees. 
&  W.  (EX.)  100;  and  7  Do  -l.  (p.  c.)  86. 


56.  Where  issue  had  only  been  joined  m  ti 
as  to  one  defendant,  to  enable  him  to  move,  bnt 
not  duly  s^  to  other  defendants,  the  rule  refused. 
Crowther  e.  Duke,  7  Dowl.  (p.  c.)  409. 

57.  Where  issue  was  joined  in  Michaelmss  va- 
cation in  a  country  cause,  and  no  notice  of  trial 
for  tlie  Spring  Assises,  held  that  it  was  loo  early 
to  move  for  judgment  in  Easter  Term.  Uarrisott 
e.  Williams,  6  Dowl.  (p.  c.)  772. 

58.  Where  issue  was  joined  in  Easter,  and  no* 
tice  of  trial  given  for  the  second  sitting  in  Trinity 
Term  ;  held,  .that  the  rule  could  not  be  moved  for 
until  MichaeluuiS.  Phillips  v.  Yardley,  6  Sc  (c. 
p.)  602. 

59.  Where  issue  was  joined  in  June,  bnt  no  no~ 
tice  of  trial  for  the  assises  given ;  held,  thai  the 
motion  could  not  he  made  until  after  two  assises, 
and  that  the  motion  in  Uil.  was  loo  early.  Wil* 
Hams  r.  Davis,  5  Bing.  N.  S.  (c.  p.)  2^;  and  7 
Dowl.  (p.  c.)  246* 


60.  Where  issue  was  joined  in  a  country  ca 
in  Michaelmas  Term,  the  motion  for  jndgment  as 
in  case  of  nonsuit,  held  properly  made  in  the  fol- 
lowing Easter.    Apperley  e.  Morse,  6  Dowl.  (p. 

61.  So  in  a  town  cause,  although  no  notice  of 
trial  given.    Pierson  v.  Chessum,  lb.  507. 

62.  Where  issue  is  joined  in  Easter  Term,  the 
defendant  is  entitled  to  move  for  judgment  in  the 
Michaelmas  Term,  and  held  that  the  filing  the 
similiUr  is  a  joining  of  issue,  although  the  lesoe 
is  not  made  up  and  delivered.  Heath  «.  Boxall, 
7  Dowl,  (p.  c.)  19. 

63.  Where  the  defendant  had  refused  to  accept 
the  notice  of  trial,  held  that  he  could  not  resort  to 
it  in  support  of  his  motion  for  jndgment  as  in  case 
of  nonsuit  Clarke  v.  Goldsmid,  5  Bing,  N.  8. 
(c.  p.)  120;  7  Dowl.  (p.  c.)  151 ;  and  6  Sc  894. 

64.  Where  the  cause  was  referrpd,  and  the  re- 
cord withdrawn,  held  that  the  defendant  eoold 
not  move  for  iudgment  as  in  case  of  nonsuit,  al- 
though the  plaintiff  afterwards  refused  to  procaeed 
with  the  reference.  Hansby  e>  Evans,  7  DowL 
(p.  c.)  198;  and  4  Mees.  &.  W.  (sx.)  565. 

65.  Whether  obtaining  a  rule  fbr  a  special  jwy 
after  a  peremptoij  undertaking  is  a  deiaiiit  with- 
in the  statute  depends  upon  whether  it  is  a  proper 
cause  to  be  tried  by  a  special  jury.  Twyedea  v. 
StulU,  6  Sc.  (c.  p.)  434. 

66.  Where  the  peremptory  undertaking  was  to 
try  at  the  next  Sheriff's  court,  the  rule  absolute 
for  jndgment  allowed  on  defkult  Willis  v.  <Mk- 
ley,6  Dowl.  (p.  c.)  766. 

67.  Where,  afler  a  peremptory  undertaking,  tke 
plaintiff  not  having  proceeded  to  trial,  both  par- 
ties agreed  to  a  reference ;  held  to  put  an  end  tt» 
the  undertaking.    Spurr  v.  Rayner,  7  Dowl.  (r. 

c.)467. 

68.  Where  one  of  two  defendants  sufiers  jodg^ 
ment  by  default,  the  other  is  stiH  entitled  to  omty 
for  jndgment  as  in  case  of  nonsuit.  Slewnft «. 
Rogers,  7  Dewl.  (p.  c.)  185 ;  and  4  Meae.  dk  W 

(EX.)  640. 


[PRACTICE  (COM.  LAW)--PRACriCE  (IN  EaUTTY)]         9B87 


[Q]  Costs — tAXATiov  of. 

1.  Where  cause  is  shown  in  the  first  instance, 
the  paity  is  not  entitled  to  costs.  Read  v.  Speer, 
5  Dow4.  (P.  c.)  330. 

2.  Under  special  oircumttances,  the  court  in- 
terfered with  the  discretion  of  the  master  as  to 
the  number  of  counsel  allowed  on  taxation. 
Grindall  v.  Godman,  5  Dowl.  (p.  c.)  378. 

3.  Under  Re^.  93,  Htl.  2  Will.  4,  interlocutory 
costs  on  one  side  may  be  set  off  against  final 
costs,  without  being  suDJect  to  the  lien  of  the  at- 
torney. Holliday  v,  Lawes,  3  Bing.  N.  S.  (c.  p.) 
774 ;  and  5  Dowl.  (p.  c.)  485.  ii36. 

4.  A  fudge's  order  for  time,  by  consent  of  the 
parties,  being  tsntamoant  to  an  appearance  by  the 
defendant ;  held,  that  he  was  entitled  to  notice  of 
taxation.    Lloyd  v.  Kent,  6  Dowl.  (p.  c.)  125. 

5.  Upon  a  reference  of  a  rule  as  to  matter  of 
fact,  moved  without  costs,  the  court  will  not 
afterwards  entertain  a  substantive  application  for 
coats  of  inquiry  before  the  officer.  Holmes  t. 
Edwards,  6  Dowl.  (p.  c.)  51. 

6.  Where  parties  are  improperly  served  with 
notice  of  a  motion  of  course,  they  are  entitled  to 
the  costs  of  appearing.  Grimwood,  ex  parte,  3 
M.  A  Ayr.  (a.)  291 ;  and  2  Deao.  468. 

7.  Where    in  covenant  on  a    lease    for  two 

quarters'  rent,  ending  on the  defendant 

pleaded  that  no  quarter's  rent  ending  on 

was  due,  upon  which  judgment  on  demurrer  was 
given  for  the  plaintiff,  and  he  aflerwards  obtained 
a  rule  to  amend  the  declaration,  by  withdrawing 
his  claim  as  to  that  ouarter,  on  payment  of  costs  of 
the  amendment,  and  the  defendant  obtained  time 
to  plead  to  the  amended  declaration ;  held,  that 
he  was  not  entitled  to  the  costs  of  the  plea  and 
demdrrer.  Baden  v.  Flight,  4  Bing.  N.  S.  (c.  p.) 
35 ;  6  Dowl.  (p.  c.)  177 ;  and  3  Sc.  273. 

8.  -Where  the  |>arty  has  not  appeared,  and  there 
ia  no  recognised  attorney,  an  sppearance  having 
been  entered  for  him  pursuant  to  the  statute; 
held,  that  as  no  notice  of  taxation  need  now  be 

fiven,  it  is  not  necessary  to  deliver  a  copy  of  the 
ill  of  costs.    Burch  v.  Pointer,  3  Mees.  &  W. 
(sx.)  310 ;  and  6  Oowl.  (p.  o.)  387. 

9.  In  an  action  for  not  delivering  goods  from 
the  ship,  held,  that  upon  an  express  issue  whether 
or  not  tnere  was  an  actual  tender  of  th«  freight, 
M  the  custom  of  delivery  of  goods  could  not  come 
in  question,  the  court  would  not  interfere  with 
the  discretion  of  the  Msaler,  who  had  disallowed 
the  costs  of  witnesses  subpamsed  to  establish  the 
anstom ;  but  that  the  plamtiff  was  properly  al- 
lowed the  costs  of  a  special  jury  struck  by  the 
j^intiff,  and  no  certificate  necessary.  Jones  v. 
Tobin,  4  Bing.  N.  S.  (c.  p.)  123 ;  and  6  Dowl.  (p. 
c.)  251. 

10.  Where  a  verdict  was  taken  on  an  attor- 
ney's bill  by  consent,  to  be  taxed  within  the  first 
five  days  of^  term,  and  the  defendant  took  no  step 
for  that  purpose  within  the  time  ;  held,  that  the 
plaintiff  was  entitled  to  sign  judgment  and  tax 
hii  costs.  Tucker  v.  Neck,  4  Bing.  N.  g .  (c.  p.) 
lis  ;  2  8c.  393 ;  and  6  Dowl.  (p.  c.)  281. 


11.  Where  proceedings  were  stayed  on  pay- 
ment of  11^  1&#.  and  payment  of  costs,  held  that 
the  plaintiff  was  only  entitled  to  have  them  taxed 
on  the  lower  scale.  Cookr.  Hunt,  7  Dowl.  (f.  c.) 
397. 

12.  Costs  of  motion  for  trifling  irregulsritiea' 
which  might  be  disposed"  of  at  chambers,  only  al- 
lowed to  be  cogts  in  the  cause.    Robarts  v.  Le- 
mon, 6  Sc.  (c.  p.)  576. 

13.  Under  Reg.  Trin.  1  Will.  4,  r.  12.  a  notice 
of  taxation  may  t>e  given  any  time  before  nine 
o'clock  in  the  evening  of  one  day  for  the  following. 
Edmunds  v.  Csles,  4  Mees.  db  W.  (xx  )  66)  and 
6  Dowl.  (P.  c.)  667. 

14.  Where  the  defendant,  on  being  arrested  on 
a  bill  of  exchange,  paid  the  amount,  with  10^.  for 
costs,  into  the  sheriff's  iianda,  and  the  plaintiff 
obtained  a  rule  absolute  for  taking  it  out  of  court, 
but  did  not  enter  an  sppearance  for  the  defendant, 
and  a  rule  obtained  by  the  latter  fur  such  psyroent 
(being  deemed  equivalent  to  bail)  was  alterwards 
discharged,  no  mention  as  to  the  costs  being  made 
in  either  of  the  rules ;  held,  that  the  plaintiff  was 
not  entitled  to  the  costs  of  either  rule :  the  defen- 
dant aflerwsrds  obtained  a  rule  for  delivering  up 
of  the  bill  on  payment  of  costs ;  held  that  the 
plaintiff  t^as  entitled  to  the  costs  of  the  latter  rule 
Hannah  v.  Willis,  5  Bing.  N.  S.  (c.  p.)  385. 

15.  Upon  a  new  trial  granted  without  mention 
of  costs  m  the  rule,  the  rule  that  the  costs  of  the 
first  trial  shall  not  be  allowed,  although  the  party 
succeed  again  on  the  second  trial,  applies  to  is- 
sues in  prohibition  since  1  Will.  4,  c.  21,  s.  1. 
Craven  v.  Saunderson,  8  Ad.  &.  £11.  (<l-  b.)  897. 


PRACTICE  (IN  EQUITY). 

[A]    ProCXSS—- JUEISDICTIOSr. 

[B]  Bill — supplxuxntal. 

[C]  Ambxdmxxt. 

[D]  ArSWBR — DXUDRRKR — PLBA. 

[E]  COXTEMPT— COMMITMXHT. 

[F]  PXTITIOH-*-RVLX8*ORDXRS« 

[G]  Master. 

[H]    PrODVCTIOX    of    papers — XXAMIlVATIOlf 
OP    WITHE88XS— PVBLICATIOX. 

[I]  Bill  taken  pro  compbsso — dismissed. 

[L]    HXARIKQ — RXHXARING — DXCRKX. 

[M]  Statino  PRocEEDiirGS— appeal. 
[N]  Costs. 


[A]  Process — iurisdiction. 

1.  The  Court  of  Equity  has  no  jurisdiction  to 
inquire  into  the  validity  of  prooess  of  a  court  of 
law  ;  the  court  therefore  refused  to  interfere  in  a 
case  where  the  defendant,  having  been  tsken 
under  ana  szest,  which  wax  orde^  to  be  dis- 
charged, was  detained  upon  a  writ  at  common  law 
for  the  same  debt.  Walker  o.  Christian,  7  Sim. 
(CH.)  367. 


9886 


[PRACTICE  (IN  EdUITY)] 


2.  Where,  after  a  distringas  taken  out,  the 
plaintiff  inBtttuted  proceeding  in  chuncery,  the 
court ,  diechar^d  them  with  costs.  WilliaiuB  v. 
Bank  of  England,  2  Younge  (ex.  eq.)  265. 

3.  Where  the  defendant,  being  abroad,  had 
been  served  with  the  subpcBna,  and  an  appearance 
entered  under  the  4  Will.  4,  c.  82 ;  held,  that  the 
plaintiff  might  proceed  to  take  the  bill  tto  confes- 
jo,  in  the  same  manner  &9  if  the  service  had  been 
within  the  jurisdiction.  Grodson  v.  Cook,  7  Sim. 
(c.  H.)  519. 

4.  Where  the  defendant,  taken  on  an  attach- 
ment for  want  of  answer,  was  lescued ;  held,  to 
amount  to  a  return  of  non  est  inrentusj  and  the 
serjeant-at-arms  ordered  to  go.  Lewis  v,  John, 
7  Sim.  (cH.)  426. 

5.  The  17th  Order  of  1831,  as  to  service  of  a 
subpema  to  rejoin,  applies  only  to  cases  in  which 
the  plaintiff  requires  a  commission.  Smith  v.  Oli- 
ver, 3  Myl.  &  Cr.  (cu.)  165. 

6.  So,  as  to  serving  a  subpasna  to  hear  judg- 
ment-   Crooke  v.  Trery,  lb.  168. 

7.  Before  appearance,  a  service  of  motion  on  a 
defendant,  held  irregular;  the  Court  will  only 
be  justified  in  immediate  interference  upon  a 
special  case  made  out.  Hill  v.  Rimell,  2  Myl.  dc 
Or.  (CH.)  641. 

8.  A  motion  is  necessary  for  entering  an  ap- 
pearance for  the  defendant  under  Reg.  13, 1 1  Geo. 
4  ^k  1  WiU.  4,  c.  36.  Pitman  v.  Xxxskyer,  7  Sim. 
(cH.)  528. 

9.  All  writs  to  be  issued  and  made  returnable 
immediately,  as  welt  out  of  term  as  in  term,  but 
no  bill  to  be  taken  pro  eonfesso  unless  10  days  in- 
tervene between  the  Ustt  of  such  writ,  where  de- 
fendant resides  within  20  miles  of  town,  and  15 
days  in  all  other  cases.  Reg.  Gren.,  3  Younge  & 
Cr.  (EX.  £«.)  App.  iii. 

10.  Every  svhptena  to  contain  three  names 
where  remiired,  and  onlv  certain  fees  allowed 
thereon,  lleg.  Gen.,  3  Yonnge  dk  Cr.  (ax.  cq.) 
App.  iii. 

11.  Where  the  parW*  is  out  of  the  jurisdiction, 
aervioe  of  a  subptma  for  payment  of  costs,  held  ir- 
regular y  so  where  he  is  illegally  arrested  and  de- 
tamed.    Hawk'ms  v.  Hall,  1  Beav.  (oh.)  73. 

12.  Where  the  subpana  was  served  at  the  resi- 
dence in  London  of  a  peeress  alleging  herself  to 
be  domiciled  in  Scotland,  and  notice  of  the  order 
nisi  was  served  upon  her  in  Scotland  ;  held,  that 
the  order  for  a  sequestration  was  reffularly  obtain- 
ed. Davison  v.  Marchioness  or  Hastings,  2 
Keene,  (ch.)  509. 

13.  Order  for  service  of  a  subpana  abroad,  un- 
der 4  dt  5  WiU.  4,  c.  82,  is  not  a  motion  of  course 
in  vacation  ;  (see  form  of  and  affidavits  to  ground.) 
De  Sauley  v.  De  Sauley,  1  Coop.  (ch.  c.)  116. 

14.  Where  the  defendant  being  in  custody  for 
want  of  appearance,  was  not  brought  to  the  bar 
of  the  court  within  30  days ;  held,  that  after  that 
period,  being  no  longer  in  custody,  the  court  had 
no  authority  to  direct  an  appearance  to  be  enter- 
ed by  the  junior  SU  Clerk.  Williams  9.  Jones, 
8  Sim.  (OB.)  471. 


15.  Where  the  defendant's  first  and  only 
dence  in  this  country  before  he  quitted  was  for 
two  days  at  an  hotel ;  held,  that  the  order  for  ap- 
pearance, under  II  Geo.  4,  and  1  Will  4,  c.  36« 
6.  3,  ought  to  be  published  in  the  church  of  the 
parish  in  which  such  hotel  was  situate.  Grant 
V.  Hibbert,  8  Sim.  (cu.)  329. 


[B]    BrLL — SUPPLEMENTAL. 

1.  Where  A.  claiming  as  legatee  and  represen- 
tative of  her  mother,  also  a  le^tee  of  B.  ht-r  son, 
and  in  right  of  each  to  certain  charges  upon  tlie 
estate  of  B..  upon  a  suit  to  carry  into  ezecation 
B.'s  will,  obtained  a  decree  for  sale  of  lands 
comprised  in  a  term  created  by  the  will  to  satisfy 
the  charges,  and  the  same  were  8atis6ed  ;  sfier 
A.'s  death,  a  second  suit  being  instituted  against 
the  trustees  of  the  inheritance,  claiming  that  the 
fee  simple  might  be  sold  instead  of  the  term, 
which  was  directed,  and  steps  taken  towards  a 
sale ;  a  motion  by  the  administrator  de  boms  wum 
of  the  mother  to  go  before  the  master  and  prove 
demands  omitted  by  the  daughter,  since  proved, 
or  for  leave  to  file  a  supplemental  bill,  refused, 
and  appeal  dismissed  with  costs.  Monck  v.  Pa- 
get, 9  Bli.  N.  S.  (p.)  506. 

2.  Where  one  of  the  defendants  aAer  decree 
became  insolvent,  and  his  assignee,  without  no- 
tice to  the  plaintiff,  filed  a  supplemental  bill 
against  all  parties  to  the  suit,  and  the  plaintiff  sub- 
sequently filed  his  supplemental  bill  against  the 
assignee  alone,  who  obtained  the  common  order 
for  the  time,  the  court  refused  a  motion  for  taking 
off  the  file  the  latter  hill  as  irregular.  Philipps  s. 
Clark,  7  Sim.  (ch.)  231. 


[C]  Amendment. 

1.  An  order  to  amend  by  adding  parties,  or 
show  why  the  plaintiffs  were  unabfe  to  bring  aU 
the  proper  parties  before  the  court;  held  to  be 
complied  with  by  words  amounting  to  an  allega- 
tion, that  they  sued  on  behalf  of  themselves  and 
others  filling  a  certain  character,  who  were  so 
numerous,  that,  if  made  parties,  the  suitcoald  not 
be  effectually  prosecuted.  Milligan  v.  MitcbelL 
I  Myl.  &  Cr.  (ch.)  511. 


2.  After  an  order  at  the  hearing  for  the  csi 
to  stand  over,  with  leave  to  amend,  by  adding 

Earties,  which  the  plaintiff  did  by  adding  some; 
eld,  that  he  could  afterwards  add  others  oo  appli- 
cation only  for  further  leave,  and  made  to  the 
court  and  not  a  master.  Bierderman  v.  SeynM>nr, 
2  Myl.  &  Cr.  (ch.)  117. 

3.  The  13th  section  of  3  &  4  WiU.  4,  c.  94,  held 
not  to  apply  to  orders  of  course  to  amend  the  bill, 
nor  to  cases  where  the  court  is  at  the  time  ena- 
bled to  exercise  a  discretion  on  the  subject  of 
amendment,  and  if  the  justice  of  the  case  requires 
it.  Where  the  plaintiff  required  something  more 
than  an  order  to  amend,  and  which  the  master 
could  not  give,  held  that  the  court  was  not  pie- 
cluded  by  the  Act  from  exercising  the  jarisdic- 
tioD  to  amend.    Rses  v.  £dw«id«,  1  K.  (cr.)  4^. 


[PRACTICE  (IN  EQUITY)] 


3889 


4.  Upon  an  appeal  on  matter  of  fortn,  dismiss- 
ed, leave  to  amend  refused.  Attorney- General 
V.  JHotwich  Mayor,  &c.,  2  Myl.  &.  Cr.  (cu.)  4.10. 

5.  An  application  fur  leave  to  amend  by  strik- 
ing out  the  name  of  a  plain tiflf,  altering  the  de- 
iendanfs  security  for  costs  held  not  within  the 
jurisdiction  of  the  Master  under  3^4  Will  4,  c. 
94,  but  was  an  application  to  be  made  to  the  Court. 
Read  v.  Thatcher,  2  Keene,  (ch.)  317. 

6.  Where  before  the  6ling  a  bill  of  discovery 
facts  were  sufficiently  disclosed  to  have  put  the 
plaintiff  on  directinj^  inquiries  thereto,  and  put 
the  matters  in  issue,  the  Court  refused,  on  the 
coming  in  of  the  answer,  to  allow  the  plaintiff  to 
amend  the  bill  by  adding  charges  as  to  such  mat- 
ters. Mills  V.  Campbell,  2  Younge  A  C.  (ex.  eq.) 
3U6. 

7.  Under  the  13th  Order  afler  a  bill  has  been 
once  amended  after  answer,  further  leave  to 
amend  can  only  be  given  upon  an  application  sup- 
ported in  the  manner  prescribed  by  that  order; 
held,  also,  that  an  amendment,  by  aading  parties, 
is  within  it.  Attorney- General  t?.  Nethercoal,  2 
Myl.  A  Cr.  (ch.)  604  ;  semb.,  over-ruling  Evans 
V.  Hughes,  5  Sim.  666. 

8.  Where,  afler  the  answer  put  in,  the  plain- 
tiff amended  his  bill,  contradicting  several  of  the 
allegations  of  the  answer,  and  aflerwards  tender- 
ed affidavits  in  support  of  the  amendments  ;  held, 
that  as  tending  to  contradict  the  answer  they 
were  not  receivable.  Boddington  v,  Woodley, 
8  Sim.  (CH.)  167. 

9.  Where  the  plaintiff  amended  without  re- 
quiring further  answer,  and  omitted  to  call  for 
the  defendant's  office  copy  *,  held,  that  the  ac- 
ceptance by  the  defendant  s  clerk  of  tiie  205.  costs 
of  amendment,  was  a  waiver  of  the  plaintiffs  ir- 
regularity, and  a  motion  for  leave  to  answer,  not- 
withstanding the  replication,  refused,  but  without 
costs,    fioswell  V.  Tucker,  2  Keene,  (ch.)  IHQ. 

10.  Afler  motion  to  dismiss  for  want  of  pros- 
ecution, the  plaintiff  seeking  to  amend  the  bill 
iDUst  show  special  cause  for  amendment  against 
the  order  for  dismissal,  and  give  two  days*  notice 
of  the  cause  intended  to  be  shown.  Harbett  v. 
Buckingham,  2  Tounga  &  C.  (xx.  £% )  571 . 

11.  AAer  plea  allowed  and  replied  to,  a  motion 
to  withdraw  the  replication  and  amend,  with  the 
Tiew  of  varying  the  case  originally  made,  refused. 
Barnett  v.  Urailon,  8  Sim.  (ch.;  72. 

12.  The  masters,  on  application  made  to  them 
under  the  3  &  4  Will.  4,  c.  94,  s.  13,  for  leave  to 
amend,  have  the  same  power  to  dispense  with 
the  strict  letter  of  the  General  Orders  of  the  conrt, 
as  the  court  itself  has.  Millbanke  v.  Stevens,  8 
Sim.  (cH.)  160. 

13.  Where  the  plaintiff,  on  a  motion  to  dismiss 
for  want  of  prosecution,  obtained  special  leave  to 
amend,  with  an  undertaking  to  file  his  replica- 
tion ;  held,  that  he  could  not  aflerwards  obtain  as 
of  course  an  order  tore-amend  his  bill,  although 
necessary  from  the  answer  to  the  former  amend- 
ments. Dixon  r.  Snowball,  3  Tounge  «&  Cr. 
(ex.  eq.)  445. 

14.  Where  it  appeared  that  a  party  had  advan- 


ced money  towards  carrying  on  the  snit,  upon  an 
agreement  to  share  the  benefits,  the  court  consid- 
ering that  he  should  be  before  the  court,  gave 
leave  to  amend,  by  making  him  a  party.  Cha- 
mean  v.  Riley,  l  Coop.  (ch.  c.)  336- 

15.  Where  afler  notice  of  motion  for  an  injunc- 
tion and  receiver,  the  bill  was  n mended  ;  held, 
that  the  notice  of  motion  not  applying  to  the  ex- 
isting record,  the  motion  was  irregular.  Goutb- 
waiie«  Rippon,  1  Beav.  (ch.)  54. 

16.  Orders,  as  of  course,  to  amend,  to  contain 
an  undertaking  to  do  so  within  three  weeks  from 
the  time  of  the  order  obtained,  or  on  default  to 
stand  discharged,  unless,  dec.  Reg.  €ren.,  Trin. 
18b9,  3  Younge  «&  Cr.  (kx.  eq.)  597. 

17.  Afler  replication  filed,  party  not  to  with- 
draw it  and  amend  without  special  motion  upon 
affidavit.  Reg.  Gren.,  3  Tounge  &  Cr.  (ex.  Eq.) 
App.  ii. 

And  see  Information. 


[D]  Answer — demurrer — plea. 

1 .  Domicile  depends  not  merely  on  the  fact  of 
residence,  but  coupled  with  acts  manifesting  a 
selection  as  the  place  of  permanent  abode ;  in  case 
of  misapprehension  of  the  fact,  leave  was  given 
to  add  a  supplemental  answer  to  a  bill  by  a  next 
of  kin  for  distribution.  Tidswell  v.  Bowyer,  7 
Sim.  (ch.)  64. 

2.  The  order  for  referring  an  answer  for  suffi- 
ciency must  be  served,  as  well  as  obtained,  before 
the  expiration  of  the  six  days  under  5th  of  Lord 
Lyndhurst's  orders.  Peace  r.  Hodgson,  7  Sim. 
(ch.)  347. 

3.  Where  inconsistent  allegations  (on  the 
ground  of  which  a  demurrer  was  allowed)  ap- 
peared to  have  crept  in  bv  accident,  amendment 
allowed  ;  held  also,  that  the  defendant  was  enti- 
tled, upon  demurrer,  to  adopt  the  statement  most 
against  the  plaintiff's  interest.  Vernon  v.  Ver- 
non, 2  Myl.  A  Cr.  (CH  )  145. 

4.  Where,  therefore,  the  bill  stated  a  recovery 
suffered  by  father,  tenant  for  life,  and  son,  the 
plaintiff,  tenant  in  tail,  in  September  1794,  of  a 
colonial  plantation  and  slaves,  and  a  re-setilement 
thereof;  and  that  in  the  year  1794,  not  stating  in 
what  month,  a  lessee  removed  slaves  from  the  es- 
tates to  one  of  his  own,  which  he  afterwards  sold, 
and  prevailed  upon  the  son  to  indemnify  him 
against  his  claim  to  the  slaves  upon  the  settled 
estate  on  tlie  ground  of  difficulty  in  identifying 
them  from  those  on  his  estate  so  sold,  the  bill 
stating  that  the  son  was  ignorant  of  the  sale  and 
circumstances  alleged  by  such  lessee ;  held,  that 
the  defendant,  for  the  purposes  of  demurrer,  was 
entitled  to  infer  that  the  removal  took  place  be- 
fore the  recovery  suffered,  and  that  the  son  was 
cognizant  of  the  removal  at  the  time.  Vernon  v, 
Vernon,  2  Myl.  &  Cr.  (ch.)  145. 

5.  And  the  bill  having,  in  stating  the  limita- 
tions, shown  the  fiither  (still  living)  to  be  tenant 
for  life,  and,  in  other  parts,  spoke  of  him  as  ten- 
ant in  tail,  the  defendant,  for  the  purpose  of  de- 


3890 


[PRACTICE  (IN  EQUITY)] 


iDQiTpr  might  consider  the  plaintiff  to  be  tenant 
in  tail,  in  which  character  he  woald  ha?e  no  right 
to  institate  the  Buit.  lb. 

6  Where  a  demurrer  was  allowed  for  want  of 
parties  and  of  equity,  and  the  plaintiff  appealed, 
out  admitted  at  the  bar  that  the  bill  was  defective 
for  want  of  parties,  and  so  admitting  the  only 
question  to  be,  whether  the  plaintiff  should  filn  a 
new  bill  or  amend,  the  Lord  Chancellor,  refusing 
to  give  any  opinion  on  the  merits,  dismissed  the 
appeal  with  costs,  lb. 

7.  Where  the  demurrer  on  the  record  is  disal- 
lowed, but  a  demurrer  ore  Unus  is  allowed,  the 
defendant  is  liable  to  pay  the  costs  of  the  former, 
unless  a  special  order  to  the  contrary  is  made. 
Mortimer  v.  Frazcr,  2  Myl.  A,  Cr.  (ch.)  173. 

8.  Where  the  defendant  demurred  after  the 
common  injunction  obtained,  but  within  the  12 
days  allowed  by  10  Lord  Brougham's  orders,  held 
regular,  as  upon  the  demurrer  being  allowed,  the 
ittjuoction  would  fall  to  the  ground.  Poole  v. 
Marsh,  7  Sim.  (ch.)  bUl. 

9.  Where  the  plaintiffs  sued  as  a  corporation, 
but  it  did  not  appear  whether  they  were  incorpor- 
ated by  any  English  or  Scotch  charter,  and  the  de- 
fendants pleaded  that  they  never  were  incorpor- 
ated, and  were  disabled  from  suing  by  the  corpor- 
ate name ;  held,  that  the  plea  ought  to  have  been 
filed  on  oath.  Bank  of  Scotland  v.  Ker,  8  Sim. 
(ch.)  246. 

TO.  Anorder  for  referring  an  answer  for  insuf- 
ficiency must  be  served  as  well  as  obtained  before 
the  expiration  of  the  six  days  allowed  by  the  5th 
of  Lord  Lyndhurst's  Orders.  Taylor  v.  Harrison, 
8  Sim.  (ch.)  2L. 

11.  To  a  bill  for  discovery  only,  a  demurrer, 
in  bar  of  relief,  held  bad  ;  and  that  a  bill  for  a 
commission  to  examine  witnesses  abroad,  in  aid  of 
an  action  at  law,  is  not  a  bill  of  relief.  Mills  v. 
Campbell,  2  Younge  A.  C.  (ex.  e«.)  389. 

12.  Where  a  plea,  purporting  to  be  the  joint 
and  several  plea  of  several  defendants,  was  sworn 
only  by  one,  the  court  refused  to  order  it  to  be  ta- 
ken off  the  file.  Attorney-general  v.  Craddock, 
8  Sim.  (cu.)  466. 


[E]  Contempts— COHMITHE1IT8  for. 

L  Writing  a  letter  to  the  master,  by  a  netition- 
er  also  attending  as  coui^sel  in  support  ot  the  pe- 
tition, expressed  in  threatening  terms,  with  the 
view  of  obtaining  a  rehearing,  and  tending  to  in- 
dsce  a  difierent  decision,  held  a  contempt,  and 
the  party  committed  during  pleasure.  Lech- 
Charlton's  case,  2  Myl.  dk  Cr.  (ch.)  316. 


2  Where  the  father  of  wards  of  court  had 
clandestinely  removed  them  from  the  custody  ap- 
pointed by  the  court,  which  upon  examination  he 
admitted,  but  he  refosed  to  stale  where  they  were ; 
held  to  be  a  contempt  of  a  criminal  nature,  al- 
though be  was  no  party  to  the  suit  relating  to 
their  custody,  and  that  privilege  of  Parliament 
was  no  protection  against  an  attachment  for  the 
contempt  Wellesley  v.  Duke  of  Beaufort,  2 
Rms.  a  M.  (ch.)  639;  uid  see  2  Rom.  1. 


3.  The  distinction  said  to  be,  thai  agunat  all 
civil  process  privilege  protects,  but  that  against 
punishment  for  contempt  fiir  not  obejing  civil 
process,  it  protects  not.    lb. 

4.  A  defi^ndant  in  contempt,  living  within  the 
rules  of  the  King*s  Bench,  ordered  to  be  oommitp 
ted  to  the  Fleet.  Anon.,  2  Tonnge  A  C.  (ax.  sO 
144. 

5.  Where  an  attachment  had  issued  for  want 
of  answer,  held,  that  the  defendant  could  not  file 
an  answer  and  demurrer,  on  the  ground  that  the 
answer  was  bona  JuU  to  the  merits,  and  that  the 
demurrer  did  not  go  to  the  relief,  but  only  to  part 
of  the  discovery.  Vigers  r.  Lord  Aodley,  9  Myl. 
A  Cr.  (cH.)  49. 

6.  It  is  no  objection  to  the  cause  beine  beard, 
that  the  plaintiff  is  in  contempt,  the  rule  being 
imperative  that  he  shall  bring  his  cause  to  a  hear- 
ing at  a  certain  time.  Ricketts  v.  Momington, 
7  Sim.  (cu.)  200. 

7.  A  motion  for  commitment  cannot  be 
except  on  a  seal  day.    Saxbyv.  Saxby,? 
(cH.)  140. 

8.  Where  the  defendant  filed  hia  anairer  afler 
the  order  for  the  serjeant-at-arms  and  return  of 
mm  ut  invaniuB^  the  common  order  for  clearing 
the  contempt  obtained,  and  the  answer  soceess- 
fully  excepted  to  for  insufficiency;  held,  that 
the  plaintiff  might  take  up  and  proceed  with  the 
old  contempt,  and  that  a  sequestration  for  want 
of  answer  to  the  exception  sued  out  on  the  sub- 
mission and  answer  then,  and  a  subsequent  order 
to  take  the  bill  pro  confesto  was  regular :'  bot, 
under  circumstances,  the  defendant  allowed,  npon 
payment  of  costs  of  all  the  prior  proceedings;,  to 
put  in  an  answer  and  have  the  cause  re-hesird. 
Taylor  v,  Salmon,  3  Myl.  &  Cr.  (cH.)109. 

9  A  party  in  contempt  is  entitled  to  be  beard 
to  show  that  proceedings  subsequent  were  ir- 
regular, and,  under  a  decree  to  have  the  bill  taken 
pro  confesMO,  an  order  absolute  in  the  firat  instance 
to  confirm  the  report  made  under  it,  is  irregolar ; 
held,  also,  that  he  is  entitled  to  be  served  with 
warrants  to  attend  the  master.  King  v.  Bryant, 
3  Myl.  dk  Cr.  (en.)  191. 

10.  A  plaintiff,  although  himself  in  contempt 
for  non-payment  of  coats,  held  entitled  to  sue  aut 
an  attachment  for  want  of  answer.  Wilaon  a. 
Bates,  3  Myl.  dk  Cr.  (ch.)  197. 

11.  The  affidavit  in  support  of  a  motion  for  a 
seijeant-at-arms  must  not  only  state  the  acts  done 
by  the  officer,  but  also  the  belief  of  the  solicitor 
or  town  agent,  that  due  diligence  has  been  osed 
in  order  to  apprehend  the  defendant.  Neltbofpa 
V.  Wright,  2  Keene,  (ch.)  253. 

12.  Contempt  held  to  be  waived  by  filing  a 
cross  bill  against  the  party  ;  and,  by  clearing  the 
contempt  in  the  eroas  suit,  the  oontempt  eleciad 
in  both  suits.    Beat  v.  €romperts,  2  Tonnge  dk  G. 

(ex.  Bq.)  582. 

13.  Where  the  contempt  for  want  of  anawer 
arose  through  the  mistake  of  the  warden  in  refu- 
sing to  take  it,  the  court  ordered  the  coats  of  the 
contempt  to  be  coats  in  the  cause,  and  the  plain- 
^""  antitled  to  time  to  tako  wBe^ioaa  to  tba  an- 


[PRACTICE  (IN  EQUITY)] 


2801 


Bwer ;  but  on  his  failing  to  do  so  within  a  limited 
time,  the  defendant  to  be  discharged.  Rey mer 
V.  Gunstone,  2  Younge  ib,  C.  (xz.  Jtq,.)  5^4. 

14.  Where  a  party  was  in  contempt  for  want 
of  answer  of  himself  and  wife,  held  that  he  couid 
not  clear  it  by  putting  in  his  own  answer  only, 
and  that  his  being  reported  a  fit  object  to  be  dis- 
charged under  1  Will.  4,  c.  36,  would  not  in- 
duce the  court  to  interfere  in  his  behalf  where  the 
interests  of  the  plaintiff  would  be  prejudiced 
thereby.  €ree  v.  Cottle,  3  Myl.  &  Cr.  (ch.) 
180. 

15.  Commissioners  named  in  the  writ  of  rebel- 
lion possess  the  same  powers  in  every  county  as 
the  sheriff,  and  have  a  risht  at  their  discretion,  to 
require  the  assistance  oT  any  of  the  liege  sub- 
jects of  the  Crown  to  aid  and  assist  in  the  ex- 
ecution of  the  writ :  secondly,  they  may,  upon 
reasonable  apprehension  of  resistance,  exercise 
mich  right,  although  no  resistance  has  in  fact 
taken  place :  thirdly,  they  have  a  right  to  call 
upon  persons  appomted  under  3  Geo.  4,  c.  103 
(Irish  Coostabniarj  Act),  and  the  duty  of  such 
persons  is  not  limited  or  affected  bv  regulations 
for  their  conduct  issued  by  the  lord  lieutenant : 
and  lastly,  strangers  to  tne  proceedings  in  the 
cause  in  which  such  writ  issues,  being  ciuled  upon 
to  aid  and  assist  the  commissioners,  are  liable  to 
attachment  for  contempt.  (Dissent:  Littledale 
and  Bosanquet,  J.  J.)  Miller  v.  Knox,  4  fiing.  N. 
S.  (c.  p.)  o74. 

16.  Where  the  serjeant-at-arms  had  permitted 
the  defendant  to  escape,  a  second  order  for  a  ser- 
jeant-at-arms directed.  Morris  v.  Smith,  8  Sim. 
(cH.)  33. 

17.  Upon  a  reference  of  the  bill  for  scandal  and 
impertinence,  until  the  report,  there  is  no  bill 
which  the  defendant  is  compellable  to  answer; 
held,  therefore,  that  it  was  competent  for  him, 
within  seven  days  after  the  report,  to  file  a  de- 
marrer  for  want  of  parties,  although  the  J  2  days 
allowed  tor  demurring  had  expu^d.  Nedby  v. 
Nedby,  8  Sim.  (ch.)  334. 

18.  Upon  a  joint  attachment  against  husband 
and  wife,  for  not  putting  in  a  joint  answer;  held, 
that  the  attachment  must  remain,  unless  circum- 
stances were  stated  to  show  that  she  ought  to  be 
permitted  to  put  in  a  separate  answer,  in  the  ab- 
sence of  which  she  could  not  be  ordered  to  do  so, 

'tis  long  as  she  remained  in  contempt  for  not  put- 
ting in  the  joint  answer.  Hardy  v.  Sharpe,  3 
Younge  6l  C.  (xx.  xq.)  377. 

19.  Where  the  defendant  was  in  contempt  for 
want  of  answer ;  held,  that  he  could  not  file  a 
demurrer  and  answer,  although  the  latter  was 
confined  to  an  allegation,  which  by  answer  he 
might  have  insisted  tie  was  not  bound  to  answer. 
Vigers  v.  Lord  Andley,  8  Sim.  (ch.)  3^. 

SO.  Where  a  party  had  been  detained  in  custo- 
dy 30  days,  without  being  brought  to  the  bar  of 
the  court ;  held,  that  the  plaintiffcould  not,  under 
11  Greo.  4  &  I  Will.  4,  c.  36,  enter  an  appearance 
for  the  defendant.  Williams  v.  Jones,  1  Coop. 
(ch.  c.)  346;  and  see  the  eases  upon  the  statute 
there  collected. 

81.  Where  a  party  waa  committed  to  the  Fleets 
Vol.  IV.  78 


in  contempt  for  not  answering,  but  after  the  ex- 
piration of  the  time  limited  by  Rule  5  of  11  Geo. 
4  «&  I  Will.  4,  c.  36,  s.  15,  held,  that  he  was  enti- 
tled to  be  discharged,  and  that  the  plaintiff  who 
had  caused  the  application  should  pay  the  eosts. 
Greening  v.  Greening,  1  Beav.  (ch.)  121. 

22.  A  defendant  does  not  clear  his  contempt  by 
putting  in  his  answer  and  paying  costs,  unless  the 
answer  is  sufficient,  and  if  not  so,  the  court  will 
order  it  to  be  taken  off  the  file.  Taylor  v.  Salmon, 
8  Sim.  (CH.)  449;  and  3  Myl.  &,  Cr.  109. 

23.  On  an  injunction  against  plonghing  np 
meadow  and  committing  waste,  until  the  defi»n- 
dant  should  fully  answer,  and  the  court  make  or- 
der ;  and  an  answer  was  put  in,  and  pending  the 
suit,  the  plaintiff  commenced  an  action  for  tro  in- 
jury by  waste,  and  the  defendant  broke  np  the 
land  a  second  time ;  the  defendant  ordered  to 
stand  committed  to  the  Fleet  until  further  order. 
Erpe  V.  Smith,  1  Coop.  (cb.  c.)  113. 

24.  Writs  of  attachment  for  non-payment  of 
costs  or  money  to  be  issued  without  order,  upon 
affidavits  of  dne  service,  Ac.  Reg.  Gen.,  3 
Tonnge  A  Cr.  (xx.  xq.)  App.  ii. 

25.  Orders  to  take  accounts  and  make  inquiries, 
to  be  made  npon  motion  with  notice,  after  appear* 
ance  to  the  bill,  without  prejudice,  where  appear* 
ing  beneficial  or  consented  to.  Reg.  Gen.,  3 
Younge  dc  Cr.  (xx.  xq.)  App.  ii. 

26.  All  orders  to  refer  answers,  &o.,  to  contain 
a  direction  for  the  master  to  expunge  scandaloua 
or  impertinent  matter,  and  to  tax  the  coets  of  such 
reference,  <&c.,  without  further  order,  to  bo  paid 
in  such  case  by  the  party  against  whom  obtained, 
but  if  certified,  not  to  be  so,  then  to  be  recovera- 
ble as  other  costs ;  such  matter  not  to  be  expun- 
ged nor  costs  taxed  until  four  days  after  the  filing 
of  the  certificate.  Reg.  Gren.,  3  Younge  &  Cr. 
(XX.  xq.)  App.  iv. 

And  see  I»jtautum^  11. 


[FJ  Petitions — roles — orders. 

1 .  The  4  &  5  Will.  4,  e.  29,  s.  3,  directing  loans 
on  real  securities,  in  Ireland,  to  hie  under  the  di- 
rection of  the  English  Courts  of  Equity,  held  to 
be  read  "  in  any  cause,  or  by  petition  in  a  sum- 
mary way.*'  and  a  reference  upon  a  petition  al- 
lowed.   French,  ex  parte,  7  Sim.  (ch.)  510. 

2.  Causes  in  the  Exchequer  may  be  set  down 
for  hearing,  and  the  suhptma  ad  aud.  be  served 
and  made  returnable  on  any  dav  in  term  and  out 
of  term,  but  to  be  served  14  days  in  a  country 
cause,  and  7  days  in  a  town  cause,  before  the  same 
is  made  returnable  ;  and  service  of  the  subptma 
on  the  clerk  in  court  to  be  good  service.  Gen. 
Ord.  £q.  June  1837, 2  Younge  (ex.  tiq,.)  125. 

3.  Office  of  the  King's  Remembrancer,  tinea 
of  opening  further  regulated.    lb. 

4.  Service  of  notices  of  motions  and  petitions, 
time  of  filing  affidavits,  signing  answen,  copies 
of  answers  of  illiterate  defendants,  and  delivery 
of  copies  of  bill,  &c.,  further  regulated.  '  lb. 


2892 


[PRACTICE  (IN  EQUITY)] 


5.  Decree  by  Vice-chancellor,  and  order  on 

SFtition  in  the  cause  afterwards  made  by  the 
Taster  of  the  Rolls,  reserving  the  costs  of  the 
petitioners  ;  held  that,  notwithstanding  such  res- 
ervation, the  petition  must,  in  conformity  with 
the  New  Orders,  be  decided  by  the  same  judge 
who  made  the  decree.  Senior  v.  Wilks,  2  Keene, 
(CH.)  210. 

6.  Where  upon  an  application  to  the  court  by 
motion  on  petition,  the  party  does  not  appear,  no 
order  can  be  made,  unless  tne  affidavit  of  service 
of  notice  of  motion  be  made  at  the  latest,  before 
the  rising  of  the  court,  or  the  day  on  which  the 
application  is  made.  Miltown,  Lord,  v.  Stuart,  8 
Sim.  (cH.)  34. 

7.  Where  afler  an  order  made  upon  three  peti- 
tionSf  for  a  reference,  one  of  the  parties  being  dis- 
satisfied  with  the  order,  refused  to  leave  his  peti- 
tion with  the  clerk  of  the  reports,  the  court  direct- 
ed the  order  to  be  varied,  with  coetB  of  the  aptili- 
cation  by  the  party  refusing.  Sanderson  v.  Wal- 
ker, 1  doop.  (CH.  c.)  357. 

8.  Orders  of  courte,  obtained  from  the  Master 
of  the  Rolls,  and  set  down  to  be  heard  before  the 
Lord  Chancellor,  pursuant  to  the  Gen.  Ord.,  May 
1837,  if  irregularly  obtained,  application  to  dis- 
charge the  same  to  be  made  in  the  first  instance 
to  the  Master  of  the  Rolls,  subject  nevertheless  to 
all  the  regulations  of  the  General  Order.  Reg. 
Gen.,  6  May  1839, 1  Beav.  (cu.)  App.  xi. 

9.  Notice  of  a  motion  to  be  made  by  special 
leave,  must  mention  that  it  is  so  to  be  made,  or 
the  other  party  is  at  liberty  to  disregard  it.  Hill 
r.  Rimell,  3  Sim.  (ch.)  632. 

10.  On  notice  of  motion  for  payment  of  money 
into  court,  but  silent  as  to  its  investment,  the 
court,  in  the  absence  of  one  defendant,  refused  to 
make  any  order  as  to  the  investing  when  paid  in. 
Robinson  v.  Wood,  1  Beav.  (ch.)  206. 

11.  The  notice  of  a  motion  by  a  pauper  need 
not  be  signed  by  his' Six  Clerk.  Perry  v.  Walker, 
2  Keene,  (cu.)  663. 


[G]  Master. 

1.  Where  persons,  not  parties,  obtained  leave  to 
attend  in  the  roast6r*8  office ;  held,  that  th^  could 
only  obtain  leave  to  except  to  the  report  upon  pe- 
tition,  stating  their  objections.  Taylor  v.  D'Eg- 
ville,  7  Sim.  (ch.)  44o. 

2.  Where,  in  a  creditor's  suit,  the  master, 
without  the  authority  of  the  court,  stated  special 
circumstances  (not  supported  by  evidence),  rais- 
ing a  doubt  as  to  the  apportionment  of  the  plain- 
tiff's claim  on  the  estate,  the  court  refused  tP 
take  notice  of  such  special  circumstances,  and 
held  the  finding  of  the  debt,  appearing  to  be  due, 
conclusive  between  the  paities.  Qayler  v.  Fitz- 
john,  1  K.  (cH.)  469. 

3.  The  masters  have  no  power  to  relax  or  dis- 
pense with  the  general  orders  of  the  court.  Smith 
V.  Webster,  3  Myl.  <&  Cr.  (ch.)  244. 


4.  Where  a  reference  of  title  is  made  to  the 
master  under  51  st  order,  1826  (Lord  Lyndhnrst), 
he  has  the  same  power  to  examine  witnesses  as  if 
the  reference  were  by  decree.  Woodrofle  v.  Tit- 
tbrton,  8  Sim.  (ch.)  238. 

5.  Where  the  defendant  filed  an  affidavit  m 
support  of  a  motion,  and  the  plaintiff  filed  one  in 
opposition,  which  was  referred  for  impertinence, 
the  defendant  then  filed  further  affidavits  in  sap- 
port  of  his  motion,  in  no  way  referring  to  the 
matters  in  tlie  plaintiff's  affidavit  so  referred; 
held  not  to  be  a  waiver  of  the  reference.  Bick> 
ford  V.  Skewes,  8  Sim.  (ch.)  206. 

6.  In  the  Exchequer  it  is  necessary  that  the 
master's  certificate  of  impertinence  should  be 
confirmed  on  motion  with  notice.  Campbell  r. 
Dickens,  3  Tounge  &.  C  (xx.  z^.)  68. 

7.  So  upon  a  certificate  of  the  examination  pat 
in  before  him  by  a  part^  to  the  suit,bein^  insoffi- 
cient.  Rabbits  v.  Rabbits,  3  Tounge  &  C.  (zx. 
x<l.)  69. 

8.  Upon  a  bill  filed  in  the  Exchequer  by  credi- 
tors for  the  administration  of  a  deceased  debtor 
to  the  crown,  intestate  and  without  heirs;  held 
that  under  a  decree  for  account,  the  reference, 
since  1  Geo.  4,  c.  35,  should  be  to  the  Msster  and 
not  to  the  Remembrancer ;  the  efiect  of  the  act 
is  to  exclude  the  whole  jurisdiction  of  the  latter 
on  all  matters  of  equity,  except  entering  decices 
and  orders,  and  to  transfer  it  to  the  masters  on 
the  equity  side  of  the  court.  Rogers  v.  Maule,  3 
Younge  6l  C.  (ex.  e^.)  74. 

9.  Where  two  cotemporaneous  warrants  were 
taken  out,  one  as  to  insufficiency,  the  other  as  to 
impertinence,  held  that  as  no  solicitor  could  be 
misled  as  to  which  should  be  taken  first,  a  nsotioo 
to  discharge  them  be  dismissed  with  costs.  Row- 
ley V.  Adams,  8  Sim.  (ch.)  205. 

10.  The  report  of  the  master  approving  of  a  con- 
tract for  sale  being  carried  into  effiNst,  can  only 
be  confirmed  by  a  special  petition  stating  the  facts, 
and  not  of  course  by  consent  of  the  clerks  in  coort 
of  all  parties.    Bailey  v.  Todd,  1  Beav.  (ch.)  96. 

11.  Upon  a  reference  to  take  an  account,  and 
exceptions  to  the  master's  report,  as  to  the  amount 
found  due,  allowed,  and  it  is  referred  back  to  him 
to  review  his  report,  he  is  at  liberty  to  receive  fur- 
ther evidence ;  and  where  the  exception  was  that  he 
ought  to  have  found  either  that  nothing  was  due, 
or  not  exceeding  a  certain  sum,  held,  that  by  an 
order  referring  it  back  in  general  terms,  the  mas- 
ter was  precluded  from  entering  into  any  other 
inquiry  than  whether  any  thing,  or  a  sum  not  ex- 
ceeding   L,  was  due.    Trail  v.  Twyford,  3 

Myl.  A  Cr.  (OH.)  345. 

12.  Where  the  parties  proceeded  on  affidavits 
before  the  master,  and  the  oill  was  dismissed  as  ts 
one  defendant,  held  that  his  answer  could  not  be 
used  by  the  way  of  affidavit  as  evidence  acunit 
a  co-defendant.  Hoare  r.  Johnstone,  2  Keene, 
(cH.)  553. 

And  see  Jice4nifU. 


[PRACTICE  (IN  EdUITY)] 


2893 


[H]  Propuctioh  or  papers — EXAMiirATioir  or 

WITNESSES — PUBLICATION. 

1 .  Papers  produced  for  inspection  of  the  plain- 
tiff ordered,  upon  motion  before  hearin|r,  to  be  re- 
delivered to  the  defendant,  to  enable  him  to  pro- 
duce them  before  a  commission  to  examine  wit- 
nesses, he  undertaking  to  return  them  on  the  re- 
turn of  the  commission.  Jones  v.  Thomas,  2 
Tounge,  (xx.  e^.)  312. 

2   Where  a  judj^ment  creditor's  execution  was 
defeated  by  a  party  claiming  title  under  bills  of 
sale,  alleged  to  be  fraudulent,  the  possession  not 
oing   with  the  title ;  held,  that  the  latter  was 
ound  to  produce  the  instruments  of  assignment. 
Neate  v.  Latimer,  2  Young  (ex.  e^.)  257. 

3.  A  plaintiff,  although  be  may  not  require  a 
commission,  cannot  give  a  rule  to  pass  publication 
until  the  expiration  of  three  weeks  from  the  ser- 
vice of  the  subp€ma  to  rejoin.  Flight  v.  Jones,  7 
Sim.  (CH.)  256. 

4  The  words,  ^*  enlarging  publication,"  in  3 
&  4  Will.  4,  c.  d4,  s.  3,  held  to  be  understood  in 
the  strict  sense  of  enlarging  the  time  at  which 
publication  is  to  pass,  and  that  afler  the  time  ex- 
pired and  depositions  delivered  out  on  one  side, 
the  master  has  no  jurisdiction  to  allow  witnesses  to 
be  examined,  for  which  purpose  publication  was 
sought  to  be  enlarged.  Carr  v.  Applevard,  1  K. 
(cH.)  725 ;  and  affirmed  on  appeal,  I  Myl.  &  Cr. 
476. 

5.  The  object  of  the  order  of  1692  t>eing  to 
prevent  any  order  being  made  or  any  proceeding 
taken  upon  a  report  or  certificate  beibre  it  has 
been  filed ;  held,  that  the  four-day  order,  obtained 
before  the  certificate  of  default  in  putting  in  the 
examination  filed,  was  irregular,  rrisby  v.  Staf- 
ford, 7  Sim.  (cH.)  365. 

6.  In  the  Exchequer,  commissionen  appointed 
to  examine  witnesses,  in  aid  of  the  master,  afler 
a  decree,  are  not  sworn  to  secrecy.  Hall  v,  Clee, 
2  Toungie  dt  C.  (ex.  s^.)  725. 

7.  The  32d  Order  of  L<ord  Brougham  does  not 
compel  a  party  to  use  the  new  interrogatory,  but 
merely  directs  that  if  a  general  interrogatory  be 
used,  it  shall  not  be  framed  so  as  to  elicit  evidence 
for  one  party  only.  Cover  v.  Lucas,  6  Sim.  (ch.) 
200. 

8.  Where  the  bill  of  discovery  by  underwri- 
ters was  to  ascertain  whether  the  assured  was 
an  agent  or  the  seller;  held,  that  a  demurrer 
could  not  be  supported,  although  the  bill  sUeged 
that  he  had  been  paid  and  satisfied  the  full  vuue 
of  the  goods ;  held,  also,  that  the  bill  being  by 
underwriters  at  i.loyd*s,  and  by  the  London  As- 
surance Company,  was  not  multifarious  on  the 
groand  that  the  policies  of  the  latter  are  under 
seal,  and  the  others  not.  Mills  v.  Campbell,  2 
Younge  A  C.  (ex.  sq.)  391. 

9.  On  an  order  for  production  of  documents 
and  papers,  held  that  a  case  laid  before  counsel, 
as  privileged,  was  to  be  excepted.  Nias  v.  North. 
&  East.  Railway  Company,  2  Keene,  (ch.)  76. 
(HasUarUer.) 

And  see  Bolton  v.  Corporation  of  Liverpool,  1 
Myl.  A  K.  88. 


10.  Whore  the  papers  and  documents  are  nu-    ^ 
merous,  the  court  will  qualify  the  order  for  pro- 
duction and  inspection,  dzc.  to  be  at  the  office  of 
the   party's    aiturney.      Crease  v.   Penprase,   2 
Younge  &  C.  (ex.  kq.)  527. 

11.  Where  a  power  is  to  be  exercised  by  deed 
attested,  the  deed  cannot  be  proved  viva  vocty  at 
the  hearing.    Brace  v.  Black,  7  Sim.  (ch.)  618. 

12.  Where  the  master's  certificate  of  default  by 
one  defendant,  in  the  production  of  papers  shown 
to  be  in  his  possession  by  the  answer  of  another 
defendant,  was  denied  by  the  party  himself,  held 
a  valid  objection,  and  that  the  proper  course  was 
by  motion  to  discharge  the  four-day  order,  and 
take  the  certificate  off  the  file,  and  not  by  excep- 
tions thereto.  Hemp  v.  Wade,  2  Keene,  (ch.) 
6^. 

13.  A  bill  cannot  be  supported  against  a  mere 
stranger  for  the  production  of  documents,  but  the 
plaintiff  must  show  such  a  connexion  between 
him  and  the  defendant,  as  entitles  him  to  see  the 
documents:  where  the  defendant  was  retained 
as  the  solicitor  of  a  third  party  acting  under  a 
power  of  attorney  from  the  plaintiff,  but  the  de- 
fendant denied  the  plaintiff's  interest,  and  that  he 
was  not  accountable  to  Aim,  held,  that  so  long  as 
that  stood  upon  the  record,  it  excluded  the  plain- 
tiff from  instituting  his  suit,  or  to  see  the  docu- 
ments. Adams  v.  Fisher,  3  Myl.  (k  Cr.  (ch.) 
526 ;  and  2  Keene,  754. 

14.  On  a  bill  seeking  for  an  account  against  the 
defendant,  the  plaintiff  having  offered  to  deposit 
the  report  of  an  accountant,  required  explanation, 
and  the  defendant  being  willing  to  inspect  when 
deposited,  the  court  ordered  that  he  should  have 
a  month's  time  to  answer  from  the  time  of  the 
plaintiff  depositing  the  report  with  the  clerk  in 
court  'f  aenJb,^  a  pTaintifi'  cannot  deposit  a  docu- 
ment and  compel  the  defendant  to  inspect  it  be* 
fore  answering.  Shepherd  v.  Morris,  1  Beav.  (ch.) 
175. 

15.  Where  a  scheduled  document  was  left  with 
the  defendant's  clerk  in  court,  under  the  usual 
order,  and  it  having  been  proved  in  the  oause, 
and  that  it  came  out  of  the  clerk's  custody,  held 
that  it  might  be  read  without  reading  that  part  of 
the  answer  which  admitted  it  to  be  in  the  aefend- 
ant's  possession.  Taylor  v.  Salmon,  3  Myl.  dk 
Cr.  (ch.)  422.  « 

16.  Upon  admission  in  the  answer  of  the  pos- 
session of  certain  documents  relating  to  the  mat- 
ters in  question,  held,  that  the  defendant  might, 
on  motion,  read  affidavits  to  show  that  some  were 
privileged.  Parsons  v.  Robertson,  2  Keene,  (ch.) 

17.  On  a  direction  to  produce  documents  before 
the  master,  as  he  should  think  proper,  an  appeal 
must  be  by  way  of  exception,  and  not  of  motion, 
and  the  court  will  direct  him  to  certify  so  as  to 
raise  exceptions  thereto.  Toulmin  v.  Copeland, 
3  Tounge  db  C.  (xx.  sq.)  382. 

18.  After  great  delay,  and  the  time  for  publica- 
tion passed,  the  attorney  made  to  pay  the  cost* 
of  the  application  to  enlarge  publication.  White 
V.  Hillacre,  3  Younge  db  C.  (zx.  s^)  278. 

19.  The  court  will  detain  documents,  with  a 


2894 


[PRACTICE  (IN  BdUITY)] 


▼iew  to  criminal  proeeedinffs    bein^  taken   on  t     31.  An  order  to  enlarge  publication  founded  oa 

Ai «X7^ll-^-    _    V« I o    V *-    1-1     f /•! _ii -: _£•  *i_  °_    I ^4i 1* 


them.    Walker  v.  Corke,  3  Yonnge  &.  C  (ez 
K<1.)  277. 

20.  The  jndffment  of  the  Master  of  the  Rolls 
in  Nias  v.  North  and  East  Railway  Company,  3 
Myl.  &L  Cr.  (cH.)  355,  confirmed. 

21.  Depositions  taken  before  oommissioners  in 
the  country,  may  be  read,  although  taken  in  the 
third  person,  the  3  &  4  Will.  4,  c.  94,  s.  27, 
referring  only  to  such  as  are  taken  before  the 
examiners.    Dryden  r.  Frost,  8  Sim.  ^ch  )  380. 

22.  The  re-eiamination  of  witnesses  who  have 
been  examined  in  chief,  is  not  a  mere  motion  of 
course,  but  the  court,  to  guide  its  discretion,  will 
require  affidavits  as  to  the  grounds  of  the  intended 
examination,  and  why,  if  material  in  the  cause,  it 
vaa  not  entered  into  in  the  course  of  the  pro* 
feedings  before  the  decree.  Jones  t?.  Thomas,  3 
f  onnge  dt  Cr.  (bx.  xq.)  455. 

23.  So,  where  the  witnesses  had  been  examin- 
ed ^nerally  as  to  the  occupation  and  perception 
of  titheable  matters,  upon  sufficient  affidavits,  the 
Court  ordered  the  witness  to  be  re-examined  as 
to  the  produce  of  the  farm,  and  quantities  of  tithe- 
able matters  taken.  Maton  v.  Hayter,  3  Younge 
A  Cr.  (EX.  Eq.)  457. 

24.  Af\er  witnesses  have  been  examined, 
tiva  roce,  under  the  (>l)th  Order,  held  irregular  for 
the  Master  to  receive  affidavits  to  supply  defects 
in  proof.     Hopkinson  v.  Roe,  1  Beav.  (ch  )  182. 

25.  Where  a  mistake  was  made  in  stating  Uie 
nature  of  tlie  commission  as  to  examining  wit- 
nesses, instead  of  one  defendant,  but  the  plaintiff 
could  not  have  been  misled  by  the  notice ;  held, 
that  the  execution  was  good,  and  that  the  com- 
missioners might  take  the  answer  of  one  defen- 
dant only.  Hall  v.  Connell,  3  Yonnge  d&  Cr. 
(sx.  E<i.)  528. 

26.  Where  a  witness  has  been  examined  in  a 
oause,  he  cannot  be  examined  again  before  the 
master  without  an  order ;  but  the  party  applying 
most  state  the  names  of  the  witnesses  he  wishes 
to  have  re-examined .  Jones  e.  Thomas,  3  Younge 
6l  Cr.  (EX.  E<i.)  227. 

27.  Where  the  defendants,  under  an  impres- 
sion that  the  commissioners  under  the  Tithe  Com- 
Ibutation  Act,  would  deter mme  the  matters  at 
issue  in  tiie  cause,  had  omitted  to  examine 
their  witnesses  in  sufficient  time,  the  court  al- 
lowed a  new  commission  on  payment  of  costs. 
Wetherell  e.  Bellwood,  3  Younge  &.  Cr.  (xx.  x^.) 
319. 

26.  A  witness  already  examined  may  neverthe- 
less prove  an  exhibit  at  the  hearing.  Keep  9.  Ab- 
bot, 1  Coop.  (CH.  c.)  191. 

29.  A  witness  examined  before  the  hearing, 
may  be  examined  before  the  Master  for  the  other 
side,  without  leave  of  the  court.  Mitford  v.  Pe- 
ters, 8  Sim.  (CH.)  630. 

SO.  A  witness  examined  before  the  decree,  al- 
lowed, under  special  circumstances,  to  be  exam- 
ined before  the  Master  as  to  collateral  facts,  but 
connected  with  the  points  to  which  he  had  been 
before  examined.  Barker  v.  Greenwood,  3 
YoQ&ge  9l  Cr.  (ex.  xq.)  393. 


a  false  allegation  of  there  being  other  wiinesaes 
to  examine,  discharged  for  irregularity.  Brunt 
r.  Wardle,  '6  Younge  dk  Cr.  (ex.  xq.)  503. 

And  see  Evidencr;  Partner. 


[I]  Bill  taxeit  pro  coirrBsso— dis- 

MISSEn. 

1.  The  court  refused  a  motion  to  discharge  an 
order  to  take  the  bill  pro  ca^feMso,  and  to  be  at 
liberty  to  put  in  an  answer,  although  the  defend- 
ant did  not  intend  to  enter  into  evidence.  Carr 
V.  Paolett,  7  Sim   (ch.)  142. 

2.  The  order  for  taking  a  bill  pro  eonfesso^  takes 
effect  from  the  time  when  pronounced ;  and  the 
court  will  not  discharge  it,  although  the  answer 
is  filed  before  the  rising  of  the  court  on  the  daj 
when  the  order  made.  James  v.  Cresswicke,  7 
Sim.  (ch.)  143. 

3.  Where  one  defendant  refuses  to  allow  it,  the 
court  will  not  order  the  cause  to  be  heard  as  a 
short  cause.    Ker  v.  Cusac,  7  Sim.  (cii.)  520. 

4.  Where  the  defendant  was  brought  up  for 
contempt  under  6th  rule,  1 1  Geo.  4  «&  1  Wdl.  4, 
c.  36,  and  did  not  put  in  bis  answer ;  held,  that 
he  ought  to  be  remanded,  and  the  bill  taken  mrt 
ctmfesso  nnder  the  second  rule.  Baraeweli  «. 
Cooke,  7  Sim.  (ch.)  320. 

5.  Where,  after  a  motion  to  dismiss  and  under- 
taking to  speed,  the  plaintiff  filed  a  replication 
and  served  a  subpana  to  rejoin,  but  did  not  re- 
quire a  commission  to  examine  witnesses ;  held, 
that  a  motion  to  dismiss  was  irregular,  as  the 
defendant  might  proceed  in  the  cause.  Garden 
V.  Manning,  1  K.  (ch.)  380. 

6.  Where  the  defendant  omitted  to  take  advan- 
tage of  the  plaintiff's  default  nntal  after  asiiiyi— i 
to  rejoin  served  and  oommission  sued  out,  bat  af- 
terwards moved  to  dismiss  on  an  affidavit  that  the 
plaintiff  had  not  set  down  the  cause,  nor  entered 
rules  to  produce  witnesses  and  pass  publication ; 
held,  that  the  defendant  was,  under  the  17th  o^ 
der,  J  831,  entitled  to  dismiss,  but  not  to  the  costs 
of  the  application.  White  v.  Smith,  1  K.  (ch.) 
381. 

7.  Where  before  replication  the  defendant 
served  notice  of  motion  to  dismiss,  but,  the  re- 
plication being  filed  on  the  next  day,  the  niotioB 
was  not  made,  and  the  plaintiff  did  not  undertake 
to  speed,  and  no  suhnana  was  given  to  rejoin ; 
held,  that  the  new  loth  and  17th  orders  did  not 
apply,  and  that,  three  clear  terms  not  baviuf 
elapsed  since  the  last  proceedings,  a  motion  to 
dismiss  was  irregular.  £arl  Ferrers  «.  Shirley,  7 
Sim.  (ch.)  484. 

8.  Where  a  sole  plaintiff  dies,  the  defendant '» 
not  entitled  to  move  that  his  representatives  mar 
revive  within  a  given  time,  or  the  bill  be  dismissed 
Canham  r.  Vincent,  8  Sim.  (ch.)  277. 

9.  Where  the  bill  had  been  dismissed  in  the 
absence  of  the  plaintiff's  solicitor,  allowed  under 
the  circumstances  to  be  set  down  again  to  be 
heard,  upon  payment  of  costs  by  the  plaintiff. 
Hale  V.  Lewis,  x  Keene,  (ch.)  318. 


[PRACTICE  (IN  EQUITY)] 


t895 


10.  Under  the  4th  and  16th  of  the  New  Orders, 
fbnr  months  must  elapse  after  the  filing,  before 
the  bill  can  be  dismissed  for  want  of  prosecu- 
tion,  and  the  19th  Order  applies  to  the  two 
months  mentioned  in  the  4th  Order,  and  in  com- 
puting the  two  months  mentioned  in  the  16th 
Order  the  plaintiff  is  not  entitled  to  the  benefit  of 
the  19th  Order.  Marriott  v.  Tarplej,  8  Sim. 
(cH.)  Id. 

11.  Wheie  some  defendants  had  answered, 
and  others  not,  and  eight  months  after  their  an- 
swer the  defendants  served  notice  of  motion  to 
dismiss,  and  the  plaintiff  on  the  following  day 
obtained  as  of  coarse  and  served  an  order  to 
amend,  held,  regular,  and  the  order  to  dismiss  re- 
fused. Attorney-General  v.  Kemp,  8  Sim.  (ca.) 
208. 

12.  On  a  bill  against  a  company,  and  also 
against  the  directors,  notice  of  motion  to  take  the 
bill  pro  eonfesM,  served  on  the  directors  only, 
held  irregolsr,  although  by  the  Act,  service  on  a 
director  was  declared  to  be  good  service.  Brick- 
wood  V.  Harvey,  8  Sim.  (cu.)  201. 

13.  Where  the  undertaking  to  speed  under  the 
16th  Order  has  not  been  complied  with,  the  court 
will  not  relieve  from  the  consequenoes,  unless 
the  failure  has  arisen  from  some  inevitable  cause ; 
but  although  the  compliance  has  become  impossi- 
ble, the  defendant  cannot  give  notice  of  motion 
to  dismiss  until  the  time  for  performance  has  ex- 
pired.    Whalley  v.  Pepper,  8  Sim.  (oh.)  203. 

14.  Under  the  16th  amended  Order,  the  plaintiff 
need  not  serve  a  subpana  to  rejoin  within  three 
weeks  from  the  date  of  the  undertaking  to  speed, 
unless  he  requires  a  commission  to  examine  wit- 
nesses.   Daniel  V.  Austen,  8  Sim.  (cu.)  19. 

15.  A  party  consenting  to  dispense  with  some  of 
the  requisitions  of  the  17th  Order,  1831,  held  not 
to  be  considered  as  giving  up  the  benefit  of  it  al- 
tocher,  but  entitled  to  enforce  such  of  its  requi- 
sitions as  he  has  not  dispensed  with.  Webber  v 
Bolitho,  8  Sim.  (ch.)  240. 

16.  Where  the  plainUff  had  filed  his  bill  with 
knowledge  of  the  defendant  being  in  embarrassed 
circumstances,  and  notice  of  his  bankruptcy,  the 
court  refused  to  allow  him  to  dismiss  his  bill  with- 
out costs,  although  showing  considerable  merits 
as  to  the  case.  Suckling  v.  Maddocks,  3  Tounge 
&.  C.  (XX.  xq.)  932. 

17.  Where  a  sole  plaintiff,  after  the  answers 
were  put  in,  became  bankrupt,  the  defendant  al- 
lowed to  move  that  unless  the  assignees,  within  a 
given  time  should  file  a  supplemental  bill,  the 
suit  should  be  dismissed.  Holt  v.  Hardcastle,  3 
Tounge  it  C.  (xx.  Fd)  236. 

18.  Although  a  party  has  become  -bankrapt 
pending  the  suit,  he  has  still  an  interest  in  sus- 
taining the  suit,  and  is  therefore  entitled  to  be 
served  with  notice  of  the  motion  to  dismiss  Ves- 
tris  V.  Hooper,  8  Sim.  (ch.)  570. 

19.  Rule  for  a  plaintiff  prosecuting  several  suits 
for  the  same  matter,  to  elect.  Reg.  Gen.  1  May, 
1839,  3  Younge  &.  C.  (xx.  z«.)  59^;  and  1  f^f^y, 
(CB.)  209,  App.  ix. 


[L]    HXARIHO — RXHKAKIHG — UKiRXK. 

1.  The  court  may  advance  a  cause  at  its  dis- 
cretion ;  and  scmb.  the  chancellor  has  no  author- 
ity to  discharge  or  vary  the  order  of  the  master  of 
the  rolls  for  thai  purpose.  Hutchinson  e.  Ste- 
phens, 2  Myl.  ^  Cr.  (cb.)  452. 

2.  And  the  practice  is  now  to  advance  snd  hear 
as  a  short  cause,  unless  the  defendant's  counsel 
will  say  it  is  one  not  proper  to  be  so  heard.  S.  C 
1  K.  (ch.)  659. 

3.  New  orders  regulating  the  practice  of  the 
court  for  hearing  causes,  arguing  demurrers,  ex- 
ceptions ;  addressing  petitions,  motions ;  applica- 
tions for  orders,  &c.    2  Myl.  &  Cr.  i. 

4.  Where  the  gubpeaut  to  hear  judgment  was 
made  returnable  on  a  day  out  of  term,  and  the 
cause  set  down  to  be  heard  in  the  cause-book  for 
the  same  term  in  which  publication  passed  ;  held, 
since  the  8th  new  order,  1 831 ,  to  be  regular.  Tur- 
ner V.  Hitchon,  1  K.  (ch.)  &14. 

5.  Where  the  parties  had  each  presented  a  pe- 
tition for  setting  down  a  demurrer  to  be  heard  be- 
fore the  Master  of  the  Rolls  and  Vice-Chancellor, 
and  by  the  course  of  the  former  court  the  order 
is  drawn  up  immediately,  but,  of  the  latter,  not 
until  the  following  day ;  held,  that  the  couit 
could  not  deprive  the  plaintiff  of  the  priority  ob- 
tained.   Marr  v.  Williams,  1  K.'  (ch.)  5b2. 

6.  The  court  will,  upon  the  certificate  of  plain- 
tiff's counsel,  that  it  is  a  fit  case  to  be  set  down 
as  a  short  cause,  direct  it  to  be  set  down  without 
the  consent  of  the  defendant,  where  the  opposi- 
tion appears  merely  for  delay.  Mountfbrd  v. 
Cooper,  1  K.  (cb  )  464. 

7.  A  private  hearing  allowed,  aJthouffh  one 
party  withheld  consenL  Ogle  v.  Branoling,  2 
Russ.  &  M.  (CH.)  688. 

8.  Where  a  party  is  not  named  in  the  vecagd^ 
the  court  cannot,  without  consent  of  all  parlies^ 
allow  him  to  appear  at  the  hearing,  and  consent 
to  be  bound  by  the  decree.  Attorne3F-<3eneral  v. 
Pearson,  7  Sim.  (iH.)  303. 

9.  Where  the  party  against  whom  a  decree  is 
made  omitted  to  present  a  petition  of  rehearing 
within  the  proper  time,  and  he  subsequently  pre> 
sented  a  petition  complaining  of  omissions  in  the 
decree,  an  order  for  supplying  them  held  irregiH 
lar,  the  course  being  by  bill  of  review.    Chara- 

E>mowne  v  Brooke,  3  CI.  dk  Fi.  (p  )  4 ;  and  9 
li.N.S.  199. 

10.  Although  the  rule  semb.  is  not  absolute  and 
inflexible,  yet  where  a  case  has  been  heard  in  the 
court  below,  and  upon  appeal  in  the  court  above^ 
the  court  will  not,  in  orainary  cases,  permit  a  re- 
hearing before  the  Lord  Chancellor.  Deerhurst 
r.  Duke  of  St.  Alban8,2  Russ.  A  M.  (ch.)  701. 

11.  The  practice  of  the  court  is  established 
against  rehearing  of  appeals  on  merits ',  and  the 
^ound  of  the  question  o^ing  new,  and  the  deci- 
sion erroneous,  held  insufficient  to  justify  a  de- 
parture from  the  practice ;  and  semh,,  where  the 
case  respected  a  cnarity,  it  would  be  contrary  to 
the  policy  of  the  69  Geo.  3,  c.  91,  to  pennit  iU 


2890 


[PRACTICE  (IN  EQUITY)] 


Qtuere,  if  that  act  intended  actually  to  prohibit 
such  proceeding  ?  Attorney- General  v.  Ward,  1 
Myl.  &.Cr.  (CH.)449 

12  Where  a  plaintiff  takes  a  decree  in  the  ab- 
sence of  the  defendant,  he  must  abide  by  it ;  and 
the  court  will  not  afliTwards  interpose  to  insert  a 
declaration,  as  tint  the  defendant  had  notice  of  a 
bond  admitted  by  the  answer.  Jennings  v.  Simp- 
son, 1  K.  (cH.)  404. 

13.  it  is  not  a  sufficient  ground  for  vacating  the 
enrolment,  merely  that  it  was  obtained  with  im- 
proper speed.     Hughes  v.  Garner,  2  Younge  (ex. 

14.  The  irtneril  rule  stated  to  be,  that  evidence 
which  iniix'il  h:iv«'  l)een  given  at  the  hearing,  and 
no  other,  may  be  iriven  al  the  rehearing  .  when 
pnriicular  documents  were  not  included  in  the 
order  to  prove  them  viwi  voce  at  the  hearing,  and 
the  production  at  their  hearing  would  be  newevi- 
dence ;  held  that  they  could  only  be  then  produc- 
ed under  a  special  order.  Lovell  v.  Hicks,  2 
Younge  6l  C  (ex.  e^.)  472. 

15.  Where  plaintiff  has  given  notice  of  show- 
ing cause  against  dissolving  the  common  injunc- 
tion on  the  merits,  he  is  not  precluded  from  show- 
ing exceptions,  if  filed  before  cause  actually 
shown.  Wilkinson  v.  L*£augier,  2  Younge  (ex. 
E<i.)  363. 

16.  Facts  which  have  occurred  since  the  decree, 
and  not  comprehended  in  the  pleadings,  held  to 
be  a  ground  for  a  rehearing,  where  they  show 
error  in  the  decree  ;  and  after  leave  given  for  a 
rehearing,  it  is  not  necessary  for  the  petitioner  to 
state  in  his  petition  in  what  the  decree  is  errone- 
ous, or  what  the  nature  of  the  decree  sought. 
Story  V.  Johnson,  2  Younge  &  C.  (ex.  e^)  ^. 

17.  Where  at  the  time  of  the  suit  commenced 
for  a  specific  performance  of  assignment  of  a 
lease,  and  for  an  account  of  rents,  the  lease  was 
subsisting,  but  by  the  lapse  of  time  expired,  and  he 
was  deprived  of  that  part  of  the  relief;  held, 
that  he  waa  nevertheless  entitled  to  the  account, 
that  part  of  the  substantial  relief  not  being  gone 
by  his  acts  or  the  lapse  of  time.  Wilkinson  «. 
Torkington,  2  Younge  6l  C.  (ex.  e«.)  726. 

18.  Where  a  decree  nisi  was  taken  against  some 
defendants  who  did  not  appear  at  the  hearingt 
and  judgment  was  afterwards  pronounced,  with 
consent  of  the  other  defendants,  by  the  Lord 
Chancellor,  who  had  been  subsequently  elevated ; , 
held,  that  the  parties  not  appearing  could  not  pe- 
tition to  stay  proceedings  on  the  ground  of  their 
want  of  consent,  but  could  only  show  cause 
against  the  decree  by  setting  it  down  to  be  heard 
against  them.  Moore  17.  Frowd,  2  Keene,  (ch.) 
342. 

19.  On  a  motion  for  a  new  trial,  either  party 
may  refer  to  evidence  given  in  the  cause,  althougn 
not  offered  at  the  trial.  Slaney  v.  Wade,  7  Sim. 
(ch.)  618. 

20.  Where  the  bill  had  been  filed  previous  to 
the  orders  of  1837,  held,  that  they  did  not  give  the 
plaintiff  such  a  right  of  electing  in  which  court 
the  cause  should  m  heard,  as  to  prevent  the  de- 
fendant filing  a  demurrer,  and  setting  it  down  at 
the  RoUs.    Cane  v.  Martin,  2  Keene,  (ch.)  607. 


21.  It  is  a  sufficient  answer  to  an  mppTication 
on  the  certificate  of  the  plaintiff  *s  counsel  u>  hear 
a  cause  as  a  short  cause,  that  the  defendant's 
counsel  certifies  that  it  is  not  a  proper  to  be  farard 
as  a  short  cause  ;  and  such  a  motion  befVire  Uw 
gubpana  to  hear  judgment  is  returnable,  is  prema- 
ture.   Reeves  v.  Gill,  2  Keene,  ^cb.)  671. 

22.  Where  the  error  is  apparent  on  the  face  of 
a  decree,  or  such  as  would  be  a  clear  ground  of 
reversal  on  appeal,  the  court  will  grant  a  rehear- 
ing, although  the  six  months  have  expired,  and 
in  each  case  the  subsequent  conduct  of  the  parties 
will  not  be  taken  into  consideration.  Ackland  v. 
Braddick,  3  Younge  <&  C  (Ed.  ex.)  237. 

23.  Where  the  plaintiff,  on  the  defendant  mak- 
ing default  in  appearing  at  the  hearing,  took 
such  decree  as  he  could  abide  by,  but  it  turned 
out  that  tlie  affidavit  of  the  subpitna  to  hear  judg* 
ment  was  irregular ;  the  course  held  to  be,  to  set 
down  the  cause  at  the  bottom  of  the  list,  and 
bring  it  on  in  the  usual  way.  Evans  v.  Evans,  2 
Keene,  (cu.)  604. 

24.  The  rule  in  future  to  be  strictly  abided  by, 
that  a  cause  cannot  be  brought  before  the  Lord 
Chancellor  for  a  second  rehearing,  unless  leave 
previously  granted  upon  special  application  for 
that  purpose.  Byfield  i;.  Provisf  3  Myl.  dk  Cr. 
(ch.)  437. 

25.  Upon  an  undertaking  to  speed,  and  to  set 
down  the  cause  for  hearing,  and  serve  the  subpm- 
na  to  hear  judgment  in  Easter  Term ;  held,  that 
the  plaintiff  was  bound  to  set  it  down  for  bearing 
on  such  a  duy  as  to  allow  time  to  return  the  suih 
P^na  to  hear  judgment  in  that  term.  Burgess  r. 
Thompson,  2  Keene,  (ch.)  762. 

26.  Where  on  the  defendant's  non-appearanoe 
a  decree  iitn  was  taken,  which  be  was  to  show 
cause  against  on  payment  of  costs,  held,  that 
whilst  he  was  in  contempt  he  wss  not  entitled  to 
an  order  for  setting  down  the  cause  again  for  he«r- 
ing,  unless  served  by  the  plaintiff  with  a  suhptt- 
na  to  make  the  decree  absolute ;  and  an  order  for 
setting  down  the  cause  obtained  afler  the  expira- 
tion of  the  time  mentioned  in  the  ra^/Mnia  to  alio  v 
cause,  is  irregular,  although  served  before  any  or- 
der for  making  the  decree  absolale.  £rpe  r. 
Smith,  1  Coop.  (ch.  c.)  110. 


[M]  Statiho  procxbdin«s— appxal. 

1.  Where  a  suit  in  Chancety  vras  pending  for 
general  administration  of  the  estate,  the  court  of 
Exchequer  stayed  proceedings  by  an  annuitant 
against  the  executors,  althougn  no  decree  drawn 
up,  as  the  plaintiff  might  obtain  all  the  relief 
sought.  Moore  v.  Prior,  2  Younge  &  C  (xx. 
£<i.)  375. 

2.  The  court  will  onlj  under  special  circum- 
stances stay  the  proceedings  under  a  decree,  pend- 
ing an  appeal  to  the  House  of  Lords.  Thorpe 
v.Martingley,  3  Younge  &  C.  (ex.  Kq.)254. 

3.  Upon  appeal  by  one  defendant  only,  and  or- 
der made  thereon  of  dismissal  of  the  bill  vpon 
grounds  equally  applicable  to  the  other  defes- 
dants;  held,  that  the  latter  were  not  entitled  •• 


[PRACTICE  (IN  EQUITY)] 


2W7 


the  benefit  of  such  order,  although  renderinsr  the 
decree  less  effectual.  Tasker  v.  Small,  1  Coop. 
(CH.  c.)  255. 

4.  Upon  an  order  made  bv  the  Master,  under 
the  3  &4  Will.  4,  c.94,8.  13,  in  a  cause  set  down 
at  the  Rolls,  the  party  aggrieved  has  no  right  or 
appeal  to  the  Lord  Chancellor  against  such  order. 
Hill  V,  Gomme,  3  Myl.  &  Cr.  (ch.)  50a 

5.  Where  the  plaintiff  did  not  appear  when  the 
cause  was  called  on  for  hearing,  and  the  defen- 
dant produced  an  affidavit  of  service  oTsubpttna  to 
hear  judgment,  merely  stating  the  service,  but 
not  that  the  sultpctna  was  endorsed,  as  required 
by  the  third  Order  of  21  t  December  1633,  held 
insufficient.  Rigg  v.  Wall,  3  Myl.  &,  Cr.  (cii.) 
505. 

6.  Upon  an  application  to  the  court  below  to 
stay  execution  pending  the  appeal,  the  party  ap- 
plying must  pay  the  costs  of  the  motion  ;  but  if 
before  such  motion  the  judgment  is  reversed,  the 
costs  will  be  costs  in  the  cause.  Richardson  v. 
Bank  of  England,  1  Beav.  (ch.)  153. 


[N]  Costs. 

1.  Where  a  defendant,  claiming  as  heir  in  ga- 
Telkind  of  lands  alleged  to  have  been  devised,  in 
his  answer  to  a  bill  alleged  that  he  was  the  testa- 
tor's heir-at-law  and  customary  heir,  and  the  suit 
was  compromised  by  payment  of  a  sum  to  him, 
ajid,  upon  a  supplemental  bill  to  set  aside  such 
arrangement,  he  admitted  in  his  answer  that  he 
knew  that  his  elder  brother  had  left  children,  al- 
though he  believed  himself  to  be  sole  heir;  held, 
that  he  was  not  entitled  to  his  costs,  either  in  law 
or  equity.     Roberts  r.  Scoones,  7  Sim.  (ch.)  418. 

2.  Where  a  defendant  disclaimed  as  to  a  fund 
before  claimed,  and  stated  facts  why  he  should 
not  pay  costs  ;  held,  that  those  facts  might  be  fal- 
sified, and,  being  so,  he  was  ordered  to  pay  the 
costs  of  the  suit.  Deacon  v.  Deacon,  7  Sim.  (ch.) 
378. 

3.  Where  inquiry  was  rendered  neoessarv  bv 
the  mistake  of  the  testatrix  in  the  name  of  a  devi- 
see ;  held  that  the  general  residuary  estate  was 
liable  to  the  costs,  although  the  devisee,  by  the 
inquiry,  derived  the  benefit  of  having  the  estate 
exonerated  from  a  charge  void  by  the  Mortmain 
Act.     Ripley  V.  Moysey,  1  K.  (en.)  578. 

4.  Where,  in  a  creditor's  suit,  the  plaintifiThad 
realized  assets  more  than  sufficient  for  payment 
of  the  debts,  the  costs  of  the  plaintiff,  as  between 
party  and  party,  ordered  to  be  paid  out  of  the  gen- 
eral fund,  and  the  extra  costs  to  be  paid  pro  rata 
by  the  creditors  partaking  in  the  benefit  of  the 
suit.     SUuton  V.  Hatfield,  1  K.  (ch  )  358. 

5.  Costs  as  between  solicitor  and  client,  allow- 
ed to  the  plaintiff  in  a  creditor's  suit,  where  the 
fund  is  deficient  Hood  o.  Wilson,  2  Russ.  A.  M. 
(CH.)  687. 

6.  Where  the  plaintiff  was  ordered  to  pay  the 
costs  of  one  defendant,  and  to  have  them  repaid 
by  another,  who  was  to  pay  the  plaintiff's  costs; 
faield,  that  the  plaintiff  could  only  issue  one  wuh- 


pana  and  one  attachment  for  both  sets  of  costs. 
Chute  V.  Ross,  7  Sim.  (ch.)  255. 

7.  Upon  a  motion  to  have  a  bill  by  the  plaintiff, 
claiming  to  sue  in  a  corporate  character,  taken 
off  the  file,  the  court,  directing  an  issue  as  to 
whether  there  was  such  corporation,  if  negatived 
would  order  the  costs  to  be  paid  bv  the  town-agent 
of  the  plaintiff's  solicitor.  Rutnin  Corp.  v.  Ad- 
ams, 7  Sim.  (cH.)  345. 

8.  Costs  of  a  motion  for  an  injunction  to  re- 
strain payments  being  made  pending  an  appeal, 
held  to  be  a  matter  connected  with  and  growing 
out  of  the  appeal,  and  the  costs  to  follow  tlie  same 
fate.  Attorney  General  v,  Norwich  Mayor,  &c., 
2Myl.  &  Cr.  (CH.)431. 

9.  Where  application  was  unnecessarily^  made 
to  a  party,  not  a  part^  to  the  appeal,  for  his  con- 
sent to  the  appeal  beinv  advanced ;  held,  that  it 
did  not  entitle  him  to  the  costs  of  attending  the 
hearing  of  the  appeal.  Crawshay  v.  Thornton,  2 
Myl.  £  Cr.  (CH.)  24. 

10.  Where,  aAer  the  taxation  of  costs  postponed 
by  agreementi  and  that  the  plaintiff  siioold  not  be 
prejudiced  by  the  delay,  the  plaintiff  died  ;  held, 
that  the  executors  mignt  revive  the  suit  for  costs. 
Tucker  v.  Wilkins,  7  Sim.  (ch.)  349. 

11.  Order  regulating  the  fees  to  be  taken  by 
registrars  and  their  clerks.     1  K.  (ch.)  i. 

12.  Where  after  the  trial  of  issues  found  for 
the  plaintiff,  the  defendants  obtained  an  order  for 
a  new  trial  on  p*iyment  of  costs  to  be  taxed ;  held 
that  they  were  not  compellable  to  pay  them,  un- 
less the  defendants  thought  fit  to  proceed  to  the 
new  trial.    Lambert  r.  Fisher,  7  Sim.  (ch.)  525. 

13.  Where  the  master  reported  passages  in  de- 
positions taken  for  the  defendant  to  be  scandalous, 
but  made  no  report  as  to  the  frame  of  the  inter- 
rogatories, held  that  they  were  not  liable  to  the 
costs  of  the  reference.  Gude  v.  Mumford,  2 
Tounge  &  C.  (ei.  e(1-)  445. 

14.  But  where  the  attorney  for  the  defendant 
having  in  his  examination  made  such  statements, 
the  court  ordered  him  to  pay  the  costs  of  expung- 
ing them,  and  it  would  only  visit  the  examiner 
in  an  extreme  case.    lb. 

15.  Where  the  plea  and  answer  were  ordered 
at  the  hearing  to  stand  for  answer,  with  liberty 
to  except,  but  nothing  said  as  to  costs,  the  coart 
refused  to  open  the  question  of  costs  on  a  subse- 
quent application,  as  it  could  only  be  done  on  a 
re-  heari  ng  of  the  case.  Tamall  v.  Rose,  2  Keene, 
(ch.)  32^ 

16.  Where,  bv  defect  of  parties,  it  was  neces- 
sary to  amend  the  record,  although  not  suggested 
by  the  answer  or  urged  at  the  hearing,  the  defend- 
ants held  entitled  to  the  costs  of  the  day.  Attor- 
ney-General V.  Hill,  3  Myl.  &  Cr.  (ch.)  247.  ' 

17.  Where  a  bill  was  filed  against  the  represen- 
tatives of  a  trustee  for  alleged  breach  of  trust,  and 
the  plaintiff  aAer wards  joined  in  a  creditor's  suit 
against  the  same  defendants ;  held,  that  he  was 
entitled  to  rank  as  specialty  creditor  against  the 
assets  of  the  deceased  trustee,  and  to  recover  pay- 
ment in  the  second  suit;  the  costs  of  the  plaintiff 
in  the  fint  soit,  and  of  all  ptitiee  to  the  petitioBi 


2B98 


[PRACTICE  (IN  EaUITY)— PRISONER] 


Saogar  v.  Gardiner,  1   Coop. 


to  be  paid  out  of  the  funds  in  the  second  suit ; 
and  the  plaintiff  also  entitled  to  the  benefit  of  the 
securities  upon  which  the  trust  funds  had  been 
invested.  (>oBterton  v.  Costerton,  1  Keene,  (cu.) 
776. 

18.  Where  trustees  put  in  separate  answers, 
and  appeared  by  different  solicitors,  the  court  fave 
them  all  costs  as  between  solicitor  and  client. 
Kampf  V.  Jones,  1  Coop.  (ch.  c.)  13. 

19.  Where  an  order  was  made  for  payment  of 
costs  by  a  day  stated,  no  previous  demand  having 
been  made  by  a  party  duly  authorized  to  make  it, 
held  irregular,  although  such  want  of  authority 
was  not  assigned  as  the  reason  of  refusing  to  pay. 
Isaac,  in  re,  3  Myl.  «&  Cr.  (cu.)  319. 

20.  Upon  costs  ordered  to  be  taxed  as  between 
solicitor  and  client,  the  rule  is  to  allow  only  two 
counsel,  or  three  under  special  circumstances. 
Downing  College  Case,  3  Myl.  &  Cr.  (cu.)  474. 

21.  On  a  petition,  by  two  or  more,  dismissed 
with  costs,  the  party  entitled  has  the  option  of 
taking  out  process  either  against  them  jttintly,  or 
against  eitlier  separately ;  but  held,  that  before  an 
application  to  commit  in  default  within  four  days, 
there  must  be  previously  an  order  fixing  a  time 
for  payment ;  and  it  is  unusual  to  give  costs  of 
the  applications  for  the  four-day  order,  or  for  that 
fixing  the  time. 
<CH.  c.)262. 

22.  Where  in  a  suit  by  a  residuary  legatee 
against  the  executor  and  co-residuary  legatees, 
the  costs  of  all  parties  were  directed  as  between 
solicitor  and  client,  the  court  refused  to  vary  the 
order  on  the  ground  of  non-consent  by  the  resid- 
uary legatees.  Bienkinsop  v.  Foster,  3  Tounge 
4k  C.  (bx.  £4^.)  207. 

23.  Where  the  answer  contains  clear  admis- 
sions, and  the  evidence  does  not  carry  them  far- 
ther, the  plaintiff  will  be  liable  to  the  costs  of 
proving  such  fiicts,  although  he  succeeds  in  the 
Miit.    Booth  V,  Booth,  1  Beav.  (ch.)  130. 

24.  Where  upon  an  appeal  upon  a  decree 
against  the  defendant,  with  costs,  the  Lord  Chan- 
cellor was  clearly  of  opinion  that  the  decree 
ought  not  to  stand,  and  that  the  bill  ought  to 
tiave  been  dismissed  with  costs ;  held,  that  the 
defendants  were  entitled  to  the  costs  of  the  suit, 
inclusive  of  the  hearing,  but  not  of  setting  the 
4lecree  right.  Oldham  v.  Stonehouse,  3  Myl.  A 
Cr.  (ch.)  317. 

25.  Where  the  House  of  Lords  reversed  a  de- 
cree with  costs,  held  to  entitle  the  party  only  to 
the  costs  of  the  suit  up  to  the  time  of  the  decree, 
and  not  those  subsequently  arising  out  of  the 
error  of  the  Judge.  Small  v.  Atwood,  3  Tounge 
dt  Cr.  (kz.  E<i.)  501. 

And  see  Accumulation  ;  Injimetioti^  [D]  5. 


FRESCRIPTION. 


i 


and  an  unity  of  possession  need  not  be  replied. 
Oxley  V.  Gardiner,  4  Mees.  &.  W.  (bx.)  496. 

And  see  Bright  v.  Walker,  1  Cr.  M.  dk  R. 
ex.)  211  ;  Monmouth  Canal  Company  r.  Hart- 
'ord,  1  Cr.   M.  <&  R.  631  ;  Tickle  r.   Brown,  4 
Ad.  <&  Ell.  382;  and  Beasley  v.  Clarke,  2  Btog. 

N.8.  708. 

2.  Where,  in  trespass  for  taking  and  impound- 
ing cattle,  the  defendant  pleaded  an  immemoinal 
right  to  a  profit  a  prendre,  in  B.,  and  his  ances- 
tors, commencmg  before  time  of  legal  memoij; 
held,  that  it  was  not  supported  by  proof  of  a  grant 
to  the  ancestor  of  defendant  in  17.55,  for  a  valo- 
able  consideration  ;  and  that,  as  pleaded,  the  eUim 
was  not  aided  by  2  &  3  Will.  4,  c.  71  ;  and  fvcre, 
if  sect  5  applies  to  such  a  right,  and  if  it  does,  it 
should  be  pleaded  for  the  periods  therein  staled. 
Welcome  v.  Upton,  7  Dowl.  (p.  c.)  475, 

And  see  Bridges  ;  Trespass. 


PRESUMPTION. 

1.  A  mother  and  daughter  being  seised  of  land, 
by  deed  of  settlement  on  the  marriage  of  tbe 
latter,  in  consideration  of  the  marriage,  tbey  and 
each  did  grant,  bargain,  sell,  alien,  enfeoff  and 
confirm,  and  did  nndertake  and  agree  to  ooavey 
and  assnre  unto  trustees,  to  the  use  of  the  mar- 
riage ;  livery  of  seisin  was  indorsed  on  the  dted, 
but  no  names  were  subscribed ;  held,  that  the 
deed  operated  as  a  covenant  to  stand  seised,  and 
that  a  ^ood  use  passed  to  the  husband ;  but  that 
possession  for  less  than  25  years  was  not  snflicieDt 
to  raise  the  presumption  of  liverv  having  been 
made.  Doe  d.  Lewis  v.  Davies,  2  Mees.  <9k  W. 
(ex.)  503. 

2.  On  a  bequest  of  one-fiflh  of  the  lestator^s 
residue  to  W.,  E.,  and  1.,  and  all  other  tbe  chil- 
dren of  R  ,  and  the  issue  of  such  of  his  childiea 
as  should  have  deceased,  such  issue  to  take  tbe 
portion  of  the  fiflh  as  their  parents  would  have 
taken  if  living ;  R.  had  two  other  children  be- 
sides those  named  in  the  will,  one  of  whom  went 
abroad  in  1815,  20  years  before  the  testator's 
death,  and  had  not  been  beard  of  for  above  20 
years,  although  every  means  of  inquiry  bad  been 
resorted  to ;  neld,  that  he  must  be  presumed  ts 
have  died  before  the  date  of  the  will,  but  that  his 
children  were  entitled  to  the  portion  he  would 
have  taken  if  he  had  survived  the  testator.  Rust 
V.  Baker,  8  Sim.  (ch.)  443. 

And  see  JidnUnisiration  ;  Manor. 


PRISONER. 

1.  Where  a  prisoner  is  in  custody  of  the  sheriff 
on  criminal  process,  it  is  sufficient  to  lod^  a 
detainer  on  civil  process,  without  any  order  from 
the  court.  Grainger  v.  Moore,  5  DovL  (f.  c.) 
456. 


2.  Where  final  judgment  in  debt  was  signed 

1.  The  2  &  3  Will.  4,  c.  21,  requires  a  20  years'  |  in  Michaelmas  vacation,  and  judgment  completed, 

oontinnouB  enjoyment  of  tbe  easement  as  rac&,  and  the  defisndant  charged  in  execntiaii  on  7th 


[PRISONER] 


3899 


May,  in  Easter  following;  held  not  a  mere  ir-t 
regularity,  of  which  the  prisoner  was  barred,  by 
lapse  of  time,  from  objecting  thereto  in  the  Mi- 
chaelmas term  following ;  and  that,  as  against  a 
prisoner,  final  judgment  was  complete  at  the 
time  of  signing,  without  carrying  in  the  roll ; 
and  that  the  role  of  Hilary,  4  Will.  4,  shut  out 
all  relation  to  the  term  preceding  the  vacation  in 
which  the  judgment  was  signed.  Colbron  v.  Hall, 
5  Dowl.  (p.  c.)  534.  S.  P.  Wyatt  v.  Howell,  lb. 
585. 

3.  Where,  npon  removal  of  a  prisoner  from 
the  warden  of  the  Fleet  to  the  marshal  of  the 
King's  Bench,  at  the  instance  of  the  defendant, 
he  had  paid  a  fee  claimed  by  the  warden  ;  held 
that,  having  improperly  j>aid  it,  he  could  not 
compel  the  plaintiff  to  reimburse  him.  Burt  v. 
Bryant,  5  Dowl.  (p.  c  )  727. 

4.  Where,  after  the  arrest,  the  removal  was 
delayed  for  a  week,  during  which  the  defendant 
remained  in  custody  at  a  friend's  house,  and 
no  excuse  of  illness  or  other  cause  was  suggested 
for  the  delay;  held,  that  the  commencement  of 
the  imprisonment  was  to  be  reckoned,  not  from 
the  day  of  the  arrest,  but  of  the  period  of  actually 
being  within  the  walls  of  the  prison.  Tapp  v, 
HarUngton,  3  Bing.  N.  S.  (c.  p.)  907. 

5.  A  rule  nisi  for  a  supersedeas,  the  plaintiff 
not  having  declared  in  the  action  in  due  time, 
semUe,  is  not  a  stay  of  proceedings ;  bat  the  plain- 
tiff may  proceed,  ailer  service  of  the  rule,  to 
charge  the  defendant  in  execution.  Robinson  v. 
Cresswell,  2  Mees.  and  W.  (xx.)  410;  and  5 
Dowl.  (p.  c.)  601. 

6.  A  party  in  execution,  issued  above  a  year 
and  a  day,  on  a  judgment  without  a  scire  facias, 
held  entitled  take  the  objection,  and  not  to  have 
waived  the  right  by  delay.  Mortimer  v.  Piggott, 
4  Ad.  &  £11  (k.  b.)  3t>S,  n. 

7.  A  party  who  had  been  in  prison  for  twelve 
months,  on  judgment  in  ejectment,  for  damages 
Is.,  costs  405.,  and  increased  costs  above  20/. ; 
held  entitled  to  be  discharged  under  48  Geo.  3,  c. 
123;  the  words  of  whicn  are,  ^*^any  debt  or 
damages,  exdusive  of  the  costs  incurred."  Doe 
«.  Sinclair,  3  Bing.  N.  S.  (c.  p.)  778;  and  5 
Dowl.  (c  p.)  615.  S.  P.  Doe  d.  Threlfall  v. 
Ward,  2  Mees.  &  W.  (ex.)  65;  and  5  Dowl. 
290. 

8.  The  marshal  cannot,  of  his  own  authority, 
grant  the  rules  to  a  prisoner  in  custody  for  a  con- 
tempt, which  is  for  punishment,  but  there  must 
be  a  special  application    to  the  ooort  for    that 

gnrpose.    Gompertz,  in  re,  1  Nev.  dt  P.  (a.  b.) 
18. 

9.  The  48  Geo.  3,  c.  123,  held  to  extend  to  the 
case  of  a  prisoner  in  execution  for  damages  in  an 
action  of  erim.  can,  Goodfellow  v.  Robings,  3 
Bing.  N.  S.  (c.  P.)  1 ;  3  Sc.  319 ;  and  5  Dowl. 
(p.  c.)  14a 

And  see  Winter  v.  Elliott,  1  Ad.  &  £11.  24. 

10.  To  entitle  a  prisoner  to  his  discharge  under 
48  Geo.  3,  c.  123,  s.  1,  he  must  have  been  actually 
confined  within  the  wallSf  and  not  merely  within 
the   rules,    for   twelve  months.     Sumption    v. 

Vol.  IV.  79 


Monzani,  4  Ad.  A  £11.  (k.  b.)  1007.  S.  P.  Barnard 
V.  Simmonds,  5  Dowl.  (p.  c.)  520;  Gilbert  v. 
Pope,  2  Mees.  &  W.  (xx.)  311 ;  and  5  Dowl. 

449. 

11.  Notice  of  the  defendant's  application  for 
his  discharge,  under  48  Geo.  3,  c  123,  must  be 
served  personally  on  the  plaintiff;  and  held,  that 
appearing  on  the  notice  did  not  amount  to  a 
waiver  of  the  objection.  Biddolph  v.  Gray,  5 
Dowl.  (p.  c.)  406. 

12.  The  notice  of  the  application  must  be  served 
on  the  plaintiff  himself,  and  not  on  the  attorney. 
Johnson  v.  Kutlege,  5  Dowl.  (p.  c.)  579. 

13.  Where  the  party  had  become  of  unsound 
mind,  held,  that  an  application  by  his  wife  miglH, 
for  the  purposes  of  the  Act,  be  treated  as  that  of 
the  husbana.  Clay  v.  Bowler,  5  Ad.  &.  £11.  (a. 
B.)  400. 

14.  Where  there  was  reaionable  ground  for 
supposing  that  money  found  on  a  prisoner  was 
the  produce  of  the  alleged  offence,  the  Judge  re- 
fused to  order  more  than  the  surplus  to  be  restor- 
ed.   R.  V.  Burgiss,  7  C.  &  P.  (w,  p.)  488. 

15.  The  mode  of  charging  a  prisoner  in  execu- 
tion held  not  altered  by  tLe  2  Will.  4,  o.  39,  s.  8. 
Stocken  v.  Wedderburoe,  4  Sc.  (c.  p.)  570;  and 
Whetmore  v.  Binns,  lb.  571. 

16.  Where  the  party  was  taken  on  an  attach- 
ment on  3d  February,  and  did  not  apply  to  be 
discharged,  on  the  ground  of  irregularity,  until 
the  10th  day  of  Easter  term,  held  too  late.  R.  v. 
Burgess,  3  Nev.  &  P.  (<i.  b.)  366. 

17.  Where  the  trial  is  in  term,  and  the  surren- 
der in  discharge  of  bail  is  in  a  subsequent  vaca- 
tion, held,  that  it  relates  back  to  the  previous 
term,  in  order  to  entitle  the  defendant  to  his  SU' 
persedeas  for  want  of  being  charged  in  execution ; 
held,  also,  that  the  affidavit  of  notice  of  render 
may  be  made  at  any  time  before  he  is  so  charged. 
Thorn  v.  Leslie,  3  Nev.  &  P.  (q.  b.)  305. 

18.  The  warden  is  not  bound  to  discharge 
prisoners  supersedeable  for  the  space  of  one 
month  without  a  Judge's  order.  Fleet,  warden 
of,  in  re,  5  Sc.  (c.  p.)  150. 

19.  A  surrender  in  vacation  has  reference  to 
the  preceding  term  for  the  purpose  of  discharg- 
ing a  prisoner  under  Reg.  Trin.  26  &  27  Geo.  2. 
Baxter  V.  Bailey,  3  Mees.  &  W.  (xx.)  415. 

20.  Where  the  action  against  a  prisoner  was 
tried  in  vacation,  held  that  Uie  plaintiff  was  bound 
to  charge  him  in  execution  in  the  next  following 
term.  Foulkes  r.  Burgess,  6  Dowl.  (p.  c.)  109; 
and 2  Mees.  &.  W.  (ex.)  849. 

21.  The  rule  of  Hill.  2  Will.  4,  s.  72,  as  to 
warrants  executed  by  prisoners,  held  not  to  apply 
to  the  case  of  a  plaintiff,  not  the  one  at  whose  suit 
the  party  is  in  custody  ;  and  held  that  on  an  ap* 
plication  for  discharge,  it  is  sufficient  if  it  ap- 
pears that  he  is  in  onstody  on  mens  process, 
without  alleging  it  in  express  terms.  Weather- 
all  V.  Long,  6  Dowl.  (p.  c.)  267. 

22.  Where  the  twenty  days'  notice  had  not  ex- 
pired before  the  first  day  of  term,  held,  that  an 


3900 


[PRISONER— PROHIBITION] 


application  made  in   that  term  was  too  early. 
Ralph  V,  Jacobs,  6  Dowl.  (p.  c.)279. 

23.  Where  the  original  debt  was  ander  20^,  al- 
though the  defendant  had  given  a  cognovit  for  the 
debt  and  costs  exceeding  that  sum,  held  neverthe- 
less entitled  to  his  discharge  under  48  Geo.  3,  c. 
123.  Rathbone  v.  Fowler,  6  Dowl.  (p.  c.)  81 ; 
and  3  Mees.  &  W.   ex.)  137. 

24.  Where  the  plaintiff  was  prevented  from 
proceeding,  by  an  mjunction  obtained  by  the  de- 
fendant, held  not  to  be  a  case  within  1  Re^.  Hil. 
2  Will.  4,  B.  87,  requiring  a  notice  to  be  given  to 
the  marshal,  in  order  to  deprive  the  party  of  his  su- 
persedeas, Lewis  V.  Gompertz, 6DowI.  (p.  c.)  124. 

25.  Roles  or  orders  for  discharging  a  party 
upon  special  bail  pnt  in  and  perfected,  to  direct  a 
supersedeas  also  to  issue.  Reg.  Gen.  4  Bing. 
N.  S.  (c.  p.)  366. 

26.  Where  the  party  was  taken  in  execution 
on  the  27th  November,  and  the  motion  for  his 
diflcharse  at  the  end  of  12  months  was  made  on 
the  26m  November ;  held,  that  as  he  could  not 
be  discharged  until  the  following  day,  the  motion 
was  not  premature.  Parkers  v.  Wilkins,  7  Dowl. 
(p.  c.)  152 ;  and  6  Sc.  (c.  p.)  803. 

27.  Where  the  party  has  remained  in  execution 
12  months  for  a  debt  not  exceeding  202.,  held  not 
to  be  precluded  from  his  discharge  under  48  Geo. 
3,  c.  123,  although  he  has  been  brought  up  under 
the  Lords*  Act,  and  claimed  hts  60  days,  which 
have  not  expired.  Venner  r.  Oxenham,  6  Dowl. 
(p.  c.)  766. 

28.  The  12  months  Iving  in  prison  must  be 
immediately  preceding  tne  application  to  be  dis- 
charged under  48  Geo.  3,  c.  123^  Stubbing  v. 
M'Grath,  7  Dowl.  (p.  c.)  328. 

29.  A  Judge's  order,  under  1  &  2  Vict.  c.  110, 
s.  7,  for  detention  of  a  prisoner  until  he  should 

Sive  bail,  "or  until  further  order,"  held    bad. 
loddington  v.  Woodley,  1  Perr.  &,D.  (q.  b.)  159. 

30.  Regulation  of  prisons,  by  2  &  3  Vict.  c.  56. 
And  see  Bail ;  Indictment, ;  Insolvent ;  Sheriff. 


PROCEDENDO. 

Where  the  cause  had  been  removed  from  an 
inferior  jurisdiction,  and  the  demand  laid  in  the 
declaration  was  20Z. ;  held,  that  it  was  not  within 
19  Geo.  3,  c.  70,  s.  6,  and  7  <&  8  Geo.  4,  c.  71, 
s.  6,  and  no  recognizances  need  be  entered  into, 
although  it  was  sworn  that  the  plaintiff  did  not 
seek  to  recover  so  much.  Brady  v.  Veeres,  5 
Dowl.  (p.  c.)  416. 

And  see  Certiorari. 


PROFIT  A  PRIJNDRE. 
See  Prsseription^  2. 


PROHIBITION. 

1.  Where  the  Ecclesiastical  Court  was  proceed 
ing  to  examine  into  the  truth  of  an  inventory, 
and  of  the  reply  to  exceptions  made  thereto,  a 
prohibition  granted ;  and  there  is  no  distinction 
between  the  case  of  a  creditor  and  legatee.  Gri& 
fiths  V.  Anthony,  1  Nev.  &  P.  (k.  b.)  72 ;  and  5 
Dowl.  (p.  c.)  223. 

And  see  Henderson  v.  French,  5  M.  &  S.  406. 

2.  Where  some  of  the  articles  of  a  libel  in  the 
Ecclesiastical  Court  were  only  conusable  at  law, 
but  were  not  objected  to,  and  the  sentence  de- 
clared the  articles  for  the  most  part  sufficienlly 
proved  and  substantiated,  a  prohibition  was  re- 
fused ;  and  semb.,  if  the  application  had  been 
made  before  sentence,  the  vrrit  would  onlv  have 
removed  the  articles  conusable  at  law.  Hart  v. 
Marsh,  1  Nev.  &.  P.  (k.  b.)  62 ;  and  5  Dowl.  (p. 
c.)  424. 

3.  Where  a  rule  itiss  for  a  prohibition  bad  been 
discharged,  the  court  refused  to  allow  it  to  be 
opened,  upon  fresh  affidavits  stating  facts  ezJsl^ 
ing  at  the  time  of  the  previous  application.    Bo 
denham  v.  Rickets,  6  Nev.  A  M.  (k.  b.)  337. 


4.  Where,  in  prohibition,  the  plaintiff 
plained  of  a  church-rate  laid  on  three  only  oatef 
lour  townships  of  the  parish,  and  the  dHendaat 
claimed  exemption  in  a  plea  alleging  that  it  had  a 
separate  chapel,  and  a  custom  to  perform  all  rites 
there,  and  for  the  repair  by  its  own  inhabitants  ex- 
clusively, traversing  the  lialTility  of  all  the  fbnr 
townships  to  repair  the  parish  church,  on  which 
traverse  issue  was  joined;  held,  that  the  plaintiff, 
by  joining  issue  on  this  traverse,  was  not  to  be 
taken  to  have  admitted  the  previous  matter  of  in- 
ducement, but  that  the  defendant  was  bound  to 
prove  the  matters  making  up  the  fact  traversed, 
as  the  traverse,  though  it  might  be  too  general, 
was  not  immaterial ;  and  it  was  to  be  taken  that 
the  parties  intended  to  put  the  liability  in  issue  : 
held  also,  that  the  mere  fact  of  a  district  repairmg 
its  own  chapel,  without  coming  on  the  parisE 
rates,  and  no  proof  of  rates  levied  on  the  putiea- 
lar  township,  did  not  establiah  the  custom  alleged 
in  the  plea.  Craven  v.  Sandenon,  I  NeT.  &  F. 
(k.  b.)  666. 

5.  Upon  an  appeal  to  the  judicial  committee  ol 
the  Privy  Council  against  a  judgment  of  tin 
court  of  Arches,  reversing  a  decision  of  the  eovit 
below  as  to  the  validity  of  a  church  rate,  the 
court  refused  a  rule  for  a  prohibition  belbie  any 
proceedings  taken,  as  the  committee,  having  jn* 
risdiction,  the  court  would  intend  that  it  wovU 
act  rightly,  until  it  appeared  that  it  was  about  to 
decide  some  matter  only  conusable  at  common 
law.  Reg.  V.  Privy  Council  Judicial  Committee, 
3  Nev.  A  P.  (Q.  B.)  15. 

6.  Where  in  prohibition  the  pluntiff  declared 
that  he  had  excepted  to  the  libel  below,  oo  one 
OTound,  as  to  the  construction  of  an  Act  of  Par- 
liament ;  held,  that  as  it  did  not  appear  the  eooit 
were  proceeding  to  decide  on  the  act,  or  contrary 
to  common  law,  no  ground  was  laid  for  prohibi- 
tion.   Hall  V.  Maule,  3  Nev.  &  P.  («.  a.)  459. 


[PROHIBITION-^UO  WARRANTO] 


2901 


7.  Where  a  suit  for  non-payment  of  church- 
rates,  instituted  in  the  Ecclesiastical  Court,  had 
been  appealed  against^  and  referred  to  the  Judi- 
cial Committee,  no  erroneous  proceeding  being 
shown  there,  the  court  would  not  assume  that  it 
would  act  incorrectly,  and  refused  a  motion  for  a 
prohibition,  on  the  ground  that  the  rate  was  bad. 
Chesterton  v.  Farlar,  7  Ad.  &  Ell.  (<i.  b.)  713. 

8.  The  Court  refused  to  grant  a  prohibition  to 
the  quarter  sessions,  to  prevent  them  from  allow- 
ing the  accounts  of  trustees,  under  a  Church 
Building  Act,  before  they  had  been  audited,  pur- 
suant to  the  Act,  as  the  court  could  not  presume 
it  would  follow  a  course  contrary  to  law.  St. 
Pancras  Auditors,  ez  parte,  6  Dowl.  (p.   c.)  534. 

And  see  Church  ;  Practice^  (c.  l.) 


QUARE  IMPEDIT. 

Declaration  in  quare  impedil^  alleging  that  the 
plaintiffs  being  a  maiority  of  parties  entitled  to 
present,  nominated  W. ;  plea,  that  the  defendants 
were  the  majority,  and  nominated  P.,  traversing 
that  the  plaintiffs  were  the  majority ;  replication, 
that  the  defendants  did  not  duly  nominate  P. ; 
held  bad,  on  demurrer.  Harrington,  Earl  of,  v. 
Bishop  of  Litchfield,  4  Bing.  NT  S.  (c.  p.)  77; 
mnd  3  Sc.  371. 

And  see  Evidence, 


QUO  WARRANTO. 

1.  The  S8.  28  &  52  of  5  &  6  Will.  4,  c.  76  (Mu- 
nicipal Corporation  Act),  disqualifying  a  party 
who  becomes  bankrupt,  applies  only  where  he 
becomes  so  ailer  his  election  as  a  councillor; 
where  he  was  an  uncertificated  bankrupt  at  the 
time  of  his  election,  held  that  the  Act  dia  not  ap- 
ply.   R.  V.  Chitty,  1  Not.  &  P.  (k.  b.)  78. 

2.  It  was  no  objection  to  granting  the  writ 
■gainst  indiyidual  members  ora  corporate  body, 
at  the  instance  of  a  private  relator,  that  the  objec- 
tion made  to  the  party  holding  the  office,  may  be 
made  to  every  member  of  the  corporation,  and 
tends  to  dissolve  it  altogether.  R.  v.  White,  I 
Nev.  &,  P.  (K.  B.)  84. 

3.  Where  no  civil  right  of  any  kind  iras  in 
question,  but  of  mere  tit&  to  compensation  to  the 
Utwn-clerk  of  a  borough,  under  the  Municipal 
Corporation  Act,  the  court  refused  a  rule  for  a  quo 
warranto.    R.  v.  Harris,  1  Nev.  &  P.  (k.  b.)  576. 

4.  The  writ  does  not  lie  for  exercising  the  of- 
fice of  a  guardian  of  the  poor  under  the  new  act 
R.  V.  Carpenter,  1  Nev.  &  P.  (k.  b.)  773. 

5.  It  is  no  objection  to  an  affidavit  in  support 
of  an  application  for  the  writ,  that  it  is  made  by 
a  party  who  cannot  himself  be  a  relator,  there 
being  otherwise  a  sufficient  one.  R.  v.  Brame,  1 
Nev.  &  P.  (K.  b.)  664. 

6.  Where  the  election  of  the  defendant  to  the 
ofiBce  of  aldennan,  who  had  a  majority  of  votes,  ^ 


was  questioned,  on  the  ground  that  the  fViU  num- 
ber of  aldermen  had  not  been  elected,  and  which 
was  alleged  to  make  void  the  defendant's  election, 
but  by  Uie  subsequent  statute  of  1  Vict.  c.  78,  s. 
2,  the  objection  was  cured,  the  court  gave  judg- 
ment for  him  on  demurrer  to  the  plaintiff's  rep- 
lication, setting  forth  the  facts  on  which  the  oo-> 
jection  was  founded  ;  and  held,  that  the  prosecu- 
tor not  having  applied  to  discontinue  the  proceed- 
ings commenced  before  the  latter  Act,  was  not 
entitled  to  his  costs  under  s.  20 ;  the  Act  of  itself 
did  not  discontinue  the  proceedings.  R.  v.  Rob- 
erts, 3  Nev.  &.  P.  (q.  B.)  395. 

7.  Where  the  offices  of  town-clerk  and  clerk  of 
the  peace  of  a  borough  had  always  been  exercised 
by  the  same  person,  and  at  an  entire  salary,  but 
by  the  Municipal  Corporation  Act  the  borough 
sessions  and  office  of  clerk  of  the  peace  were  abo- 
lished, a  grant  of  court  of  quarter  sessions  and  re- 
vival of  the  office  of  clerk  of  the  peace  subse- 
quently took  place ',  but  prior  to  the  Act  taking 
effect,  S.  had  been  appointed  to  the  office  of 
town-clerk,  the  resolution  however  for  appoint- 
ing him  was  afterwards  rescinded  and  the  oefen- 
dant,  T.,  appointed.  Upon  amotion  for  a  quo  war- 
rantOy  held,  that  S.,  if  even  appointed,  was  legal- 
ly displacedi  and  that  he  could  not  enter  into  the 
question  of  the  meetings  of  the  council  not  hav- 
ing been  duly  convened,  those  grounds  not  being 
stated  in  the  role  or  affidavits,  and  that  T.  having 
acted  in  the  office  of  clerk  of  the  peace  prior  to 
its  revival,  was  not  a  ground  for  the  motion  ;  he 
having  aAerwards  a  legal  title,  and  the  rule  not 
seeking  to  make  him  responsible  for  acts  during 
the  intermediate  period.  R.  v.  Thomas.  3  Nev. 
&  P.  (q.  B.)  288. 

8.  A  party  subject  as  an  inhabitant  to  the  gov- 
ernment of  the  councillors,  has  a  sufficient  inter- 
est to  be  a  relator,  and  where  he  is  acting  with 
others  not  qualified,  yet  unless  he  is  so  fiir  iden- 
tified with  them  as  to  disqualify  himself,  the  court 
will  ascertain  the  real  relator,  and  see  if  he  be  suf- 
ficient ;  held,  also,  that  it  is  not  an  objection  to 
the  interference  of  the  court  that  the  objection 
applies  to  all  the  existing  burgesses,  and  that  the 
effect  may  be  to  dissolve  the  corporation ;  in  ev- 
ery case  the  court  will  look  to  all  the  circumstan- 
ces and  motives,  and  exercise  its  discretion; 
where  there  had  been  great  irregularity,  the  ap- 

flication  was  discharged,  without  costs.    R.  v. 
'arry,  6  Ad.  &  Ell.  (k.  b.)  810. 

9.  In  a  borough  divided  into  wards,  under  5  dk 
6  W.  4,  c.  76,  assessors  must  be  chosen  for  the 
mayor's  ward  under  s.  43,  not  for  the  whole  bo- 
rough under  s.  37.  lb. 

10.  The  court  refused  to  compel  the  relators 
and  defendants  in  several  informations,  to  stibmit 
to  be  bound  by  the  result  of  one,  although  the  ob- 
jections were  the  same.  R.  v.  Cozens,  6  Dowl. 
(p.  c.)  3;  and  2  Nev.  &  P.  (a.  b.)  164. 

11.  Where  the  franchise  of  granting  alehouse 
licences  had  been  always  exercised  without  op- 
position by  the  vice-chancellor  of  the  university, 
and  lieen  recognised  in  ancient  statutes,  the  court 
refused  a  quo  toarranto  to  try  its  validity ;  and, 

rn'e,  if  such  was  the  subject  of  quo  wamaUoP 
V.  Archdall,  3  Nev.  dk  P.  (q.  b.)  696. 


S902 


[QUO  WARRANTO— RECEIVER] 


12.  The  exemption  of  costs  to  parties  who  dis- 
continued upon  the  passing  of  7  Will.  4.  6l  1 
Vict.  c.  78,  8.  20,  held  to  be  limited  to  the  case 
of  those  discontinuing  at  the  time  of  the  passing 
of  the  Act,  and  not  where  the  application  to  dis- 
cootinue  was  delayed  until  afler  the  decision  of 
the  court  obtained  in  another  case.  Reg.  v.  Rob- 1 
arts,  3  Nev.  &,  P.  (q.  a.)  592 ;  and  7  Ad.  &  £11. 
441. 

13.  Where  the  election  of  assessor  had  been 
held  before  a  party  claiming  to  be  mayor,  whose 
title  to  the  office  was  bad,  and  a  rule  nisi  for  a 

r9  warranto  been  obtained  before  the  passing  of 
Will.  4.  <&  1  Vict.,  c.  78,  the  defendant  not 
having  paid  the  costs  up  to  that  time,  the  rule 
was  made  absolute  :  s.  20  providinti;  for  the  dis- 
continuance of  proceedings  only  being  condi- 
tional on  payment  of  costs.  R.  v.  Jones,  7  Ad. 
6l  Ell.  (<i.  B. )  430  J  and  2  Nev.  &  P.  577. 

And  see  Charter;  Corporation;  Mandamus; 
Officer. 


RAILWAY  ACTS. 

1.  Where  a  navigation  company  were  empow- 
ered to  take  lands  ror  the  purposes  of  the  intended 
line  of  improved  navigation,  within  five  years, 
and  to  complete  the  works  within  15  years,  and 
they  had  proceeded  according  to  the  prescribed 
plan  up  to  a  certain  point,  from  whence  they  had 
continued  the  works  over  their  own  private  prop- 
erty, being  a  deviation  beyond  that  allowed  by 
the  Act ;  in  assessing  the  value  of  lands  taken, 
the  juries  were  authorized  to  assess  as  well  the 
value  of  the  lands,  and  also  what  recompense  for 
damage  before  sustained,  or  for  future  temporary 
or  continuing  of  any  recurring  damages  occa- 
sioned by  the  undertaking ;  and  held,  that  "  re- 
curring damages"  were  to  be  taken  tjusdem  gen- 
eris, with  those  which  had  already  arisen,  and 
that  the  jury  could  not  include  in  their  verdict 
contingent  damages,  which  might  never  occur  at 
all,  and  as  to  such,  their  verdict  was  a  nullity  ; 
when  a  new  description  of  damage  ensued,  it 
would  be  open  to  the  party  to  have  a  new  remedy, 
either  by  action  or  by  a  jury  ;  held  also,  that  un- 
less the  Parliamentarv  line  had  been  finally  aban- 
doned, the  company  had  a  right  at  any  time  with- 
in the  15  years,  to  take  the  lands  required,  on  pav- 
ment  or  tender  of  its  assessed  value,  and  might 
go  on  simultaneously  with  the  navigation,  and 
also  with  a  trararoad  to  communicate  therewith. 
Lee  V.  Milner,  2  Mees.  &  W.  (ex.)  824. 

2.  Where  the  act  expressly  declared,  that  the 
shares  should  be  personal  property  to  all  intents 
and  purposes,  held,  that  a  sale  was  not  within  the 
Statute  of  Frauds,  as  of  an  interest  in  land,  and 
would  be  ^ood,  although  by  verbal  contract ;  and 
■o,  even  without  such  clause.  Bradley  r.  Holds- 
worth,  3  Mees.  &  W  (£z.)  422. 

3.  Where  by  a  railroad  act,  parties  in  posses- 
sion of  lands  taken  by  the  company  were  to  be 
deemed  lawfully  entitled,  until  the  contrary 
shown  to  the  satisfaction  of  the  court,  and  that 
where  the  party  could  not  make  out  a  good  title, 
the  aompany  should  pay  in  the  amount,  subject 


to  the  disposition  of  the  court ;  held,  that  the  par- 
ty on  his  own  affidavit  of  title,  was  entitled  to  to 
order  for  the  payment  of  money  to  him  for  his  ab- 
solute use.    Grainge,  ex  parte,  3  Tounge  &,  C. 

(ex.  xq.)  62. 

4.  Where  by  a  railway  Act  the  company  weie 
liable  to  pay  the  costs  of  obtaining  orders  for  pay- 
ment of  dividends  of  purchase-money  invested ; 
held,  not  to  extend  to  the  costs  of  payment  of  the 
dividends.  Athorpe,  ex  parte,  3  Yoange  &  C. 
(EX.  E<i.)  396. 

5.  Where  the  act  declared  that  no  action  should 
be  brought  against  any  person  for  anything  done 
in  pursuance  of  it,  without  21  days'  notice  given 
to  the  intended  defendant,  held  to  indode  the 
company,  and  that  they  were  entitled  to  notier 
of  an  action  for  obstructing  a  road  which  the 
plaintiff  claimed  to  use.  Boyd  v.  Croydon  Rail- 
way Company,  4  Bing.  N.  S.  (c.  p.)  669 ;  6  Se. 
461  ;  and  6  Dowl.  (p.  c.)  721. 

6.  Where  afler  one  railway  company  had  en- 
tered into  an  engagement  for  the  purcfaiaae  of  16 
acres  of  land  ^  the  plaintiff,  a  rival  company 
started,  and  both  lines  being  before  Parliament,  it 
was  agreed  that  the  merits  should  be  referred  to 
certain  members  of  the  committee,  and  that  the 
company  adopted  should  take  the  engagements  of 
the  other,  which  the  plaintiff,  the  owner  of  tlie 
land,  assented  to ;  the  adopted  company,  being 
incorporated,  requiring  16  acres  of  the  plaintifrs 
land,  in  a  different  situation,  he  filed  a  bill  for  en- 
forcing the  performance  of  the  agreement,  and  to 
restrain  the  company  from  entering  into  any 
lands  of  his  until  the  instalments  due  were  paid, 
and  from  proceeding  when  future  instalments 
became  due  until  they  should  be  paid  ;  held,  that 
there  being  on  the  face  of  the  bill  a  case  entitling 
the  plaintiff  to  relief,  the  demurrer  overruled. 
Stanley  v.  Chester  and  Birkenhead  Railway 
Company,  3  My  I.  &  Cr.  (ch.)  773. 

7.  Where  there  was  nothing  in  the  Act  rd- 
dering  it  compulsory  on  the  company  to  cany 
goods,  and  if  they  were  liable  as  common  carrien 
it  might  be  enforced  by  action,  a  nuindamus  re- 
fused.   Robins,  ex  parte,  7  Dowl.  (p.  c.)  568. 

And  see  Carrier  ;  Certiorari;  Contract;  Fnftd' 
sition  ;  Pleading  (c.  L.) 


RECEIVER. 

1.  The  court  has  no  jurisdiction  to  compel,  ia 
a  summary  way,  the  executor  of  a  receiver  to 
pass  his  accounts,  and  pay  over  the  balance.  Jeo- 
kins  r.  Briant,  7  Sim.  (ch.)  171. 


2.  The  court  granted  a  receiver,  at  the  ii 
of  an  executor,  pending  a  suit  in  the  Ecelesiaati 
cal  Court  for  annulling  probate,  the  defendant, 
who  was  impeaching  it,  having  prevented  hiss 
from  getting  in  the  assets.    Marr  v.  Littlewood, 
2  Myl.  <&  Cr.  (ch.)  454. 

3.  Where  a  party  entitled  to  a  share  in  the 
proceeds  of  estates  directed  to  be  sold  and  diviil- 
ed,  subject  to  a  previous  life-estate,  got  into  po^- 
session  of  part  during  the  lift  of  the  tenaat  ftr 


[RECEIVER— RELEASE] 


2903 


life ;  the  coart,  having  appointed  a  receiver,  re- 
fuaed  by  an  interlocntory  order  to  fix  such  party 
with  an  occQpation>rent  prior  to  the  date  of  the 
order  fixing  the  rent  and  appointing  the  receiver. 
Lloyd  V.  Mason,  2  Myl.  &  Cr.  (ch.)  487. 

4.  Where  several  of  parties  interested  declined 
joining  in  the  application  for  a  receiver  before 
answer ;  held,  that  the  circumstance  of  the  party 
having  the  administration  being  an  uncertificated 
bankrupt,  and  not  appointed  to  the  office  by  the 
testator,  were  not  sufficient  reasons  for  inducing 
the  court  to  appoint  one.  It  must  be  a  strong 
case  to  induce  the  court  to  dispossess  a  party  who 
is  interested,  and  has  the  legal  title,  unless  the 
other  parties  consent.  Smith  v.  Smith,  2  Younge 
(ex.  sq  )  353. 

5.  A  receiver  is  bound  to  retain  a  control  over, 
and  cannot  in  an^  way  pledge  the  property  by 
way  of  indemnifying  his  sureties ;  and  held, 
therefore,  that  he  was  liable  to  interest  on  the  losses 
of  sums  received  by  his  sureties  at  bankers  who 
had  failed.  Bat  where  an  order  has  been  made 
to  pay  over  funds  to  a  party  who  dies  before  pay- 
ment, he  is  only  bound  to  retain  the  custody 
until  by  proceedings  in  court  he  is  enabled  to  pay 
them  over.  White  v.  Baugh,  3  CI.  &  Fi.  (p.)  44 ; 
and  9  Bli.  N.  S.  181. 

6.  On  a  devise  by  A.  of  copyholds  and  lease- 
holds, on  trust  to  pay  the  rents  and  profiu  to  C. 
for  life,  to  her  separate  use,  without  power  of 
anticipation,  and  a  devise  by  B.  of  freeholds  on 
the  like  trusts  for  C,  who  was  a  feme  sole,  on 
the  death  of  A.,  btit  married  on  the  death  of  B., 
and  who  had  joined  with  her  husband  in  granting 
annuities  charged  on  both  estates :  the  husband 
having  become  insolvent,  an  injunction  and  re- 
ceiver granted  on  a  suit  by  the  annuitant,  for 
payment  of  the  annuities  out  of  the  estates,  as  to 
the  former,  but  refused  as  to  the  latter,  as  the 
rents  and  profits  were  not  capable  of  being  se- 
cured pend'mg  the  cause,  and  the  question  not 
being  such  as  could  be  decided  on  an  interlocu- 
tory motion.    Tullett  v.  Armstrong,  1  K.  (ch.) 

7.  Although  the  court  will  appoint  a  receiver 
pendente  lite  in  the  Ecclesiastical  Court,  as  to  the 
validity  of  the  will,  it  will  not  on  that  ground 
alone  order  the  executor  to  pay  into  court  money 
in  his  hands  of  the  testotor.  Reed  v.  Harris,  7 
Sim.  (cH.)  639. 

8.  Not  allowed  for  expenses  and  remuneration 
for  journies  into  a  foreign  country,  for  the  pros- 
ecution of  suits  there  in  recovering  the  outstand- 
ing estate  of  a  testator.  Malcolm  «.  O'Callaghan, 
3  Myl.  &  Cr.  (ch.)  52. 

9.  Where,  pending  disputes,  the  rents  were 
fallen  into  arrear,  and  a  suit  had  been  instituted 
by  the  party  entitled  to  the  rents  for  life,  against 
the  trustees,  the  court  appointed  a  receiver,  with 
costs,  to  be  paid  by  the  defendants.  Wilson  v. 
Wilson,  2  Keene,  (ch.)  249. 

10.  In  a  clear  case  of  equitable  mortgage,  the 
Court  will  appoint  a  receiver,  if  by  delay  in  doing 
■o  the  mortgagee  will  be  placed  in  a  worse  situa- 
tion. Aberdem  «.  Chitty,  3  Toung'&C.  (ex. 
sq.)  379. 


11 .  The  decree  for  sale  of  an  equitable  security 
not  being  within  the  7  Greo.  2,  c.  29,  the  Court 
will  exei-cise  its  general  jurisdiction  in  ordering 
the  defendant  to  pay  costs.  lb. 

12.  Where  a  party  indebted  to  the  estate  for 
which  a  receiver  had  been  appointed,  was  willing 
to  pay  a  sum  due  into  court,  in  order  to  save 
poundage,  the  Court  permitted  him  to  do  so. 
Haigh  V.  Grattan,  1  Beav.  (ch.)  201. 

13.  Where  it  was  the  duty  of  the  trustee  to 
raise  a  sum  by  sale  of  the  devised  estates,  and  by 
the  omission  infant  legatees  might  be  deprived  of 
the  intended  advancement ;  held,  a  sufficient 
ground  for  the  appointmet  of  a  receiver.  Rich- 
ards V.  Perkins,  3  Younge  Sl  C.  (ex.  xq.)  299. 

And  see  Tntstee. 


RECITAL. 
See  Deed, 


RECOGNIZANCE. 

1.  A  recognizance  refused  to  be  discharged 
without  notice  to  the  Attorney- General,  although 
the  forfeiture  accrued  to  the.  city  of  Ijondon. 
Morris,  ex  parte,  1  Mees.  &.  W.  (xx.)  510;  and  1 
Tyr.  <&  Gr  805. 

2.  In  sei.fa.  upon  a  recognizance  for  payment 
of  costs,  occasioned  by  a  claim  to  goods  seised,  in 
case  they  should  be  adjudged  forfeited ;  held  to 
be  immaterial  for  whose  benefit  the  recognizance 
was  entered  into ;  and  it  was  for  the  defendant  to 
show  the  condition  to  have  been  performed.  R. 
V.  Bullock,  1  Mees.  &  W.  (ex.)  726;  and  1  Tyr. 
&  Gr.  998. 


RECOVERY. 

1.  Application  to  amend  the  warrant  of  attor- 
ney, only  by  transposing  the  names,  refused.  La- 
ment, vouchee,  3  Bing.  N.  S.  (c.  p.)  297;  and  3 
Sc.  666. 

2.  Amendment,  by  inserting  "right  of  free 
warren,"  allowed  under  3  &  4  Will.  4,  c.  74,  s. 
8;  the  right  having  always  gone  with  the  proper 
ty,  and  the  deed  to  lead  the  uses  containmg  the 
word  hereditaments,  Twisden,  in  re,  4  Bing.  N. 
S.  (c.  p.)  253. 

And  see  Pines, 


RELEASE. 

Upon  the  sale  of  a  policy  of  insurance,  one 
of  the  conditions  bein^  for  payment  of  interest  on 
the  purchase-money,  if  the  completion  of  the  pur- 
chase-money should  be  delayed ;  held,  that  being 
in  the  nature  of  an  additional  price,  a  release  ex- 
ecuted by  the  plaintiff,  whereby  he  exonerated  the 


2904 


[RELEASE— REPLEVIN] 


defendant  from  the  parehase-money  and  every 
part  thereof,  was  a  bar  to  an  action  for  interest ; 
so,  on  the  ptirchaae-monej.  Harding  v.  Ambler, 
3  Mees.  &  W.  (ex.)  279. 

And  see  Bond;  Injunction. 


REMAINDER. 

1.  Where  lands  settled  were  sold  by  the  tenant 
for  life  to  a  company,  under  an  act  directing  the 
money  to  be  laid  out  in  lands,  to  be  settled  to  the 
same  uses,  and  he  purchased  lands  of  very  nearly 
the  same  amount,  but  died  before  they  were  set- 
tled, and  they  descended  to  his  heir-at-law,  being 
also  the  ^rst  tenant  in  tail ;  the  court,  presuming 
that  he  had  purchased  with  reference  to  his  obli- 
gation, dismissed  a  bill  by  the  remainder* man 
against  the  company  and  the  executors  for  the 
purchase  money.  Tubbs  v.  Broadwood,  ii  Rubs. 
A  M.  (CH.)  4^ ;  and  confirmed  on  appeal. 

2.  Where  the  testator  having  devised  lands  to 
his  wife  during  widowhood,  remainder  to  his  nep- 
hew for  life,  remainder  to  the  children  of  the  nep- 
hew as  tenants  in  common,  and  if  no  child  of  bis 
nephew  at  the  death  or  marriage  of  his  widow, 
then  over,  by  a  codicil  he  directed  that  neither  his 
nephew  nor  any  of  his  children  should  take  a  ves- 
tecT  interest,  unless  they  should  attain  21 ,  and  in 
case  any  of  them  should  die  under  that  age,  their 
•hares  should  go  to  the  survivors  on  attaining 
that  age  ;  held,  that  the  interests  of  the  children 
were  contingent  on  their  attaining  that  age  Rus- 
sell V.  Buchanan,  7  Sim.  (ch.)  628 ;  approving 
the  certificate  of  the  Court  of  Exchequer,  q.  v.  2 
Cr.  &  Mees.  561. 

3.  Where  the  devise  after  limitations  for  life, 
with  remainder  in  tail,  was,  that  **  in  default  of 
•uch  issue,  to  such  person  as  shall  be  the  nearest 
in  blood;"  held,  that  no  particular  time  being 
expressed  when  the  remainder  was  to  vest,  the 
general  rule  was  to  prevail,  and  that  it  therefore 
vested  in  interest  upon  the  death  of  the  testatrix. 
Stert  V.  Flatel,  5  Bing.  N.  S.  (c.  p.)  434. 

4.  Where  A.,  the  father,  was  seised  of  one 
moiety  of  a  copyhold  for  life,  remainder  to  his 
dtnghter  B.  in  tail,  remainder  to  A.  in  fee ;  B. 
being  married,  and  having  issue  five  children, 
became  seised  also  of  the  other  moiety  in  fee  on 
her  mother's  death,  who  had  covenanted  to  settle 
it  in  the  same  way  as  the  other,  but  bad  died 
without  doing  so,  B.  afterwards,  in  pursuance  of 
such  covenant,  surrendered  her  moiety,  and  there- 
by both  moieties  became  settled  in  A.  for  life,  re- 
mainder to  B.  in  tail,  remainder  to  A.  in  fee ;  and 
on  the  same  day,  A.  and  B.  surrendered  the  en- 
tirety, for  the  purpose  of  suffering  a  recovery, 
which  was  done,  and  the  uses  dechred  to  be  to 
A.  for  life,  remainder  to  B.  for  life,  remainder  to 
the  heirs  of  the  survivor  ;  on  the  same  day.  A., 
in  pursuance  of  his  covenant  in  his  daughter's 
marriage-settlement,  surrendered  a  moiety  to 
trustees  in  trust  for  the  husband  of  B.  for  life, 
remainder  to  B.  for  life,  remainder  to  B.'s  child- 
ren in  tail  successively,  remainder  to  the  heirs  of 
B.,  with  powera  to  sell,  exchange,  and  vary  the 

4itc.;  in  1778,  A^  B.,  and  her  hoaband. 


surrendered  one  moiety  to  L.,  and  the  tmalees, 
at  the  instance  of  B.  and  her  husband,  surren- 
dered the  other  moiety  to  L.  in  fee,  who  ever 
since  continued  in  possession ;  A.  died  in  1602, 
and  B.  in  1835,  when  the  lessor  of  plaintiff  claim- 
ed as  heir :  held,  1st,  that  claiming  the  contin- 
gent remainder  as  heir,  he  might  bring  ejectment 
before  admittance ;  2dly,  tliat  the  uses  of  the  re- 
covery in  1778,  creating  such  contingent  remain- 
der  as  voluntary,  were  void  under  2/  Eliz.,  c  4, 
Dfainst  a  purchaser  for  a  valuable  consideration, 
the  plain  intention  of  such  surrender  being  to 
make  an  effectual  sale  to  L.  Doe  v.  Roltey  3 
Nev.  &  P.  (<i.  B.)  648. 

And  see  Copyhold, 


RENEWAL. 
See  Lease, 


REPLEVIN. 

1 .  Replevin  lies  for  the  wrongful  detainer  of 
goods  taken  under  a  lawful  distress ;  and  a  plea, 
that  after  the  taking  for  a  rent-service  and  before 
impounding,  the  rent  and  costs  were  tendered, 
held  good.  Evans  r.  Elliott,  6  Nev.  &  M.  (k.  b.) 
606 ;  and  5  Ad.  dt  Ell.  142. 

2.  Where,  the  declaration  being  dated  before 
the  first  day  of  Easter  1834,  the  defendant  wtt 
not  precluded  from  avowing  doubly,  and  the  jwy 
found  a  less  rent  due  than  was  claimed  by  the 
avowry,  and  the  defendant  did  not  apply  to 
amend,  the  contest  being,  in  fact,  as  to  what  waa 
the  rent,  the  court  refused  an  application  for  a 
new  trial,  and  to  amend  the  avowry.  Seijeant  v. 
Chafy,  5  Ad.  &  Ell.  (k.  b.)  354. 

3.  The  court  refused  to  hear  the  summing  op 
of  the  judge  from  a  shorthand-writer's  notes,    lb. 

4.  In  case  for  irregular  proceedings  on  a  dis- 
tress ;  one  count  alle|ring  that  the  defendant  had 
sold  the  goods  distrained,  after  the  sheriff  bad 
granted  a  replevin  ;  plea,  alleging  that  the  right 
to  grant  replevins  belonged  to  the  lord  of  the  ma- 
nor of  C,  who  had  made  no  default  in  granting 
the  deliverance,  and  that  the  sheriff  had  not  re- 
quested him  to  replevy,  but  had  granted  it  out  of 
his  county  court ;  held,  that  the  sheriff  had  no 
concurrent  jurisdiction,  but  that  the  declaration 
ought  to  have  averred  that  the  defendant  knew 
of  the  goods  having  been  replevied.  Bionnsej 
V.  Dawson,  1  Nev.  &  P.  (x.  b.)  763. 

5.  Plea  to  an  avowry  for  rent,  that  the  avowant 
demised  and  transferred  the  premises  to  the  pUtn- 
tiff  for  the  residue  of  the  term,  and  had  no  inte- 
rest in  the  reversion,  held  good }  and  a  replien- 
tion,  that,  upon  a  reference,  the  arbitrator  had  bj 
his  award  given  a  power  of  distraining,  withooft 
averring  that  such  power  was  a  matter  in  differ- 
ence, or  that  he  had  power  to  confer  it,  held  iU. 
Pascoe  t?.  Pascoe,  3  Bmg.  N.  S.  (c.  p.)  896. 

6.  Where  the  plaintiff  in  replevin,  a  married 
woman,  her  hniband  living  abroad,  took  thm 


[REPLEVIN— REaUBSTS,  COURT  OF] 


2006 


premiaeB  of  A.,  who  afterwards  sold  them  to  F., 
and  both  claimed  the  rent  coming  due  ;  she  paid 
to  A.,  and  replevied  the  distress  by  F. ;  held,  that 
the  court  could  not,  without  the  defendant's  con- 
sent, amend  the  proceedings  bj  inserting  the 
husband's  name,  unless  the  defendant  would 
withdraw  his  plea  and  avow,  the  plaintiff  being 
restrained  from  pleading  her  coverture.  Eribanke 
V.  Owen,  5  Ad.  <&  £1L  (a.  b.)  21)8. 

7.  The  court  stayed  proceed insrs  on  the  bond, 
npon  payment  into  court  of  the  valae  of  the  goods 
ascertained  by  the  Master.  Gingell  v.  TurnbuU, 
3  Bing.  N.  S.  (c.  p.)  861. 

8.  Where  the  owner  of  the  premises  in  respect 
of  which  the  distress  was  made,  executed  a  lease 
to  C.  in  his  own  name,  and  the  latter  occupied  a 
part  only  under  W.,  on  whose  behalf  the  lease 
was  obtained,  from  whom  the  landlord  had  re- 
ceived the  rent ;  held,  that  W.  might  distrain  in 
respect  of  the  part  so  occupied  by  C,  and  that 
the  latter  was  precluded  from  disputing  his  title. 
Clarke  v.  Waterton,  2M.&  Rob.  (n.  p.)  87 ;  and 
8  C.  <&  P.  315. 

9.  Where  the  issue  at  the  trial  was  as  to  the 
mmount  of  the  rent,  which  was  found  according 
to  the  avowry,  but  the  jury  found  a  different  hold- 
ing ;  held,  that  the  case  was  withiu  the  spirit  of 
3  &  4  Will.  4,  c.  42,  s.  24,  and  that  it  was  too 
late  for  the  plaintiff  to  take  advantage  of  the 
latter  variance,  and  that  the  defendant  mi^ht 
mmend  the  avowry  on  record,  although  the  plam- 
tiff  had  given  notice  that  he  should  rely  on  the 
variance,  and  no  application  to  amend  had  been 
made  at  the  trial.  Gayler  v.  Farrant,  4  Bing.  N. 
S.  (c.  p.)  286;  and  6  Dowl.  (p.  c.)  426. 

10.  Avowries,  alleging  that  a  certain  unknown 
person  or  persons  held  as  tenant  or  tenants  to 
the  defendant  for  a  term,  at  a  certain  rent  under 
a  demise  from  A.  to  B.,  the  said  unknown  person 
being  a  person,  6lc.  to  whom  all  the  estate  and 
interest  of  B.  became  legally  vested  by  assign- 
ment, and  the  rent  in  arrear  and  due  to  the  de- 
fendant; held  bad  on  demurrer,  and  not  sustaina- 
ble either  on  21  Hen.  8,  c.  19,  which  requires  that 
the  avowry  should  allege  that  the  defendant  was 
■eised  of  the  lands  in  which,  &c  ,  or  on  1 1  Geo. 
2,  c.  19,  which  requires  the  defendant  to  show  a 

Srivity  between  himself  and  the  tenant  of  the 
ind;  held,  also,  that  a  defect  in  the  declaration 
for  not  specifying  the  goods,  &>c.  taken,  or  the 
place  where  taken,  was  cured  by  the  avowry  jus- 
tifying the  taking  of  the  said  goods,  Ac.  m  the 
•aid  place,  although  the  avowry  itself  was  a  bad 
plea.     Banks  v.  Angell,  3  Nev.  &.  P.  («.  b.)  94. 

11.  An  avowry  for  taking  cattle  damage  fea- 
sant, in  the  locus  the  soil  of  A.,  and  another  lay- 
ing it  as  the  soil  of  B.,  held  allowable  under  Reg. 
5  Hil.  4  Will.  4.  Evans  v,  Lucas,  3  Nev.  A,  P. 
(<l.  B)  464. 

12.  No  rule  for  a  special  jury  to  be  granted  in 
replevin,  unless  there  be  an  affidavit  of  no  notice 
of  trial  having  been>  given,  or  if  given,  the  day 
for  which  ^ven ;  and  in  the  latter  case,  unless 
the  application  be  made  six  days  before  that  day ; 
but  a  Judge  may  on  summons  order  the  rule  to  be 
drawn  up  at  any  time.  Reg.  Gen.,  3  Nev.  dk  P. 
U.  B.)  1. 


13.  Where  in  replevin  a  verdict  was  taken  for 
the  plaintiff,  and  the  facts  stated  as  a  special  case, 
but  the  avowant  died  before  the  case  was  argued, 
the  courf  allowed  the  plaintiff  to  enter  judgment. 
Greene  v.  Cobden,  4  Sc.  (c.  p.)  486. 

14.  In  debt  by  the  assignee  of  a  replevin  bond, 
held,  that  the  action  might  be  brought  in  another 
court  than  that  in  which  the  re^  fa.  lo.  is  return- 
able. Wilson  r.  Hartley,  7  Dowl.  (p.  c.)  461  ; 
overruling  the  dictum  in  Sellon's  Pr.  367. 

15.  In  replevin  upon  the  issue,  no  rent  in  ar- 
rear, the  plaintiff  is  entitled  to  begin.  Co<^r  v. 
Egginton,  8  C.  &  P.  (n.  p.)  748. 

And  see  Sheriff, 


REQUESTS,  COURT  OF. 

1.  Under  the  Middlesex  Act,  held  that  the 
plaintiff  was  liable  to  be  deprived  of  costs,  although 
the  verdict  was  reduced  by  the  plea  of  the  statute 
of  limitations  ;  but  where  the  action  was  for  work, 
it:c.,  and  part  of  the  demand  was  as  a  broker,  for 
levying  a  diBtress  in  Surrey  ;  held,  that  the  action 
could  not  be  brought  in  the  county  court,  which 
requires  both  that  the  defendant  should  reside, 
and  the  cause  of  action  arise  within  the  county. 
Bailey  v.  Chitty,  2  Mees.  A  W.  (xx.)  28 ;  and  5 
Dowl.  (p.  c.)  307. 

2.  Where  the  defendant,  a  builder,  residing 
without  the  jurisdiction  of  B.,  made  bricks  for 
sale,  which  he  occasionally  sent  to  B.,  and  the 
market  of  which  he  attended;  held  not  to  be  a 
party  *^  using  or  frequenting  the  market,  or  trad- 
ing or  dealing  there,"  and  liable  to  be  sued  only 
within  the  inferior  jurisdiction  ;  those  words,  sem^ 
He,  require  that  tlie  jparty's  livelihood  should  be 
substantial/jf  obtained  by  such  acts.  Jones  «• 
Taylor,  1  Mees.  A  W.  (ex.)  578;  and  1  Tyr.  dk 
Gr.  940. 

3.  But  such  local  Act  held  equally  to  apply  to 
a  case  where  there  is  on  the  record  a  plea  of  pay* 
ment  into  court,  or  where  tried  before  the  sheriff. 
Bernard  v.  Turner,  1  Mees.  A  W.  (xx.)  584 ;  1 
Tyr.  &  Gr.  942;  and  6  Dowl.  (p.  c.)  170. 

4.  Where  the  final  judgment  is  signed  in  yaca- 
tion,  it  is  not  too  late  to  apply  for  a  suggestion  in 
the  following  term  ;  but  the  rule  will  oe  qualified 
with  the  condition  of  payment  of  costs  incurred 
by  the  plaintiff  since  toe  judgment.  Heale  «• 
Erie,  2  Mees.  A  W.  (sx.)  383. 

5.  Where  the  local  act  expressly  prohibited  the 
commissioners  from  deciding  on  any  debt  being 
the  balance  of  an  account  originally  exceeding  5{! 
held,  that  the  plaintiff,  although  recovering  less 
than  that  amount  on  a  claim  exceeding  52.,  but 
reduced  by  payments,  was  not  liable  to  costs. 
Gieen  v.  tfolton,  4  Bing.  N.  S.  (c.  p.)  308  ;  and  6 
Dowl.  (p.  c.)434. 

6.  Where  the  Westminster  act  (pleaded  by  the 
defendant)  was  repealed  ai\er  plea  and  before 
trial,  and  the  new  act  contained  no  provision  at 
to  suits  pending,  the  verdict  haying  oeen  found 
for  the  defisndant  upon  the  iime  whether  the  debt 


3906 


[REaUESTS,  COURT  OF— SESSIONS] 


amounted  to  iOs. ;  held,  that  the  plaintiff  was 
entitled  to  judgment  non  obstante.  Warne  v. 
Beresford,  6  Dowl.  (p.  c.)  157 ;  and  2  Mees.  ^ 
W.  (EX.)  848. 


t 


7.  The  Bath  Act,  45  Geo.  3,  c.  57,  held  not  to 
ive  jurisdiction  as  to  compensation  for  attending 

fore  the  Court  of  Revising  Barristers,  and  that 
the  want  of  jurisdiction  appearing  on  the  face  of 
the  proceedings,  the  obiection  might  be  made 
upon  motion  for  prohibition,  afler  the  judgment 
and  execution,  where  the  party  had  not  acquies- 
ced in  the  proceedings  below.  Roberts  t?.  Hum- 
by,  6  Dowl.  (p.  c.)  62  J  and  3  Mees.  &,  W.  (ex,) 
120. 

8.  Where  the  defendant  stated  in  his  affidavit 
for  costs  under  a  court  of  Requests  Act  (Black- 
heath  Hundred)  that  at  the  time  of  the  issuing 
of  the  writ,  he  was  of  the  Mitre  Tavern  at  G., 
in  the  Hundred  of  B.,  and  wholly  resident  there, 
and  by  the  indorsement  on  the  copy  of  the  writ  of 
summons  annexed  to  the  affidavit  the  amount  of 
the  debt  appeared  to  be  under  5^.,  held  sufficient 
to  entitle  the  defisndant  to  costs,  the  plaintiff  only 
flweartnff  to  his  being  informed  that  the  defandant 
was  resident  elsewhere.  Burton  v.  Campbell,  6 
Dowl.  (p.  c.)  451. 

9.  Where  by  the  local  Act,  sums  recovered 
were  to  be  paid  by  instalments,  and  under  such 
terms  and  conditions  as  the  court  should  think 
reasonable,  and  the  steward  of  the  manor  was  au- 
thorised to  appoint  a  deputy  steward,  to  whom 
sums  were  from  time  to  time  ordered  to  be  paid 
on  account  of  suitors,  and  a  large  sum  accumu- 
lated in  his  hands  at  the  time  of  the  death  of  the 
steward  ;  held,  that  having  received  the  money, 
not  by  virtue  of  his  office,  but  as  directed  by  the 
court,  he  received  them  to  the  use  of  the  credi- 
tors, and  was  liable  to  them  until  his  authority 
was  revoked ;  and  a  mandamus,  directing  him  to 
pay  them  over  to  the  succeeding  steward,  refused, 
ft.  V.  Watson,  2  Nev.  <fe  P.  (<(.  b.)  595. 

And  aee^Costs;  Pleading,  (c.  l.) 


RESULTING  TRUST. 

Where  the  settlor  conveyed  leaseholds,  stocks, 
funds,  and  securities  in  trust  for  himself  and  wife 
for  life,  and  afler  the  death  of  the  wife, "  of  the 
the  whole  of  the  stocks,  funds,  and  securities," 
for  the  children ;  the  wife  having  died  in  bis 
lifetime,  held  that,  as  to  the  leaseholds,  there  was 
a  resulting  trust  for  the  settlor.  Wilson  v.  Paul, 
7  Sim.  (cH.)  620. 


RIGHT,  PETITION  OF. 

Where  the  petition  of  right  was  indorsed  ^^soit 
droit  fait"  but  not  specially  referring  it  to  the 
Court ;  held,  that  it  could  not  adjudicate  thereon. 
Pering,  ex  partem  5  Dowl.  (p.  c.)  750. 


SAVINGS  BANK. 

Where  an  accumulation  arose  from  an  increase 
and  surplus  of  deposits  in  a  savings  bank,  previ- 
ous to  9  Geo.  4,  c.  92,  and  was  then  applicable  by 
the  trustees  only  for  the  benefit  of  the  depositors, 
and  the  trustees  were  by  the  rules  of  the  society 
prohibited  from  applying  such  surplus  to  any  pur- 
pose which  might  be  directly  or  indirectly  bene- 
ficial to  the  managers  :  and  by  the  22d  sect,  of 
the  act,  the  application  of  deposits  previous  to 
the  passing  of  tne  act,  was  to  be  made  pursuant 
to  the  rules  of  the  society ;  held,  that  an  applica- 
tion to  the  purpose  of  widening  a  bridge  for  whidi 
some  of  the  trustees,  as  owners  and  occapiers  of 
lands  within  the  district  were  liable  to  its  repair, 
and  might  be  liable  to  be  rated,  however  minate 
the  benefit  to  the  trustees,  rendered  such  applica- 
tion illegal,  and  the  trustees  liable  persoaaily 
for  the  misapplication  of  the  fund,  as  a  breach  of 
trust,  and  to  be  charged  with  the  costs  of  suit. 
Holmes  v.  Henty,  10  Bli.  N.  S.  (p.)  '^7. 


SCAVENGER. 

Under  the  57  Geo.  3,  c.  29  (MetropolitaB 
Paving),  the  scavenger  is  entitled  only  to  take 
awa;^  cinders,  ^c,  considered  by  the  owner  as 
rubbish,  and  where  coal,  used  in  his  trade,  was 
only  partially  burned,  and  he  removed  it  to  other 
premises  to  lie  used  for  other  purposes,  held  entitled 
so  to  do.  Filbey  v.  Combe,  2  Mees.  &  W.  (Kx.)  677. 


SCIRE  FACIAS. 

1.  Proceedings  in  sci,  fa.  on  a  judgment  are 
within  the  new  rule  of  pleading,  and  must  be 
intituled  as  of  a  day  certain  instead  of  a  terra, 
Collins  t7.  Beaumont,  5  Dowl.  (p.  c.)  700. 

2.  The  writ  cannot  be  tested  in  vacation,  not- 
withstanding the  provisions  of  s.  12  of  the  Uni* 
formity  of  Process  Act,  not  being  one  of  the  writs 
mentioned^  therein.  Seaton  v.  Heap,  5  Dowl.  (p. 
c.)  247. 

3.  Plea  to  a  sd.  fa,,  a  writ  of  error  pending, 
held  clearly  bad.  Snook  v.  Mallock,  5  Ad.  &. 
£11.  (K.  B.)  239. 

4.  Judgment  allowed  to  be  signed  on  a  sd,  fa. 
where  something  appeared  to  have  been  done  to 
convey  notice  to  the  defendant  of  the  proceeding 
against  him.  Weatherhead  v.  Landles,  3  Sc.  (c. 
p.)  406;  and  5  Dowl.  (p.  c.)  189. 

5.  QiMsrs,  if  a  set. /a.  can  be  sued  ont  on  an  in- 
terlocutory judgment,  signed  more  than  a  year 
before ;  the  court  would  not  determine  such  a 
question  on  motion,  but  leave  the  psity  to  his 
writ  of  error.  Benn  v.  Greatwood,  6  S.  C.  (c.  p.) 
891. 


SESSIONS. 
1.  Where  notice  of  appeal  against  an  order  of 


[SESSIONS— SET-OFF] 


2907 


two  jastices,  under  53  (xeo.  3,  c.  127,  bad  been 
served  upon  one  only,  held  sufficient;  and  the 
Act  bein^  silent  as  to  notice,  the  justices  at  ses- 
sions could  not  engrail  the  requirement  of  notice 
upon  the  Act  of  Parliament.  R.  v.  Staffordshire 
Justices,  6  Ney.  &  M.  (k.  b.)  477 :  and  4  Ad.  & 
Ell.  842. 

2.  Where  a  railway  Act,  in  case  of  dispute  as 
to  the  value  of  lands  to  be  taken  for  the  purposes 
of  the  Act,  directed  it  to  be  settled  by  a  jury,  and, 
in  the  event  of  their  giving  greater  compensation 
than  offered  by  the  company,  that  the  costs  of 
summoning  the  jury  and  expenses  of  witnesses 
should  be  paid  by  tbem,  but  if  less,  then  a  moiety 
of  the  said  costs  and  expenses  was  to  be  paid  by 
the  party,  and  wbo,  by  a  subsequent  clause,  was 
to  enter  into  a  bond  to  pay  his  proportion  **  of  the 
costs  and  expenses  of  summoning  the  jury  and. 
taking  such  verdict^  and  expenses  of  witnesses," 
in  case  any  part  should  fall  on  him ;  held,  that 
iees  of  counsel  and  costs  of  the  attorney  were 

froperly  disallowed.    R.  v,  Gardiner,  1  Nev.  ^ 
'.  (K.  B.)  308. 

3.  Courts  of  quarter-sessions  in  corporate  cities, 
&c.,  may  be  divided  into  two  courts.  7  Will.  4 
&1  Vict.c.  19. 

4.  The  court  cannot  direct  the  sessions  to  ro« 
hear  an  appeal  on  the  ground  of  the  reiection  of 
evidence.  Pratt,  ex  parte,  2  Nev.  &  P.  (k.  b.) 
10-2. 

5.  Where  a  party  entered  into  a  recognizance 
to  keep  the  peace  before  a  single  justice,  and  was 
subsequently  convicted  of  an  assault  before  a 
petty  sessions,  and  paid  a  fine ;  held,  that  the  for* 
feiture  of  the  recognizance  not  having  taken  place 
at  the  quarter  sessions,  that  court  had  no  power 
to  estreat  it,  the  course  being  by  removal  into  the 
superior  court,  and  proceeding  by  5a.  fa,;  held, 
also,  that  although  the  order  of  the  quarter  ses- 
sions might  be  a  nullity,  yet  that  the  party  was 
entitled  to  remove  it  by  certiorari^  in  order  to  its 
being  quashed  :  held,  also,  that  since  the  3  Geo. 
4,  c.  46,  the  Court  of  Exchequer  no  longer  retains 
jurisdiction  over  recognizances  forfeited,  taken 
either  before  justices  out  of  sessions  or  at  the  quar- 
ter sessions ;  and  as  to  the  latter,  it  is  the  duty  of 
the  clerk  of  the  peace  to  put  the  law  in  motion  in 
order  to  levy  the  latter.  Bjeg.  v.  West  R.  Torks. 
Justices,  8  Nev.  &  P.  (q.  b.)  457. 

6.  Where,  on  an  appeal  against  a  county  rate, 
the  sessions  confirmed  the  rate,  subject  to  the 
opinion  of  the  Court  of  K.  fi.  on  a  case,  and  the 
court  declared  the  rate  bad,  and  quashed  the  order 
of  sessions,  but  the  rate  not  having  been  removed, 
upon  application  to  quash  the  rate,  the  sessions  re- 
fused on  the  ground  that  the  appeal  was  no  longer 
before  the  court ;  a  mandamus  to  <M>mpel  them 
was  refused,  as  having  no  right  to  direct  the  ses- 
sion as  to  what  judgment  they  ought  to  give,  and 
as  exposing  the  parties  to  actions  who  had  acted 
on  the  rate  :  and  the  objection  beinjg  made  by  the 
local  act  a  specific  ground  of  appeal,  the  court  re- 
fused, on  removal  by  certiorari  of  a  second  rate, 
against  which  no  appeal  had  been  made,  and 
which  was  sfood  on  tne  face  of  it,  to  quash  it. 
IW.  V.  Middlesex  Justices,  1  Perr.  &,  Dav.  {^.  b.) 

7.  Where,  on  an  appeal  against  a  borough  rate, 
VoT..  IV.  80 


the  original  rate  was  produced  and  inspected  by 
the  recorder  upon  an  objection  as  to  the  time 
when  made,  and  the  appeal  was  then  adjourned  at 
the  request  of  the  respondents  at  two  successive 
sessions,  when  the  rate  was  abandoned;  held, 
that  the  rate  was  sufficiently  before  the  court  to 
give  it  jurisdiction  to  confirm  the  appeal  with 
costs.  R.  V.  Stamford  Corporation,  1  Perr.  &,  D. 
{a.  B.)  72. 

8.  Where,  upon  an  appeal  in  petty  sessions 
against  a  poor  rate  under  6  J^  7  Will.  4,  c.  96«  s. 
6,  a  notice  of  appeal  from  their  decision  was  giv- 
en, and  within  five  days  afler,  recognizance  taken 
and  entered  in  the  minute  book  by  the  clerk  of 
the  petty  sessions,  bat  the  recognizances,  when 
produced,  appeared  not  to  have  been  signed  by 
any  justice;  held,  not  to  invalidate  the  recof^qi* 
zances,  and  a  mandamus  granted  to  the  sessions 
to  enter  continuances  and  hear  the  appeal.  R, 
V.  St.  Alban's  Justices,  1  Perr.  &  O.  (<i,  b.)  148. 


9.  Where  the  notice  of  application  to  the 
sions  for  an  order  of  maintenance  on  the  putative 
father  of  a  bastard  child  was  signed  only  by  the 
overseers  and  not  by  either  churchwar<len,  held 
bad,  and  that  the  sessions  properly  dismissed  the 
application.  Reg.  v.  Cambridgeshire  Justices, 
1  Perr.  &^  Dav.  (<l.  b.)  249. 

10.  Where,  upon  an  appeal  a^^inst  an  order  of 
removal,  the  court  upon  objection  decided  that 
the  notice  was  invalid,  but  afterwards,  upon  look- 
ing at  the  order,  decided  that  it  was  itself  a  nul- 
lity, and  they  thereupon  quashed  it ;  held,  that 
the  sessions,  not  being  ousted  of  their  jurisdic- 
tion by  reason  of  the  invalidity  of  the  notice,  and 
having  decided,  although,  as  it  appeared,  errone- 
ously, on  the  merits  of  the  order,  the  court  would 
not  disturb  their  decision.  R.  v.  Cheshire  Jus- 
tices, 1  Perr.  6l  Dav.  (^  b.)  88. 

11.  Where  the  appeal  was,  by  press  of  bosiiiess, 
made  a  remanet,  and  before  the  next  sessions  t^ 
fresh  and  varying  statement  of  the  grounds  of 
appeal  given  ;  held,  that  the  sessions  nfeie  bound 
to  hear  Uie  appeal  on  the  latter  statement  R.  v. 
Derbyshire  Justices,  3  Nev.  &  P.  (q.  b.)  ^91. 

12.  The  finding  of  a  grai^d  jury  of  forgeiy  at 
the  quarter  sessions  being  a  nullity,  ordered  by 
the  Judge  at  the  assii^s  to  be  quashed,  and  a  new 
bill  preferred.    R.  v.  Rigby,  8  C.  A  P.  (s.  p.)  770, 

And  see  Basiafd  ;  Jyry  ;  Poor, 


SET-OFF, 

1.  A  debt  due  from  a  iPst^tor  ean^ot  be  set  oiP 
in  an  action  by  the  executor  for  money  had  anu  re- 
ceived to  his  use  as  executor.  Schofield  v.  Cor- 
bett,  6  Nev.  &  M.  (k.  b.)  527. 

2.  Where  the  defendant  in  his  set-off  sought  to 
avail  himself  of  overcharges  paid  by  a  third  party, 
who  settled  previous  bifis ;  held  that  he  netng 
dead,  the  aooounta  could  not  be  opened.  Lawes 
V.  Eastmure,  8  C.  &  P.  (n.  p.)  205. 

3.  Where  the  plaintiff  shipped  jafoods  and  be- 
came a  passenger  to  India  in  the  defendant's  ship, 


[SET45PF— SHERIFF] 


•and  on  a  loss,  by  atrikiuff  on  a  rock  near  the  Cape, 
the  fooda  were  damaged  nearly  to  the  ^alae,  and 
the  amount  of  the  insurance  waa  received  by  the 
defendant,  the  captain  refusing  to  carry  on  the 
pasaeoffen  unless  iresh  arrangements  were  made, 
and  which  were  declined  by  Uie  plaintiff,  and  the 
voyage  not  haying  been  completed  the  plaintiff 
claimed  to  be  allowed  the  sums  paid  for  freight 
of  the  goods  and  his  passage-money  ;  held,  that 
the  defendant  was  entitled  to  set-off  the  passage- 
money  unless  it  were  shown  to  belong  to  me 
owners,  but  not  the  freight,  which  was  not  doe, 
unless  the  ship  arrived ;  nor  any  sum  not  actually 
paid  by  him  oefore  the  action  brought,  although 
ne  might  have  made  himself  liable  topay  them. 
Leman  v.  Gordon,  8  C.  &  P.  (n.  p.)  392. 

4.  Where  the  plea  set  up  an  agreemeat,  by 
which  the  plaintiff's  intestate  guaranteed  sums  to 
be  advanced  by  the  defendant ;  held,  that  the  lia- 
bility, not  being  capable  of  being  assessed  without 
the  intervention  or  a  jury  and  sounding  in  unli- 
quidated damages,  could  not  be  the  subject  of  set- 
off. Morley  o.  Inglis,  4  Bing.  N.  S.  (c.  p.)  58 ; 
and  6  DowL  (p.  c.)  203 ;  3  £.  314 ;  supporting 
Crawford  v.  Stirling,  4  £sp.  266. 

5.  Where  tin  plea  of  set-off  alleged  that  the 
plaintiff  1MU  inaebted  in  a  certain  sum,  but  omitted 
^*  and  still  is,"  held  bad  on  demurrer.  Dendy  v. 
Powell,  3  Mees.  &  W.  (kx.)  442. 

6.  Where  the  parties  had  expressly  agreed  that 
a  particular  question  should  be  tried  between 
them,  the  court  refused  to  allow  the  defendant  an 
advantage  of  a  set-off  which  it  was  the  intention 
of  both  he  should  not  have.  Gould  v,  Oliver,  6 
Sc.  (c.  p.)  648. 

7.  Where  a  verdict  was  given  against  the  plea 
of  set-off,  and  the  defendant  afterwards  brought 
an  action  for  such  cause  of  action,  held  that  he 
was  estopped  from  suing  for  the  same  demand, 
and  a  plea  stating  the  former  action,  and  that  the 
second  action  was  for  recovery  of  the  identical 
claim  specified  in  that  set-off,  was  not  answered 
by  a  replication  that  no  evidence  was  offered  to 
substantiate  the  plea  of  set-off.  Eastmure  v. 
Laws,  5  Bing.  N.  S.  (c.  p.)  444;  and  7  Dowl.  (p. 
c.)  431. 

And  see  ^gerU ;  Bankrupt;  Costs ;  Debt  ;  Um; 
Pauper;  Pl&iMng^  (c.  L.) 


SEWERS. 

The  Commissioners  have  no  jurisdiction  to 
make  a  rate  upon  a  township.  Emmerson  v. 
Saltmarsh,  2  Nev.  6l  P.  (i^.  b.)  446. 

And  see  Action  on  the  Case. 


[A]  Liability  or. 

1,  In  case  against  the  sheriff  for  a  false  return 
of  nulla  bona,  to  which  the  only  plea  waa  not 
guilty ;  held  that,  upon  such  plea,  the  only  mat- 
ter in  issue  was  the  fact  of  having  the  money  in 
his  possession,  and  his  making  the  return  atatra  io 
the  declaration ;  and  that  in  Uie  term  inducementj 
in  Reg.  Hil.  4  Will.  4,  c.  1,  was  included  every- 
thing not  involved  in  the  charge  alleged  against 
the  sheriff ;  and  he  could  not  tl^refore  avaif  him- 
self on  that  defence  of  the  bankruptcy  of  the 
debtor  before  the  execution  of  the  writ  Wright 
V.  Lainson,  2  Mees.  &  W.  (xx.)  739. 


SHERIFF. 


[A]  Liability  of. 
fB]  Intfrpleader. 
[C]  Trials  befoex. 


2.  And  semb,  in  such  case,  the  petitkniiiig 
creditor  is  a  competent  witness  for  the  deftndaiit. 
lb. 

3.  in  escape  againat  the  sheriff,  held  that  he 
was  bound  by  his  return,  both  as  to  the  fact  of  ar- 
rest, and  also  as  to  the  day  on  which  made.  Cook 
V,  Round,  1  M.  &  Rob.  (n.  p.)  512. 

4.  In  trespass  against  the  sheriff  for  taking 
goods  of  plaintiff  under  an  execntioD  against 
another ;  held  that,  if  the  execution  creditor  has 
indemnified  the  sheriff,  his  statements  are  evi- 
dence.   Proctor  «.  Lainaon,  7  C.  A;  P.  (ir.  p.)  689. 

5.  In  case  against  the  sheriff  for  executing  an 
attachment  against  a  party  in  contempt  for  not 
obeying  an  order  of  the  Court  of  ChanceiTv  by 
attaching  the  body,  he  "  being  then  privilq^ 
from  bemff  so  attached,  and  the  defendant  well 
knowing,  &o. ;  held,  that  the  declaration  waa 
bad  for  not  showing  the  nature  of  the  privilege^ 
and  that  it  was  such  as  to  prevent  the  ordinazy 
duty  of  the  sheriff;  and  quare,  if  such  action  was 
roamtainable  ?  Lloyd  v.  Wood,  5  Ad.  dt  EIL 
(K.  b.)  228. 

&  In  debt  against  the  sheriff,  on  32  Geo.  2,  e. 
28,  s  1  &  12,  for  taking  the  plaintiff  to  prison 
within  24  hours,  the  plamtiff  not  having  refosed 
to  nominate  a  place,  Ac. ;  nlea,  that  the  deiend- 
ant  informed  the  plaintiff  she  mi^ht  be  carried  to 
a  safe,  4lc.,  of  her  own  nomination,  and  tJwt  ahe 
thereupon  consented  to  be  taken  to  the  h€«ae  af 
L.,  and  waa  accordinsly  taken  there  ;  bat  afkr* 
wards  requested,  wi&in  24  hours,  to  be  taken 
from  thence  to  prison ;  and  issue  upon  sneh  eon- 
sent  to  be  taken  to  the  house  of  L. ;  held,  that  the 
plea  was  a  sufficient  answer  to  the  deelantion. 
Under  the  statute,  the  prisoner  may  abandon  the 
right  to  nominate  a  house,  and  circumstano?s  may 
amount  to  a  refusal  to  nominate ;  the  sheriff  may 
exercise  a  discretion  whether  a  house  nominated 
is  a  safe  and  convenient  place  of  custody  ;  but  if 
the  prisoner  desires  to  be  taken  to  a  house  for  the 
purpose  of  consulting  one  there,  that  is  not  to  be 
deemed  a  nomination  of  a  place  within  the  statute. 
Silk  9.  Humphery,  4  Ad.  &  EU.  (x.  a.)  959. 

7.  Where,  in  case  for  a  false  return,  the  decla- 
ration alleged  the  seizing  and  taking  the  goods  is 
execution,  and  that  the  defendant  then  levied  the 
debt  thereout ;  plea,  that  he  did  not  take  the  goods, 
&c.,  and  levy,  &c.,  moda  et  forma ;  held  Md,  as 
tendering  too  large  an  issue,  and  rendering  it  in- 
cumbent on  the  plaintiff  to  prove  more  t&n  ha 
was  bound  to  do.    Stubbs  v.  l^inaon,  1  Mees.  A 


[SHERIFF] 


2M9 


W.  (bx  )  728;  1  Tyr.  &  Gr.  1000 ;  and  6  Dowl. 
(p.  c.)  les. 

8.  Where  in  an  action  on  28  Eliz«  c.  4,  against 
the  aherifF  for  extortion,  the  declaration  stated 
that  he  took  **  more  and  other  consideration  than 
10  by  the  statute  limited  and  appointed  in  that  be* 
half,  that  is  to  say,  divers  large  sums  of  money, in 
the  whole  amounting  to  £,— — ,  more  than  is  in 
the  said  act  limited  and  appointed  in  that  behalf ;" 
held  bad,  on  special  demurrer.  Ashby  v.  Harries, 
1  Nev.  &  P.  (K.  B.)  673 ;  and  5  Dowl.  (p.  c)  742. 

9.  Although  the  sheriff's  replevin-clerk  is  not 
bound  to  go  about  to  inquire  as  to  the  sufficiency 
of  the  sureties,  yet  where  he  had  confined  his  in- 
quuriea  to  the  parties  alone ;  held,  that  the  jury 
were  warranted  in  finding  that  reasonable  cau- 
tion had  not  been  used ;  the  bond  having  been 
taken  for  granted  at  the  trial,  though  not  pro- 
duced, and  stated  to  have  been  for  double  the 
value  of  the  goods  taken,  a  motion  to  increase  the 
damages  beyond  its  amount,  refused.  Jeffery  v. 
BasUrd,  6  Nev.  &  M.  (k.  b.)  303  ;  and  4  Ad.  & 
£11.  823. 

10.  Where  the  old  sheriff,  not  having  sold 
goods  seized,  is  distrained,  and  a  motion  made  to 
increase  issues,  the  court  will  allow  it  to  be  for 
the  whole  amount,  and  further  to  cover  the  costs 
oi  delay  and  of  the  application,  and  it  is  absolute 
in  the  first  insUnce.  No  well  v-  Underwood,  5 
Dowl.  (p.  c.)  229. 

11.  In  order  to  entitle  a  party  to  an  attachment 
against  the  sheriff  for  not  obeying  a  Judge's 
order  to  return  the  writ,  the  original  order  must 
be  shown  at  the  time  of  serving  the  copy.  Gran- 
ger t?.  Fry,  5  Dowl.  (p.  c.)  21. 

12-  Where  the  plaintiff  was  entitled  to  an 
attachment  for  not  obeying  a  Judge's  order  in 
vacation  to  bring  in  the  body ;  held  uat  he  ought 
to  have  applied  promptly  in  the  following  term. 
R.  o.  Sheriff  of  Middlesex,  5  Dowl.  (p.  c.)  245. 

13.  The  application  to  set  aside  the  attachment 
•gainst  the  sheriff  on  staying  proceedings  on  the 
bail-bond,  to  be  grounded  hereafter  on  an  affi- 
davit of  merits,  or  if  made  on  the  part  of  the 
sheriff,  &«.,  on  an  affidavit  that  it  is  really  made 
on  the  part  of  the  sheriff,  &e.,  at  his  expense, 
and  for  his  indemnity,  and  without  eollusion 
with  the  defendant  Reg.  Gen.,  Hil.  7  Will.  4, 
S  Mees.  6l  W.  (ex.)  219. 


14.  Where,  after  the  warden  was  in  contempt 
for  not  bringing  in  the  bodj  after  a  return  of  c^' 
corpus^  notwiustanding  bail  had  been  justified, 
after  attending  to  protest  and  oppose  them ;  held 
no  waiver  of  the  irregularity,  and  the  warden  still 
subject  to  an  attachment,  but  the  money  paid  by 
him  allowed  to  be  returned,  on  terms.  Smith  v. 
Andrews,  2  Mees.  Sc  W.  (ex.)  536  \  and  5  Dowl. 
(p.  c.)  ei07. 

15.  It  is  the  duty  of  the  sheriff,  since  the 
Uniformity  of  Process  Act,  to  arrest  the  party 
upon  the  capias  on  the  first  opportunity  that  he 
can,  and  if  he  does  not,  he  is  liable  to  answer  in 
damages  for  the  neglect ;  but,  scmb,^  there  must 
be  proof  of  damage.  Brown  v.  Jarvis,  1  Mees.  & 
W.  (EX.)  704 ;  1  Tyr.  &  Gr.  1033 ;  and  5  Dowl. 
(p.  c.)  281. 


16.  The  eourt  refused  to  order  the  sheriff  to  re- 
fund money  in  his  hand  to  the  defendant,  on  the 
ground  of  the  action  having  been  defended  by  nn 
attorney,  until  it  were  ascertained  whether  the 
attorney  were  insolvent  or  not.  Stanhope  r. 
Eavery,  5  Dowl.  (p.  c.)  357. 

17.  Where  the  sheriff  is  ruled  in  vacation  to 
bring  in  the  body  or  return  the  writ,  the  court 
will  not  fix  the  sheriff  with  costs  of  any  irregular- 
ity between  the  default  and  attachment,  unless 
the  plaintiff,  so  soon  as  he  discovers  the  irregu- 
larity, gives  notice  of  his  intention  to  proceed 
against  him.  R.  v.  Sheriff  of  Essex,  1  Mees.  & 
W.  (EX.)  720. 

18.  Where  the  sheriff  levied  and  sold  under  a 
)E./a.,  and,  after  notice  of  the  defendant  having 
petitioned  for  his  discharge  under  the  Insolvent 
Act,  returned  juri  fed  ;  held,  that  he  was  bound 
by  such  return,  notwithstanding  the  defendant* s 
subsequent  discharge.  Field  v.  Smith,  2  Mees. 
db  W.  (ex.)  388;  and  5  Dowl.  (p.  c.)  735. 

19.  The  Court  will  not  compel  the  sheriff  to 
make  his  return  to  the  writ  where  the  parties 
have  compromised,  and  he  has  notice  not  to  do 
so,  although  made  behind  the  back  of  the  plain- 
tiff's attorney.  Hedges  v.  Jordan,  5  Dowl.  (p. 
c.)  6. 

20.  Where  the  writ  directed  to  the  sheriff  con- 
tained no  non  arnitUu  clause,  and  was  issuod  by 
him  to  the  bailiff  of  a  liberty,  and,  aiUr  botli 
officers  obtaining  time  to  return  it,  the  sheriil'  re- 
turned cepi  Corp. ;  held,  that  the  bailiff,  by  apply- 
ing for  time,  was  not  precluded  from  Iinving  ilic 
rule  for  returning  the  mandate  discharged,  the 
plaintiff  having  obtained  all  that  he  had  a  right 
to  require.  Jackson  v.  Tavlor,  5  Dowl.  (p.  c.) 
140;  and  5  Dowl.  (p.  c.)  212. 

21.  On  an  application  to  set  aside  a  warrant  of 
attorney,  given  to  secure  an  annuity,  it  cannot 
be  made  a  part  of  the  rule  to  stay  proceedings 
against  the  sheriff  for  a  false  return  to  the  exe- 
cution issued  thereon.  Cassellv.  Lord  Glengall, 
5  Dowl.  (p.  c.)  269. 

22.  Where  the  plaintiff  might  have  proceeded 
to  trial  at  the  third  sittings,  held,  that  a  trial  was 
not  lost,  so  as  to  enable  the  plaintiff  to  have  the 
attachment  stand  as  a  security :  according  to  the 
old  practice,  there  was  no  distinction  as  to  the 
sittings.  R.  «.  Sheriff  of  Shropshire,  5  Dowl. 
(p.  c.)  526. 


23.  After  bail  put  in,  it  is  the  duty  of  the  at- 
torney to  except  before  he  can  attach  the  sheriff 
for  not  bringing  in  the  body,  although  notice  of 
justification  given.  R.  v.  Sheriff  of  London,  5 
Dowl.  (p.  c.)  387. 

24.  Where  the  plaintiff,  by  letter  to  the  under- 
sheriff,  desired  him  to  direct  writs  to  B.  and  M., 
and  added,  "  1  shall  write  to  B.  in  a  day  or  two ;" 
held  to  amount  to  an  appointment  of  B.  and  M. 
to  be  his  own  bailiffs  to  make  the  arrest,  and  to 
have  been  a  suspension  of  the  authority,  and  con- 
sequent liability  of  the  sheriff  for  the  escape  of 
the  party  who  had  been  discharged  on  givmg 
bail  in  another  suit,  before  B.  and  M.  had  been 
instructed  by  the  pbuntiff.  Ford  v.  Leche,  1  Ney. 
^  P.  (X.  B.)  737. 


3910 


[SHERIFF] 


25.  Sheriff's  roles  (eioept  lor  London  and{ 
Middlesex)  to  return  writs  on  mesne  or  final  pro- 
cess, or  to  bring  in  the  body,  in  future  to  be  eight, 
instead  of  six  day  rules.  Reg.  Gen.  3  Bing.  N. 
S.  (c.  p.)  386 ;  2  Mees.  &  W.  (ss.)  1 ;  and  1  Ney. 
(Sl  p.  (k.  b.)  1. 

26.  Fees  payable  to  the  sheriffii  on  the  execu- 
tion of  civil  process  regulated  by  1  Vict.  c.  55. 

27.  The  sheriff  is  bound  to  return  the  writ  with- 
in a  reasonable  time,  although  he  would  not  be  in 
contempt  until  he  had  been  ruled  to  do  so ;  and 
held,  that  the  arrest  having  been  made  in  August 
and  no  return  until  after  being  ruled  in  October, 
he  had  not  returned  it  according  to  the  exigency 
of  the  writ;  held,  also,  that  although  his  officer 
making  the  arrest  on  a  bailable  cafnas,  is  not  bound 
to  receive  the  amount  of  debt  and  costs  indorsed 
on  the  writ,  yet  if  he  does  so,  the  sheriff  is  liable 
to  the  plaintiff  for  it  Woodman  v.  Gist,  6  C.  & 
P.  (H.  p.)  213. 

28.  Where  the  sheriff  pleaded  that  he  Was  law- 
fully in  a  part  of  the  house  of  the  party,  occupied 
by  a  lodger,  and  that  the  communication  between 
the  two  was  open,  and  that  in  order  to  take  out  the 
goods  seised  under  a  fi.  fa.  it  was  necessary  to 
break  the  outer  door,  which  was  Icicked,  and  that 
there  being  no, one  to  request  to  open  it,  that  he 
opened  it  in  order  to  execute  the  writ ;  held  that 
he  was  justified  in  breaking  the  lock  for  that  pur- 
pose, and  that  it  was  not  necessary  he  should  aver 
that  the  trespass  was  not  occasioned  by  his  own  de- 
fault    Pugh  r.  Griffith,  3  Nev.  &  P.  (<i.  b.)  187. 

29.  Where  the  plaintiff  in  trespass  for  taking 
goods,  drc.  claimed  under  a  sale  by  the  sheriff, 
held  that,  under  the  plea  that  the  goods  were  not 
the  plaintiff's,  he  might  show  that  the  sale  by  the 
sheriff  was  not  bona  fidt^  and  that  the  plaintiff 
had  himself  seized  the  goods  subsequently  in  exe- 
cution for  his  debt  from  the  same  party.  Ashley 
V.  Minnett,  3  Hev,  A  P.  (q.  b)  231. 

30.  In  trespass  against  the  sheriff  for  false  im- 
prisonment, pfea,  justifying  under  an  attachment 
out  of  Chancery,  and  the  replication  only  stated 
the  detainer  by  the  deAsndant  aAer  thirty  days, 
contrary  to  the  11  Geo.  4,  and  1  Will.  4,  c.  36,  s. 
15  ;  held  on  demurrer  that  the  replication  was 
bad,  the  sheriff  not  being  a  trespasser  ab  initio, 
the  action  of  trespass  was  not  maintainable  ;  and 
semb.,  if  in  case,  it  ought  to  appear  that  the  sheriff 
had  notice  of  the  contempt  for  which  the  party 
was  in  custody,  and  when  the  legal  term  of  im- 

Erisonroent   expired.      Smith   r.    Eggiogton,  6 
>owl.  (p.  c.)  38;  and  2  Nev.  <&  P.  (k.  b.)  143. 

31 .  The  sheriff  being  only  liable  to  pay  the 
plaintiff  the  damages  which  he  has  sustained,  the 
court  will  stay  the  proceedings  in  an  action 
against  the  acceptor  of  a  bill  of  exchange  t>n  pay- 
ment of  debt  and  costs  «n  that  action  only,  al- 
though another  action  against  the  drawer  may 
also  be  pending.  Vftughan  •.  Harris,  3  Mees.  & 
W.  (EX.)  542. 

32.  In  case  against  the  slieriff  for  not  levying, 
and  for  a  false  return  of  ntdUi  bona  to  a  JE.  fa. ; 
held  tliat  tlie  plea  of  not  guilty,  admits  the  judg- 
ment, writ  and  delivery  thereof,  goods  withm 
his  bailiwick  and  notice  thereof,  and  that  he  can 


only  ayail  himself,  as  a  defence,  that  be  did  )awf 
within  a  reasonable  time,  and  that  he  did  not 
make  the  return  alleged.  Lewis  v.  Alcock,  € 
Dowl,  (p.  c.)  389. 

33.  Where  cepi  corpus  has  been  returned,  it  is 
immaterial  whether  it  was  so  under  a  jad|pe's  o>^ 
der  or  not,  and  the  attachment  is  regoiar.  Ber- 
tram V.  Davis,  6  Dowl.  (p.  c.)  180. 

34.  In  an  action  against  him,  for  not  arrestioff 
a  parly  on  a  capias,  ^ea  alleging  that  the  plaintia 
did  not  furnish  the  sherin  with  informatsoo  to 
enable  him  to  identify  and  arrest,  and  that  before 
the  arrest  the  plaintiff  countermanded  it ;  held 
bad  on  demurrer,  being  so,  as  to  the  former  part 
of  the  plea,  the  plaintiff  not  being  boand  to  fur- 
nish information,  and  the  countermand  not  coyer* 
ing  the  whole  time  from  the  delivery  to  the  re- 
turn of  the  writ.  Dyke  v.  Duke,  4  Bing.  N.  S. 
(c.  p.)  197. 

35.  Where  the  bailiff  of  a  franchise  received 
an  instrument,  on  the  face  of  it  a  commoo  she- 
riff  *s  warrant  to  levy,  and  having  commanicalcd 
it  to  the  lord,  by  his  direction  paid  the  proceeds, 
not  to  the  sheriff,  but  to  assignees  of  plaintiff; 
held  to  be  an  adoption  of  the  warrant  binding  on 
him  to  make  a  return.  Platel  v.  Dowae,  4  Bug. 
N.  S.  (c.  p.)  204. 

36.  The  property  in  goods  taken  in  ezecutioa 
is  not  changed  by  the  delivery  of  the  writ  to  the 
sheriff  until  sale  by  him,  but  remains  still  in  the 
debtor,  and  may  be  dealt  with  by  him,  subject  to 
the  claims  upon  it  and  to  the  execution ;  where 
by  taking  security  for  the  debt  of  a  third  person, 
and  other  circumstances,  there  was  evidence  lor 
the  jury  to  presume  an  abandonment  by  the 
creditor  of  his  writ  of  execution,  and  the  debtor 
bona  fide  transferred  the  property  to  the  plaintifE^ 
held  that  he  might  maintain  trespass  against  the 
execution  creditor  for  the  seiture  and  subsequent 
sale  of  the  goods.  Samuel  v.  Duke,  3  Mees.  4k 
W.  (EX.)  6^. 

37.  The  affidavit  for  setting  aside  the  attach- 
ment on  the  bail  bond  must  allege  the  appUoataoB 
**  for  his  indemnity  only,"  where  the  last  words 
were  inserted  "  only  indemnity,"  held  irregnlar ; 
alleging  the  form  in  the  books  of  practice  to  be 
erroneous.  R.  v.  Cheshire  Sheriff,  dkc.,  3  Mees. 
&.  W.  (EX.)  605. 

38.  Garland  t.  Carlisle  affirmed  in  error,  4 
Bing.  (ir.  s.)  7 ;  and  4  Sc.  587. 

39.  Where  the  writ  of  capias,  and  rule  to  re- 
turn it  were  delivered  to  the  sheriff  at  the  same 
time,  and  the  sheriff  returned  non  est  tmr.  two 
days  afler ;  the  court  refused  to  interfere,  leav- 
ing the  party  to  his  action,  if  any  neglect  of  dn^ 
in  endeavoring  to  apprehend  the  party.  Evens 
V.  James,  6  Sc.  (c.  p.)  354. 

40.  Where  the  sheriff  had  taken  parties  on  an 
attachment  for  non-payment  of  money  into  court 
pursuant  to  order,  and  let  them  go  out  of  custody 
on  giving  bail,  the  court  allowed  his  liability  to 
be  terminated  by  the  defendant's  paying  into  the 
Bank,  to  the  credit  of  the  cause,  the  sum  men- 
tioned in  the  order,  and  20^.  deposit  in  the  sheriff  ^s 
hands  for  the  relator's  costa  occasioned  by  the  de- 
fault, and  thereupon  to  be  discharged  as  to  their 


[SHERIFF] 


291t 


eontempt.     Attorney-general  v.  Mills,  1  Coop. 
(cR.  c.)  261. 

41.  A  warrant  obtained  from  the  office  of  the 
Ijondon  agents  of  the  sheriff,  held  sufficient  to 
connect  the  sheriff  with  the  acts  of  the  officer 
execntinfr  it.  Shepherd  v.  Wheeble,  8  C.  &>  P. 
(R.  r.)<>34. 

42.  A  mere  request  that  a  particular  person 
named  should  be  employed,  held  not  to  constitute 
him  a  special  bailiff  of  the  party,  and  to  relieve 
the  sheriff.  Corbet  t,  firown,  d  Dowl.  (p.  c.) 
794. 

43.  Where  the  party  bein^  arrested  on  a  capias^ 
the  copy  served  directed  bail  to  be  put  in  in  the 
Exchequer ;  held  that  the  omission  to  put  in  bail 
was  not  a  ground  for  an  attachment  a^inst  the 
sheriff  for  not  bringing  in  the  body.  Mayhew  v. 
Hoadley,6  Dowl.  (p.  c.)  629. 

44.  Where  the  sheriff  had  neglected  to  arrest 
the  defendant  in  an  action  by  the  indorsee  against 
the  acceptor,  and  an  action  was  brought  against 
him,  the  court  directed  the  proceedings  to  be 
stayed  upon  payment  of  the  debt  and  costs  in 
that  action  only.  Ball  v.  Blackwood,  6  Dowl. 
(p.  c.)  589. 

45.  Where,  upon  the  seizure  by  the  sheriff  at 
the  suit  of  an  execution  creditor,  and  claim  made 
on  the  ground  of  assignment  as  a  security  for 
money,  and  the  sheriff  having  obtained  the  rule, 
the  plaintiff  did  not  appear,  the  court  ordered  the 
sheriff  to  withdraw  and  to  be  discharged  from  all 
proceedings  by  the  execution  creditor  in  respect 
of  his  seizure  of  the  goods  so  claimed.  Doble  v. 
Cnmmins,  2  Nev.  &  P.  (q.  b.)  575;  and  7  Ad.  & 
£11. 680. 

46.  A  return  to  a  JL  /a.  that  he  had  seized  by 
virtue  of  that  and  another  writ,  goods,  &c.  which 
xemained  unsold  for  want  of  buyers ;  held  bad, 
as  one  must  have  a  priority,  and  also  for  not  stat- 
ing the  value  of  the  goods  seized ;  although  he 
might  not  be  bound  by  the  value  returned,  he 
must  make  a  return  as  to  their  value  as  well  as 
he  can.  Wiotle  v.  Lord  Chetwjrnd,  7  Dowl.  (p. 
c.)554. 

47.  In  case  against  the  sheriff,  the  first  count 
stating  that  the  plaintiff  having  obtained  a  judg- 
ment m  the  county  court,  sued  out  ^fi.fa.  airect- 
ed  to  the  sheriff  to  levy,  and  that  although  there 
were  goods,  &c.,  his  bailiff  refused  to  levy,  and 
falsely  returned,  &c. ;  held,  not  to  disclose  a  suf- 
ficient cause  of  action  against  the  sheriff,  who 
acted  judicially  only :  a  second  count,  stating  a 
judgment  recovered  by  the  plaintiff  in  K.  B.,  and 
jk.Ja.  issued,  and  alleging  a  false  return  of  want 
of  buyers  ;  the  third  count  stating  another  judg- 
ment in  K.  B.,  and  against  the  same  defendant, 
and  writ  of  jE.  fa.  alleging  a  like  false  return;  to 
the  two  last  counts,  the  defendant,  by  his  plea 
averring  the  identity  of  the  judgments,  &c.,  al- 
leged that  tbeplaintiff  afterwards  impleaded  the 
defendant  in  KT.  B.,  and  recovered  judgment  on 
the  former  judgments,  whereby  they  became 
merged,  the  former  writs  waived,  and  the  defen- 
dant discharged  ;  held,  on  demurrer,  that  the 
p^a  was  no  answer  to  the  action.  Pilcher  v. 
King,  1  Perr.  &  Dav.  (q.  b.)  297. 


48.  Where  the  second  writ  lodged  against  the 
party  was,  by  mistake,  omitted  to  be  entered  in- 
the  index  book,  and  the  former  writ  having  been 
withdrawn,  the  gaoler  turned  the  prisoner  out; 
held  to  be  a  voluntary  escape,  and  that  a  subse- 
quent retaking  by  the  sheriff  was  void,  and  the 
party  entitled  to  be  discharged  ;  and  the  custody 
being  illegal,  the  lapse  of  time  was  not  a  waiver' 
of  the  objection ;  but  without  costs,  unless  an 
undertaking  given  to  bring  no  action.  Felwood' 
V.  Clement,  6  Dowl.  (p.  c.)  508. 

49.  The  four  first  rules  of  Trin.  Term,  1  Will. 
4,  only  apply  to  cases  where  bail  is  put  in  in  the 
ordinary  course,  and  not  to  cases  in  which  the 
sheriff  is  obliged  not  only  to  put  in,  but  also  to 
justify  bail ;  and  where,  therefore,  an  attachment 
had  issued  against  him  for  not  bringing  in  the 
body,  the  court  could  not  relieve  him  on  entering 
a  common  appearance  under  1  &  2  Vict.  c.  1 10, 
s.  7.  R.  r.  Middlesex  Sheriff,  7  Dowl.  (p.  c.) 
82;  and  4  Mees.  <&  W.  (ex.)  529. 

50.  in  case  against  the  sheriff  for  a  false  re- 
turn of  nvUa  bona  to  a  Ji.  fa.^  the  defence  being 
that  the  goods  had  passed  to  the  assi^rnees  of  the 
debtor;  held  not  necessary  to  put  in  the  deposi- 
tion of  the  petitioning  creditor  to  show  what  the 
debt  was,  as  he  might  show  a  different  debt.  Birt 
V.  Stephenson,  8  C.  A  P.  (n.  p.)  741. 

51.  The  court  refused  to  set  aside  the  attach- 
ment, on  an  application  at  his  instance,  where 
the  bail-bond  hud  been  taken  with  only  one  se- 
curity. R.  V.  Sheriff  of  Middlesex,  7  Dowl.  ^p. 
c.)  313. 

52.  The  riffht  to  poundage  under  29  Eliz.  c.  4, 
is  not  affected  by  the  1  Vict.  c.  55,  or  the  table  of 
fees  made  under  it.  Davies  v.  Griffitlis,  4  Mees. 
Sl  W.  (ex  )  377;  and  7  Dowl.  (p.  c.)  204. 

53.  Where  an  indemnity  bond  had  been  fraudu- 
lently obtained  by  the  sheriff's  officer,  held  that 
it  formed  a  good  plea  to  an  action  on  the  bond  by 
the  sheriff.  Raphael  v.  Groodman,  2  Nev.  &  Jr. 
(q.  B.)  547. 

And  see  Arrest;  Bankrupt;  Costs;  Evidenu;' 
Ezecutian;  Pleading;  Trespass;  Witness, 


[B]  Interpleader. 

1 .  Where  the  sheriff  had  paid  over  the  proceeds 
of  the  execution  to  the  creditor,  the  court  could 
not  interfere,  although  he  offered  to  bring  the 
same  amount  into  court.  Inland  v.  Bushell,  & 
Dowl.  (p.  c.)  147. 

2.  Where  the  rule  obtained  by  the  sheriff  was 
discharged  ;  held,  that  he  was  still  entitled  to  a 
resjBonanle  time  to  make  his  return,  and  that  an 
attachment,  issued  immediately  after  the  inter- 
pleading rule  discharged,  was  irregular.  R.  v. 
Hertfordshire  Sheriff,  5  Dowl.  (p.  c.)  144. 

3.  The  court  has  no  power  to  dispose  summa- 
rily of  a  case  on  an  interpleading  rule  without 
the  consent  of  both  the  plaintiff  and  claimant, 
but  only  to  grant  an  issne.  Curie  wis  v.  Pocock, 
5Dowl.  (p.c.)381. 


»i3 


[SHERIFF] 


4.  Where  the  exeeatioa  creditor  did  not  ap- 
pear, and  the  sheriff  appeared  to  have  acted 
under  bis  direction,  and  to  have  misconducted 
himself  subsequently  to  the  seizure,  the  court 
ordered  the  creditor  to  be  barred,  and  the  goods 
restored  to  the  claimant,  who  was  to  be  at  Imerty 
to  sue  the  sheriff  or  the  execution  creditor  if  it 
should  turn  out  that  they  had  misconducted 
themselves.  Lewis  v.  Jones,  2  Mees.  &  W.  fsx.) 
203.  ^      ^ 

5.  Where  neither  the  plaintiff  nor  defendant 
appeared  after  service  of  the  sheriff's  rule  upon  a 
claim  by  a  third  part^,  a  sale  of  so  much  of  the 
goods  as  would  be  suffacient  to  satisfy  the  sheriff's 
poundage  and  expenses  ordered,  and  the  rest  of 
the  gi>ods  to  be  abandoned.  Eveleigh  v.  Salis- 
bury, 3  Sc.  (c.  p.)  674 ;  3  Bing.  N.  S.  298;  and 
5  Dowl  (p.  c.)  369 

6.  Where  an  order  for  relief  is  made  by  con- 
sent, by  a  Judge  at  chambers,  the  case  comes 
within  the  act,  and  the  party  succeeding  must 
apply  to  the  court  to  obtain  his  costs.  Matthews 
V.  Sims,  5  Dowl.  (p.  c.)  235. 

7.  The  sheriff's  rule  is  in  existence  for  the 

Eurpose  of  an  application  for  coats,  although  it 
as  not  been  formally  continued  from  term  to 
term.  Levy  v.  Champneys,  4  Ad.  CSl  £11.  (k.  b.) 
365. 

8.  The  sheriff  is  not  entitled  to  costs,  although 
the  ezecqtion  creditor  fails  to  appear.  Beswick 
».  Thomas,  5  Dowl.  (p.  c.)  458. 

9.  The  sheriff  must  apply  in  the  term  next 
after  the  claim  made,  in  sufficient  time  to  enable 
the  other  party  to  show  cause  in  that  term,  or  the 
rule  will  either  be  dischar^d,  or  he  must  pay  the 
costs  of  both  the  other  parties.  Beale  v.  Overton, 
2  Mees.  &  W.  (ex.)  534 ;  and  5  Do#l.  (p.  c.) 
599.  ^ 

10.  Where  the  declaration  contained  a  count 
in  case  and  one  in  trover ;  held,  that  the  court 
had  no  jurisdiction  under  1  &,  2  Will.  4,  c.  68,  s. 
1.    Lawrence  v.  Matthews, 5  Dowl.  (p.  c.)  149. 

11.  Where  the  sheriff,  after  entering  for  the 
purpose  of  levying,  upon  the  claim  made,  had 
-withdrawn,  held  not  entitled  to  the  relief  under 
•the  act  Holton  v.  Guntrip,  6  Dowl.  (p.  c.)  130 ; 
«nd  2  Mees.  &  W.  (EX.)  145. 

12.  Where  the  claim  was  made  under  a  bill  of 
«de,  bearing  date  after  the  levy,  the  court  dis- 
charged the  application  by  the  sheriff,  with  costs 
of  the  esecution  creditor.  Ozfordshiie  Sheriff, 
in  re,  6  Dowl.  (p.  c.)  136. 

13.  On  a  rale,  the  claimant  as  execution  credi* 
tor,  held  entitled  to  be  heard,  without  any  affida- 
vit Angus  V,  Wootton,  3  Mees.  St  W.  (ex.) 
310.  ^      ' 


allowed  to   deduct  the   expenses  of  the  ale. 
Bland  t>.  Delano,  6  Dowl.  (p.  c.)  293. 

15  Unless  there  is  anything  to  show  that  the 
conduct  of  the  party  is  vexatious,  the  sheriff  is 
not  entitled  to  be  paid  his  aosts  by  the  claimant 
of  the  goods,  upon  an  arrangement  beiojr  nude 
between  the  parties.  Cox  v,  Fenn,  7  DowL  (p 
c.)50. 

And  see  JfUerpleader,l3]  and  stqtra^  [AJ  45i. 


[CJ  Trials  before. 

1.  Where  the  action  was  in  substance  for  the 
price  of  a  pony ;  held,  that  it  was  a  case  within 
the  3  &  4  Will.  4,  c.  42,  s.  17,  nor  would  the 
court  set  aside  the  trial  before  the  sheriff  on  the 
ground  that  the  case  was  not  within  the  statute 
at  the  instance  of  the  plaintiff  who  had  obtained 
the  writ  of  trial.  Price  v.  Morgan,  2  Mees.  A. 
W.  (ex.)  53. 

2.  An  action  on  a  building  contract,  ultimately 
referred,  held  a  fit  case  to  be  tried  at  nisi  prnL 
and  that  the  Judge  who  tried  it  might  certify  at 

*"7«i""®'    ^'^Sgref  r .  Hawke,  3  Bing.  N.  sf  (c. 

P" )  ooi . 

3.  The  court  will  not  sanction  a  party,  neither 
barrister  nor  attorney,  to  act  before  the  sheriff- 
and  a  rule  by  the  latter  not  to  permit  any  one,  noc 
a  barrister,  to  be  heard  for  a  party  who  declined 
to  conduct  his  case  in  person,  approved  of.  Tribe 
V.  Wmgfield,  2  Mees.  &  W.  (ex.)  12B. 

4.  After  an  issue  delivered  in  the  osoal  fwm 
for  trial  at  nisi  prius,  and  a  subeeonent  order  for 
trial  before  the  sheriff;  held,  that  Uie  former  isaoe 
ought  to  have  been  amended,  and  that  the  deliv- 
ery of  it  in  the  original  form  was  irxesolar. 
Ward  V.  Peel,  1  Mees.  A  W.  Cex.)  743 ;  1  Tvr 
&  Gr.  1 135;  and  5  Dowl.  (p.  c.)  169.  ^' 

5.  Where  the  date  of  the  writ  of  summons  was 
incorrectly  stated  in  the  writ  of  trial,  held  fataL 
and  the  verdict  set  aside.  Wight  v,  Peneis.  5 
Dowl.  (p.  c.)  463. 

6.  After  the  trial,  at  which  the  defendant  ap- 
peared and  defended,  the  court  reftised  to  set 
aside  the  verdict  on  the  ground  of  variance  be- 
tween the  writ  of  summons  and  writ  of  trial,  but 
would  ffive  leave  to  amend  on  payment  of  coata. 
Perci val ».  Connell,  3  Bing.  N.  S.  (c.  p.)  «77. 


14.  Where  an  issue  is  directed,  the  party  suc- 
ceeding may  apply  for  costs  of  Uie  issue,  inter- 
pleading rule,  and  of  the  application  before  the 
judgment  was  signed,  on  undert^ing  to  sign  it ; 
but  the  court  would  not  order  the  sheriff  to  pay 
costs,  unless  misconduct  were  shown ;  and  where 
he  e&ots  a  sale  and  pays  the  proceeds  by  order 
into  court  for  the  benefit  of  all  parties,  he  will  be 


7.  Where  an  action  had  been  tried  befine  tbe 
sheriff  against  carriers  for  nejg^gence ;  held,  that 
having  no  power  to  try  saeh  a  cause,  the  court 
would  not  order  the  ffottea  to  be  delivered  to  the 
defendant,  but  set  aside  the  judgment  Smith  w. 
Brown,  5  Dowl.  (p.  c.)  736. 

8.  The  sheriff  has  no  power  on  a  writ  of  trial 
to  certifjr  that  the  freehold  or  bankruptcy  came 
in  question,  although,  upon  the  application  before 
the  Judge  for  a  trial  before  the  sheriff,  it  may  be 
imposed  as  a  term.  Pritchard  v,  M'GilL  2  Mees. 
&  W.  (EX.)  380 ;  and  5  Dowl.  (p.  c.)  731. 

9.  The  sheriff  has  no  power  to  certify  under 
43  Eliz.  c.  6,  to  deprive  the  plaintiff  of  coets 
where  the  verdict  is  under  40». ;  it  should  he 
stated  at  the  time  of  applying  for  the  writ  of  trial. 
Jones  V.  Bond,  5  DowL  (p.  c.)  455. 


[SHERIFF— SHIP] 


8918 


10.  TJie  court  wiU  not  interfere  to  diiturb  tlie 
Terdict  when  under  5i.,  althongh  alleged  to  be 
against  evidence.  Lyddon  v.  Combes,  5  Dowl. 
(p.  c.)  660. 

11.  So,  where  less  tlian  U.  had  been  recovered 
before  the  sherifT,  a  new  trial  refused,  although  it 
appeared  that  the  work  was  under  a  joint  employ- 
ment, and  that  actions  were  pending  at  the  suit 
of  the  others.  Williams  r.  Evans,  2  Mees.  &  W. 
(EX.)  220. 

12.  On  an  application  for  a  new  trial,  upon 
affidavits  verifying  a  copy  of  the  under-sheriif's 
notes,  held  that  affidavits  of  evidence  taken,  but 
not  appearing  on  his  notes,  were  admissible. 
Lilley  v.  Johnson,  2  Mees.  &  W.  (ex.)  386 ;  and 
5  Dowl.  (p.  c.)  606. 

13.  Where  the  cause  had  been  made  a  remanety 
and  the  writ  was  returnable  on  the  day  before  the 
trial,  the  court  would  allow,  if  necessary,  the  writ 
to  be  amended  by  altering  the  return.  Sherman 
V. Tinsley,  4  Sc.  (c.  p.)  235. 

14.  Where  an  action  of  tort  against  carriers 
had  been  tried  by  consent  before  the  sheriff,  held, 
that  not  being  competent  to  trj^  it,  neither  were 
entitled  to  sign  judgment,  which  was  therefore 
Bet  aside.  Smith  v.  Brown,  2  Mees.  &  W.  (ex.) 
831. 

15.  Where  the  writ  of  trial  omitted  to  refer  to 
the  amount  sought  to  be  recovered,  which  founds 
the  jurisdiction  of  the  inferior  court,  and  is  re- 1 
quired  to  be  stated  by  the  form  by  the  Reg.  Uil. 
4  Will.  4 ;  held  a  ground  for  arresting  the  judg- 
ment ;  but  the  want  of  the  simUiter  aided  by  an 
"  Ac."  Handford  v.  Handford,  6  Dowl.  (p.  c.) 
473. 

16.  Where  the  writ  of  trial  was  returnable  on 
the  19th,  (there  being  a  court  holden  on  the  18th, 
but  which  was  adjourned  to  the  20th,  on  which 
day  the  cause  was  tried,)  held  a  mis-trial,  as  the 
plaintifi  ought  to  have  obtained  a  judge's  order 
to  extend  the  time.  Mortimer  v.  Preedy,  3  Mees. 
&  W.  602. 

17.  Where,  on  a  writ  of  trial,  a  bill  of  excep- 
tions had  been  tendered  on  account  of  the  refusal 
to  admit  evidence,  and  the  assessor  of  the  under- 
sheriff  had  refused  to  seal  it,  the  court  refused  to 
stay  judgment  or  execution.  White  v.  Hislop,  4 
Mees.  &  W.  (jex.)  73 ;  and  6  Dowl.  (p.  c.)  6U3. 


thereon ;  held,  that  the  omiision  was  immatertal. 
Hiam  v.  Smith,  6  Dowl.  (p.  c.)  710. 

20.  The  writ  of  trial  cannot  be  sent  to  the 
sheriff,  under  3  &  4  WiU.  4,  c.  4*2,  s.  17,  unless 
the  whole  debt  or  demand  ol'  the  plaintiff  is  of 
such  a  nature  as  can  be  endorsed  on  the  writ  of 
summons;  where,  therefore,  in  the  first  count 
the  plaintiff  sought  to  recover  damages  for  a 
wrongful  dismissal  -from  service,  and,  in  the  sec- 
ond, £5  195  for  arrears  of  wages,  and  the  dam- 
ages were  laid  at  £100,  held  not  within  the  statute. 
Jacquet  v.  Brown,  7  Dowl.  (p.  c.)  331 ',  and  5 
Mees.  &  W.  (ex.)  155. 

21 .  The  court  refused  a  new  trial,  in  a  case  be- 
fore the  sheriff,  where  the  verdict  in  favor  of  the 
plaintiff  was  under  £5,  on  the  ground  of  its  beinff 
against  evidence.  Fleetwood  v.  Taylor,  6  Dowl. 
(p.  c.)  796. 


18.  Where  the  declaration  on  a  contract  fhr  the 
sale  of  a  horse,  with  a  verbal  warranty,  alleged 
to  have  been  falsely  and  fraudulently  made,  was 
in  substance  an  action  to  recover  back  the  price 
paid,  under  £20,  held  to  be  within  the  3  &  4 
Will.  4,  c.  47,  8.  17 ;  held,  also,  that  parol  evi- 
dence might  be  given  of  the  warranty,  although 
the  memorandum  given  of  the  price  was  silent  as 
to  that  point,  being  merely  a  receipt,  and  not 
containing  the  terms  of  the  contract.  Allen  v. 
Pink,  4  Mees.  <&  W.  (ex.)  140;  and  6  Dowl.  (p. 
c.)  668. 

19.  Where  issues  were  joined  on  several  pleas 
in  debt,  and  demurrers  to  others,  and  the  writ  of 
trial  omitted  the  award  of  venire  to  assess  dam- 
ages on  the  latter,  but  the  plaintiff  gave  notice 
that  he  did  not  intend  to  aaiew  may  damages 


SHIP. 

1.  An  owner  retaining  the  possession  of  bis 
ship,  held  to  have  a  lien  on  tne  cargo  for  the 
freight  due  under  a  charter-party,  and  that  the 
goods  being  consigned  to  third  parties  did  not  al-* 
ter  the  principle.  Campion  v.  Colvin,  3  Bing.  N. 
S.  (c.  p.)  17  ;  and  3  Sc.  338. 

And  see  Saville  v.  Campion,  2  fi.  &  Ad.  503; 
and  Tate  v.  Meek,  8  Taunt.  280. 

2.  Where  the  charter-party  enumerated  the 
articles  of  the  homeward  voyage  from  N.,  and 
specified  freight  on  each,  with  liberty  to  fill  up  at 
M.  with  other  merchandises ;  held,  that  it  was  to 
be  construed  that  the  homeward  cargo  should 
consist  of  those  articles,  or  some  of  them,  and 
that  the  defendant  was  liable  to  pay  freight  on 
an  average  quantity  of  each,  and  tiiat  the  liberty 
to  fill  up  .meant,  merchandises  ejusdem  generis. 
Capper  ».  Forster,  3  Bing.  N.  S.  (c.  p.)  938. 

3.  In  assumpsit  against  the  charterer  for  de- 
murrage  ;  held  that,  upon  the  plea  of  the  general 
issue,  the  defendant  could  not  object  that  the 
plaintiff  had  not  complied  with  the  provisions  of 
3  &  4  Will.  4,  c.  52,  s.  108,  requiring  notice  to  be 
given  to  the  collector  of  customs,  &c  ,  previoua 
to  the  unlading;  such  a  defence  ought  to  be  spe- 
cially pleaded.  Alcock  v.  Taylor,  6  Nev.  &  M. 
(K.  B.)  296. 


4.  Where,  upon  a  contract  of  mortgage  of  the 
ship  of  which  the  plaintiff,  the  mortgagor,  was 
to  continue  the  management  and  procure  freight, 
which  was  to  go  in  discharge  of  the  mortgage 
debt;  held  that,  although  the  contract  might  be 
invalid  under  the  Ship  Registry  Acts,  yet  that 
as  the  contract  as  to  the  freight  was  distinct 
from  and  not  depending  on  the  title  to  the  ship, 
a  suit  for  an  account  of  the  freight  might  be 
maintained ;  (reversing  the  decision  of  the  Mas- 
ter of  the  Rolls).  Davenport  v.  Whitmore,  2 
Myl.  4&  Cr.  (cH.)  177. 

5.  In  assumpsit  for  repairs  against  a  partowner, 
held  that,  afler  a  release,  a  co-partowner  was  a 
cohapetent  witness  for  the  defendant.  Jones  r. 
Fritcbard,  2  Meet.  &  W.  (ex.)  199. 


9914 


[smp] 


6.  Where  an  anchor  bad  been  attached  to  a 
yessel  ashore,  by  a  party  who  had  rendered  assist- 
ance, and  had  quitted  oniy  for  the  purpose  of 
removing  part  of  the  cargo,  with  the  intention  of 
returning,  and  in  the  meantime  the  anchor  and 
hawser  nad  been  carried  away  and  delivered  to 
the  defendant,  as  deputy  vice-admiral  of  E  ,  with- 
in whosH  limits  ihe  vessel  was ;  the  dr^fendant 
h.iviiip  rof'ijspd  to  rjolsvcr  up  th«^  articles  unlfss 
&alvd|^c  w'iis  paid  or  socurcii,  h''ld,  in  trover,  that 
they  could  not  be  deemed  to  have  been  left  at 
sea'within  the  meaning  of  1  ^  2  Geo.  4,  c.  75,  s. 
],  and  that  the  refusal  amounted  to  a  conversion. 
Semb  it  would  not  have  been  so,  if  the  defendant 
had  only  refused  to  deliver  the  goods  until  it 
could  be  ascertainPTl  whether  salvage  was  due  or 
not.  Clark  v.  Chamberlain,  2  Mees.  &  W.  (ex.)\ 
78. 

7.  The  master,  before  he  resorts  to  a  bottomry 
bond,  is  bound  to  ascertain  whether  the  supplies 
can  be  obtained  on  the  personal  credit  of  the  own- 
ers; and,  where  a  party  is  bound  to  know  a  fact, 
he  must  show  that  he  has  exercised  due  diligence 
to  ascertain  the  fact.  Heathorn  v.  Darling,  1 
Moore,  (p.  c.)  5. 

8.  In  covenant  on  a  deed  poll,  dated  21  st  Octo- 
ber, for  the  sale  of  a  ship,  then  on  a  foreign  voy- 
age, and  it  appeared  that  on  the  12th  the  ship 
had  got  on  shore,  and  was  left  by  the  crew  on  the 
sands,  but  they  aflerwards  had  access  to  her,  and 
if  there  had  been  facilities  she  might  have  been 
repaired  ;  held,  that  the  simple  bargain  and  sale 
•did  not  imply  that  it  was  then  sea  worthy,  and 
bein?  still  a  ship^  though  from  circumstances  not 
4:»pable  of  being  employed  as  such  beneficially, 
the  covenant  by  the  defendant  that  he  had  power 
to  transfer  her  as  a  ship  at  the  time  of  executing 
the  deed  was  not  broken.  Barr  v,  Gibson,  o 
Mees.  <3t  W.  (ex.)  390. 


9.  In  an  action  for  not  delivering  goods,  under- 
taken by  the  defendant  to  be  carried  from  D.  to 
Li.,  and  to  be  delivered  to  the  plaintiff  or  his  agents 
at  the  port  of  L. ;  plea,  that  the  defendant  caused 
the  goods  to  be  deposited  on  a  wharf  at  L.,  to 
jemain  until  they  could  be  delivered  to  the  plain- 
tiff, and  where  goods  were  accustomed  to  be  land- 
ed, and  that  whilst  there  they  were  destroyed  by 
;fire  before  a  reasonable  time  had  elapsed  for  de- 
livery, held  bad  on  demurrer.    Gatlifib  v.  Bourne, 

4  Bing..  N.  S.  (c.  r.)  314. 

And  see  Hyde  v,  Trent  Navigation  Company, 

5  T.  Ri  389. 

10.  Where  the  vessel  was  chartered  for  a  port 
on  the  coast  of  Africa,  where  there  was  no  cus- 
tom-house, or  place  for  giving  pratique ;  held, 
that  the  clause  in  the  charter  party  for  being  ready 
to  unload  within,  drc,  **and  having  received 
pratique,"  was  to  be  construed  as  an  unloading 
in  accordance  with  the  custom  of  that  port ;  and 
the  jury  having  found  that  the  ship  was  ready  to 
unload  on  that  day,  and  that  no  impediment  ex- 
isted, but  that  it  had  not  received  pratique,  held 
that  the  plaintiff  was  entitled  notwithstanding  to 
the  verdict  Bailey  v.  Arroyave,  3  Nev.  &  P. 
(<l.  B.)  114. 

11.  In  assumpsit  by  the  consignee  against  the 
ownen  for  non-delivery  of  gooc£i  shipped ;  upon 


plea  that  the  plaintiff  did  not  came  tbe  goods  to 
be  shipped,  the  bill  of  lading  when  piodnoed 
showing  the  shipment  to  have  been  by  a  thhd 
party  (who  in  fact  was  the  agent  of  the  plaintiff); 
held,  that  the  bill  of  lading  was  not  conclusive 
on  the  defendant,  but  that  he  might  show  that  no 
ffoods  were  actually  shipped.  Berkley  p-  Wat- 
ling,  2  Nev.  &  P.  (K.  B.)  178. 

12.  In  an  action  b^  a  passen^r  against  tiie 
captain  for  an  insufficient  supply  or  good  and 
fresh  provisions,  held,  that  the  plaintiff  most 
show  that  he  had  sustained  a  real  grievance; 
also,  that  an  allegation  of  the  passage  money 
having  been  paid  by  the  plaintiff  was  supported 
by  showing  that  it  was  paid  by  tbe  charterers, 
his  employers.  Young  v,  Fewson,  8  C.  &  P.  fw, 
p.)  55. 

13.  Where  the  East  India  Company  had,  nnder 
54  Geo.  3,  c.  36,  sold  and  received  the  proceeds 
for  the  payment  of  duties  and  dues,  and  upon  an 
interpleading  suit  been  ordered  to  pay  into  coort 
the  surplus  claimed  by  the  consignee  and  ship- 
owners for  freight;  the  litigation  having  been 
protracted  improperly  until  the  amount  doe  ibr 
principal  and  interest  was  awarded  to  the  mac 
ful  party ;  the  House  of  liords,  on  appeal. 


versed  the  judgment  below,  directing  the  pay- 
ment by  the  Company  into  court,  of  a  sum  wCck 
had  been  paid  over  to  one  of  the  litigant  parties, 
and  on  which  tbe  other  was  admitted  to  have  a 
lien.  East  India  Company  v.  Campion.  11  BE 
N.  S.  (p.)  160.  • 

14.  Where  goods  consigned  to  a  factor  abroad 
were,  after  being  discharged,  confiscated  by  tbe 
government,  ana  afterwards  compensation  award- 
ed, held  that  the  factor  was  entitled  thereoot  to 
sums  paid  bv  him  for  freight,  dec,  as  mooey  had 
and  received  to  his  use.  Good,  ex  parte,  3  M.  A 
Ayr.  (B,)  246 ;  and  2  Deac.  389. 

15.  The  broker  held  entitled  to  his  commiasioa 
on  the  sale  of  a  ship,  where  up  to  a  certain  point 
he  acted  as  middleman,  although  the  contract  was 
completed  without  his  instrumentality  :  bat  the 
mere  fact  of  his  having  introduced  the  parties, 
unless  the  negotiation  proceeds  thereupon,  wonU 
not  be  sufficient  to  entitle  him  to  it  Wilkineoo 
V,  Martin,  8  C.  &  P.  (if.  p.)  1. 

16.  Where  a  oostom  was  found  for  ships  en- 
gaged in  the  timber  trade  to  carry  timber  on 
deck,  held,  that  snch  having  been  torown  ofer- 
board  for  the  preservation  of  the  ship  and  caivo, 
the  owner  was  entitled  to  contribution  against  Uie 
ship-owner.  Gould  v,  Oliver,  4  Binur.  N.  S.  ^c. 
p.)  134.  *  ^ 

17.  Under  the  53  Geo.  3,  c.  359,  limiting  the 
extent  of  the  liability  of  the  owner  to  the  valoe 
of  the  ship  doing  damage  to  another,  held  that 
such  value  was  by  valuation  and  appraisement, 
and  not  of  cost  price  and  deduction.  Dobree  r 
Schroeder,  2  My  I.  A  Cr.  (ch.)  489. 

18.  Where,  by  the  terms  of  the  charterparty 
the  charterer  was  to  pay  disbursements  and  sea- 
men's wages,  bat  the  owners  were  to  appoint  the 
crew ;  held,  that  they  must  be  considered  their 
servants,  and  that  the  owners  were  liable  for  an 
injury  occasioned  by  the  onskilfhl  navigation  of 


[SHIP— SLANDER] 


W15 


U^  itw&Bl  wb*lat  M  under  the  eontiol  of  their 
eenrantfl.  Frnton  v.  Dublin  Steun  Packet  Com- 
pany, 1  Perr.  &  Dar.  (4.  a.)  103. 

19.  The  mastcT  is  at  liberty  to  procure  another 
ahip  to  transport  the  goods  to  their  destination, 
and  will  be  entitled  to  the  full  consideration  for 
which  the  original  contract  was  entered  into; 
and  semb.  if  circumstances  render  it  necessary 
that  another  ship  be  procured,  and  it  can  only  be 
obtained  at  a  higher  rate  of  freight,  the  owner 
would  be  bound  by  the  act  of  his  agent,  and 
liable  for  the  increased  freight:  the  jury  being 
the  proper  tribunal  to  decide  as  to  the  propriety 
of  the  measure,  the  court  would  not  disturb  their 
finding.  Shepton  v.  Thornton,  1  Fcrr.  &  Dav. 
(«.  B.)  216. 

20.  In  an  action  by  tlie  owner  to  recorer  con- 
tribution in  respect  of  ceneral  ayeraL^e,  held  that 
the  defendants  (not  underwriters)  although  enti- 
tled to  the  inspection  of  the  statement  of  such 
average,  were  not  so  of  the  documents  from 
which  it  was  drawn  up.  Tunsell  v.  AUen,  7 
Dowl.  (p.  c.)  496. 


sMt.  7.    M'Doiiald  V.  Jopling,  4  MeM.  dt  W. 

(SI.)  285. 

And  see  Bankrupt;  Broker;  Contract;  Cove- 
nant; Evidence;  Injunction;  Insurance;  Pleads 
ing  (c.  L.)  ;  Set-off;  Witness. 


SLANDER. 

1.  Where  the  words  were  spoken  by  one  sub- 
scriber to  another  of  a  charity,  as  to  the  conduct  of 
the  plaintiff,  the  medical  Attendant  on  the  objects 
of  the  charity ;  held,  that  a  claim  of  privilege  to 
so  large  an  extent  could  not  be  sustained.  Mar- 
tin v.  Strong,  5  Ad.  &  £11.  (s.  a.)  535;  and  I 
Nev.  A  P.  S5. 

2.  Where  the  jury  found  words  spoken  of  an 
attorney,  **he  has  defrauded  his  creditors,  and 
been  horsewhipped  off  the  eourve  at  D.,"  not  to 
have  been  spoken  of  him  in  his  character  as  as 
attorney,  held  not  actionable.  Doyley  v.  Roberts, 
3  Ring.  N.  S.  (c.  p.)  835. 


21.  Upon  a  charterparty  to  load  a  cargo  at  C,  3,  w^ere  a  party  has  a  mntnal  inteiest  with 
and  proceed  with  it  to  A.,  the  running  days  to  *  another,  he  is  justified  in  prevailing  on  him  to 
coromenoe  on  the  16th  December,  and  the  parties    x^ome  narty  to  a  suit,  and  expressions  of  angry 


afterwards  agreed  to  substitute  P.  for  the  port  of 
loading;  held,  that  upon  proof  of  the  defendant's 
assent  to  that  change,  it  followed  that  he  impliedly 
assented  that  the  running  days  should  be  reckon- 
ed there  also  from  the  same  period.  Jackson  v. 
Galloway,  5  Ring.  N.  S.  (c.  p.)  71 ;  and  6  Se. 
786. 

22.  Where  the  defendant,  trading  separately, 
and  also  in  partnership,  had  goods  consigned  to 
him  on  both  accounts,  and  the  bills  of  lading 
transmitted  to  him,  and  being  desirous  of  receiv- 
ing both  consignments,  he  signed  an  agreement, 
signed  by  himself  in  the  name  of  the  firm,  oon- 
taioing  an  undertaking  to  be  answerable  for  the 


"psxly  to  a  suit,  ana  expressions  or  angiy 

and  strong  animadversion  on  the  conduct  of  the 
party  impeached,  unless  malicious,  are  privileged ; 
and,  in  tne  case  of  words,  the  jury  merely  take 
into  consideration  the  whole  conversation,  to  see 
whether  particular  words,  which  may  be  action* 
able  in  themselves,  are  qualified  so  as  not  to  con- 
vey the  primary  meaning.  Shipley  v.  Todhanter, 
7  C.  dk  P.  (N.  P.)  6e0. 

4.  A  party  is  justified  in  stating  his  opinion 
bona  fide  of  the  respectability  of  ue  tradesman 
inquired  about ;  aUter^  where  he  volunteen  the 
statement;  held,  also,  that  the  loss  of  a  customer 
is  special  damage,  allhoogh  if  the  dealing  had 
taken  place,  it  would  have  been  a  losing  transao- 


amount  of  freight  for  Ins  own  ^oods,  and  another    ^,^^   %^'   ^  Chalhmds,  8  O.  A  P.  (».  p.)  234. 
for  thnt  of  the  partnership ;  held,  that  having  an  ^  ^ 


interest  in  both,  it  was  competent  for  him  to  make 
himself  personalty  liable  for  the  freight  of  both ; 
and  that  although  the  agreement  might  contain  a 
plurality  of  contracts,  it  did  not  require  more 
than  one  stamp ;  held,  also,  that  having  received 
the  goods  on  the  faith  of  his  undertaking,  he 
could  not  object  that  the  mode  of  signature, 
which  would  bind  the  firm,  as  to  one  part,  did  not 
bind  him  personally  as  to  the  other.  Shipton  v. 
Thornton,  1  Perr.  &  Dav.  («.  b.)  216. 

23.  Threats  of  personal  violence  to  the  captain 
will  justify  the  latter  in  excluding  a  passenger 
from  the  cuddy  table,  although  it  may  be  difficult 
to  say  what  degree  of  discourteous  or  vulgar  be- 
haviour would  do  so ;  and  where  a  husband  was 
so  excluded,  the  voluntary  withdrawal  of  the 
wife  held  not  a  breach  of  the  captain's  contract 
as  to  the  treatment  of  the  passengere.  Prender- 
gast  V,  Compton,  8  C.  &  P.  (if.  p.)  454. 

24.  Wliere  articles  had  been  signed,  as  requir- 
ed by  5  &  6  Will  4,  e.  19,  and  the  seamen  had 
quitted  the  vessel  after  the  voyage  and  return 
into  port,  but  before  the  cargo  had  been  discharg- 
ed ;  held,  that  he  did  not  thereby  forfeit  his  whole 
wagss  within  sect  9,  hut  of  a  rooalh  only  under 

Vol.  IV.  81 


5.  Declaration  in  slander  of  the  plaintiff  as 
clerk  of  a  company,  **  you  have  done  many  things 
with  the  company  for  which  you  onght  to  be 
hanged,  and  twill  have  vou  hanged  before," 
dto. ;  trnmeMfe)  that  the  plaintiff  had  been  guilty 
of  feloniea  punishable  by  law  with  deaUi  by 
hanging,  held  suflicient,  on  motion  in  arrest  of 
judgment  Francis  v.  Roose,  3  Mees.  &  W.  (xx.) 
191. 

6.  In  slander,  for  words  "  he  is  a  returned 
conviet^"  held  actionable,  although  importing 
that  the  punishment  had  been  suffered,  the  oblo* 

2ny  remaining.    Fowler  v.  Dowdney,  2M.  dk 
lob.  (H.  P.)  119. 

7.  Where  a  party  interested  in  a  building  con- 
tract, on  whicu  tlie  plaintiff  had  been  engaged, 
applied  to  the  defenaant  to  reoommencd  a  sur- 
veyor to  measure  the  work,  when  the  defendant 
stated  that  he  had  seen  the  plaintiff  take  away 
some  of  the  materials,  upon  which  the  plaintiff's 
employer  applied  to  the  defendant  if  he  had  seen 
the  plaintiff  taking  them  away,  when  he  alleged 
that  he  had  seen  the  plaintiff  taking  them,  and 
that  he  hallooed  to  him ;  held,  that  the  judge 
properly  directed  the  jury  to  say,  firat,  whether 


»]6 


[SLANDER— SPECIFIC  PERFORMANCE] 


the  words  impated  felony;  nnd,  tecondl^,  that 
e^en  if  they  did,  the  plaintiff  was  not  entitled  to 
recover,  unless  malice  were  expressly  shown,  or 
the  jury  believed,  from  the  cirramstances,  that 
the  defendant  was  actuated  by  malicious  motives. 
Kine  v.  Sewell,  3  Mees.  <&  W.  (ex.)  '297. 

8.  On  a  general  demurrer  to  a  declaration  in 
slander,  hela,  that  it  did  not  admit  the  intent  at- 
tributed by  the  innuendo ;  and  the  words  beingr 
that  he  had  corn  from  B.'s  barn  (meaning:  that  he 
had  stolen  it  from  B.),  held  that  the  words  did 
not  warrant  the  innuendo.  Wheeler  v.  Uaynes, 
1  Pen.  dt.  D.  (<i.  B.)  55. 

And  see  Information  ;  Uhd. 


SLAVERY. 

The  rule  for  filiuff  the  certificate  on  taxation  of 
costs  under  the  6  WilL  4,  c.  5,  ■.  10  (Slavery 
Abolition),  is  not  a  matter  of  course,  but  only 
nisi  in  the  first  instance.  Maynard  o.  Lacking- 
ton,  6  Oowl.  (p.  c.)  1. 


SPECIFIC    PERFORMANCE. 

1 .  In  a  suit  for  specific  performance  between 
vendor  and  vendee,  every  tiling  that  appears 
connected  with  the  title  may  be  the  subject  of 
reference,  but  not  matters  having  no  reference 
to  the  title,  nor  admitted  by  the  answer;  the 
Court  therefore  allowed  an  inquiry,  whether  the 
defendant  objected  at  any  time  to  the  want  of 
evidence  of  the  identity  or  the  premises,  but  not 
whether  the  abstract  was  perfect,  and,  if  deficient, 
in  what  respects,  and  whether  ever  perfected. 
Bennett  r.  Rees,  1  K.  (on.)  405. 

.  2.  'Where  a  contract  of  partnership  was  formed 
for  the  unlawful  purpose  of  representing  at  a 
theatre  prohibited  peformances,  although  a  ficenoe 
had  been  obtained,  which  might  have  been  used 
for  lawful  purposes ;  held,  that  the  Court  could 
not  decree  specific  performance  of  the  contract, 
or  any  relief  growing  out  of  *it.  Ewing  c.  Os- 
baldiston,  2  Myl.  &  Or.  (ch.)  53. 

3.  Where  premises  were  given  in  trust  for  A. 
for  life,  with  power  to  the  trustees  to  lease,  and 
the  husband  of  A.,  with  the  alleged  knowledge 
and  consent  of  one  of  the  trustees,  agreed  with 
the  plaintiff  for  a  lease,  and  he  was  let  into  pos- 
session of  part  of  the  property ;  held  that  slight 
evidence  oi  general  insolvency,  opposed  by  unim- 
peachable evidence  of  his  responsibility,  did  not 
aisentitJe  the  plaintiff  to  a  specific  performance 
of  the  agreement  for  the  lease,  so  far  as  affected 
the  interest  of  the  tenant  for  life  Neale  v.  Mac- 
kenzie, 1  K.  (cH.)  474. 

4.  "Where  the  testator,  by  general  words  crea- 
ting a  charge  by  implication,  devised  an  ad  vow- 
son  to  trustees,  to  present  the  testator's  son  when 
it  should  become  vacant,  and,  subject  thereto,  to 
sell,  and  divide  the  monies  amongst  the  testator's 
daughters  who  should  be  then  unmarried ;  the 
personal  estate  being  insufficient,  the   trustees 


contracted  for  the  sale  of  the  advowson  to  tte 
defendant;  and  held  in  a  suit  for  specific  perforni- 
ance,  that,  if  the  only  title  to  sell  were  for  the 
purposes  of  the  special  trust,  the  Court  would 
not  compel  a  purchaser  to  accept  the  title  ;  but 
that  the  charge  creating  a  trust  for  the  payment 
of  debts,  and  the  purchaser  not  bound  to  inquire 
whether  other  sufficient  property  was  applicaUe 
or  ought  to  be  applied  first,  or  to  see  to  the  appli- 
cation of  the  purchase- money,  the  court  overruled 
the  exception  as  to  the  title.  Shaw  v.  Borrer,  1 
K.  (CH.)  6.59. 

5.  Where  the  bill  alleged  that  K.  having  aa 
equitable  interest  in  premises  about  to  be  pur- 
chased by  respondent,  the  latter,  in  writing, 
agreed  to  pay  him  a  sum  when  the  contract 
shoald  be  completed,  upon  receiving  a  premier 
release,  but  there  was  no  evidence  in  support 
of  the  allegation  that  K.  had  any  interest  what- 
ever ;  and  there  being  ground  for  believing  that 
it  was  intended  as  a  purchase  of  the  interest  of 
a  party  who  was  an  uncertificated  bankrupt, 
to  protect  him  from  the  claim  of  bis  assignees ;  a 
bill  by  K  for  an  account  and  payment,  according 
to  the  undertaking,  dismissed ;  (affirming  the 
judgment  below).  Staley  r.  King,  3  CI.  dk  Fi. 
(p.)  132;  and  8  Bli.  N.  S.  717. 

€.  The  court  refused  to  restrain  a  cieditor, 
afler  a  decree,  from  issuing  execution  on  a  judg- 
ment previously  obtained  against  an  executor  it 
bonis  test,,  et  si  non  de  bonis  y/ropriis ;  and  stmk^ 
it  will  look  at  the  nature  of  the  suit,  and  time 
of  filing  the  bill,  the  statements  as  to  assets,  and 
time  of  obtaining  the  decree,  as  also  to  the  time 
of  bringing  the  action  and  obtaining  judgment, 
and  other  circumstances  affecting  the  rights  of 
creditors,  with  a  view  to  a  just  administralion, 
before  it  declares  priority  of  the  decree  or  judg- 
ment.   Lee  o.  Park,  1  K.  (ch.)  714. 

7.  Where  the  plaintiffs  were  devisees  of  a 
leasehold,  in  trust  to  sell,  and  also  executors,  and 
bein^r  unoble  to  sell,  had  agreed  to  under-let  the 
premises  to  the  defendant ;  held,  that  being  pr»- 
ma  facie  inconsistent  with  the  trust  for  sale,  the 
court  could  not  compel  performance  of  the  agree- 
ment in  a  suit  to  which  the  eestmisfue  tmsis 
were  not  parties.  £vans  v,  Jackson,  8  Sini.  (ch.) 
217. 

8.  Where  the  defendant,  employed  to  bid  at  an 
auction  for  a  particular  estate  sold  with  others,  by 
mistake  bid  for  the  wrong  lot,  and  was  declared 
the  purchaser ;  held,  that  in  a  clear  case  of  mis- 
take, the  court  would  leave  the  party  to  his  reme- 
dy at  law,  and  the  bill  for  a  specific  perfbrroanee 
dismissed,  without  costs.  Malius  v.  Freeman,  2 
Keene,  (cu.)  25. 

9.  Where  a  party  entitled  for  life,  with  rBsoaiB- 
der  in  fee,  subject  to  trust  terms,  to  raise  jointura 
and  portions,  exchanged  in  fee  for  other  lands 
with  B.,  whose  heir  afterwards  agreed  with  the 
defendant  for  the  sale  of  them,  who  afterwards, 
objecting  that  the  party  had  no  power-to  exchange 
in  f^,  refused  to  complete  the  contract;  upon  « 
bill  for  a  specifio  performance,  held,  that  the  ese- 
cutinff  subsequent  deeds,  with  the  view  of  hria^ 
ing  this  exchange  within  the  terms  of  a  power  of 


[SPECIFIC  PERFORMANCE— STAMP] 


3917 


•ale  and- exchange  by  the  trustees,  not  beiner  a 
direct  sale  or  excDAnac  under  the  settlement,  bat 
to  satisfy  what  had  I<t-en  imperfectly  done  before, 
and  very  doubtful  whether  a  proper  exercise  of 
the  powers,  and  the  later  deeds  being  very  inac« 
curately  drawn,  the  court  would  not  compel  the 
defendant  to  take  such  a  tille.  Cowgill  r.  Lord 
Oxmantown,  3  Youiijre  &  Cr.  (ex.  x^.)  369. 

10.  The  court  will  not  decree  a  specific  per- 
formance against  a  party  who  has  mistaken  a 
material  fact  in  the  agreement :  where  on  an 
agreement  for  the  sale  of  a  garden,  it  was  clear 
that  the  vendor  could  never  have  intended  that 
buildings  which  had  been  erected  on  part  of  the 
garden,  and  necessary  to  the  enjoyment  of  his 
own  premises,  were  within  the  agreement,  and  to 
form  part  of  the  premises  to  be  conveyed,  a  spe- 
cific performance  refused.  Neap  r.  Abbott,  1 
Coop.  (cH.  c.)  333. 

11.  Where  a  bill  prayed  that  an  agreement 
"with  creditors,  on  certain  conditions,  might  be 
enforced,  but  did  not  state  the  conditions,  or  that 
they  had  been  complied  with,  held  bad,  on  de- 
murrer. Jones  V.  Maund,  3  Tounge  &  C.  (ex. 
xq.)  347. 

12.  Where  after  previous  discussion  for  the 
purchase,  and  difference  as  to  price,  the  nlaintiff 
sent  over  his  solicitor,  who  concluded  tne  bar- 
gain, but  no  solicitor  attended  on  the  side  of  the 
vendor,  and  some  liquor  was  drank,  but  no  fraud 
was  established,  and  aflerwards  the  defendant 
asked,  as  a  favor,  to  be  let  off  his  bargain,  and  he 
appeared  to  have  collusively  transferred  the  pre- 
mises to  a  son-in-law,  a  specific  performance  de- 
creed, and  the  latter  to  execute  a  proper  convey- 
ance. Lightfoot  r.  Heron,  3  Tounge  &,  Cr.  (xx. 
xq.)  586. 

13.  In  a  suit  to  enforce  the  performance  of  an 
agreement  for  the  purchase  of  a  manor  and  lands 
made  in  1812,  the  bill  being  filed  in  1817,  and  a 
decree  pronounced  in  18i21,  referring  it  to  the 
master  to  report  on  the  title,  which  he  at  fijrst  re- 
ported against,  but  afterwards,  on  consideration 
of  additional  abstracts,  be  reported  that  the  plain- 
tifis  were  able  to  make  a  good  title  except  as  to  a 
suiall  portion,  and  that  there  was  a  binding  agree- 
ment for  mutual  compensation  up  to  1816 ;  and 
that  such  title  was  first  showed  by  the  defendant 
in  1825,  when  the  whole  of  the  abstracts  were 
first  brought  into  the  ofiice ;  held,  that  the  failure 
of  title  as  to  such  small  portion  was  only  the 
proper  subiect  of  compensation  to  the  defendant, 
and  that  the  date  of  conveyance  should  be  from 
the  earliest  period  when  a  good  title  was  shown, 
viz.,  1825,  and  the  plaintiffs  entitled  to  the  princi- 
pal with  interest,  and  the  defendants  to  the  rents 
and  profits  firom  that  date,  and  the  general  costs 
of  the  suit,  deducting  the  costs  of  tlMse  points  on 
whieh  he  had  been  wiongt  and  each  party  to 
bear  the  costs  of  the  discusaion  in  the  master's 
oflloe  as  to  tit1e«  the  defendants  appearing  to  have 
taken  many  insufficient  objections,  ana  caused 
nmch  unnecessary  expense  and  outlay.  Town- 
«end  V.  Champernowne,  3  Younge  &  Cr.  (xx. 
x^)506. 

And  see  Vendor  and  Purchaser, 


STAMP. 

1.  An  instrument,  being  a  mere  attornment, 
and  not  an  agreement  as  to  any  new  terms  of 
tenancy,  held  not  to  require  any  stamp.  Doe  r. 
Edwards,  6  Nev.  ifL  M.  (k.  b  )  633.  Held  also, 
that  it  would  l>e  evidence  for  the  party  to  whom 
made  and  those  claiming  under  him,  as  an  asser- 
tion of  right  and  act  of  ownership  on  his  part, 
acquHssced  in  by  the  parties  then  in  possession, 
lb. 

2.  An  agreement  for  a  sale  of  goods  and  good* 
will  is  not  a  sale  merelv  of  goods  within  the  ex- 
emption of  the  Stamp  Act,  but  held  to  require  a 
stamp.  South  v.  Finch,  3  Bing.  N.  S.  (c.  p.) 
506 ;  and  4  Sc.  293. 

3.  Assignment  of  a  mortgage  as  a  mere  trsns- 
fer  of  an  old  security  for  money  previously  due, 
held  sufficiently  stamped  with  a  35«.  stamp,  al- 
though the  seisin  of  the  mortgagor  not  proved. 
Doe  r.  Maple,  3  Bing.  N.  S.  (c.  p.)  832. 

4.  Where  an  agreement  for  the  demise  of  pre- 
mises, from  25th  March,  at  a  certain  rent,  after- 
wards went  on  to  agree  to  let  two  fields,  from  the 
succeeding  Michaelmas,  at  the  same  rent  as  paid 
by  the  lessor;  held,  to  fall  within  the  class  of 
leases  designated  in  the  Stamp  Act  as  ^  not  other- 
wise charged  in  the  schedule,"  and  that  an  ad 
valorem  stamp  affixed,  sufficient  to  cover  the 
whole  amount  of  rent  to  be  paid,  was  sufficient. 
Parry  t>.  Deere,  I  Nev.  &  P.  (x.  ».)  47.  * 

5.  Upon  an  agreement  between  A.  and  defen- 
dant, that  the  defendant  should  have  A.'s  tene- 
ment during  his  life  for  jC.-« — ^  year,  and  his 
keep  and  maintenaaee  for  life,  the  possession  to 
be  given  and  rent  eommence  immediately,  the 
defendant  to  take  off  the  stock  at  a  stated  price, 
and  to  pay  for  seeds,  &c. ;  held,  that  A.*s  execn- 
tors  might  maintain  an  action  for  the  price  of  the 
goods,  as  for  ^oods  sold  and  delivered,  and  that 
ihe  memoranoum,  stamped  with  an  agreement 
stamp,  was  properly  admitted.  Stone  e.  Rogers, 
2  Mees.  &  W.  (xx.)  443. 

6.  In  debt  on  bond,  conditioned  to  pay  a  sum 
secured  to  be  paid  by  a  certain  indenture ;  held, 
that  it  was  necessary  to  produce  the  deed,  in  order 
to  see  whether  it  was  such  as  to  require  an  ad 
ralarem  stamp,  to  exempt  the  bond  from  a  higher 
stamp  than  II.  Walmesley  v.  Briefly,  1  m.  6l 
Rob.  (K.  p,)  529. 

7.  The  receipt  indorsed  on  a  deed  may  be  read, 
although  coupled  with  a  statement  of  an  agree- 
ment reeuiring  a  difierent  stamp.  Odye  v.  Cock- 
ney, 1  M.  dt  ftob.  (H.  p.)  517. 

8.  Where  to  the  1.  O.  U.  was  added  the  words, 
<(  to  be  paid  on,"  &c. ;  held,  to  be  either  a  note  or 
an  agreement,  and  a  stamp  therefore  necessary. 
Brooks  V.  Elkins,  2  Mees.  &  W.  (xx.)  74. 

9.  Where,  by  a  resolution  in  vestry,  that  the 
plaintiff  should  be  reimbursed  sums  which  he 
nad  paid  for  church  repairs  out  of  the  rents  of 
certain  church  lands ;  held  that,  if  such  consent 
amounted  to  a  charge  on  the  land,  the  entry  was 
inadmissible  in  evidence  for  want  of  a  stamp,  in 
an  aetion  against  the  ehurehwxrdeiM  te  recover 


»18 


[STAMP—STOCJKl 


the  tents  reeeiTed ;  and  setnb..  the  ohurchwardeni 
would  have  no  power  to  bina  their  succenora  in 
charging  the  land.  Wrench  «.  Lord,  3  Bing  N. 
8.  (c.  p.)  672;  and  4  Sc.  381. 

10.  Where  a  mortfaae  deed,  stamped  with  the 
md  valorem  duij  for  £400,  was  transferred,  and  a 
further  sum  or  £1,000  advanced;  held,  that  an 
ad  valorem  stamp  in  respect  of  the  latter  sum 
onlj  was  not  sufficient,  and  that  the  previous  ad 
valirem  stamp  could  not  be  taken  into  the  ac- 
count of  the  duty  payable  on  the  transfer  and 
further  security.  Lant  v.  Pearce,  3  Nev-  &,  P. 
(q.  B.)  329. 

11.  Where  a  dairy  was  let  by  agreement  not 
under  seal,  the  instrnment  containing  words  of 
demise  of  specified  land  therewith,  found  by  the 
sessions  to  oe  of  the  value  of  j£l6,  and  the  rent 
paid,  held  that  it  was  not  void  as  containing  a 
demise  of  incorporeal  hereditaments  not  under 
seal,  and  that  the  instrument  demising  several 
matters  at  one  fixed  rent,  it  was  properly  stamped 
with  9,11  ad  valorem  stamp.     Reg.  v.  Hockworthy, 

2  Nev.  dL  P.  (q.  b.)  383. 

12.  A  memorandum,  in  the  terms,  "  H.  has 

advanced  me  £ ,  on  furniture,  &c.,  delivered 

to  him  at  8.,**  held  not  a  receipt  reouiring  a 
stamp.  Huxley  v.  O'Connor,  8  0.  &  P.  (n.  p.) 
204. 

13.  Upon  a  eonseat,  under  a  judge's  order,  to 
admit  documents  of  a  deed  as  *'  a  counterpart," 
held,  that  it  was  too  late  afterwards  to  object  to 
the  insufficiency  of  the  stamp,  it  appearing  to  be 

^  the  original  instrument.    Doe  v.  Smith,  2  M.  &, 
Rob.  (h.  p.)  7. 

14.  The  refusal  by  a  party  to  produce  an  in- 
•tmaent,  so  as  to  enable  the  other  to  get  it  stamp- 
ed, cannot  have  the  effect  of  repealing  the  Stamp 
Act,  and  the  want  of  it  may  be  objected  by  the 

rty  so  refusing.     Gardiner  v,  Childa,  8  C.  A 
(If.  p.)  347. 

15.  Where  a  party  against  whom  judgment  in 
ejectment  had  been  recovered,  by  writing,  recit- 
ing the  judgment  and  demise  by  the  lessor  to  A. 
B.,  to  whom  he  thereby  attorned  tenant,  held 
not  to  require  a  stamp ;  and  where  an  instrument 
had  been,  on  a  Judge  s  order,  produced  for  inspeo- 
tion,  and  admitted,  held,  that  it  was  too  late 
aftervards  to  object  that,  appearing  to  be  a  lease, 
it  bore  only  a  counterpart  stamp.    Doe  v.  Smith, 

3  Nev.  &  P.  (q.  b.)  335. 

16.  Stamps  denoting  the  duties  payable  on 
deeds,  4kc.,  in  either  part  of  the  United  Kingdom, 
permitted  to  be  used  m  the  other,  by  I  4l  2  Viet 
e.  85. 

17.  Upon  a  sale  by  auction  of  the  "  herbage  of 
closes"  for  fiv«»  months  for  £46,  pairing  a  deposit 
of  £10  and  a  joint  note  for  the  remainder  payable 
within  that  period,  and  if  not  ffiven  to  the  satis- 
faction of  the  vendor,  that  he  should  be  at  liberty 
to  relet  the  premises ;  held  to  be  properly  stamp- 
ed with  a  £1  stamp  as  a  conveyance  or  lease, 
upon  the  sale  of  any  lands  or  tenements  under 
£50.  Cattle  r.  Gamble,  5  Bing.  N.  S.  (c.  p.)  46; 
6  Sc.  733;  and  7  Dowl.  (c  p)  08. 


farther  advance,  held,  that  an  ad  ralaram  rtanp 
upon  such  advance  was  sufficient,  witliout  the 
addition  of  any  deed  stamp ;  held  also,  that  the 
assignee  proving  the  payment  of  the  original  ad- 
vance, although  he  ikiled  as  toproof  of  paymeat 
of  further  advance,  it  was  snmcient  to  esUblHh 
his  right  as  a  purchaser  for  a  valuable  con^dera* 
tion.  Doe  v.  Rowe,  4  Bing.  N.  b.  ((..p.)  6  Se. 
525. 

19.  Where  three  parties,  in  eonsideratioo  «f 
plaintiff  discharging  a  debt  of  a  third  party,  seve- 
rallv  undertook  to  indemnify  to  the  extent  of  £ — 
each,  and  in  the  meantime  severallv  to  ezecats 
bills  for  such  respective  sums,  held,  that  one 
stamp  to  the  instrument  was  sufficient.  Rans- 
bottom  V.  Davis,  7  DowL  (r.  c.)  173;  and  4  Mees. 
&  W.  (EX.)  584. 

20.  In  an  action  to  recover  the  price  of  goods 
obtained  by  a  third  party  from  the  plaintiff,  lield, 
that  an  unstamped  mstrument  winch  had  been 
made  use  of  in  the  transaction  was  receivable  as 
evidence,  and  that  it  was  immaterial  whether  the 
fraud  was  committed  by  a  party  to  the  trust  or  by 
a  third  person.  Keable  v.  Payne,  3  Nev.  4k  r. 
(<l.  B.)  531. 

21.  Where  a  letter  was  addressed  by  the  hold- 
ers of  a  fund  out  of  which  payment  was  to  be 
made  in  these  terms,  **  after  paying  youraelvcs 
the  balance  we  owe,  we  authorize  you  to  pej  one 
half  of  the  remainder  of  the  proceeds  oi  said 
shipments  to  Messrs.  R.  &  Co.,  provided  the 
same  shall  not  exceed  £5,000,"  held,  not  to  re- 
quire a  stamp  as  an  order  for  payment  of  money 
within  55  Gt;o.  3,  c.  184,  sch.  p.  1,  the  parties  to 
whom  the  payment  was  to  be  made  being  the 
commission  agents  to  H.  &  1.,  on  whose  account 
it  was  to  be  mode,  and  to  be  applied  or  paid  over, 
as  circumstances  required.  Hutcbinsoo  v.  Hey- 
worth,  1  Perr.  &,  D.  {q,,  b.)  266. 

22.  An  agreement  bv  the  execution  creditoe  to 
the  sheriff  to  indemnify  him  on  the  sale  of  goods. 
held  to  require  a  stamp,  although  the  value  of  tbr 

oodswas  under  £^,    Shepherd  i7.  Wbceblv,  : 
\  &  P.  (s.  p.)  534. 


S 


23.  Plea,  to  an  action  on  a  bill,  that  it  was  not 
duly  stamped,  held  ill,  on  special  demuner 
Howard  o.  Smith,  4  Bing.  N.  S.  (c.  p.)  664 ;  aoMd 
6  Sc.  438. 

And  see  Agreement;  Aniadbf ;  Assumpsit ;  BSB; 
Bankrupt;  Bond;  Ejectment;  Lien;  Limitatimu^ 
Stat,  of;  Mortgage;  Poor ;  Practice^  {c,  l.) 


STOCK. 

Where  dividends  had  been  onclainoed  lor  ten 
years  by  a  surviving  trustee,  a  transfer  of  the 
stock  into  the  nsme  of  the  representative  of  tht 
survivor  refused,  but  a  reference  directed  to  the 
master  to  inquire  as  to  the  title  to  the  fand,  with 
liberty,  dtc.  Ram,  ex  parte,  3  My  I.  &  Cr .  (ch.) 
25. 


18.  When  a  mortgage  was  transferred  upon  «       And  sec  Basik  ef  BngUmd, 


[STOCKBROKEIU-SUIIETY] 


fi0» 


STOCKBROKER. 


In  assumpsit  by  a  stockbroker  Ibr  work,  Ac,  in 
the  buying  and  Mjlling  stock  oo  account  of  the 
defendant ;  plea,  that  the  plaintiff  at  the  time 
was  not  duly  licensed  or  empowered  to  act  as  s 
broker  within  the  city  of  London,  pursuant  to  6 
Anne,  c.  16,  held  good  on  demurrer.  Cope  «. 
Rowlands,  2  Mees.  &  W.  (ex.)  149. 


STOCKJOBBING. 

I.  Time  barffains  for  stock  in  foreign  funds 
held  neither  void  as  illpffal  at  common  law,  or 
within  7  Geo.  2,  o.  8.  Elsworth  v.  Cole,  2  Mees. 
A  W.  (kx.)  31 ;  supporting  Wells  v.  Porter,  2 
Bing.  N.  S.  722 ;  and  2  Sc.  194 ;  and  Oakley  v, 
Rigby,  lb. 

2  So,  a  wager  on  the  price  of  foreign  stock  is 
not  void  at  common  law,  or  within  the  14  Geo. 
3,  c.  43,  which  is  confined  to  wagering  policies 
of  insurance.  Morgan  v.  Pebrer,  3  Bing.  N.  S. 
(c.  p.)  457  ;  and  4  Sc.  230. 


STOPPAGE  IN  TRANSITU. 

1 .  Where,  in  the  absence  of  the  consignee,  his 
clerk  recommended  the  captain,  who  was  anxious 
to  relieve  himself,  to  land  the  goods  at  a  wharf, 
which  was  done,  and  they  were  entered  in  the 
wharfinger's  books  in  blank,  with  freight  and 
charges  set.  against  them ;  held  that  the  wharf 
was  to  be  deemed  only  a  place  of  deposit  in  trans- 
itu^ and  not  of  reception,  and  that  the  right  of 
stoppage  continued ;  held  also,  that,  by  an  accep- 
tance of  bills,  the  vendor's  right  was  not  taken 
away.  Edwards  v.  Brewer,  2  Mees  .  ^  W.  (xx.) 
375. 

And  see  Feize  v.  Way,  3  East,  93. 

2.  Where  the  purchacier  of  lead,  no  place  of 
delivery  being  stated,  after  a  time  directed  it  to 
be  forwarded  to  him  at  L.,  and  the  vendor  gave 
the  purchaser's  agent  an  order  on  his  servant  for 
its  oelivery,  and  the  order  being  indorsed  by  the 
agent,  it  was  put  on  board  a  lighter  for  L.,  where 
it  arrived  on  the  21st  of  June,  on  which  day  the 
purchaser  became  bankrupt;  he  afterwards  de- 
manded the  lead  of  the  captain  of  the  vessel  and 
tendered  the  frieeht,  but  who  refused  to  deliver 
it,  alleging  that  be  stopped  it  on  account  of  the 

Snrehaser  being  a  bankrupt,  and  a  letter  dated 
3th  afterwards  arrived  from  the  vender,  directing 
the  lead  to  be  stopped  in  transitu^  held,  that  the 
lead  being  at  the  time  on  board  the  defendant's 
Teasel  the  iransitus  was  not  at  an  end.  Jackson 
V.  Nicbol,  5  Bing.  M.  S.  (c.  v.)  606. 

3.  Where  the  defendant  having  sold  wheat  to 
the  plaintiffs,  to  be  paid  bv  a  drafl,  which  not 
being  remitted,  the  defendants  took  back  the 
wheat  from  the  carmen  to  whom  they  had  deli- 
vered it  for  the  plaintifis,  held,  that  the  plaintiffs 
could  not  maintain  trover  for  the  wheat  Wilms- 
hunt  V.  Bowker,  5  fiiag.  W.  &  (c.  r.)  541. 


SUNDAY. 

See  Lien];  Master, 


SURETY. 

1.  Where  J.  H.,  being  indebted  on  simple  con- 
tract  to  W.,  prevailed  on  bis  father  to  execute  a 
bond  for  the  payment  within  four  years,  within 
which  period  the  latter  died,  and  W.  obtained 
from  the  son  and  representative  of  the  father  a 
fresh  bond  for  payment  by  yearly  instalments : 
upon  a  creditor  s  suit  for  administering  the  fa- 
ther's estate,  W.  having  claimed  to  come  m  upon 
the  original  bond,  which  be  had  retained ;  held, 
that  the  second  bond  was  to  be  presumed  a  satis- 
faction of  the  first,  and  that  tlie  father  was  to  be 
considered  only  as  a  suretjr  for  the  son,  and  that 
by  givini;  time  to  the  principal  debtor  the  creditor 
haddischargfd  the  surety.  Clarke  v.  Henty,  3 
Younge  &  Cr.  (xx.  xq.)  IW. 

2.  In  an  action  against  a  surety  on  a  contract 
for  works,  to  be  paid  for  as  the  work  proceeded, 
but  the  contractor  becoming  bankrupt,  and  re- 
ceived advances  beyond  what  he  was  entitled  to 
under  the  contract,  and  for  which  extra  advances 
security  had  been  taken  ;  held,  that  in  respect  of 
the  latter,  the  surety  was  not  liable  for  the  loss 
sustained  by  the  non-iulfilment  of  the  works. 
Warre  v.  Calvert,  2  Nev.  A.  P.  (k,  b  )  126. 

3.  Where  separate  actions  had  been  brought 
against  A.  and  B.,  as  surety  on  a  joint  and  sever- 
al note,  and  iudgment  obtained  against  B.,  who 
paid  the  whole  debt  and  costs ;  lield,  that  as  the 
creditor  could  not  afterwards  make  the  judgment 
available  at  law,  B.'s  representative  had  no  equity 
to  compel  an  assignment  of  the  judgment.  Dow- 
biggen  r.  Bourne,  2  Younge  &  Cr.  (xx.  x^.)  462. 

4.  On  a  plea  to  debt  on  bond,  conditioned  for 
the  trustee  of  a  bankrupt's  estate  in  Scotland, 
appointed  by  the  commissioners,  faithfully,  &c., 
that  by  the  neglect  of  the  obligees  for  thir- 
teen years,  and  contrivance,  they  had  caused 
and  permitted  the  trustee's  default,  but  of  which 
there  was  no  proof;  held,  that  he  was  not  dis- 
charged :  reversing  the  judgment  below.  M' 
Taggart  v.  Watson,  3  CI.  A  Fi    (f.)  52&. 

5.  Acceptance  of  the  bills  being  bv  the  French 
law  apparent  pavment,  unless  dishonoured  at 
maturity,  where  bills  were  •aooepted  on  account 
of  the  insufficiency  of  consignments  to  cover  ad- 
vances, for  which  the  appellants  were  sureties, 
held  that  they  were  discharged.  Bellingham  v. 
Freer,  1  Moore,  (pr.  co.)  333. 

6.  Where  one  of  two  sureties  for  the  commit- 
tee of  a  lunatic's  estate  on  the  bankruptcy  of  the 
principal,  by  a  deed  of  arrangement  obtained  an 
assignment  of  the  bankrupt's  wife's  separate  es- 
tate for  life  to  the  extent  of  £50  a  year,  and  the 
amount  of  premium  on  an  insurance  policy,  and 
by  a  subsequent  deed  he  afterwards  released  the 
other  surety,  without  the  concurrence  of  the 
wife,  held,  ttkat  the  wife's  estate  was  thereby  re- 
lieved from  a  moiety  of  the  charge  against  the 
prineipttl,  and  in  nafcct  of  wkkSi  the  pieiatiff 


2920 


[SURETY— TENDER] 


had  a  right  to  contribution  ;  bat  that  intprest  was 
only  payable  on  the  sams  paid  under  the  liability 
as  surety,  and  on  the  premiums,  but  not  on  the 
costs,  Ac.  Hod^on  v.  Hodgson,  2  Keene,  (c. 
p.)  704. 

7.  The  wife's  trustee,  after  notipe  of  the  charge, 
taking  on  himself  to  act  as  if  the  deed  were  in- 
valid, did  so  at  his  peril,  and  held  liable  for  pay- 
ing over  suras  to  the  wife,  after  such  notice,     lb. 

8.  Where  a  party  who  had  lent  his  name  to 
bills,  deposited  with  the  plaintiff  as  a  security 
upon  a  deed  of  composition  giving  time  to  the 
principal,  consented  thereto  Mfore  the  bills  be- 
came  due,  held  sufficient  to  revive  the  liability, 
and  that  such  promise  was  valid,  without  any 
new  consideration,  not  as  the  constitution  of  a 
new,  but  the  revival  of  an  old  debt.  Smith  v. 
Winter,  4  Mees.  ^  W.  (ex.)  462. 

And  see  Mayhew  v.  Cricket,  2  Swanst.  185. 

9.  Where  the  defendant  joined  in  a  note  as 
surety  on  an  advance  toa  third  party,  with  a  mort- 
gage as  a  collateral  security,  in  which  it  was  recited 
that  a  previous  debt  from  C.  had  been  paid,  but 
was  in  fact  agreed  to  be  retained  out  of  the  sec- 
ond advance,  held  to  amount  to  such  a  fraud  in 
law  as  to  invalidate  the  defendant's  liability  as 
surety  on  the  note.  Stone  v.  Compton,  r>  Bing. 
N.  S.  (c.  p.)  142. 

10.  Where  the  guaranty  provided   that    the 

Erincipal  might  extend  the  period  of  credit,  and 
old  over  oi  renew  bills,  and  compound  with  him 
or  the  parties  liable,  as  the  plaintiff  might  think 
fit,  without  in  any  manner  discharging  the  sure- 
ty, held  that  a  discharge  and  a  release  under  a 
composition  deed  of  the  debtor  did  not  discharge 
the  surety.  Cowper  v.  Smith,  4  Mees.  Jk  W. 
(XX.)  519. 

11.  On  a  bill  for  an  injunction  to  stay  proceed- 
ings at  law  against  the  sureties  in  a  liond  given 
by  the  principal  on  a  contract  for  works,  al- 
leging tnat  the  defendants,  by  making  advances 
beyond  the  value  of  the  work  done^  had  varied 
the  contract  to  the  prejudice  of  the  sureties; 
held,  that  the  sureties  were  thereby  released,  and 
entitled  to  have  the  injunction  made  perpetual. 
Calvert  v.  London  Dock  Co.,  2  Keene,  (en.)  63d. 

And  see  Bankrupt;  Bill;  Bond;  Guaranty. 


SURRENDER. 

Where  it  was  shown  to  be  the  practice  in  the 
office  of  the  bishop's  steward  to  nave  old  leases 
returned  before  a  renewal  or  re-grant,  where  pro- 
duced with  the  seals  torn  off,  held  admissible  in 
evidence,  as  a  foundation  for  the  jury  to  presume 
a  surrender,  by  operation  of  law,  of  the  former 
lessee.  Walker  v.  Richardson,  2  Mees.  &  W. 
(xx.)  882. 


TAXES. 
1.  The  zetarnt  of  defaulten  of  tazM  made 


under  5  &;  6  Will.  4,  c.  29,  s.  13,  cannot  be  ap- 
plied to  sustain  an  information  in  personam  in  tbe 
Exchequer  to  recover  them.  A ttorney-Genenl 
r.  Sewell,  8  C.  &  P.  (n.  p.)  376. 

2.  The  5  db  6  Will.  4,  c.  SX),  s.  13,  providing 
that  arrears  of  assessed  taxes  shall  be  recoverable 
as  a  debt  of  record  to  the  king;  held,  that  an  in- 
formation in  the  nature  of  a  popular  aption  of 
debt,  upon  the  mere  assessment  and  warrant,  was 
not  sustainable.  Attorney-general  v.  Sewell,  4 
Mees.  &  W,  (xx.)  77  and  6  Dowl.  (p.  c)  673w 


TENANT. 

IR   TAIL — FOR  LIFK. 

1.  Where,  upon  suits  raised  in  the  coart  below 
for  satisfying  portions  and  charges  on  lands  sev 
tied  in  strict  nettlement,  irregular  and  collusive 
sales  had  taken  place,  and,  upon  a  bill  filed  by  a 
tenant  in  tail,  a  minor,  the  court  had  directed 
issues  as  to  the  value,  and  that  the  plaintiff  might 
redeem  on  re-payment  of  the  purchase-money, 
or  that  he  might  be  compensated  out  of  the  a»> 
sets,  which  latter  relief  was  ordered  by  the  de- 
cree; decree  affirmed  on  appeal.  Bandon  v. 
Becher,  9  Bli.  N.  S.  (p.)  533. 

3.  Where  the  testator  directed  a  sale  of  all  hs 
real  and  personal  estate  with  sU  convenient  speed, 
and  to  be  invested ;  held,  that  12  montha  were  Is 
be  deemed  a  reasonable  time  for  that  parpose ; 
and  the  lands  remaining  then  unsold,  held  that 
the  tenant  for  life  was  entitled  to  the  rents  from 
that  period.  Vickers  v.  Scott,  3  Myl.  &>  K.  (qm.) 
500. 

And  see  Timber, 


TENDER. 

1 .  Plea  by  acceptor,  of  tender  of  the  amoant 
of  bill  and  mterest  to  tbe  plaintiff,  the  indorwe, 
after  it  became  due,  held  bad  on  demurrer.  Poole 
V,  Crompton,  5  Dowl.  (p.  c.)  468;  qoestioninr 
Johnson  v.  Clay,  7  Taunt.  486. 

And  see  Hume  v.  Peploe,  8  East,  168. 

2.  Where  the  defendant's  attorney  tendered  a 

sum,  saying, "  I  tenderyou  £. ,  for  your  claim 

on  M.,"  which  plaintiff  refused  to  accept  in  dir 
charge  of  his  bill ;  and  the  former  again  said,  ** 


held  unconditional  and 


irge 
tender  you  J£.-  ,    „^.«   m«w„«,„„„«  ol™. 

sufficient.    Jennings  v.  Major,  8  C.  ft.  P.  (k.  p.) 
62. 

3.  Where  the  sum  offered  was  tendered  as  all 
that  was  due,  held  not  a  good  tender,  as,  if  ac^ 
cepted,  the  future  claim  to  more  would  have  beea 
compromised,  which  it  could  not  where  the  party 
takes  a  sum  properly  tendered.  Stotton  v.  Haw- 
kins, 8  C.  ft  P.  (n.  p.)  259. 

4.  Where  the  words 
called  to  tender  £, 


of  the  tender,  ^  I  have 
-,  in  settiement  of  R.*s 


bill  ;'*  held,  that  it  was  for  tbe  juiy  to  say  if  the 
o^r  was  conditional  or  not  Eckstein  v.  Key- 
nolds,  S  Nev.  ft  P.  (c  b.)  356. 


[TlilNDER— TITHES] 


2921 


5.  Where  the  sam  tendered  was  u  for  half  a 
year's  rent,  which  the  plaintiff's  agent  refused  ; 
neld,  only  a  conditional  tender,  as,  it  taken,  in- 
volving an  admission  of  the  amonnt  of  rent,  and 
therefore  bad.  Hastings,  Marquis  of  r.  Thorley, 
8  C.  &  P.  (w.  r.)  573. 

6.  An  allegation  at  the  time  of  the  tender,  that 
it  was  all  be  considered  to  be  du**,  held  not  to 
make  it  a  conditional  one,  if  otherwise  good. 
Robinson  v-  Ferreday,  8  C.  &  P.  (N.  p.)  753. 

7.  Where  the  creditor  asked  how  mnch  was 
due,  and  laying  down  a  sum  exceeding  what  was 
due,  desired  the  party  to  take  what  was  due , 
held,  that  the  olfer  not  being  coupled  with  any 
condition,  the  tender  was  legal.  Bevan  v.  Rees, 
7  Dowl.  (p.  c.)  510. 

And  wee  Debt;  Execution;  Lien;  Pleadings 
(c.  L.) 


TERM. 

In  a  suit  by  A.  against  his  co-heir  and  the  party 
in  possession  of  the  estates  descended,  for  a  dis- 
covery and  production  of  deeds,  and  for  restrain- 
ing the  setting  up  of  outstanding  terms,  in  the 
ejectment  brought  on  the  joint  and  several  de- 
mises;  held  that  the  allegation  of  outstanding 
terms  was  sufficient,  but  that  the  bill  was  demur- 
rable for  imperli?clly  stating  the  plaintiff's  title  by 
descent;  held  also,  that  the  other  co-heir  ought 
to  l>e  joined  as  a  co-plaintiff.  Baker  r.  Harwood, 
7  Sim.  ;rH.)  :?73. 

And  see  Injunction. 


TIMBER. 

1.  Tenant  for  life  without  impeaclinient,  Ac, 
except  as  to  timber  in  park,  avenues,  and  woods 
adjoining  the  mansion  ;  held,  that  the  timber  not 
strictly  within  the  description,  but  an  ornament 
and  shelter  thereto,  were  within  the  exception, 
and  the  tenant  for  life  liable  for  eaaitable  waste, 
and  an  injunction  granted.  Newaigate  v.  New- 
digate,  2  CI.  &  Fi.  (p.)  t»l ;  8  Bli.  N.  S.  735. 

2.  Where  lands  were  devised  to  trustees,  in 
trust  to  A.  for  life,  with  power  to  cut  timber  for 
repairs  only,  remainder  over,  and  the  trustees, 
under  the  advice  of  surveyors,  felled  timber,  and 
invested  the  produce  in  stock  in  his  own  name ; 
held,  that  the  tenant  for  life  was  entiled  to  the 
dividends  for  life.  Waldo  v.  Waldo,7  Sim.  (ch.) 
261. 


TIME,  COMPUTATION  OF. 

In  orders  for  payment  of  money,  month  held  to 
mean  a  lunar  month.  Attorney- general  r.  New- 
bury Corporation,  1  Coop.  (ch.  c.)  383. 

And  see  Action. 


TITHES. 

[A]  Title  to. 

[Bj  Suits  in  rxspect  of — evidence. 


[A]  Title  to. 

1.  A  portioner,  entitled  to  tithe  of  hay,  held 
not  necessarily  entitled  to  that  of  clover,  vetches^ 
&.C.,  cut  and  carried  awav  green.  Lewis  v. 
Bridgman,  2  CI.  &  Fi.  (i .)  73i>;  and  8  Bli.  N.  S- 
907  ;  affirming  the  judgment  below. 

2.  Upon  a  devise  in  1671  of  tithes,  in  trust  for 
a  minister  at  B.,  to  be  nominated  by  the  trustee ; 
and  his  heir,  in  1716,  sold  them  with  other  prop- 
erty, and  conveyed  to  R.  and  T.,  in  trust  for  R., 
subject  as  to  the  tithes  on  the  same  trust,  the 
minister  to  be  nominated  by  R.  and  his  heirs ;  F. 
became  by  survivorship  seised  of  the  legal  estate^ 
and  his  descendants  continued  so  until  1886» 
when  his  heir-at-law  conveyed  the  tithes  on  the 
orifirinal  trust  to  F.,  the  heir-at-law  of  R.,  but  he 
had  in  1821  nominated  B.  as  minister;  held  a 
valid  nomination.  Held  also,  that  in  the  absence 
of  any  endowment  of  rectory,  or  vicar  or  curat© 
at  any  time,  the  grant  of  the  tithes,  originally  ap« 
propriated  to  an  alien  priory,  dissolved  by  27  Hen. 

8,  comprised  all  tithes,  and  a  decree  for  account  ta 
F.  and  B.  affirmed.  Holdsworth  v.  Fairfax,  3  CK 
He  Fi.  (p.)  115  ;  and  8  Bli.  N.  S.  882. 

3.  The  reasonableness  of  a  custom  to  set  out 
for  tithe  ev*»ry  tenth  turnip,  instead  of  every 
tenth  heap,  depends  upon  the  fact,  whether  the 
parson  has  thereby  an  opportunity  of  seeing  it 
set  out  fairly,  and  was  aisallowed.  Clarke  r. 
Clarke,  2  Younge  &.  (ex.  Eq.)  245. 

4.  The  6  &  7  Will.  4,  c.  71,  for  the  commuta- 
tion  of  tithes,  amended  by  1  Vict.  c.  60. 

5.  Where  the  evidence  of  money  payments 
extended  to  temp.  Car  1,  but  more  ancient  doeu* 
roents  made  no  mention  of  them ;  held,  that  the 
origin  was  to  be  deemed  subsequent  to  the  time 
of  legal  memory,  and  an  account  decreed.  Lord 
Graves  v.  Fisher,  3  CI.  &  Fi.  (p.)  I  ;  and  8  Bli. 
N.  S.  937.    Affirming  the  judgment  below* 

6.  The  notice  of  determining  a  composition  for 
tithes  is  on  the  same  footing  as  a  notice  to  quit 
lands,  X.  e.  a  six  months'  notice,  terminating  at 
the  end  of  the  year  of  composition  ;  where  there- 
fore the  year  ended  at  Michaelmas,  and  the  notice 
was  given  in  March,  held,  that  it  did  not  apply  to 
tithes  of  wool  which  became  due  in  May.     Goode 

9.  Howells,  4  Mees.  &  W.  (ex.)  196. 

And  see  Bishop  v.  Chichester,  2  Bro.  C.  C. 
161. 

7.  The  commissioners  under  6  &  7  Will.  4,  c. 
71,  have  no  jurisdiction  to  interfere  with  shits 
pending  at  the  time  of  the  passing  of  the  act ; 
the  suits  and  di&rences  mentioned  in  it  refer 
onlj  to  such  as  prevent  the  making  of  the  award. 
Gndlestone  v.  Stanley,  3  Tounge  A  C.  (sx.  sq.) 
433* 


[TITHES— TOLLS] 


8.  Commutation  Acts,  amendment  of,  by  2  & 
3  Vict.,  c.  62. 

And  see  Pleadings  (in  e^.)  ;  Poor, 


[B]  Suits  ih  respect  op — evident  ■. 

1.  Where  an  occnpier  filed  a  cross-bill  to  estab- 
lish moduaes,  pending  a  suit  aeainat  the  same 
parties  for  tithes,  held  that  an  admission  of  their 
occnpation  was  not  necessary.  Fiaher  v.  Arlett, 
2  Yottnge,  (ex.  eq.)  208. 

2.  An  ancient  document,  in  the  nature  of  a  ter- 
rier, produced  from  the  proper  custody  and  under 
the  proper  authority,  although  withont  date,  and 
signed  by  various  persons,  withont  designating 
their  character,  held  admissible.  Hall  v.  Farmer, 
2  Tounge  (ex.  e%.)  145. 

3.  Upon  a  bill  for  great  and  small  tithes  of  an 
ancient  park,  which  had  been  disparked  and  cul- 
tivated, there  being  no  evidence  of  composition 
or  preception  of  tithes,  although  compositions 
were  proved  to  have  been  paid  for  other  lands  in 
the  same  township,  dismissed  with  costs.  lb. 

4.  Where  the  ancient  documents  only  showed 
an  endowment  of  the  vicarage,  but  not  its  char- 
acter or  extent,  and  the  ecclesiastical  survey  re- 
cognised "  privy  tithes"  as  well  as  small  tithes, 
but  a  subsequent  terrier  mentioned  privy  tithes  in 
contradiction  to  tithes  in  general,  as  payabl<^to 
the  vicar,  and  he  had  always  received  payments 
denominated  privy  tithes;  held  that,  under  such 
description,  he  was  entitled  to  the  small  tithes. 
Hall  V.  Godson,  2  Tounge  (EX.Eq.)  153. 

5.  In  debt  by  a  lessee  of  tithes  of  sheaf -corn 
and  grain,  on  3  Edw.  6,  for  not  setting  out  the 
tithes  of  vetches  or  tares  severed  in  a  green  state, 
held,  that  he  was  not  entitled  to  recover.  Dare 
u.  Derham,  3  Mees.  dt  W.  (ex.)  539. 

6.  The  action  of  debt  for  treble  value  of  tithes 
not  set  out,  is  a  penal  action  within  21  Jao.  1,  c. 
4,  s.  4,  and  the  Judges  have  therefore  no  power 
io  deprive  the  defendant  of  the  plea  vweu.  by 
that  act ;  and  held,  that  nil  dAet  was  still  a  good 
plea,  notwithstanding  the  3  <&  4  Will.  4,  c  42,  s. 
1.  Earl  Spencer  v.  Swannell,  6  Dowl.  (p.  c.) 
326 ;  3  Mees.  dk  W.  (xx.)  154. 

7.  Where  the  defendant,  in  a  vicar's  suit,  de- 
nied tiie  plaintiff's  ri^rht,  alleging  it  to  be  in  the 
rector,  and  tbe  plaintiff  amending,  charging  that 
the  defendant  ought  to  set  forth  to  what  tithes 
the  rector  was  entitled;  on  demurrer  to  that 
part,  held,  that  the  case  made  by  the  answer 
being  totally  inconsistent  with  that  made  by  the 
demurrer,  it  was  tiiereby  over  ruled.  Salkeld  v. 
Phillips,  2  Yonnge  6t  C.  (ex.  zq.)  580. 

8.  Where,  to  a  bill  for  an  account  of  tithes,  the 
defence  set  np  an  arrangement  by  all  proper 
parties,  and  with  the  approval  of  the  bishop, 
(buft  afler  the  disabling  statute)  by  which  certam 
lands  and  privileges  were  assigned,  and  an  annuity 
granted  in  consioeration  of  an  exchange  of  lands, 
and  giviog  up  the  tithes  of  the  lands  claimed'  bv 
the  plaintiff;  held,  that  such  agreement  was  void, 
and  an  aotoant  deeraed;  hekl,  also,  that  Um  bill 


having  been  filed  befora  tbe  3  dk  3  Will    4,  «. 

100,  but  afler  the  period  limited  thereby,  amen- 
ded, by  making  the  owner  of  the  lands  a  party, 
the  original  and  amended  bill  formed  bat  one 
record,  and  that  the  suit  was  instituted  against  the 
owner  within  the  prescribed  time.  Thorpe  v. 
Mattingley,  2  Tounge  d^  C.  (ex.  xq.)  421. 

And  see  Attorney -General  v.  Cholmondeley, 
Owill.  914. 

And  see  Ckwrth-riUt. 

9.  Merger  of  tithes  in  land  facilitated  by  1  & 

2  Vict  c.  64,  amending  6  ^k  7  WiU.  4,  c  7],  a. 

10.  The  case  of  Scarlett  v.  Governors  of 
Lucton  School,  affirmed  in  D.  P.  10  Bit.  N.  S.  (p.) 
592. 

11.  A  plea  of  a  modus  of  id.  an  acr«  lor  c»> 
tient  pasture  land,  in  the  hands  of  an  ontniwel- 
ler,  and  where  restored  to  pasture  after  being 
broken  up,  the  same  modus  payable,  held  bad ; 
the  antiquity  on  which  such  a  payment  could  be 
valid  can  only  be  referred  to  the  time  of  legal 
memory,  viz.  of  Richard  J  at,  and  must  continoe 
such ;  scmb,^  however,  that  if  properly  pleaded, 
a  modus  might  be  supported  in  respect  of  the 
land  when  m  a  particular  state  of  cultivation, 
and  that  a  modus  may  be  good  for  lands  occupied 
by  an  out-dweller,  which  nevertheless  pays  tithes 
in  the  hands  of  an  inhabitant.     Cooper  i?.  Byron, 

3  Tounge  &  C.  (ex.  eq.)  467. 

12.  Where  the  whole  evidence  is  before  him, 
no  contradiction  to  be  reconciled,  no  new  facts  to 
be  brought  to  light,  and  the  case  one  complicated 
of  law  and  fact,  a  judge  in  equity  is  bound  to 
decide  tbe  case  without  putting  the  parties  to  the 
expense  and  hazard  of  an  issue,     lb. 


13.  Where  the  bill  charged  the  subtraction, 
a  pretence  uf  a  discharge  by  a  modus,  &e.,  and 
at  other  times  that  the  lands  were  extra-parochial, 
whereas  the  defendant  possessed  deeds,  dkc^ 
showing  the  lands  to  be  within  the  parish ;  held, 
that  the  defendant  could  not  plead  no  titheable 
matters,  and  that  such  a  plea  must  enumerate  all 
the  titlies  specified,  and  negative  the  perception 
of  each  timeable  article.  Clayton  r.  Earl  of 
Wiocbelsea,  3  Tounge  &.  C.  (ex.  Eq.)  426. 

14.  Under  the  6  &  7  Will.  4,  c  71,  s.  45, 
(Tithe  Commutation,)  the  (commissioners  haTitig 
a  discretionary  power  to  determine  suits  theieto* 
fore  pending ;  but  where  they  intend  to  do  so, 
specified  notice  of  such  intention  most  be  ffiven, 
and  for  that  pnrpose  the  ordinary  notice  or  oouft- 
muting  is  not  enough.  Wetherell  v.  Weighill,  3 
Tounge  &  C.  (ex.  Eq.)  243. 


TOLLS. 

1.  A  lease  by  the  corporation  of  the  Trinity- 
House  of  a  lightnouse,  and  the  tolls,  held  to  be  an 
interest  in  a  chattel  real  of  the  interest  of  the 
wife  therein,  and  assignable  by  the  hnsbafkd ; 
held,  also,  that  the  6  &•  7  Will.  4,  c.  79,  directtng 
the  purchase-money  of  lighthouses  pnrchaaed  by 
the  corporation,  to  m  paid  into  and  applied  —  ^  ~ 


[TOLLS— TRESPASS] 


S9S3 


tlie  direction  of  the  Cbnrt  of  Exchequer,  amonffst 
the  parties  beneficiallj  entitled  thereto,  the  order 
of  the  court  as  to  its  disposition  superseded  the 
ordinary  forms  of  conveyance  for  securing  the 
real  pn)perty  of  the  wife.  Ellison,  ex  parte,  2 
Tounge  6l  u.  (ex.  xq.)  528. 

2.  The  declaration  on  a  demise  of  tolls,  must 
allege  that  the  agreement  was  in  writing  and 
signed  by  the  trustees,  but  need  not  go  on  to  al- 
lege the  compliance  with  the  preliminaries  re- 
quired by  the  act.  Oldroyd  v,  Crampton,  4  Btng. 
N.  S.  (c.  p.)  24  i  and  2  Sc.  256. 

And  see  Mandamus;  Poor}  Turnpike. 


TRADE. 

1.  Where  the  defendant,  a  druggist  in  the  town 
of  T.,  in  consideration  of  the  plaintifl  receiving 
the  defendant  into  his  service  as  an  assistant  in 
that  trade,  at  a  certain  annual  salary,  covenanted 
that  he  would  not  at  any  time  thereafter  directly 
or  indirectly  exercise  that  trade  within  T.,  or 
within  three  miles  thereof,  under  a  penalty  ;  held, 
on  error  in  Exchequer  Cam.,  that  such  restric- 
tion was  not  unreasonable  on  account  of  its  being 
indefinite  as  to  duration,  and  that  the  considera- 
tion was  legal  and  of  some  value;  (reversing  the 
judgment  below).  Hitchcox  v.  Coker,  1  Nev.  & 
P.  (K.  B.)  796. 

2.  Powers  for  the  crown  to  grant  privileges  to 
trading  corporations.    By  1  Vict  c.  73. 

And  see  Action;  Covenant. 


TRESPASS. 

1.  In  trespass;  plea,  justiiving  as  in  defence 
of  possession  of  his  close ;  and  replication,  alleg- 
ing a  right  of  wav  over,  dec,  used  and  enjoyed 
for  40  years,  as  of  right,  and  without  interruption, 
&o. ;  rejoinder,  alUeging  interruption  submitted 
to,  &c. ;  surrejoinder,  traversing  the  interruption, 
and  acouiescence  moffe,  Ac;  held  that,  upon 
proof  of  a  non-user  for  part  of  the  time,  evidence 
was  admissible,  in  order  to  show  that  the  non- 
user  was  not  a  voluntary  forbearanee,  and  that, 
previous  to  such  non-oser,  a  consideration  had 
been  paid  for  permission  to  nse  the  way  by  the 
party  claiming  the  right  Tickle  p.  Brown,  4 
Ad.  A  £11.  (X.  B.)  369 ;  and  6  Nev.  A  M.  230. 

2.  Held  also,  that  the  words  of  s.  2  (in  2  &  3 
Will.  4,  c.  71),  **  enjoyed  by  anv  person  claiming 
right,"  and  *^  enjoyment  as  of  rigllt,"  in  s.  5, 
mean  not  a  secret  or  occasional,  but  an  open  and 
notorions  exercise  thereof,  b^  a  partj  without 
leave,  and  olaiming  to  use  it  without  bemf  treated 
aa  a  trespasser,  wither  it  he  one  strictly  legal,  or 
merely  lawful,  so  far  as  to  excuse  a  trespass. 
Tickle  V.  Brown,  4  Ad.  &  Ell.  (x.  B.)  969 ;  and 
6  Nev.  &  M  230. 

3.  To  a  plea  of  such  enjoyment,  a  licence,  if  it 
cover  the  whole  time,  must  be  pleaded ;  bat  an 
o^casiona)  ltceii«e»  or  for  •  defimta  period,  may 

Vol.  IV.  82 


be  given  in  evidence  under  a  genera]  traTerse  of 
the  enjoyment  as  of  right,    lb. 

4.  In  trespass  for  entering  a  close,  &o. ;  plea, 
that,  before  plaintiff  had  any  title  therein,  A. 
was  seised  in  fee  of  that  and  certain  other  closes, 
of  which  the  plaintiff's  close  was  then  parcel, 
and  by  himself  and  tenants,  during  all  that  time, 
used  and  enjoved  a  right  of  way  over  the  part, 
being  plaintiff  s  close,  to  the  other  closes,  and 
that  A.  afterwards  conveyed  the  defendant's 
closes,  ^  together  with  all  ways  and  appurtenan- 
ces whatsoever  thereunto  belonging;"  held  that, 
the  way  not  being  appurtenant  at  the  time  of  the 
conveyance,  the  defendant  should  have  pleaded 
that  he  was  enfeoffed  of  the  close  and  way,  or 
that  there  was  no  way  appurtenant  in  alieno  soh. 
Wilson  V.  Bagshaw,  5  M.  &  Ry.  (k.  b.)  448. 

5.  Where  in  trespass,  issues  were  joined,  1st, 
on  a  right  of  public  carriage-way ;  2d,  of  a  bridle- 
way, and  3d,  of  a  footway,  and  the  jury  found 
on  the  first  for  the  plaintiff,  and  on  the  third  for 
defendant,  and  were  discharged  as  to  the  second 
without  the  plaintiff's  consent;  held,  that  the 
second  issue  was  material,  and  a  new  trial  grant- 
ed, although  the  plaintiff  had  consented  to  mere- 
ly nominal  damages.  Tinkler  v.  Rowland,  4  Ad. 
A  Ell.  (x.  b.)  m. 

6.  Pleas  in  trespass,  alleging  a  right  of  way 
for  the  purpose  of  bringinff  goods  and  water  from 
the  river  W. ;  the  jury  found  as  to  the  latter, 
but  negatived  the  former ;  held  that,  under  the 
rules  of  Hilary,  4  Will.  4,  the  plaintiff  was  enti- 
tled to  have  the  verdict  entered  for  him,  as  to 
the  right  to  carry  goods.  Knight  v.  Woore,  3 
Bing.  N.  S.  (c.  p.)  3;  3  So.  326;  and  6  Dowl.  (r. 
c.)  5)1.  487. 

7.  Upon  a  purchase,  by  verbal  contract,  of  a 
crop  of  growing  gjaas,  with  liberty  to  enter,  &c., 
to  cut  and  carry  it  away ;  the  money  not  being 
paid  according  to  the  agreement,  the  defendant 
turned  the  horse  and  cart  of  the  plaintiff  out  of 
the  field,  being  the  trespass  oomplained  of;  held 
that,  although  such  contract  might  operate  as  a 
lieenoe  to  exonss  the  entr^,  it  could  not  give 
such  an  interest  as  to  entitle  the  purchaser  to 
maintain  trespass,  which  would  in  efieot  charge 
the  defendant  on  a  parol  contract  for  a  sale  of  an 
interest  in  land  within  the  4th  sect,  of  the  Statute 
of  Frauds.  Carrington  v.  Roots,  2  Mees.  &,  W. 
(%%.)  248. 

8.  A  party  is  justified  in  entering  and  placing 
on  the  plaintiff's  close,  goods  wrongfully  placed 
by  him  on  the  adjoining  premises  of  the  defend- 
ant.   Rea  V.  Sbeward,  2  Mees.  A  W.  (xx.)  425. 

9.  Plea,  in  trespass  for  breaking  plaintiff's  two 
closes,  4&C.,  a  public  right  of  carriage-way;  re- 
plication, denving  the  ri^ht ;  it  appeared  that  the 
closes  were  in  the  lordship  of  T.,  part  of  the 
parish  of  I-,  and  the  roads  of  the  lordship  were 
proved  to  have  been  immemorially  repaired  by 
the  owners  and  occupiers  in  the  lordship,  under 
an  agreement,  but  that  they  had  latterly  oeen  as- 
sessed to  the  parish  highway  rates ;  oeld,  that 
such  owners  were  not  competent  witnesses  on 
the  part  of  the  plaintiff  to  disprove  the  existence 
of  a  public  way ;  as  a  verdict  for  the  defendant 
would  be  evidsnoe  of  rspntstioB  to  eJni]ge  the 


2094 


[TRESPASS] 


pariah  on-  an  tDdietmeiit  for  not  repairing,  and  fcr 
which  the  witneases  would  be  liable  toeontribnte ; 
and  that  the  case  did  not  fall  within  the  3  &  4 
Will.  4,  c.  42,  Dor  were  they  rendered  competent 
by  54  Geo.  3,  c.  170,  8.  9.  Fowler  v.  Port,  7  C. 
&  P.  (N.  p.)  792. 

And  aee  Oxenden  v.  Palmer,  2  B.  &  Aid.  296. 

10.  Where  the  plaintiff,  whilst  in  the  ouBtody 
of  the  marahal,  was  brouffht  up  to  be  cfaarffed 
with  an  attachment;  held,  (Abmger,  L.  O.  0., 
diss.)  that  it  was  prima  fade  a  trespass ;  and  that, 
if  the  imprisonment  were  justifiable,  the  defend- 
ant must  plead  it  specially,  firiant  v.  Glutton,  5 
Dowl.  (P.  c.)  166. 

11.  Plea,  in  trespass  and  false  imprisonment, 
that,  the  plaintiff  made  a  great  noise  and  disturb- 
ance in  defendant's  shop,  and  thereby  eaused  a 
mob  to  assemble,  and  a  riot  and  disturbance  in 
the  public  street;  whereupon,  in  order  to  pre- 
serre  the  public  peace,  the  defendant  gave  the 
plaintiff  in  charge  to  the  police ;  held  that,  al- 
though no  riot  proved,  the  plea  showed  a  suffi- 
cient breach  of  the  peace,  and  was  a  good  justifi- 
eation.  Cohen  v.  Huskisson,  2  Maes,  db  W.  (xz.) 
477. 

12.  In  trespase  for  an  assault,  the  defendant  is 
entitled  to  offer  in  mitigation  the  publication  of  a 
libel  upon  him  by  the  plaintiff;  but  the  defendant 
having  brought  an  action  for  such  libel,  he  ought 
to  derive  no  advantage  from  it  in  diminution  of 
damages ;  held  also,  that  the  work  of  the  defend- 
ant, of  which  the  libel  was  a  criticism,  need  not 
be  read,  but  that  the  plaintiff  mif^ht  in  reply 
read  parts  of  the.  work  as  part  of  his  speech,  to 
show  that  the  criticism  was  fair ;  if  a  critic  goes 
out  of  his  way  and  attacks  the  private  character 
of  the  author,  he  will  be  liable  to  the  author  in 
damages.  Fraaer  v.  Berkeley^,  7  C.  &  P.  [v,  p.) 
621. 

13.  So,  in  trespass  for  fklse  imprisonment,  bv 

S'ving  plaintiff  in  charge  of  a  peace  officer ;  held, 
at  the  defendant,  in  mitigation  of  damages, 
mi^ht  show  the  previous  annoying  conduct  of^the 
plamtiff  towards  him.  ThooMS  v.  Powell,  7  C 
A  P.  (H.  p.)  807. 

14.  Where  the  sheriff  executed  a  Ji.  fa,  afler 
notice  of  the  defendant's  discharge  under  the 
insolvent  Act ;  held,  that,  although  the  issuing 
the  writ  might  be  irregular,  he  could  not  be  made 
a  trespasser  by  obeying  it.  Whitworth  v.  QiAon, 
1  M.  &  Rob.  (M.  p.)  &l. 

15.  Plea,  in  trespass  for  shooting  a  dog,  that  he 
-  ^8  ferocious  ana  had  attacked  the  plaintiff; 
'    /]  not  supported,  where  it  appeared  that  the 

<raa],  alter  having  attacked  the  defendant,  was 
'  inning  away :  the  circumstance  of  the  animal 

ng  of  a  ferocious  disposition,  will  not  justify 
kiie  shooting  him,  unless  actoaUy  attacking  the 
party  at  the  time.  Morris  v.  Nugent,  7  C*  dt  P. 
(N.  p.)  572. 

16-  In  trespass  for  taking  goods  as  a  distresi 
for  poor-rates,  held  that,  notwithstanding  the  new 
rules,  the  whole  defence,  and  consequently  that 
they  were  not  the  plaintiff's  |Coads,  might  be 
gone  in%9  under  the  ftneral  «niww    Haiaft  v. 


Oavey,  6  Nev.  A,  M    (k.  b.)  356;  and  4  Ad.  dk 

Ell.  892. 

17.  In  trespass;  pleas,  1st,  general  issue,  and 
2d,  entry  to  distrain  for  rent ;  and  the  jury  found 
on  the  first  for  the  plaintiff,  with  ooe  farthing 
damages,  and  for  the  defendant  on  the  second ; 
held,  that  the  plaintiff  was  not  entitled  to  coats, 
without  a  certificate,  under  the  aUt.  22  dt  23  Car. 
2,  c.  9.  Dunnage  v.  Kemble,  3  Bing.  N.  S.  (c. 
p.)  538 ;  4  So.  365 ;  and  5  DowL  (p.  c.)  47tf. 

18.  Pleas,  in  trespass  piare  d,  ir.,  Ist,  not 
guilty ;  2d,  denying  the  close  to  be  the  plaintiff 'a, 
and  3d,  a  right  of  way  ;  the  two  first  iasoea  hav- 
ing been  found  for  the  plaintiff,  with  nominal 
damages,  and  the  last  for  the  defendant,  held  that 
the  latter  was  entitled  to  the  posUa.  Stale j  9. 
Long,  3  Bing.  N.  S.  781 ;  and  5  Dowl.  (r.c.}  616. 

19.  Where,  in  trespass  for  assault  on  the  plain- 
tiff's wife,  the  defendant  pleaded  that  the  person 
assaulted  was  not  the  wife ;  held  not  to  involiia 
an  admission  of  battery  cm  the  record,  or  to  pco- 
vent  the  effect  of  the  judge  s  certificate  for  coals 
under  43  £lis.  c.  6  Wilson  v.  Lainsoo,  3  Bing. 
N.  8.  (c.  p.)  307 ;  3  8c.  670 ;  and  5  DowL  (r.  c.) 
307. 

20.  Where,  in  trespase,  the  plea  rained  the  is- 
sues of  right  of  way  to  fetch  water  and  convey 

gwds  from  a  river,  the  former  of  which  was 
und  in  favor  of  the  defendant ;  held,  that  the 
verdict,  as  to  the  breaking,  die.,  was  sohatantiaUj 
found  for  the  defendant,  and  be  was  entitled  lo 
the  general  costs  in  the  cause.  Knight  «•  Woose, 
3  Bing  N  S.  (c.  p.)  534;  3  Se.  SQb;  4  8c  360; 
and  5  Dowl.  (r.  c.)  487. 

21.  In  trespass  for  injury  to  plaintiflT's  reveiw 
sion ;  first,  pleas,  the  general  issue,  and  second, 
a  right  to  cleanse  a  drain  under  the  plaintiff's 
wall,  which  right  the  plaintiff  traversed ;  the 
plaintiff  aflerwards  obtained  leave  to  aaaead, 
withdrawing  the  traverae  of  tlie  right,  and  new 
assigning  excess,  to  which  the  defendant  pleaded 
not  guil^,  hut  subsequently  withdrew  that  plea* 
and  paid  money  into  ecrart  in  satisfaction  of  the 
damages  under  the  new  assignment,  which  the 
plaintiff  took  out,  and  also  withdrew  the  plea  of 
general  issue,  as  regarded  the  part  of  the  dedan- 
tion  newly  aasigned ;  the  master  gave  the  plaia- 
tiff  the  oosts  of  the  writ  and  new  amgnment 
and  aubseqnent  proceedings,  bat  gave  the  defen- 
dant the  general  costs,  and  held  right.  Griffiths 
V,  Jones,  1  Mees.  A  W.  (xx.)  731 ;  1  Tjr.dk  Gi. 
1131 ;  and  5  Dowl.  (p.  0.)  167. 

22  The  conrt  win  not  order  the  party  direeCinf 
the  trespass  to  be  committed,  hut  not  aade  a 
party  to  the  suit,  to  pay  costs.  Berkeley  ».  O^ 
mery,  5  M.  dk  Ry.  (x.  b.)  442. 

23.  Where  overseers  enclosed  common  Inadi 
for  the  use  of  the  poor,  held,  that  they  might 
maintain  trespass  against  a  stranger  and  wrongs 
doer,  although  they  bad  not  obtained  the  cenaant 
of  the  lord,  as  requited  by  1  &2  Will.  4,  e.  49; 
s.  2,  to  perfect  their  title.  Mayaoa  9.  OMtk,  4 
Bing.  1¥.  S.  (c.  p.)  392. 

24.  Wberean  order  in  haelwdy  wti 
dvpliesde,  one  regnkr  and  depaattad  in  tfa* 

Md  «k»«&Wi  Hw  oii»  Mff«d  M  tl» 


[TRESPASS] 


S9S5 


pvtod  ikther,  haviDf  iiuerted  br  mi^lake  the 
mother's  name,  in  liea  of  the  plaintiff's,  bat  he 
WIS  told  at  the  time  that  he  was  ordered  to  pay, 
Ac. ;  in  trespass  against  justices  for  having  com- 
mitted him  for  disobedience  of  the  order,  held, 
that  there  being  a  valid  order  produced  before  the 
defendant,  and  apon  which  he  acted,  he  was  jus- 
tified in  the  commitment  Wilkins  v.  Hens- 
worth,  3  Ney.  &  P.  («.  b.)  55. 

25.  Where  the  defendant,  on  a  dispute  upon  a 
building  contract  with  the  plaintiff,  went  before  a 
instice,  who  issued  a  warrant  ander  4  Geo.  4,  c 
34,  and  the  complaint  was  aAerwards  heard  and 
dismissed ;  held,  that  the  defendant  could  not  be 
liable  in  trespass,  but  only  in  case,  if  actuated  by 
malice ;  where  the  justice  having  general  inris- 
diction  over  the  sub|ect  matter,  erroneously  think- 
ing he  has  jurisdiction,  grants  a  warrant,  he 
wonld  not  be  liable ;  aUier,  if  he  acted  without 
an  J  jurisdiction  at  all.  The  defendant  having 
pointed  oat  the  plaintiff  to  the  officer,  jem^., 
wonld  be  evidence  to  go  to  the  jury  of  interfer- 
ence, bot  where  the  plaintiff  did  not  claim  to 
have  it  left  to  the  jury,  the  coart  would  not  after- 
wards interfere.  West «.  Smallwood,  3  Mees.  & 
W.  («x.)  418. 

526.  Where  one  defendant  in  an  action  for  tres- 
passing in  pursuit  of  game,  justified  under  the 
authority  of  the  other,  who  being  owner  of  the 
lande,  had  demised  them,  with  an  alleged  reeer- 
▼ation  of  the  game,  and  it  appeared  that  the  for- 
mer had  been  summoned  bef(>re  a  magistrate  for 
the  trespass,  and  on  the  defendant  being  called 
the  ease  was  dismissed ;  held,  that  the  second 
defendant  having  never  actually  entered,  the  pro- 
eeedings  before  the  magistrate,  under  1  &  2  Will. 
4,  c.  SS,  s.  46,  was  a  bar  to  the  action  against  both. 
Rpbinson  v.  Vaughan,  8  C  dt  P.  (k.  p.)  252. 

27.  Where  in  trespass  against  eeveral,  the 
plaintiff  proved  acts  by  two  defendants  only  on 
one  day,  and  acts  by  all  on  another  day,  held 
that  the  plaintiff,  although  he  had  elected  to  rely 
on  the  former  trespasses,  might  proye  also  other 
trespasses  against  those  two,  oat  could  not  reeor- 
er  as  ajpinst  them  for  trespasses  in  which  they 
were  implicated  with  others;  held,  also,  that 
where  the  defendants  had  pleaded  specially,  those 
against  whom  the  plaintiff  had  abandoned  his 
case  were  not  entitleo  to  acquittal^  until  the  issue 
on  those  pleas  were  disposed  of,  as  they  might, 
bv  the  new  rules  of  pleading,  be  still  snbjeet  to 
the  costs  of  the  special  pleas.  Hitehen  o.  Teak, 
2  M.  dt  Rob.  (K .  p.)  30. 

28.  Where  the  plaintiff,  a  satlor,  lodged  with 
one  of  the  defendants,  an  innkeeper,  and  whilst  in 
a  state  of  intoiication,  the  otiier  defendant  desired 
a  party  to  take  out  what  money  he  had  in  his 
pockety  which  the  other  received,  desiring  the 
plaintiff  to  be  told  when  he  awoke  that  his  money 
was  lost,  although  he  was  afterwards  told  it  was 
all  riffhtf  and  he  desired  U.  of  it  to  be  given  to  a 
iemafo,  which  was  done,  and  the  next  morning 
the  defendant,  the  landlord,  ofiered  him  a  small 
balance,  afler  deducting  his  demand  for  lodging, 
4k  c ;  held,  that  the  one  directing  the  money  to 
be  takon  tad  tht  other  takinff  adVantsge  of  it  as 

iHy  iiabo  in  tnsptM.  UMl 
to 


sum  taken,  mtmis  the  I/,  directed  by  him  to  be 
given.     Peddell  «.  Ruttcr,  8  C.  dt  P.  (s.  p  )  337. 

29.  Where  the  defendant,  a  sheriff *s  ofP.ccr,  ar- 
rested the  plaintiff  in  two  suits,  and  took  .'  w^- 
ular  batlbond  in  one,  and  an  instrumrnt  ei^-  .'^ 
by  the  plaintiff,  but  not  sealed  nor  filled  np,  in  the 
other,  although  the  fees  were  paid  thereon,  and  it 
appeared  that  the  defendant  was  inrorn)ed  ot  A\e 
deot  in  the  first  suit  having  been  paid  an  hour  hie- 
fore  the  plaintiff  was  liberated,  held,  that  ihrre 
beinjf  no  evidence  of  the  plaintiff  havine  heen 
detained  a  moment  longer  than  the  defendant 
was  justified  in  detaining  him  under  a  lawful  writ, 
the  action  for  false  imprisonment  was  not  main- 
tainable. Blessley  v.  Sloman,  3  Mees.  A  W.  (xx.) 
40. 

30.  Where  in  trespass  for  an  expulsion  by  A. 
B.  and  C,  A  pleaded  not  guilty,  B.  and  C.  ad* 
mitted  the  expulsion,  but  paid  20f .  into  court,  and 
pleaded  that  no  greater  damages  had  been  sus- 
tained; held,  that  if  the  jury  found  A.  to  have 
sanctioned  the  expulsion,  he  was  liable  only  to 
nominal  damages,  the  20s.  having  been  found  by 
the  jury  a  sufficient  compensation  for  the  expul- 
sion, and  been  received  from  A.'s  co-defendants. 
Walker  v.  Woolcott,  8  C.  &  P.  (s.  p.)  352. 

31.  Plea  in  trespass,  for  chasing  plaintiff's 
sheep  from  a  certain  close  into  the  highway,  and 
leaving  them  there,  that  the  sheep  were  doing 
damage  in  the  said  close  of  the  defendants ;  rep- 
lication, that  they  erred  and  escaped  from  the 
plaintiff's  close  into  the  defendant's  through  de- 
fect of  fences,  which  the  latter  was  bound  to 
repair,  and  issue  thereon ;  held,  on  a  motion  in 
arrest  of  judgment,  that  the  replication  was  good, 
and  that  it  was  the  defendant  s  duty  to  replace 
the  sheep,  and  not  to  leave  them  in  the  highway, 
although  it  might  be  the  proper  road  for  Uiem  to 
return.  Carruthers  v.  Hollis,  3  Ner.  Sl  P.  (^.  a.) 
246. 

32.  PIm,  ui  trespass  for  chasinff  and  taking 
and  detaining  sheep,  prescribing  for  defendant 
and  other  occupiers  or  a  messuage,  4tc.,  for  30 
years  before,  ac.,  in  a  right  of  common  of  pas- 
ture in  the  place  in  which,  &o.^and  justifying  the 
taking  as  distress  damage  feasant ;  held  bsid  on 
demurrer,  as  being  framed  on  the  2  &  3  Will.  4, 
c.  71,  it  did  not  allege  the  user  to  hare  been  for 
that  time  before  the  commencement  of  the  action  ; 
but  held,  that  such  a  plea  need  not  allege  the 
user  to  have  been  **  without  interruption."  Rich- 
ards v.  Fry,  3  Ney.  db  P.  (q.  a.)  67. 

Z3k  Qiusrs,  if  in  a  plea,  stating  such  a  right  of 
common,  it  is  sufficient  as  against  a  wroogidoer, 


merely  to  allege 


ton. 


1&. 


34.  Plea,  in  trespass  for  taking  cattle,  damage 
feasant,  first,  prescribing  for  a  ri^ht  of  pasture, 
under  2  &  3  Will.  4,  c.  71,  alleging  enjoyment 
for  30  years  next  before,  dec,  and  Sdlj,  a  right  of 
turning  on  cattle'for  20  years :  and  it  appeared, 
that  although  acts  of  depasturing  were  shown 
more  than  S)  yean  ago,  that  28  years  before  the 
aetion  conuDeaoed  a  rail  had  been  erected  lo  in- 
terrupt the  enjoyment,  and  which  had  been  rs- 
moveid  during  that  period ;  held,  that  the  first 
plea  was  not  proved,  and  that  it  did  not  lie  on  the 
dofendaat  to  proTo  that  tlM  sreetioB  ^f  tha  rtil 


[TRESPASS] 


WM  advene  to  the  Dluntiff's  rufht;  9dl¥,  that^ 
the  second  plea  was  aemamble,  for  not  showing 
the  purpose  for  which  the  cattle  were  turned  on, 
and  the  sole  object  of  the  evidence  being  to 
prove  the  right  of  pasture^  which  was  a  profit  a 
prendre,  and  not  a  mere  easement,  the  right 
claimed  was  neither  definite  nor  supported  by  the 
evidence ;  and  since  the  act,  the  proof  must  be  of 
actual  enjoyment  during  the  prescribed  period, 
and  no  presumption  is  admissible.  Bailey  o. 
Appleyard,  3  ^ev.  dt  P.  (q.  b.)  257. 

35.  Where  in  trespass  for  taking  the  plaintiff's 

SKkIs,  j^lea,  leave  and  licence ;  it  appeared  that 
e  plaintiff  an  ignorant  youne  person,  on  bis 
father's  bankruptcy,  being  told  by  the  commis- 
sioners at  an  examination,  the  defendant  not 
being  present,  that  the  goods  were  his  father's, 
said,  he  would  eive  them  up;  the  court  granted 
a  new  trial,  on  uie  ground  toat  the  evidence  did 
not  sustain  the  plea.  Roper  v.  Harper,  4  Bing. 
N.  S.  (c.  r .)  20 ;  and  3  Sc.  250. 

36.  Where  the  trespass  and  assault  alleged 
was,  a  beatintf  with  a  bludgeon ;  and  the  pleas, 
as  to  the  assaulting,  beating,  and  ill-treating,  first, 
a  justification  of  tnoUiter  mamis  to  remove  the 
plaintiff  from  the  defendant's  house ;  and  second- 
ly, son  assault  demesne^  and  the  judge  directed 
tne  jury  that  the  striking  with  a  bludgeon  would 
not  be  justified  on  those  pleas;  held  a  misdirec- 
tion ;  dvh.  whether  the  pleas  justifying  only  the 
healing  were  an  answer  to  the  aggravated  battery 
laid  in  the  declaration.  Oakes  v.  Wood,  3  Mees. 
&  W.  (EX.)  150. 

37.  In  trespass  for  assault,  held  that  strong 
provocation,  as  e»  libel  on  the  defendant  by  the 
plaintiff,  although  previous,  was  admissible  in  mit- 
igation of  damages  under  the  general  issue. 
Fraser  v.  Berkley,  2  M.  &  Rob.  (h.  p.)  3. 

38.  Where  in  trespass,  issue  was  joined  on  one 
plea,  and  rejoinder  and  demurrer  on  the  other, 
and  the  defendant  afler wards  gave  notice  that  he 
should  not  proceed  on  the  second  plea;  held 
that  the  plaintiff  was  not  entitled  to  sign  judg- 
ment on  the  whole  record ;  but  leave  ^iven  to 
strike  out  the  pleadings  demurred  to.  Hitchcock 
V.  Walter,  6  Dowl.  (p.  c.)  457. 

39.  In  trespass  for  seizing  goods  under  a  reg- 
ular judgment,  but  not  withm  the  jurisdiction 
into  which  the  process  might  run ;  held  that  the 
plaintiff  was  entitled  to  recover  the  value  of  the 
goods,  and  not  merely  the  extent  of  damage  sus- 
tained by  being  taken  in  a  wronff  pltee ;  and  a 
new  trial  refused,  oo  the  ground  of  the  verdict 
being  against  evidence,  the  damages  being  under 
202.  Sowell  V.  Champion,  6  Ad.  &  £11.  (q.  b.) 
407. 

40.  Plea  in  trespass  for  entering  plaintiff's 
eloee,  that  plaintiff  had  entered  defendant's  close 
and  seised  goods  against  his  will,  and  placed  them 
on  the  close  in  the  declaration  mentioned,  and 
that  the  defendant  made  fresh  pursuit  and  en- 
tered to  retake  the  ^oods ;  held  a  good  plea,  tlie 
plaintiff  giving  an  implied  licence  to  enter  for 
the  purpose  of  recaption.  Patrick  v.  Colerick,  3 
Mees.  dL  W.  (bx.)  483;  and  se€i  Via.  Abr.  tit. 
Trespass,  1, «. 


41.  In  tresptas  lor  throwing  down  a  wall,  plea, 
first,  that  it  was  not  the  plaintiff 's  wall ;  aeooad- 
ly,  that  it  was  a  party  wall,  which  latter  issae 
was  found  for  the  defendant ;  held,  also,  that  he 
was  entitled  also  to  the  verdict  on  the  first 
Marley  v.  M'Dermott,  3  Nev.  &  P.  («.  a.)  356. 

42.  Plea,  in  trespass  for  bresking  and  entering, 
leave  and  licence,  and  not  guilty  of  the  residue, 
and  fid.  damages ;  held  that  neither  of  the  issues 
necessarily  raisiiur  any  question  of  title,  the 
judge  might  certify  under  43  £lix.  e.  6.  Mills  v. 
Stevens,  3  Mees.  &  W.  (ax.)  460. 

43.  Where  the  defendant  pleaded,  first,  not 
guilty ;  and  secondly,  that  the  dwelling-bouse  in 
which,  dec.  was  not  the  dwelling-house,  Ac.  of 
the  plaintiff,  and  he  obtained  a  verdiet  of  one 
farthing  damages;  held  that  he  was  entitled  to 
full  costs  under  22  ^  23  Car.  2,  c.  9,  s.  136,  a 
denial  of  the  close  being  the  plaintiff's  is  a  denial 
of  his  title  thereto.  Pugh  v.  Roberts,  3  MeesL  & 
W.  (Kx.)  458. 

44.  Wh^  the  declaration  a]1e|red  a  seising  aad 
taking  hold  of  the  plaintiff  and  imprisoning  him, 
and  the  plaintiff  having  succeeded  upon  the  pleas 
of  justification  with  \s.  damages  ;  held  entitled 
to  costs,  notwithstanding  the  Judge  had  certified 
under  43  Eliz.  Rawlins  v.  Till,  6  Dowl.  (r.  c.) 
159;  and  3  Mees.  6l  W.  (ex.)  2& 

45.  In  trespass  for  breaking  and  entering  a 
stable,  and  taxing  a  horse,  pleas,  that  the  atable 
was  not  the  plaintiff 's,  and  also  leave  and  lieeaee, 
upon  which  the  plaintiff  obtained  a  verdict,  aad 
damages  one  farthing,  and  the  Judge  certified 
under  the  43  Eliz. ;  held  that  be  was  nevertheless 
entitled  to  full  costs.  Purnell  v.  Toung,  6  OowL 
(p.  c.)  347 ;  and  3  Mees.  &  W. (ax.)  2& 

46.  The  22  &  23  Car.  2,  e.  9,  s.  136,  does  not 
apply  to  actions  for  false  imprisonment,  and  under 
it  a  nuthing  damages  will  carry  foil  oosCa,  ualoBB 
the  Judge  certifies  under  the  Statute  of  Elia. 
Gould  a.  Drake,  3  Mees.  dk  W.  (ax.)  540. 

47.  Where  the  plaintiff  had  demised  land,  for 
60  years,  for  buildmg,  at  a  rent,  reserving  a  right 
of  way  to  the  grantor  over  the  streets  net  ween 
the  houses  to  be  built,  and  he  agreed  to  grant 
leases  of  the  houses  as  they  should  be  built ;  the 

frantee  entered,  paid  rent,  and  proceeded  to  erect 
ouses,  Slc,  for  which  he  obtained  leases,  and 
built  a  wall  across  one  of  the  streets ;  held,  that 
he  was  to  be  deemed  in  possession  of  the  land  on 
which  the  wall  was  built,  and  that  the  grantor 
could  not  maintain  trespass  for  such  erection. 
Alexander  v.  Bonner,  4  Ring.  N.  S.  (c.  p.)  799; 
and  6  Sc.  6U. 


48.  In  trespass  for  injury,  by  driving  agai 
the  plaintiff  whilst  crossing  the  road ;  belc^  that 
any  defence  amounting  to  an  allegation  that  the 
matter  did  not  arise  from  any  fault  of  the  defend- 
ant, must  be  specially  pleaded  ;  oUUTj  in  eaae  for 
negligently  driving ;  a  foot-passenger  has  a  right 
to  cross  a  road,  and  a  party  driving  along  it  is 
bound  to  use  proper  caution,  and  if  the  iniuiy 
arises  from  his  not  having  power  to  control  his 
horse,  by  reins,  Slg.  breaking,  it  is  no  ground  of 
defence ;  said  also,  that  the  rule  of  the  road,  as 
regards  fbot-passengera,  does  not  apply ;  aa  la* 
gwds  them,  the  earriaga  ouj  go  on  which  aids 


[TRESPASS] 


J»27 


the  driver  ple«flM.    CotterBl  v.  Sterkey,  8  C.  & 
P.  (w.  p.)  691. 

49.  In  trespass,  for  assaolting  aod  throwing 
boiling  watpr  on  the  plaintiff,  and  wetting  and 
damaging  clothes,  dec,  plea,  as  to  the  assauHing 
and  wetting,  and  damaging  &c.,  son  assault  de- 
metne^  and  not  guiltj  as  to  the  residue,  and  ver- 
dict, with  one  farthing  damages ;  held,  that  as 
the  throwing  the  water  on  the  plaintiff  was  a  bat- 
tery, as  to  which  there  was  no  justification  on  the 
record,  so  that  the  judge  might  have  certified  that 
the  battery  was  proved,  and  not  having  done  so, 
the  plaintiff  was  entitled  to  no  more  costs  than 
damages.  Pursell  v.  Home,  3  Nev.  &,  P.  (^.  b.) 
564. 

50.  Plea  in  trespass,  for  entering  plaintiff's 
house  and  taking  away  goods,  that  they  were  not 
the  house  and  goods  of  the  plaintiff,  but  of  the 
defendant;  repncation,  that  the  defendant  had 
demised  the  bouse  and  goods  to  the  plaintiff  from 
year  to  year,  and  that  the  defendant  entered,  &.c. 
daring  the  continuance  of  the  demise,  and  issue 
on  such  demise,  and  the  plaintiff  obtained  a  ver- 
dict of  20s.  damages ;  held,  that  he  was  entitled 
to  full  costs,  notwithstanding  the  judge  had  cer- 
tified under  43  Eliz.  c.  6.  Thomas  v.  Davies,  3 
Nev.  A  P.  (q.  b.)  567. 

51.  In  trespass,  for  breaking,  dtc,  and  taking 
the  plaintiff's  goods,  plea  the  fraudulent  removal 
of  the  goods  by  S.  from  the  premises,  to  avoid 
distress  for  rent,  and  justifying  the  entry  and 
seizure  under  11  Geo.  2,  c.  19,  s.  1 ;  held  bad  on 
demurrer,  as  the  plea  should  have  been  confined 
to  the  breaking  and  entering  into  the  house  of 
plaintiff,  the  denial  that  the  foods  were  the  plain- 
tiff's being  only  indirect  and  argumentative,  and 
it  being  inconsistent  with  the  right  to  seize  under 
the  statute,  that  they  were  at  the  time  of  seizure 
the  goods  of  the  plaintiff,  and  not  of  the  tenant. 
Fletcber  V.  BAarUlier,  1  Pen.  &  Day.  (q.  b.)  354. 

52.  Plea  in  trespass,  justifying  the  entry  and 
seizure  of  the  plaintiff's  goods  under  a>l  jTa.,  re- 
plication admitting  the  issuing  of  the  writ  and 
warrant  thereon,  tnat  the  defendant  committed, 
&c.  de  injuria,  &c. ',  held,  that  the  seizure  was 
not  thereby  admitted,  and  that  it  was  competent 
to  the  plaintiff  to  show  on  that  issue,  either  that 
there  had  not  been  any  seizure,  or  a  merely  color- 
able one  ;  and,  semb  ,  it  would  be  sufficient  for 
him  to  have  relied  on  his  mere  possession,  with- 
out going  on  to  establish  his  title  to  the  posses- 
sion.    Carnaby  v.  Welby,  1  Perr.  dk  Add.  (q.  b.) 

And  see  Lucas  v.  Nockells,  10  Bing.  157. 

53.  Plea,  in  trespass  for  entering  plaintiff's 
house,  and  taking  his  goods,  that  the  house  was 
not  the  house  of  the  plaintiff,  nor  the  goods  his, 
and  on  the  trial,  the  iury  found  that  certain  parts 
of  the  goods  only  belonged  to  the  plaintiff;  held, 
that  the  issue  as  to  the  property  in  the  goods  was 
divisible,  and  the  posUa  ordered  to  be  amended, 
as  to  the  goods  found  not  to  be  his.  Routledge  v. 
Abbott,  3  Nev.  (k,?   {fi  b.)  560. 

54.  The  power  of  the  vMtrymen  of  Mary lebooe, 


under  35  Geo.  3,  e.  72,  to  regulate  stands  for 
hackney-coaches,  is  not  superaeded  by  1  A  2 
Will.  4,  e.  22,  and  a  cabriolet  standing  for  hire 
on  one  of  the  places  prohibited  by  such  regula- 
tions, held  not  within  the  exception  in  57  Geo.  3, 
c.  29,  and  might  therefore  be  seized  by  the  proper 
ofiicers.  Frost  v.  Williams,  2  Nev.  6l  P.  (q  b.) 
475 ;  and  7  Ad.  &  Ell.  773. 

55.  Plea  in  trespass  for  entering  plaintiff's  cham- 
ber, that  the  defendant's  wife  was  there,  and  that 
he  entered  to  reclaim  her,  where  the  plaintiff  un- 
lawfully harbored  her;  held,  that  having  sepa- 
rated himself  from  her  by  a  deed  of  separation ,  it 
amounted  to  a  license,  and  that  whilst  it  stood 
without  any  notice  of  having  revoked  it,  he  could 
not  enter  into  the  bonse  of  a  stranger  for  the  pu^ 
pose  of  reclaiming  her ;  held  also,  that  mere  ex- 
clusive possession  b^  the  plaintiff  of  the  house 
was  sufficient  to  entitle  the  plaintiff  to  maintain 
the  action..  Lewis  v.  Ponsford,  8  C.  A  P.  (n.  p.) 
6o7. 

56.  The  plea,  denying  the  close  in  which,  d!co., 
to  be  the  plaintiff's,  held  to  bring  the  title  in  is- 
sue within  22  &  23  Oar.,  e.  9,  s.  136,  and  the 
plaintiff  succeeding  entitled,  altliough  with  only 
one  farthing  damages,  to  full  costs.  Pugh  v, 
Roberts,  6  Dowl.  (f.  c.)  561. 

57.  Where  the  plaintiff  recovers  in  trespass  for 
false  imprisonment,  although  less  than  40^.,  he  is 
entitled  to  full  costs.  Booth  v.  Drake,  6  Dowl. 
(p.  c.)  564. 

58.  In  trespass  for  assault  and  battery,  plea, 
that  the  defendant  was  in  possession  of  a  dwell- 
ing-house, and  that  the  plaintiff  disturbed  him, 
and  entered  into  it,  wherefore,  &c.,  it  appeared 
from  the  evidence  that  the  defendant  merely 
lodged  in  one  room,  the  landlord  keeping  the  key 
of  the  outer  door ;  held,  that  the  replication  put- 
ting the  whole  plea  in  issue,  the  plea  was  not 
sustained  by  the  evidence.  Monks  «.  Dykes,  4 
Mees.  ik  W.  (ex.)  567. 

59.  Plea  in  trespass,  for  breaking  and  entering 
plaintiff's  house,  and  seizing  goods,  as  to  the 
breaking  and  entering,  dkc,  leave  and  license, 
and  not  guilty  as  to  the  residue,  the  plaintiff  hav- 
ing recovered  damages  6(2. ;  held,  that  it  not  ap- 
pearing that  the  title  was  in  issue,  thejudge  bad 
power  to  certify  to  deprive  the  plaintiff  of^costi. 
Mills  V.  Stevens,  6  Dowl.  (p.  c.)  593. 

60.  In  trespass  for  breaking  and  entering  plain- 
tiff^s  close,  and  taking  straw,  to  which  there  was 
the  plea,  1st,  not  ^iitjr ;  and,  2dl^,  that  the  straw 
was  not  the  plaintiff's,  on  which  issues  were 
taken,  and  the  first  found  for  the  plaintiff:  held, 
that  there  being  nothing  on  the  record  to  show 
that  the  title  came  in  question,  the  plaintiff  was 
entitled  to  no  more  costs  than  damages.  Patrick 
V  Colerick,  4  Mees.  &  W.  (ex.)  527 ;  and  7 
Dowl.  (p.  c.)201 ;  overruling  Hughes  v.  Hughes, 
4  lb.  532. 

And  see  .Action;  Attorney;  Beer  Acts;  Costs; 
Distress;  Justices;  Pleadtng,  (c.  L.);  Sksrif; 
IFoy. 


3938 


LTROVER] 


TROVER. 

1.  Where  in  troyer  by  assignees  of  an  insol- 
vent for  live  horses,  harness,  &c.,  one  plea  al- 
leged that  they  were  delivered  to  the  insolvent 
by  the  defendant,  on  an  agreement  for  lien  there- 
on until  the  price  paid  ;  and  it  appeared  that,  of 
the  five  originally  delivered,  three  had  died,  and 
others  were  substitnted  by  the  insolvent,  who, 
upon  his  going  to  prison,  sent  an  order  for  deli- 
yering  the  five  to  the  defendant;  the  plaintiff 
having  newly  assigned  that  the  conyersion  was 
of  other  horses,  d^c,  than  in  the  plea  mentioned  ; 
held  that,  under  this  assignment,  the  plaintiff  was 
entitled  to  prove  the  taxing  of  horses,  dre.,  not 
jus  ified  under  the  lien;  and  that  the  circum- 
stances made  out  a  suificient  prima  facie  case  for 
a  jury,  that  the  transfer,  as  regarded  the  tliree 
horses,  was  voluntary.  Bolton  v.  Sherman,  2 
Mees.  &.  W.  (kz.)  395. 

2.  Where  the  sheriff  seized  and  sold  horses, 
the  alleged  joint  property  of  the  defendant  and 
another,  and  which  tlie  jurj^  found  ;  and,  in  tro- 
ver by  the  latter,  the  plea  in  substance  alleged 
them  to  be  the  property  of  the  defendant,  and 
which  was  the  issue  raised ;  held  that,  upon  the 
finding  of  the  jury  that  they  were  joint  property, 
the  plaintiff  was  entitled  to  recover.  Farrer  v. 
Beswick,  1  Mees.  A  W.  (si.)  682;  and  1  Tyr. 
&  Gr.  1053. 

3.  The  verdict  ought  to  be  the  value  of  the 
property  taken.  Upon  the  issue,  that  the  defen- 
dant did  not  convert,  the  judee  refused  to  allow 
witnesses  to  be  nross-ezaniined  as  to  the  property 
belonging  to  another,  by  way  of  reducing  the 
damages.    Finch  v.  Blount,  7  C  &  P.  (ir.  p.)  478. 

4.  Special  damage  is  recoverable  in  trover,  if 
stated  in  the  declaration,  otherwise  the  value  <^ 
the  articles  at  the  time  of  the  conversion  is  the 
proper  meitoure  of  damages.  Davis  «.  Oswell,  7 
C.  A  P.  (H.  P.)  804. 

5.  Where  the  evidence  amounted  to  proof  of 
tctual  conversion,  held  that,  if  it  were  done  by 
the  plaintiff's  authority,  it  ought  to  be  specially 
pleaded ;  and  that,  if  it  appeared  that  the  plain- 
tiff at  the  time  haxi  parted  with  the  property  in 
the  goods,  the  defendant  might  avail  himself  of 
it  under  a  plea,  that  the  plaintiff  was  not  possess- 
ed as  in  the  declaration  mentioned.  Vernon  v. 
Shipton,  9  Mees.  A.  W.  (xx.)  91. 

6.  Where  in  trover,  upon  the  issue  of  no  pro- 
perty in  the  plaintiff,  the  defendant  having  shown 
nimself  in  possession  for  four  years  sfVr  a  gifl 
bv  a  psrt^  to  whom  he  was  administrator ;  held 
tnat,  having  put  in  the  letters  of  administration, 
evidence  of  declarations  by  his  deceased  testator 
were  admissible  against  hrm.  Smith  r.  Smith,  3 
Bing.  N.'S.  (c.  p.)  29;  and  3  Se.  352. 

7.  Pics,  in  trover  for  a  tree,  that  defendant  was 
seised  in  fee  of  a  dose,  and  cut  down  the  tree 
which  he  afterwards  delivered  to  a  party,  who  de- 
livered it  to  the  plainti£^  and  that  the  defendant 
afterwards  took  it  out  of  the  plaintiff's  posses- 
sion, which  wss  the  eonversioo  in  the  declaration 
mentkasd^  held,  that  sueh  plea  was  ^ood,  al- 


new  rales.    Moraat «.  Siger,  %  Mees.  dk  W.  (xi.) 
95 ;  and  5  Dowl.  (p.  c.)  319. 

B.  Where  tbe  pleas  in  trover  raised  questions 
on  the  right  of  lien  on  the  Factors'  Act,  the  coait 
allowed  pleas  thereon  to  be  joined  with  tbe  pleas 
of  not  guilty,  and  that  tba  plaintiffs  were  Doi 
lawfully  possessed  of  the  goods.  JaoUerr  v. 
Brittun,  4  Se.  (c.  p.)  380. 

9.  Where  in  trover  for  goods  seised  in  exeeo- 
tion  whilst  in  possession  of  a  third  party,  under 
which  they  were  sold  to  the  defendant,  Md  thai 
upon  a  plea  denying  the  plaintiff's  possession, 
the  defendant  m<j;(it  show  authority  to  sell  by  the 
plaintiff,  and  which  might  be  presumed  from  his 
interfering  with  the  execution  creditor  in  the  dis- 
posal of  the  jToods,  after  knowk>dge  of  seizure, 
and  no  mention  made  of  claim.  Fjeksid  v. 
Sears,  6  Ad.  &,  Ell.  (K.  b.)  469. 

10.  Where  C.  in  the  usual  coarse  of  dealing 
consigned  a  cargo  of  oafs  to  B.  and  remitted  btlfi 
which  the  latter  accepted,  but  before  tbe  sbin 
sailed  C.  became  bankrupt,  having  sent  the  bitt 
of  lading  indorsed  in  blank  to  F  without  com- 
municating the  transactions  with  B.,  and  F.  trans- 
mitted the  bill  of  lading  to  B.,  with  instructions 
to  act  for,  him,  who  paid  the  freight  and  took 
possession  of  tbe  cargo  as  a  security  for  bis  own 
acceptances  for  CX,  hut  which  was  afterwards 
taken  under  a  foreign  attachment  by  creditors  of 
C. ;  held  that  there  was  no  tranafer  of  tbe  prop- 
erty to  B.  nor  lien,  and  that  he  could  not  main- 
tain trover  in  respect  thereof.  Bruce  v.  Wait,  3 
Mees.  <St  W.  (xx)  15. 

11.  Fixtures,  parcel  of  the  freehold,  althongli 
as  against  the  landlord  the  tenant  may  bavem 
riffht  to  remove  them,  cannot  be  deemed  recover- 
able as  goods  and  ehatteb  in  trover.  Mackin- 
tosh V.  TVotter,  3  Mees.  A  W.  (xx.)  184. 

And  see  Mmshnll  v.  Lloyd,  3  Mees.  &  W. 
450.  ' 

19.  Where  in  trover  for  a  deed,  npon  the  issue 
that  tbe  plaintiff  was  not  possessed  thereof,  it 
appearing  that  the  plaintiff  having  the  legal  trtle 
as  mortga^,  had  assented  to  its  being  deliveied 
to  the  defendant  to  raise  money  for  the  diar.ba»s 
of  a  bill  for  which  both  were  liable ;  held  that  tbe 
defendant  being  entitled  to  hold  the  papers  in 
possession  until  the  money  advanced  by  tbe  de* 
fendant  was  repaid,  the  plaintiff  could  not  main- 
tain the  action.  Owen  v.  Knight,  4  Bing.  N.  S. 
(c.  p.)  54 ;  3  Sc.  307 ;  and  6  Oowl.  (p.  c.)  944. 

13.  Plea  in  trover  that  one  R.  lawfully  in  pos- 
session, pledged  the  ffouds  to  the  defendant ;  held 
bad  on  demurrer.  Jaullery  v.  Britten,  4  Biog.  N. 
S.  (c.  p.)  948. 

14.  Where  the  plaintiff,  claiming  to  be  tbe 
mortgagee  of  goons  seised  in  execution,  and 
about  to  be  sold,  stood  by  without  any  opposition 
nr  intimation  of  his  right;  held, that  such  con- 
duet  was  to  be  submitted  for  the  opinion  of  the 
jury,  whether  he  had  not  ceased  to  be  tbe  owner. 
Pickard  v.  Sears,  3  Nev.  dk  P.  («.  B.)  488;  and 
S.  C.  6  Ad.  dt  £11. 4G9. 

And 
M.  4k  M 
318,  n. 


Heaner.  Rogers,  9  B.  dk  C  686;  4 
.  468;  sad  GIraves  «.  Key,  3  B.  4k  Ai. 


[TROVER— TRUSTEE] 


15.  In  tiover  for  e<*rtoiii  goodbcn^/xterM,  &e.  I 
aWeging  that  the  mne  oame  to  the  hands  of  two 
of  feveral  defendanta,  and  that  the  said  defend- 
ants converted,  Ac. ;  held,  Ut,  that  the  said 
drfendants  must,  aAer  the  verdict,  be  taken  to 
mean  all  the  defendants;  and,  SMly,  that  the 
word  fixtures  did  not  necessarily  n/ean  things 
affixed  to  the  freehold,  and  that  after  the  ver- 
dict, the  court,  if  it  could  be  taken  in  s  nense  to 
support  the  deelaration,  would  dog)  Sbem  r. 
Rickie,7  Oowl.  (p.  c.)  335;  and  5  Mees.  &.  W. 
(Bx.)  175. 

16.  Id  trover  for  goods  a^inst  the  assignees  of 
a  bankrupt,  held,  that  the  defence  that  the  goods 
were  at  the  time  in  the  order  and  disposition  of 
the  bankrupt,  ought  to  be  specially  pleaded  ;  the 
property  does  not  pass,  but  the  assignees  have, 
under  the  act,  only  a  right  ol  sale  r  tJie  court 
(Eiq )  afterwards  granted  a  new  trial,  being  of 
opinion  that  the  evidence  was  admissible  under 
the  plea  that  the  plaintiff  was  not  possessed  as  of 
his  own  property.  Isaacs  v.  Bekher,  8  C.  dfc  P. 
(».  p.)  714. 

17.  Where  W.,  the  owner  of  a  chronometer, 
being  about  to  proceed  ou  a  voyage,  obtained 
from  the  defendants  a  loan  upon  a  memorandum, 
that  he  thereby  made  over  to  them  the  instrument 
to  be  held  until  repayment,  they  allowing  him 
the  use  of  the  instrument  for  the  voyage  ;  on  his 
return,  he  placed  it  in  the  hands  of  B  ,  and  sub- 
sequently the  plaintiff,  an  attorney,  bavin?  a  fi. 
fa.  against  W.,  obtained  a  note  to  B.,  for  delivery 
over  of  the  instrument,  which  B  ,  in  ignorance  of 
th«  circumstances,  agreed  to  hold  for  the  plaintiff; 
held,  in  trover,  that  the  possession  of  W .  being 
consistent  with  the  terms  of  the  delivery,  the 
property  remained  in  the  defendant  until  the  con- 
dition of  repayment  was  performed.  Reeves  v 
Capper,  5  Bing.  N.  S.  (o.  p.)  196 ;  and  6  Sc.  877. 

18.  The  declaration  in  trover  being  general, 
the  plaintiff  must  show  what  goods  the  defendant 
look  into  his  possession,  the  Talne  of  which  is 
the  proper  measure  of  damages.  Cook  v.  Hartle, 
8  C.  &  P.  (K.  p.)  568. 

19.  Where  I ,  a  merchant  in  Ireland,  employed 
the  plain  tiffii  as  his  factors  at  Liverpool,  and 
shipped  a  fuU  cargo  of  oats  on  board  a  boat,  No. 
604,  and  took  a  boat  receipt  or  bill  of  ladinv^ 
from  the  master,  acknowledging  the  receipt  of 
the  oau  deliverable  in  Dublin  in  care  for  and  to 
be  shipped  to  the  plaintiff  in  Liverpool ;  on  the 
■nnie  oay  1.  received  from  the  master  of  another 
boat.  No.  54,  a  like  receipt,  bat  no  part  of  the 
eargo  was  shipped,  although  prepared  for  loading, 
nou  he  wrote  to  the  plaintiffs  that  he  **  had  valued 
on  them  fori&— —  against  those  oats,'*  and  in- 
closing the  receipts,and  they  accordingly  accepted 
the  bins,  and  remitted  it  to  1. ;  in  the  meantime 
die  defendant,  a  creditor  of  I.,  pressing  him  for 
aecurity,  he  consented  to  give  an  onfer  on  his 
agent  m  Dublin  to  deliver  Die  cargo  of  No.  6CM  ; 
held  that,  on  the  acceptance  of  thel>ill,  the  plain- 
tiifii  acquired  a  complete  title  to  the  cargo  of  that 
boat,  bat  that,  as  to  the  second  cargo,  there  being 
nothing  at  the  time  on  which  the  undertaking  of 
tbe  boat-naater  coald  opeiate,  wad  the  intended 
eanro  being  aflerwards  othetwise  appropriated  by 
I.,  tiia  pkintUb  oonld  oaly  sapport  trover  for  tM 


former  cargo.    Bryant  r.  Nix,  4  Mees.  A.  W .  (u .) 
775.  ^ 

And 9ee Action;  Arrest;  Assumpsit;  Attorney; 
Bankrupt;  Bill;  lontract;  FaUor ;  Highway; 
Pleading  (c.  l.)  ;  Ship ;  Stoppage  in  Jransilu* 


TRUSTEE. 

1.  Where  a  surviving  trustee,  who  had  failed 
to  appoint  now  trustees  of  the  estate,  by  his  will 
devised  all  his  real  estates,  according  lo  the  ten- 
ure and  nature  thereof,  to  the  defendant,  his 
heirs,  4iLc  ,  to  and  (or  his  and  their  own  ase  and 
benefit ;  held,  that  the  trust  esUte  passed  thereby , 
and  that  the  dfvisee  might  be  compelled  to  con- 
vey it  to  new  trustees.  Bainbridge  r.  Lord  Ash- 
burton,  2  Younge  (ex.  xq.)  347. 

2.  Where,  upon  the  sale  of  an  estate  by  the 
equitable  owner,  the  party  having  the  mere  legal 
estate  refused  to  convey,  unless  the  eestid  fiia 
trust  of  the  proceeds  (declared  by  a  deed  of  evea 
dale)  were  made  parties  to  the  convevance ;  held^ 
that  he  could  not  justify  such  refusal ;  but,  as  he 
appeared  to  have  acted  bona  fide  under  advice 
which  misled  him,  the  court  would  not  charge 
him  with  costs  of  the  suit  occasioned  by  his  refu- 
sal. Angier  v.  Stannard,  3  Myl.  &.  K.  (cb.) 
566. 

3.  Where  the  testator  gave  an  option  to  one  of 
his  three  executors  to  become  the  purchaser  of  a 
particular  estate,  at  a  stated  price,  amongst  others 
directed  to  be  sold,  and  the  other  executors  con- 
veyed to  him,  and  signed  the  receipt  indorsed  for 
the  purchase- money ;  held  that,  upon  the  bank- 
ruptcy of  their  co-trustee,  without  having  paid 
the  money,  they  were  liable.  Gregory  e.  Urego- 
ry,  2  Yonnge  (si.  xq.)  313. 

4.  Where,  by  various  charges  created  on  the* 
trust-fund,  the  tenant  for  life  nad  exposed  them 
to  responsibilities  to  third  persons,  the  court,  on 
the  application  of  the  trustees,  discharged  them, 
and  appointed  others,  the  costs  to  be  paid  oat  or 
the  interest  of  the  tenant  for  life.  Coventry  v^ 
Coventry,  1  K.  (ch.)  758. 

5.  Where  a  trustee,  afler  having  acted,  declined 
to  perform  the  trust  without  sufficient  reason,  and 
thereby  rendered  a  suit  necessary  to  obtain  the 
appointment  of  another,  the  court  refused  to  allow 
him  his  costs.  Howard  v,  Rhodes,  1  K.  (cb) 
581. 

6.  Where  a  party  directed  a  som  of  money  to 
be  carried  to  a  joint  account  of  herself  and  the 
plaintiff,  as  trustee  for  the  planitiff,  and  the  bankers 
gave  her  a  promissory  note  for  the  amount^  ex- 
pressing that  it  was  ^ven  to  her  as  trustee,  and 
was  so  entered  in  their  books,  which  note,  after 
the  death  of  the  party,  was  received  by  her  exec- 
utors ;  held,  that  a  trust  was  completely  declared, 
and  that  the  executors  weie  trustees  of  the  money 
received  for  the  narty  in  whose  favor  the  trust 
wax  declared.    Wheatley  v.  Purr,  I K.  (cb.)  551. 

7.  The  heir  of  a  mortgagee,  out  of  the  jnrisdier 
tion,  held  not  to  be  a  trustee  within  the  meaning 
of  the  8  Met.  «f  llGeo.4  &  1  WilL4,e.  ~ 


[TRUSTEE] 


and  mn  order  for  the  reooiiTeyftnce  of  tbe  mort- 
gaged premises  vested  in  bim,  refused.  In  re 
Dearden,  3  Myl.  &  K.  ((  h.)  508. 

8.  The  case  of  Garrard  v.  Lord  Lauderdale,  3 
Sim.  1,  affirmed  1  Ross.  dL  M.  (ch.)  451. 

9.  Where  several  trustees  are  implicated  in  a 
breach  ot  trust,  tbe  bill  to  recover  tbe  trast-fund 
cannot  be  against  some  of  them  only,  but  all 
those  who  are  living,  and  tbe  representatives  of 
such  as  are  dead,  must  be  made  parties;  and 
where  part  of  the  fund  belongs  to  A.  and  part  to 
B.,  and  a  suit  is  instituted  by  A.  alleging  the 
whole  fund  to  have  been  misdealt  with,  the  court 
will  not  give  relief  unless  B.,  who  is  interested  in 
the  fund,  be  also  made  a  ptrty  to  the  suit.  Munch 
V.  Cookerell,  8  Sim.  (cii.)  219. 

10.  But  where  A.  being  entitled  to  a  trust-fund 
assigned  it  to  trustees  on  certain  trusts  of  her 
settlement,  under  which  B  became  entitled  ;  the 
fund  was  never  transferred,  and  the  house  in 
which  It  bad  been  deposited  by  the  original  trus- 
tees, failed  ;  in  a  suit  asainst  them  to  make  them 
liable  for  the  fund,  held  that  the  latter  trustees 
were  not  necessary  parties.    lb. 

11 .  Although  a  trustee,  being  a  solicitor,  may  b^ 
agreement  be  entitled  to  some  personal  benent 
for  the  discharge  of  the  duties  as  trustee,  the 
agreement  for  that  purpose  must  be  distinct; 
where  by  the  terms  of  the  deed,  the  expressions 
applied  strictly  only  to  disbursements  and  liabili- 
ties, held  that  it  could  not  extend  to  remunera- 
tion, and  that  in  taking  the  account  against  them 
the  master  was  to  allow  only  charges  and  expen- 
ses properly  incurred  and  paid  by  them.  Moore 
V.  Frowd,  3  Myl.  &  Cr.  (ch.)  45. 

12.  Where  testator  bequeathed  the  whole  to 
bis  wife  absolutely,  **  having  a  perfect  confidence 
in  her  acting  up  to  the  views  which  1  have  com- 
municated to  her  in  the  disposition  after  her  de- 
eease ;"  upon  a  bill  filed  by  two  natural  children 
allegtnff  the  request  of  the  testator  and  the  pro- 
mise of  the  wife  to  arive  the  whole  after  her  de- 
cease to  them;  held,  that  if  such  allegations 
were  established,  a  trust  would  have  been  created 
in  favor  of, the  plaintiiFs,  but  that  completely  fail- 
ing in  proof,  the  bill  dismissed  with  coata .  Pod- 
more  v.  Gunning,  7  Sim.  (ch.)  644. 

13.  Where  personal  estate  of  one  of  two  trus- 
tees bad  been  distributed  among  legatees  in  igno- 
rance of  a  claim  against  the  estate  in  respect  of 
breach  of  trust ;  held  that  the  cestids  mU  trust 
were  still  entitled  to  follow  the  estate  in  tne  hands 
of  tbe  surviving  legatees  and  the  personal  repre- 
sentative of  the  trustee  and  legatees  of  his  de- 
ceased legatees,  and  that  without  any  inquirv, 
whether  the  plaintiffs  knew  of,  or  acquiesced  m 
the  breach  of  trust,  or  of  an  arrangement  made 
between  the  trustees  and  parties  interested  in 
respect  thereof.    March  v,  Russell,  3  Myl.  &,  Cr. 

(CH.)  31. 

14.  Where  by  one  deed  of  settlement,  a  fund 
and  estates  of  (he  wife  were  settled  to  her  for 
life,  remainder  in  trust  for  the  children  of  the 
marriage,  and  by  another  deed  the  husband  set- 
tled a  rentcharge  on  his  estates  in  trust  for  the 
wife  for  life ;  sha^  after  her  husband's  death,  ob- 


tained by  fiaud  and  eonoealment  of  the  settle- 
ment, the  fond  to  be  transferred  to  her,  and  a^ 
si^rned  her  lift*  interest  in  her  estates  to  a  party 
with  notice  of  the  fraud ;  held  that  the  rente  of 
her  estates  and  the  rentcharge  were  liable  to  be 
applied  in  replacing  the  fund,  and  a  receiver  ap- 
pomted.  Woodyatt  v.  Gresley,  8  Sim.  (cb.) 
180. 

15.  Where  one  of  two  trustees  refused  to  act, 
and  went  abroad,  and  the  other  acted  solely  m 
the  trust,  held  that  he  was  invested  with  the 
power  to  sell  under  the  London  Bridge  Acts. 
Tatham,  ex  parte,  3  Tounge  db  C.  (kz.  x^  )  67. 

16.  Where  testator  devised  real  and  peraonal 
property  to  trustees  for  his  children,  as  mentioned 
in  certain  schedules,  and  by  the  residuary  claose 
save  all  his  residuary,  personal,  and  real  eetalee 
for  them  equally,  but  having  omitted  a  freehold, 
by  a  codicil  declaring  his  intention  to  have  in- 
cluded it  in  one  of  tbe  schedules,  he  diieeled  it 
to  pass  aa  the  other  propertv  mentioned  in  it,  bat 
such  codicil  waa  attested  by  one  witneea  only ; 
held,  that  aa  it  could  not  pass  thereby,  it  waa  not 
precluded  from  passing  under  tlie  residuary 
clause,  by  reason  of  the  difficulty  of  executing 
the  trust,  and  that  the  leffal  estate  passing  to  the 
trustees,  thev  were  entitled  to  recover  the  title- 
deeds  from  the  defendant,  the  heir  who  claimed 
the  estate.  Barclay  v.  Collett,  4  Bing.  N.  8.  (c. 
p.)  650 ;  and  6  Sc.  408. 

17.  Upon  a  devise  to  trosteea  tnfer  a2is  afWr 
the  deatn  of  a  party  entitled  for  life  to  apply  the 
rent  for  the  testator's  srandson  only  during  mi- 
nority, who  attained  21  daring  the  life  of  the 
tenant  for  life,  and  by  a  deed  reciting  the  fact, 
and  that  it  had  become  unneeessary  for  the  tra»> 
tees  to  act,  but  that,  having  the  legal  estate,  ther 
joined  in  the  conveyance  of  the  piemiaee;  held, 
that  the  deed  was  sufficient  evidence  of  thnr 
having  accepted  and  acted  on  the  tmsL  Ureh 
V.  Wdker,  3  Myl.  &  Cr.  (ch.)  702. 

18.  Where  a  sum  charged  on  Weet  India 
estates  by  will  became  vested  in  a  surviving  tma- 
tee,  become  lunatic,  but  not  found  such  by  inqni- 
sition,  held  to  be  a  case  within  1  WiU.  4,  c.  60| 
and  on  the  master's  report,  new  trustees  appoint- 
ed, and  a  person  appointed  to  aaaiffn  the  enais 
and  interest  to  such  trustaes.  Welch,  in  re,  3 
Milne  4k  Cr.  (cb.)  292. 

19.  Where  the  defendanta  were  survtrin^  part- 
ners, and  executors  and  guardians  of  their  de- 
ceased partner,  held  that  the  cestet  fU€  trugtg 
were  not  barred  by  the  lapse  of  30  yMJs,  nor  by 
partial  releases  executed  on  insufficient  know- 
ledge of  the  partnership  a&in  and  state  of  ac- 
counts, from  calling  for  inquiry  and  aooooat,  and 
claiming  a  share  in  the  profita  arising  from  the 
eatate  of  the  deceased  having  been  continoed  and 
used  in  the  partnership,  although  during  aoceee- 
sive  changes  in  tbe  nrm :  mimMs,  time  ia  only  a 
bar  in  cases  of  trust  when  there  has  been  a  direct 
and  independent  dealing  between  the  trostees 
and  cutui  que  tnutSy  and  upon  full  information 
and  examination  of  all  the  documenta  and  evi- 
dence after  that  relation  has  terminated.  Wed- 
derbom  e.  Wedderbnm,  2  Keenei  (ch.)  Tftk 


[TRUSTEE— TUHNPIKE] 


8981 


20.  Where  a  trustee  to  whom  the  settlor  con- 
veyed property  in  India  in  trust-  to  raise  a  sum 
and  remit  to  England,  permitted  the  trust  fund 
to  remain  in  his  partners  hands,  who,  after  his 
death,  with  the  consent  of  the  settlor,  invested  it 
in  an  £ast  India  Company's  bill ;  held  to  be  a 
breach  of  trust,  and  the  fund  never  after  beinp 
realized  in  this  country,  held  that  the  estate  of 
the  trustee  was  liable  to  make  good  the  trust- 
fund,  affirming  the  judgment  of  the  Vice  Chan- 
cellor. Bacon  t.  CI  il,  3  Milne  &  Cr.  (cu.) 
294. 

21.  Trustees  of  lands  devised  subject  to  debt* 
are  empowered  to  mortgage  the  lands  as  a  secu- 
rity for  monies  borrowed  for  the  purposes  of  the 
will,  and  where  they  were  authorized  to  sell  and 
invest  in  the  purchase  of  other  estates,  they  were 
conveyed  upon  the  trusts  of  the  will ;  held,  that 
they  had  the  same  power  to  mortgage  the  pqr- 
cbased  as  they  had  of  the  devised  estates.  Ball 
V.  Harris,  8  Sim.  (ch.)  485. 

22.  So,  where  it  is  necessary  to  mortgage  real 
estate  for  payment  of  debts,  the  court,  under  1 1 
Geo.  4,  and  1  Will.  4,  c.  47,  s.  U,  directs  infant 
heirs  to  convey  to  the  mortgagee.  Holmes  v. 
Williams,  lb.  557. 

23.  Where,  to  a  bill  alleging  misapplication  of 
trnst-funds,  the  answer  stating  that  tne  funds  so 
applied  had  been  mistakenly  included  in  the  set- 
tlement, held  to  be  a  grouncl  for  inquiry,  although 
no  case  made  out  by  the  bill,  the  master  having 
executed  the  trust-deed.  Angell  v.  Dawson,  3 
Tounge  &  C.  (ex.  sq  )  308. 

24.  Where  the  master  had  refused  to  assent  to 
the  conversion  of  the  stock  under  3  Geo.  4,  o.  9, 
for  the  reduction  of  the  Five  per  Cents.,  held 
that  it  was  a  proper  subject  for  enquiry  whether 
be  acted  in  the  exercise  of  a  reasonable  discretion 
in  so  dissenting.    lb. 

25.  The  court  will  charge  a  trustee  with  inte- 
rest on  a  proper  case,  although  not  prayed  by  the 
bill,  and  may  nevertheless  give  him  costs,  and 
the  mere  non-insertion  of  an  item  is  not  such  a 
special  case  as  to  subject  him  to  a  higher  interest 
than  four  per  cent.  Woodhead  v.  Marriott,  1 
Coop.  (cH.)  62. 

26.  Upon  the  appointment  of  new  trustees  un- 
der an  order  of  the  court  upon  petition,  all  that 
is  necessary  for  the  person  appointed  to  execute 
the  conveyance  is,  to  execute  the  tendered  deed, 
and  that  it  be  expressed  in  the  attestation  clause 
that  he  had  executed  it  in  the  place  of  the  refus- 
ing trustee  pursuant  to  the  ord^r.  Foley,  ex  parte, 
8  Sim.  (CH  )  395. 

27.  A  trustee,  by  proving  the  will,  undertakes 
the  trusts,  and  if  he  stands  by  inactive  and  sees 
his  CO- trustee  commit  breaches  of  trust,  will  be 
liable,  if  any  loss  is  incurred ;  but  if  the  cutui 
que  trust  concur,  the  fund  to  which  he  may  be 
entitled  will  be  liable  to  compensate  him.  Booth 
V.  Booth,  1  Beav.  (ch.)  125. 

28.  On  reference  of  expenditure  by  a  master, 
although  not  authorized  by  the  terms  of  the  will, 
the  intention  of  the  court  is  to  ascertain  whether 
it  has  been  to  the  advantage  of  the  objects  of  the 
trust    Umblelrf  v.  Kirk,  1  Coop.  (cb.  c.)  264. 

Vol.  IV.  83 


29.  Where  it  was  expressly  provided  that  the 
trustee  should  get  in  money  due,  and  by  the  ood- 
8«>iit  of  the  cestui  que  trv^  it  was  allowed  to  re- 
main ontiitanding,  but  they  were  aflerwards  called 
upon  to  enforce  the  payment  and  to  invest;  held, 
that  he  was  bound  to  do  so  without  indemnity, 
and  on  a  suit  to  compel  the  trusts  to  be  carried 
into  execution  he  was  liable  to  pay  costs.  Kirby 
V.  Mash,  3  Younge  A,  C.  (ex.  xq.)  295. 

30.  The  order  made  by  the  court  for  a  surviving 
trustee  to  trannfer  stock  under  11  Geo.  4,  &1 
Will.  4,  c.  60,  s.  10,  does  not  dispense  with  the 
necessity  of  a  request,  which  must  be  made  by 
the  party.  Madge  v.  Riley,  3  Younge  &  C.  (ex. 
ZQ.)  425. 

31.  in  a  suit  for  the  appointment  of  new  trus- 
tees, a  clause  to  enable  the  new  ones  to  appoint 
others  in  their  room,  refused.  Brown  v.  Brown, 
3  Younge  «fc  C.  (ex.  ej^.)  395. 

32.  Exchequer  bills  held  not  an  investment 
within  the  meaning  of  **  Government  security." 
Chaplin,  ex  parte,  3  Younge  dc  Cr.  (ex.  mq,.)  397. 

And  see  Agent;  Bank  of  England  ;  Bankrupt ; 
Charge;  Charity;  Corporation;  Devise;  Injunc- 
tion; Mortgage;  Partner;  Power;  Receiver; 
Resulting  trust ;  Savings  Bank  ;  Specific  Perform- 
ance; IriU. 


TURNPIKE. 

1.  An  inquisition  to  assess  the  value  of  lands, 
taken  by  the  trustees  upon  a  jury  impannelled 
under  the  3  Geo.  4,  c.  126,  in  the  case  of  lessees 
separately  interested,  must  ascertain  the  compen- 
sation to  each,  and  should  set  out  the  notice 
given  to  the  psrties  of  the  iutention  to  impannel 
a  jury,  and  where  none  appears,  it  will  be  void 
for  want  of  showing  jurisdiction ;  and  a  defect 
cannot  be  supplied  by  any  subsequent  proceed- 
ings of  the  trustees.  Where  the  proceeding  is 
under  the  3  €r«o.  4,  c.  26,  the  certiorari  is  not 
taken  away  by  the  4  Geo.  4,  o.  95,  s.  87.  R.  v. 
Trustees  of  Norwich  and  Watton,  1  Nev.  A  P. 
(K.  B.)  32. 

2.  Acts  continued  until  1  June,  1839,  7  Will. 
4  ^k  1  Vict  c.  11. 

3.  Where  the  commissioners  discharged  the 
clerk,  the  notice  required  by  4  Geo.  4,  o.  95,  ss. 
39,  43,  not  having  been  given,  although  ordered 
at  a  meeting,  the  omission  having  been  through 
the  misconduct  of  the  clerk  himself;  held  irregu- 
lar, and  a  mandamus  granted  to  restore  him ; 
those  sections  being  to  be  taken  in  conjunction. 
R.  V.  Wrexham  Trustees,  5  Ad.  &  EU.  (k.  s.) 
581. 

4.  The  waggons  of  a  wharfinger  carrying 
goods  brought  by  a  canal  to  the  defendants,  the 
consignees,  and  in  return  collecting  goods  to 
carry  to  the  wharf,  held  not  to  be  stage- waggons 
within  the  meaning  of  a  proviso  in  a  local  turn- 
pike act,  that,  inter  alia,  stage-waggnns  convey- 
ing goods  for  hire  should  pay  toll  every  time  of 
passmg  and  repassing.  Semb.,  the  description 
applies  only  to  conveyances  which  carry  goods, 


[TURNPIKE— VAGRANTS] 


Ao.  fiir  hire  from  one  fixed  point  to  another.    R. 
V.  RiMCoe,  3  NeT.  A  P.  (q.  b.)  428. 

5.  Bones  uncrushed,  carried  to  the  plaintiff's 
farm  to  be  there  crashed  for  the  purpose  of  ma- 
nare,  held  to  be  manure  within  the  exemption 
from  toll  under  3  Geo.  4,  c.  1*26,  s.  32,  and  5  &  6 
Will.  4,  c.  18,  B.  1.  Batt  v.  Brown,  8  C.  &  P. 
(h.  p.)  244. 

Tnrnpike  Acts  continued,  by  2  &  3  Vict  c.  31. 


UNIVERSITY. 

Feei  on  admission  of,  and  provisions  for  apply- 
in|^  the  mles  aa  to  admission  of  persons  who  have 
gradnated  at  the  universities ;  also  to  those  who 
have  graduated  at  London  or  Durham ;  and  enti- 
tling  attomies  admitted  in  one  court  to  practise 
in  any  other,  regolated  by  1  Vict.  c.  56. 


USE  AND  OCCUPATION. 

1.  Where  the  agreement  was  to  occupy  at  a 
Ihtare  day,  held  that  there  must  be  some  evidence 
of  occupation  to  maintain  the  action  of  use  and 
occupation.  Woolley  v.  Watling,  7  C.  &  P.  (n. 
F.)  610. 

2.  Where  premises  were  demised  for  a  term, 
at  a  certain  rent,  and  the  landlord  agreed  to  en- 
Jarge  the  buildings,  the  tenant  agreeing  to  pay 
£10  per  cent,  on  such  outlay ;  held,  that  it  was 
to  be  deemed  a  collateral  agreement,  and  not  a 
contract  running  with  the  land,  for  which  on  the 
bankruptcy  of  the  tenant  his  assignees  were  lia- 
ble.   Lambert  v.  Norris,  2  Mees.  ik  W.  (ax.)  333. 

And  see  Donellan  v.  Read,  3  B.  &  Ad.  899. 

3.  Where  the  evidence  in  an  action  for  use  and 
occupation  did  not  disclose  any  written  agree- 
ment,  held  that  the  non-production  of  one,  by 
which  in  fact  the  premises  were  held,  was  no 
gioand  of  nonsuit  Fry  v.  Chapman,  5  DowL 
(p.  G.)  265. 

4.  Where  the  only  evidence  of  the  plaintiffs' 
title  as  owners  was,  that  one  of  them  told  the  de- 
fendant, the  tenant,  that  be  bad  bought  the  re- 
version, on  which  the  defendant  wished  him  joy 
of  the  purchase ;  but  upon  afterwards  sending  to 
demand  the  rent,  the  defendant  refused  to  pay, 
saying  he  had  received  notice  to  quit,  and  an 
action  brought  against  him  for  the  rent ;  held, 
that  it  was  a  question  for  the  jury,  if  the  conduct 
of  the  defendant  amounted  to  an  admission  of 
the  plaintiffs'  title,  so  as  to  render  him  liable  to 
them:  the  jury  found  for  the  defendant  Ste- 
pbsns  V.  Lynn,  8  C.  dk  P.  (n.  p.)  389. 

6.  Debt  for  rent,  for  use  and  occupation,  on  a 
naiol  demise  b^  the  assignee  of  the  reversion, 
neld  not  maintainable  as  to  the  rent  accruing  for 
the  occupation  before  the  assignment :  the  prop- 
er remady  woold  have  been  for  debt  for  rent  on  a 


parol  demise.    Mortimer  r«  Preedy,  3  Meesw  dk 
W.  (Kx.)  602. 

6.  Where  the  defendant  was  tenant  from  year 
to  year  of  part  of  premises  which  were  destroyed 
by  fire  accidentally  occurring  in  the  middle  of 
the  quarter;  held,  that  the  defendant  continued 
liable  for  rent  until  the  tenancy  duly  pat  an  end 
to,  and  that  the  plaintiff  might  recover  the  rent 
in  an  action  for  use  and  occupation,  the  act  ol 
non -repairing  by  the  landlord  not  amounting  to 
an  eviction.  Izon  v.  Gorton,  5  Bing.  N.  S.  (c.  r.) 
501. 

And  see  Action;  Bankntpt;  Ckarity;  LaMdr 
lord;  Mints;  PUading,  (c.  L.) 


USURY. 

1.  Laws  relating  to  usury,  not  to  extend  to 
certain  bills  of  exchange  and  promissory  noiea. 
By  1  Vict  c.  80. 


2.  Where,  by  the  terms  of  dealing  bel 
English  house  and  a  foreign  merenant,  Gt.  per 
cent,  was  to  be  paid  on  future  balanoes,  wluch 
by  the  foreign  law  was  legal ;  held  that  the  qiKS- 
tions  were,  nrst,  whether  the  contract  was  to  lie 
performed  in  England,  and  that  it  was  a  fit  ease 
for  an  issue  to  be  tried  by  a  jorj  as  to  the  inten- 
tion of  the  parties,  and  that  if  it  was  to  be  per- 
formed in  England,  that  it  was  to  be  deecnecf  an 
English  contract;  secondly,  that,  to  constitute 
the  agreement  usurious,  the  jury  were  to  be  satis- 
fied that  the  substance  of  the  contract  was  that 
the  interest  was  to  be  taken  for  the  loan  or  for- 
bearance of  money.  Guillebert,  ex  parte,  2 
Deac.  (B.)  509;  and  3  Mont  &  Ayr.  455. 

3.  Where,  afler  a  reiiisal  to  advance  a  snofi  on 
mortgage  of  leasehold  premises,  it  was  agreed 
that  m  consideration  of  £400  the  borrower  sboahl 
grant  two  annuities  of  iS20,  to  be  issuing  out  of 
the  premises;  l^ld,  that  as  the  money  to  he  paid 
would  clearly  exceed  five  per  cent  on  the  sum 
advanced,  the  transaction  was  usurious.  Chil- 
lingworth  v.  Cnillingworth,  8  Sim.  (ca.)  404. 

4.  Where  the  inference  to  be  drawn  by  the 
court  from  the  facts  staled  was,  that  a  loan  was 
agreed  upon  and  made  upon  the  security  of  the 
deposit  of  a  lease,  and  that  the  security  of  a  nots 
and  warrant  of  attorney  were  added,  ror  the  pur- 
pose of  legalising  the  demand  of  interest  beyond 
five  per  cent. ;  held,  that  the  transaction  was  not 
within  3  <St  4  Will  4,  c.  98,  s.  7,  or  I  Vict  e.  30, 
those  acts  contemplating  the  case  of  interest  taken 
upon  or  secured  by  a  bul  or  note,  as  the  real  and 
bona  fide  ground  of  the  debt  Berrington  v»  Col* 
lis,  5  Bing.  N.  8.  (c.  r.)  332. 

And  see  Banitntpi  ;  BUU. 


VAGRANTS. 
Vagrant  Act  amended  by  1  dtt  3  Viet  e.  38L 


[VENDOR  AND  PURCHASER] 


S038 


V£NDOR  AND  PURCHASER. 

1.  In  assumpsit  by  the  purrhaser  of  leasehold 
premises,  the  declaration  alleging  the  contract  aa 
for  the  sale  of  the  premises  free  and  clear  from  all 
incambrances  and  liahUilies  whatsoever,  and 
issue  thereupon ;  held  that,  the  premises  being 
liable  to  be  taken  for  the  purposes  of  a  local  Act, 
the  defendant  was  entitleci  to  a  verdict  on  that 
count.  Ballard  v.  Way,  1  Mees.  &  W.  (ex.) 
620;  andlTyr.  &Gr.  851. 

2.  Where,  upon  the  sale  by  the  defendant  of 
wheat  in  the  warehouse  of  his  agent,  he  gave 
directions,  and  the  wheat  was  transferred  into 
the  plaintiff  *b  name ;  held,  that  the  property 
passed  thereby,  and  that  the  defendant  could  not 
give  evidence  that  others  were  jointly  interested 
with  the  plaintiff  in  the  purchase.  Kieran  v.  San- 
dare.  1  Ncv.  dL  P.  (k.  b.)  625. 

3.  So,  where  the  soods  were  sold  by  the  defen- 
dants (brokers)  at  tneir  auction  rooms,  and  an 
invoice  delivered  in  their  own  names  as  sellers ; 
held,  that  thev  could  not  aAerwards  offer  evidence 
t'  at  thev  sold  as  agents  of  parties  whom  the 
plaintiff' knew  to  be  principals  at  the  time  of  the 
sale.  Jones  v.  Littledale,  1  Nev.  &  P.  (k.  b.) 
677. 

4.  A  purchaser  under  a  decree,  one  of  the  con- 
ditions of  sale  being  the  payment  of  the  money 
into  court  by  a  certain  day,  held  liable  to  pay  the 
costs  of  the  order  for  that  purpose,  but  entitled 
to  the  costs  of  reference  of  title  to  the  master. 
Camden  v.  Benson,  1  K.  (ch.)  671. 

5.  Where  defendant  was  found  to  have  pur- 
chased with  notice  of  prior  title  under  a  settle- 
ment, and  lost  the  benefit  of  his  purchase  by 
being  evicted  ;  held  that,  in  an  account  of  rents 
and  profits,  there  being  no  fraud,  he  was  not  to 
be  charged  with  rents  which  he  might  have  re- 
ceived without  his  fault  or  neglect;  and  that 
such  decree  ought  to  contain  a  direction  for  just 
allowances ;  held  also,  that  his  admission,  that  he 
had  been  in  the  possession  of  the  rents  and  pro- 
fits since  a  certain  time,  did  not  preclude  nim 
from  showing  before  the  master  that  part  of  the 
rents  had  been  paid  by  tenants  to  othisr  parties. 
Howell  V.  Howell,  2  Myl.  &  Cr.  (cb.)  478. 

6.  Where  the  vendor  knows  the  purchase-mo- 
ney is  trust-money,  and  suffers  one  of  the  trus- 
tees to  retain  part  without  the  knowledge  of  the 
other  co-trustees,  or  cestui  que  trust ;  held,  that 
he  cannot  be  permitted,  as  against  them,  to  say 
that  he  had  a  lien  on  the  estate  for  the  unpaid 
part  of  the  purchase  money  ;  held  also,  that  the 
vendor  having  signed  a  receipt  for  the  whole  pur- 
ehase-money,  but  allowed  part  to  remain  unpaid, 
and  he  continued  in  possession  of  the  premises 
as  tenant  to  the  purchaser,  such  possession  was 
not  notice  to  a  subsequent  purchaser  or  incum- 
brancer of  his  lien  on  the  estate  for  the  part  of 
the  money  unpaid.  White  r.  Wakefield,  7  Sim. 
(CH.)401. 

7.  Where  the  purchaser,  for  valuable  conside- 
ration,  claimed  under  a  pAfty  who  had  obtained 
possession  under  a  forged  wifi,  which  no  reasoua- 
bs  dilifeace  eoald  have  discovtrsd ;  held,  thai 


the  legal  estate  acquired  from  a  trustee  of  a  satis- 
fied mortgage  protected  him  as  a  purchaser  for 
valuable  consideration  without  notice ;  the  pro- 
tection is  to  be  extended,  not  merely  to  cases  in 
which  the  title  of  such  purchaser  is  impeached 
by  reason  of  a  secret  act  done,  but  also  to  cases 
in  which  it  is  impeached  by  reason  of  the  false- 
hood of  a  fact  of  title  asserted  by  the  vendor,  or 
those  under  whom  he  claims,  when  such  asserted 
title  is  clothed  with  possession,  and  the  falsehood 
of  the  fact  asserted  could  not  have  been  detected 
by  reasonable  diligence.  Jones  v.  Powles,  3 
Myl.  &,  K.  (cH.)  5dl. 

8.  Where,  upon  .the  purchase,  the  vendor  con- 
tracted in  lieu  of  the  consideration-money  to  ac- 
cept an  annuity,  which  was  carried  into  effect  by 
the  bond  of  the  vendee  conditioned  accordingly, 
and  a  receipt  for  the  consideration  of  the  purchase 
was  indorsed  upon  the  conveyance ;  held,  that  it 
was  the  ease  of  a  substitution,  and  not  of  a  secu- 
rity for  the  price,  and  that  the  lien  on  the  premi- 
ses for  the  purchase-money  was  discharged ;  and 
affirmed  on  appeal.  Panott  v.  Sweetland,  3  Myl. 
(5l  K.  (ch.)  655. 

9.  Upon  a  condition  of  sale  to  deliver  an  ab- 
stract and  deduce  a  good  title ;  held,  that  the 
purchaser  was  entitled  to  have  a  good  title  de- 
auced  and  proved,  either  by  the  production  of 
the  deeds  professed  to  be  abstracted,  or  by  such 
other  evidence  as  would  satisfactorily  prove  the 
statement  in  the  abstract  to  be  correct,  and  that 
such  right  was  not  a^cted  by  marginal  notes 
that  certain  deeds  mentioned  are  not  in  the  pos- 
session of  the  vendor.  Southby  v.  Hutt,  2  Myl. 
&  Cr.  (CH.)  207. 

And  see  Dick  v,  Donald,  1       .     .  S.  G61. 

10.  Where  the  value  is  increased  to  the  pur- 
chaser by  the  wearing  of  lives  between  the  time 
of  his  entering  into  possession  and  payment  of 
the  purchase-money,  semb.  he  is  liable  to  interest 
from  that  time,  dnampemowne  v*  Brooke,  3  CI. 
&  Fi.  (p.)  4;  and  9  Bli.  N.  S.  199. 

11.  Upon  a  settlement  of  an  expectant  rever* 
sion  in  trustees,  with  power  to  sell  or  exchange 
for  lands  in  possession,  and  sale  by  them  for  an 
entire  sum ;  the  purchaser  afterwards  objected 
that  no  sale  coulcf  be  made  until  the  reversion 
came  into  possession,  and  waived  all  other  objec- 
tions, being  aware  that  the  contract  could  not  be 
performed  unless  the  purchase-money  were  ap- 
portioned between  the  tenants  for  life ;  held,  that 
he  could  not,  upon  a  good  title  being  declared, 
object  to  the  apportionment,  but  that,  if  the  par- 
ties could  not  agree,  the  apportionment  must  be 
made  by  the  master.  Clark  v.  Seymour,  7  Sim. 
(cH.)  67. 

12.  Where  A.,  the  tenant  for  life,  under  a  set- 
tlement of  estates  in  trust,  under  which  the  trus- 
tees had  a  power  to  sell  at  the  request  and  by  de- 
sire of  the  tenant  for  life,  entered  into  a  contract 
for  sale  absolutely,  and  the  trustees  aflerwards 
refused  to  concur  in  the  sale ;  held,  first,  that  the 
contract  was  binding  on  A.  if  he  were  able  to 
complete  it ;  secondly,  that  the  trustees  had  a 
discretion  which  the  court  could  not  cimtrol; 
and,  lastly,  that  the  purchaser  was  not  entitled  to 
have  it  specifically  performed  to  tho  extsat  of 


39S4 


[VENDOR  AND  PURCHASER] 


A*'«  inteiMt,  by  the  eonveyance  of  his  life-in- 
terest and  ultimate  reversion,  in  default  of  issue 
of  the  niarria<^ ;  the  court  will  not  execute  a 
contract  partially,  which  may  affect  the  interests 
of  parties  entitled  to  the  estate,  subject  to  the 
limited  interest  of  the  vendor,  or  where  the  just 
amount  of  abatement,  on  mere  grounds  of  disap- 
pointment, cannot  be  ascertained  satisfactorily. 
Thomas  v.  Deering,  1  K.  (ch.)  721). 

13.  "Where  a  purchaser  for  valuable  considera- 
tion submits  to  answer,  he  must  answer  fully. 
Portarlington,  Earl  of,r.  Soulby,  7  Sim.  (ch.)  28. 

14.  Upon  a  devise  of  an  estate  upon  trust  by 
sale  or  mortgage  to  discharge  a  specific  debt,  and 
apply  the  residue  for  the  benefit  of  the  testator's 
children ;  the  purchaser  (son  of  the  surviving 
trustee)  discharged  the  debt,  but  left  the  remain- 
der unpaid,  and  gave  his  bond  as  a  security,  and 
the  estate  was  settled  upon  his  marriage  to  the 
wife  and  issue,  the  settlement  recitincr  the  con- 
veyance and  the  will ;  held,  that  it  amounted  to 
notice  of  the  will,  and  was  binding  on  the  wife 
and  children,  although  the  settlement  did  not  no- 
tice the  will,  and  created  a  lien  as  against  them 
on  the  estate  for  the  residue  of  the  purchase-mo- 
ney ;  held  also,  that  a  purchaser  for  valuable  con- 
sideration under  a  marriage  contract,  must  show 
that  be  had  no  notice  at  ihe  time  of  the  settle- 
ment, and  not  merely  at  the  time  of  the  marriage 
articles.  Davies  v.  Thomas,  2  Younge  (ex.  vq.) 
234. 

15.  Upon  a  bill  to  restrain  the  defendant  from 
setting  up  an  outstanding  mortgage  term  which 
had  been  satisfied  but  not  assigned,  the  plaintiff 
claiming  as  heir  for  default  of  appointment ; 
held,  that  it  was  unnecessary  to  charge  notice, 
and,  if  charged  generally,  evidence  of  particular 
facts  and  conversation  might  be  proved ;  held 
also,  that  where  the  answer  denied  facts  upon 
belief  only,  the  court  might  act  upon  the  testi- 
mony of  one  witness,  although  uncorroborated 
by  circumstances,  and  althougn  the  answer  was 
positive,  and  no  other  means  of  contradicting  the 
fact.    Hughes  v.  Garner,  2  Younge  (kx.  e^.)  328. 

16.  Where  the  personal  representatives  of  a 
deceased  partner  agreed  to  sell  his  interest  to  the 
surviving  one,  stipulating  to  furnish  at  their  own 
expense  an  abstract  of  their  title  to  it ;  held,  to 
mean  the  usual  abstract  of  title,  and  not  merely 
of  their  own  title  as  administrators.  Morris  v. 
Kearsley,  2  Younge  (ex.  kq.)  139. 

17.  In  assumpsit  against  an  auctioneer  to  re- 
eover  back  the  deposit  paid  on  the  sale  of  premi- 
■es,  of  which  the  title  had  not  been  completed  ; 
held  that,  as  it  appeared  that  the  defendant  was 
in  the  character  of  stakeholder  between  the  par 
ties,  he  was  not  entitled  to  notice  of  the  contract 
having  been  rescinded.  Duncan  r.  Cape,  2 
Mees.  A  W.  (ex.)  244. 

18.  Where,  in  a  declaration  on  a  warranty  of  a 
hone  sold  to  the  plaintiff,  which  he  had  resold  at 
an  advanced  price,  and  had  returned  upon  his 
hands,  there  was  no  allegation  that  the  increased 
price  arose  from  improvement  in  the  interval,  by 
money  laid  out  by  the  plaintiff;  held,  that  the 
plaintiff  could  not  recover  for  the  mere  loss  of  a 
good  bargain,  nor  could  he  recover  the  expenses 


of  taking  a  veterinary  surgeon's  or  cmnMeVs 
opinion,  or  his  attorney's  charges,  which  were 
steps  taken  for  his  own  safety  in  bringing  the 
action.  Clare  v.  Maynard.  1  Nev,  &  P.  (a.  a.) 
701;  and7C.  &  P.  741. 

And  see  Walker  v.  Moore,  10  B.  &  Cr.  416. 

J  9.  An  auctioneer  in  the  country,  under  cir- 
cumstances of  an  insolvent  estate,  allowed  to 
conduct  the  sale,  to  save  the  expense  of  sendinr 
the  master's  clerk.  Thompson  r.  Hodgson,  S 
Younge  (ex.  Eq.)  311. 

20.  Biddings  opened  on  the  sale  of  mortgaged 
premises  on  an  advance  of  JC190  on  £310. 
Hutchinson,  ex  parte,  2  M.  <&  Ayr.  (b.)  727. 

21.  Biddings  opened  on  an  advance  of  less 
than  4  per  cent.,  under  circumstances.  Coch- 
rane V.  Cuclirane,  2  Russ.  A.  M.  (ch.)  684. 

22.  The  provision  in  17  Geo.  3,  c.  50,  s.  8,  for 
making  void  the  contract  of  sale  upon  negleck  or 
refusal  by  the  purchaser  to  pay  the  auction  doty, 
the  object  being  to  protect  the  revenue,  held  to 
be  construed  to  avoid  the  contract  only  at  the  op- 
tion of  the  vendor,  and  that  the  purchaaer  coald 
not  by  his  own  wrong  avoid  h's  own  contracL 
Malins  v.  Freeman,  4  Bing.  N.  S.  (c.  f.)  3li5. 

23.  The  vendor  held  liable  to  the  expense  of 
the  purchaser's  solicitor  going  from  place  to 
place  to  compare  the  abstract  with  the  deeds,  and 
that  he  was  not  bound  to  send  the  abstract  to  an 
a^ent  in  a  country  town  for  that  purpose.  Hughes 
r.  Wynne,  8  Sim.  (ch.)  85. 

24.  Upon  a  sale,  under  a  decree  in  a  creditor's 
suit,  two  years  af\er  confirmed  bv  the  master, 
held  that  four  years  aAer  it  was  too  late  to  seek  to 
set  aside  the  sale  on  the  ground  of  misdescription 
of  quantity,  and  the  creditor  applying  (the  others 
repudiating;  having  the  means  of  knowing  the 
extent  as  well  as  value ;  and  petition  dismissed 
with  costs.  Price  v.  North,  2  Younge  &,  C.  (ax. 
Ed.)  620. 

25  Where  an  estate  is  sold  ander  a  decT<pe, 
and  upon  reference  of  title  the  master  reports 
against  it ;  held  that  the  purchaser  is  entitled  to 
the  costs  of  the  payment  out  of  the  fund  in  coait, 
and  those  consequent  npon  his  becoming  purchas- 
er, and  of  investigating  the  title.  Att.-Geii.  v. 
Newark  Corp.,  8  Sim.  (ch.)  71. 

26.  Where  a  party  entitled  to  an  interest  in 
1,000/.,  part  of  a  sum  directed  by  a  testator  to 
be  invested,  and  which  had  been  done  in  the 
Three  Per  Cents.,  advertised  it  for  sale,  describ- 
ing it  as  ^*a  reversion  to  1,000L  principal,  pay- 
able on  a  contingency,  and  part  of —  I.  invested 
in  the  Three  Per  Cents.,"  and  the  plaintiff  be- 
coming the  purchaser,  the  deed  of  assignment 
reciting  the  bequest  described  it  as  the  sum  of 
1,000/.  steT'ingy  being  one  moiety  of  the  legacv  of 
2,000/.  bequeathed  By  the  will  ;  held  that  'the 
purchaser  was  entitled  to  the  interest  in  the  lega- 
cy in  its  state  of  investment.  Lucas  r.  lionc^  8 
Keene,  (ch.)  136. 

27,  Where  the  printed  particulars  of  sale  and 
plans  fully  set  out  roads,  6lc  ,  but  disclosed  a 
right  of  footpath  only  by  reference  to  a  lease  of 
otner  premises,  which  might  be  seen  at  tho  office. 


[VENDOR  AND  PURCHASER] 


2985 


and  calculated  to  mislead  bidders,  who  cou  not 
by  ordinary  vigilance  discover  that  any  such 
right  existed,  held  to  amount  to  such  a  misclescrip- 
tion  as  entitled  the  purchaser  to  rescind  the  con- 
tract; and  the  purchase  of  two  lots  having  been 
incladed  in  one  agreement  for  the  sale  at  one  ag- 
gregate price,  and  as  the  purchaser  might  have 
been  led  into  the  contract  for  both  by  the  power 
he  might  obtain  from  unity  of  seisin  of  extin- 
guishing rights  of  way,  and  rendering  the  whole 
more  valuable,  he  was  entitled  to  annul  the  con- 
tract as  to  both  lots.  Dykes  v.  Blake,  4  Bing.  N- 
S.  (c.  F.)  463. 

2d.  Where  any  substantial  part  of  the  property 
purporting  to  be  sold  turns  out  to  have  no  exist- 
ence, or  cannot  anywhere  be  found,  or  if  the  de- 
scription be  so  exaggerated  as  to  be  quite  beyond 
the  truth,  and  the  vendor  not  acting  ifona  fide 
in  giving  it;  held  that  the  purchaser  is  entitled  to 
rescind  the  contract,  notwithstanding  a  clause 
that  any  mistake  in  the  description  shalTnot  vitiate 
the  contract,  but  be  a  ground  of  compensation. 
Robinson  v.  Musgrove,  S  M.  &  Rob.  (n.  f.)  92. 

29.  Where  the  solicitor  of  the  vendor  went  to 
the  purchaser,  and,  in  the  absence  of  his  solicitor 
or  any  person  to  advise  him,  induced  him  to  pay 
the  purchase-money  for  an  estate  to  which  the 
title  was  not  made  out,  and  to  execute  deeds  of 
covenant  for  the  production  of  deeds  (for  other 
purchasers)  which  were  not  in  his  possession, 
which  was  disapproved  of  and  protested  against 
by  the  purchaser's  solicitor  when  informed  of  it ; 
held  that  the  vendor  could  not  insist  on  it  as  an 
acceptance  of  the  title,  and  the  court  would  place 
the  parties  in  the  same  situation  as  they  stood  in 
previously  to  the  transaction  ;  and,  under  the  cir- 
cumstances, the  court  decreed  the  contract  to  be 
rescinded,  and  the  deeds  delivered  up  to  be  can- 
celled, the  defendants  to  pay  the  costs  of  inves- 
tigating the  title  and  of  the  suit,  including  auc- 
tion duty.  Berry  v,  Armistead,  2  Keene,  (ch.) 
221. 

30.  On  a  bill  filed  by  a  legatee,  and  a  sale  di- 
rected by  the  court  of  real  estate,  the  purchaser, 
on  a  good  title  not  being  made,  held  entitled  to 
recover  the  costs  and  expenses  of  investigating 
the  title,  and  confirming  the  purchase,  from  the 
plaintiff,  who  might  recover  them  in  the  suit. 
Berry  ».  Johnson,  2  Younge  &  C.  (xx.  xq.)  564. 

31.  Purchaser  allowed,  under  circumstances, 
to  pay  the  purchase-money  into  court,  and  be  let 
into  possession,  without  prejudice  to  amr  objection 
on  the  subsequent  investigation  of  the  title. 
Marfell  v.  Rudge,  2  Tounge  &  C.  (ex.  xq.)  566. 

32.  A  slight  disorder,  as  influenza,  at  the  time 
of  sale  of  a  horse,  not  diminishing  the  usefulness, 
and  of  which  he  ultimately  recovered,  held  not 
to  constitute  a  breach  of  warranty  of  soundness. 
Bolden  v.  Brogden,  2  M.  &  Rob.  (n.  p.)  113. 

33.  Declaration  on  a  warrant  of  a  horse,  sound 
and  quiet  in  harness,  plea  non  assumpsit,  **■  nwdo 
eifomui,''  held,  th  it  proof  of  the  warranty  being, 
that  the  horse  was  sound  and  quiet  in  all  respects, 
supported  the  declaration,  and  that  upon  the  issue 
the  defendant  could  not  go  into  the  fiict  of  sound- 
ness.   Smith  V,  Parsons,  8  C.  &  P.  (n.  p.)  199. 

'   34.  Where«  after  a  previoiia  negotiation  and 


trial,  the  defendant  wrote  to  the  plaintiff  to  say 

he  would  purchase  his  mare  at guineas,  *^of 

course  warranted,"  which,  not  being  attended  to, 
he,  by  a  second  letter,  desired  the  mare  to  be  sent, 
with  a  receipt,  including  "sound  and  quiet  in 
harness,"  on  which  the  plaintiff  wrote  to  suy  that 
he  would  send  it,  that  it  was  warranted  sound  and 
quiet  in  double  harness,  never  havmg  been  tried 
in  single;  he  accordingly  sent  it  to  the  place  ap- 
pointed, and  left  it,  with  injunctions  not  to  be 
parted  with  unless  the  price  was  paid ;  but  the 
defendant's  sun  afterwards  came  and  took  her 
away  without  payment,  and  in  the  course  of  two 
days  was  sent  back  as  unsound ;  held,  that  there 
was  no  evidence  of  a  final  contract,  nor  of  a  de- 
livery according  thereto,  so  as  to  entitle  the  plain- 
tiff to  recover.  Jordan  v.  Norton,  4  Mees.  &  W. 
(kx)  155. 

35.  Where  lands  were  devised,  '•  upon  trust  to 
permit  my  son  to  become  the  purchaser,  at  a  sum 
stated,  at  any  time  within  three  months  after  my 
decease ;  but  should  my  son  not  complete  such 
purchase  within  three  months  from  my  decease,'* 
then  to  sell  the  same  by  auction  ;  the  son  within 
that  time  gave  notice  of  his  option  to  purchase, 
but  no  conveyance  was  executed,  nor  any  part  of 
the  purchase-money  paid  within  the  three  months ; 
held,  that  he  could  not  afterwards  enforce  his  op- 
tion.    Dawson  v.  Dawson,  ti  Sim.  (ch.)  346. 

36.  Where  the  purchaser  had  been  in  posses- 
sion for  20  years,  and  the  objections  made  from 
time  to  time  to  the  title  appeared  to  be  rather  ex- 
cuses for  not  completing  the  purchase  than  se- 
rious ;  held,  that  the  continuing  for  so  long  a  time 
in  possession  was  to  be  taken  to  be  a  waiver  of  the 
objections,  and  that  he  was  to  be  considered  as 
having  accepted  the  title  Hall  r.  Laver,  3 
Younge  &  Cr.  (ex.  iq.)  191. 

37.  Where,  on  an  agreement  for  purchase  ofpi«. 
mises,  a  sum  was  to  be  paid  down  by  way  of  de- 
posit, and  in  part  of  the  purchase-money,  and  it 
was  stipulated  that  in  default  by  either  of  com- 
pleting the  purchase,  he  should  pay  the  other 
JCI,000  liquiaated  damages;  the  purchaser  hav* 
ing  thrown  up  the  contract,  on  the  ground  of 
the  vendor  being  unable  to  complete  it  on  the 
day  stated,  and  sued  the  vendor  for  the  penalty, 
and  for  the  deposit  as  money  had  and  received, 
but  the  defendant  obtained  the  verdict,  and  after- 
wards sold  the  premises  to  another ;  held,  first, 
that  the  former  action  having  failed  on  the  ground 
that  it  was  prematurely  brought,  the  plaintiff 
might  sustain  the  second  action ;  and,  secondly, 
that  in  the  absence  of  any  specific  promise,  the 
question  whether  the  deposit  shall  be  forfeited 
depends  on  the  intent  of  the  parties,  to  be  collect- 
ed from  the  whole  instrument ;  and  that,  in  the 
principal  case,  as  a  particular  forfeiture  was  stipu- 
lated, the  vendee  could  not  retain  the  deposit. 
Palmer  v.  Temple,  1  Perr.  &  Dav.  (q.  b.)  379. 

38.  Where  at  the  auction,  premises  were  rep- 
resented of  good  and  substantial,  although  unfin- 
ished buildings,  being  in  fact  in  so  ruinous  a 
state  as  only  fit  to  be  pulled  down ;  held,  that 
the  sale  was  void,  and  the  purchaser  entitled  to 
recover  back  the  deposit.  Robinson  v.  MosgroTe. 
8  C.  &  P.  (H.  p.)  469. 

39.  Where,  upon  the  sale  of  a  ship  to  A. 


S93G 


[VENDOR  AND  PURCHASER— VESTRY] 


and  B.,  in  which  A.  waa  to  be  interested  in 
one-third,  and  B.  in  two-thirds,  and  upon  the 
execution  of  the  bill  of  sile,  although  expressing 
that  B.  had  paid  two-thirds  of  the  purchase- money, 
only  one-third  was  actually  paid,  and  A/s  accep- 
tances given  for  the  remainder,  which  were,  from 
A.  becominsr  bankrupt,  dishonored  ;  held,  that 
B«  remained  liable  ior  the  payment  of  the 
unpaid  purchase-money,  notwithstanding  the  form 
of  the  bill:)  given  for  the  amount.  Lynn  v. 
Chaters,  2  Keene,  (ch.)  5'2J. 

40.  Where  a  party  is  either  agent  for  vendor 
and  purchaser,  or  is  himself  vendor  and  agent  for 
the  purchaser,  whatever  notice  he  may  have  will 
affect  the  purchaser ;  and  where  the  latter  takes 
a  conveyance  from  a  vendor,  not  having  the  title- 
deeds,  be  is  to  be  taken  as  having  notice  of  the 
claim  of  the  party  who  has  the  possession ;  and 
sembUy  the  lien  of  the  vendor  for  the  unpaid 
purchase-money  may  be  assigned  by  parol  to  a 
third  party.    Dryden  v.  Frost,  3  Myl.  &  Cr.  (ch.) 

41.  In  assumpsit  to  recover  back  the  deposit 
paid  by  the  plamtiff  upon  a  contract  for  the  pur- 
chase of  an  estate  from  the  defendant,  on  the 
l^und  of  his  bein^  unable  to  make  a  ffood  title, 
it  appeared  that  being  devisee  in  remainder  afler 
his  mother*8  death,  and  subject  to  a  small  annuity 
to  bis  sister,  in  the  conditions  of  sale  it  was  stated 
that  the  sister  claimed  under  a  deed  uf  assignment 
of  the  premises  to  her  in  trust,  but  which  deed 
was  alleged  to  be  a  forgery  ;  and  it  was  stipula- 
ted that  the  purchaser  should  not  make  any  ubjec- 
lion  on  account  of  the  alleged  indenture,  and  that 
part  of  the  purchase-money  might  remain  on 
mortga^  as  an  indemnity ;  held  that  the  plain- 
tiff having  purchased,  with  notice  of  the  defect, 
and  precluded  himself  from  objecting  at  all  to  the 
supposed  deed,  he  could  not  insist  upon  it  as  a 
defect  in  the  title  which  he  had  agreed  to  take, 
and  was  therefore  not  entitled  to  recover  back 
the  deposit  on  that  ground.  Corrall  v,  Cottell, 
4  Mees.  &  W.  (ex.)  794  ;  and  a  specific  perform- 
ance afterwards  decreed,  3  Younge  Sl  O.  (ex. 
sq.)  413. 

42.  Where,  upon  a  decree  for  a  specific  per- 
formance of  the  purchase  of  an  estate,  the  Mas- 
ter was  to  ascertain  the  amount  of  what  was  due 
for  principal,  interest,  and  costs ;  and  that,  in 
default  of  pavment  by  a  certain  dav,  the  estate 
was  to  be  sold,  and  in  case  of  a  deficiency,  the 
defendant  was  to  be  personally  charged  therewith, 
be  died  before  the  day  appointed,  and  a  creditor's 
•uit  was  instituted  in  the  same  court;  held  that, 
upon    revivor,  the  vendor  was  not  entitled    to 

grove  against  the  general  estate,  but  to  resort  to 
is  eouiUible  lien ;  and  qwere^  in  case  of  deficiency, 
whether  he  would  be  entitled  to  prove  for  the 
whole  debt  or  the  difi*erence  only.  Rome  v. 
TouDg,  3  Tounge  &  Cr.  (ex.  eq.)  199. 


was  to  deolare  tbe  trust  thereof,  sntjeot  to  the 
further  order  of  the  court,  without  prejudice  to 
any  question  as  to  the  rents,  dkc  ,  and  interest  on 
tbe  purchase-money,  the  fund  not  to  be  traiw- 
ferred  without  notice  to  the  purchaser.  Uindle 
V,  Dakins,  1  Coop  (ch.  c.)  3di. 

44  The  roaster  having,  on  reference,  foond 
against  the  title,  held  that  there  most  be  an  order 
for  discharging  the  purchaser  before  the  oonit 
will  ^ive  cfect  to  an  order  for  resale.  Williaons 
V.  Ware,  1  (^oop.  (ch.  c.)  42. 

45.  Where  on  a  dispute  as  to  the  quantity,  tbe 
bill  seeking  performance  did  not  ofier  to  perioral 
even  as  to  the  lesser  quantity,  the  court  refused 
to  order  the  payment  of  the  amount  into  court. 
Benson  v.  Glastonbury  Canal  Company,  I  Coop. 
(cu.  c.)  41. 

46.  Upon  a  resale  of  property  sold  under  a  de- 
cree ordered,  in  case  the  purchaser  should  not 
pav  the  purchase -money  into  court  within  a  sta- 
ted time,  that  the  purchaser  to  make  good  any 
deficiency,  and  pay  the  costs  of  all  the  proceed- 
ings.    Grayt?.  Gray,  1  Beav.  (ch.)  199. 

47.  A  purchaser,  for  valuable  consideration, 
ordered  to  produce  his  title-deeds,  the  recitals  in 
which  showed  notice  of  the  tight  and  title  of  the 
wife  of  the  vendor  in  a  suit  by  her  hetr-at-law. 
Neesom  v.  Clarkson,  1  Coop.  (ch.  c.)  93. 

48.  Purchasers,  protection  of,  against  judg- 
ments, crown  debts,  lis  pendens  tLudfats  in  bani- 
ruptcy,  by  2  &  3  Vict.  c.  1 1. 

And  see  Jetton  ;  Action  on  the  Case;  Auetmm; 
Bankrupt;    Covenant;  Frauds,   Slat,  of; 
lord  ;  PraeHee,  (c.  l.)  ;  Specific  Perfo 


VESTED  INTERESTS. 

Where  a  father  conveyed  leasehold  estates  to 
trustees  until  his  son  attained  21,  when  they  weie 
to  convey  to  him,  with  power  to  apply  the  rents, 
&c.,  for  his  maintenance  during  minority ;  held 
to  be  a  vested  interest  in  the  son,  and  that,  upon 
his  death  under  21 ,  tbe  interest  in  the  lease  pa 
ed  to  his  personal  representative.  Stephens 
Frost,  2  Younge  (ex.  sq.)  297. 


43.  Where  the  Master's  report  of  the  purchase 
was  confirmed  absolute,  and  the  purchaser  was 
ready  with  his  money,  but  the  abstract  not  fully 
delivered,  the  Lord  Chancellor  allowed  it  to  bie 
paid  into  the  bank,  to  the  credit  of  the  cause,  and 
invested, and  the  accumulating  dividend  inves- 
ted in  like  manner,  and  the  accoun^nt-general 


VESTRY. 

1 .  In  an  action  of  debt  on  bond,  in  the  name 
of  the  vestry-clerk ;  plea,  first,  that  the  plaintiff 
was  not  vestry-clerk,  and  secondly,  the  perform- 
ance of  the  condition,  on  which  issues  were  taken ; 
held,  that  the  acting  as  such  clerk  was  prima  fa" 
cU  evidence  of  the  appointment,  and  that  a  di* 
rector  of  the  vestry  was  a  competent  witness. 
M'Gahey  v.  Alston,  2  Mees.  &,  W.  (ex.)  2U6. 

2.  Where  a  parish,  regulated  as  to  rating  and 
disbursements  for  parochial  purposes  by  a  local 
act,  which  regalated  also  tbe  inspection  of  rates 
and  books,  afberwards  adopted  the  provisions  of 
the  Vestry  Act  (lib  2  WiiL  4»  e.  GO) ;  hold  that, 


[VESTRY— WARRANT  OP  ATTORNEY] 


2937 


upon  an  ft)»p]icatioii  under  the  latter  act,  thej 
could  not  be  compelled  to  permit  ratepayers  to 
take  copies  of  rates  and  disbursements  kept  un- 
der the  directions  of  the  local  act.  R.  v.  St. 
Marylebone  Vestrymen,  &c.,  6  Nev.  &  M.  (k. 
B  )  GOO. 

3.  Where  the  accounts  of  trustees  under  a 
local  act  were  directed  to  be  audited,  and  allowed 
at  the  sessions;  held,  nevertheless,  that  they 
were  compellable  to  produce  them  before  the 
auditors  of  the  parish  accounts  under  the  I  &,ii 
Will.  4,  c.  60,  s.  34  (Vestry  Act),  but  that  a  man- 
damns  issued  against  them,  ordering  more  than 
was  warranted  either  by  the  grievance  recited  or 
by  the  provisions  of  the  Vestry  Act,  was  bad  : 
wherever  there  is  any  thing  m  the  shape  of  a 
return,  counsel  for  the  crown  are  entitled  to  be- 
gin. R.  V.  St.  Pancras  Trustees,  1  Nev.  ik,  P. 
507. 

4.  Notice  of  vestries,  priKslamations  of  outlaw- 
ry, and  notices  on  Sundays,  regulated  by  1  Vict 
C.45. 

And  see  Soiu^;  Church;  Churchwardens;  Man- 
damns;  Witness. 


VOLUNTARY  DEED. 

1.  Where  a  party  by  deed  assigned  personal 
estate  to  trustees,  in  trust  for  himself  for  life, 
and  afterwards  to  the  use  of  his  nephew  and 
nieces,  and  he  afterwards  by  will  bequeathed  the 
settled  property  to  others ;  upon  a  bill  against  the 
executors  to  establish  the  deed  and  payment  to 
the  trustees,  the  court  refused  to  interfere,  but 
leA  the  parties  to  their  remedy  on  the  deed.  Ward 
V,  AoIand,8  Sim.  (ch.)  571 ;  and  affirmed  by  the 
Lord  Chancellor,  1  Coop.  (ch.  c.)  146. 

2.  Where  M.,  being  in  treaty  for  a  purchase  of 
lands  of  C,  by  ante-nuptial  settlement,  appointed 
that  if  the  marriage  should  take  effect,  and  C.  be 
enabled  to  convey,  that  the  same  should  be  con- 
veyed to  the  defendants,  the  trustees,  to  the  uses 
of  the  settlement,  with  a  proviso,  that  if  C. 
slKMiid  not  be  enabled  to  convey,  that  then  no 
obligati«m  shoald  attach  on  M.,  his  heirs,  &c.  to 
obtain  a  eoDYeyance  from  any  other  person,  or 
pay  the  value  thereof  to  the  trustees,  nor  shoald 
M.  be  precluded  from  purchasing  the  same  for  his 
own  benefit;  C.  being  unable  to  make  a  title,  M-, 
after  the  marriage,  purchased  the  land  from  }^.^ 
and  conveyed  them  to  the  trustees  to  the  uses  of 
the  settlement;  he  afterwards  mortgaged  the 
land  to  D.,  who  assigned  to  the  plamtiff;  and 
held,  that  as  against  a  purchaser  for  valuable 
consideration,  the  conveyance  to  the  trustees 
was  voluntary,  and  the  plaintiif  entitled  to  reoo- 
yer.  Doe  d.  Barnes  v.  Rowe,  4  Bing.  N.  S.  (c. 
p.)  737 ;  and  6  Sc.  525. 

And  see  Insolvent. 


WAGER. 
1,  Where,  bj  the  rales  of  a  race-counei  all 


disputes  were  to  be  referred  to  and  settled  by  two 
stewards  named  ;  held  that,  to  make  the  sole 
award  of  one  available,  it  must  be  clearly  shown 
that  both  the  disputing  parties,  and  also  the  stake- 
holder, consented  to  submit  to  his  authority; 
stmb.  also,  after  a  race  has  been  run,  the  stakes 
cannot  be  recovered  back  from  the  stake-holder, 
although  not  paid  over,  unless  demanded  pre- 
viously to  the  race.  Marryat  v,  Brnderick,  2 
Mees.  «&,  W.  (kx.)  36.9;  doubting  Eltham  r. 
Kingsman,  1  B.  «&  Aid.  6S2. 

2.  In  assumpsit  for  money  had  and  received,  to 
recover  a  share  in  a  bet  on  a  horse-race,  won  and 
received  by  the  defendant,  held  that  the  illegality 
of  the  wagrr  going  to  the  consideration,  could 
not  be  set  up,  on  the  general  issue,  as  an  answer 
to  the  action.  Martin  v.  Smith,  4  Bing.  N.  S. 
(c.  p.)  4m 

3.  A  wager  as  to  the  event  of  the  trial  of  a 
party  on  a  criminal  charge,  held  illegal,  as 
against  public  policy.  Evans  v-  Jones,  5  Mees. 
&W.  (E».)77. 


WAREHOUSEMAN. 

1.  Plea,  in  trover,  of  a  custom  in  the  city  of 
London  for  all  warehousekeepers  to  have  a  gene- 
ral lien  on  ail  goods  remaining  in  their  ware- 
houses,/or  and  in  the  name  of  the  merchants  or 
others  by  whom  they  are  employed,  for  balanc«*8 
due  for  expenses  incurred  about  eroods  consigned 
from  abroad  ;  held  bad  in  law,  as  highly  preju- 
dicial to  foreign  trade,  and  subjecting  foreigners 
to  liens  for  debts  of  their  factors  in  respect  of 
other  goods.  Leuckhart  r.  Cooper,  3  Bing  N. 
S.  (c.p.)99;  and3Sc.  52J. 

And  see  Wright  v.  Snell,  5  B.  &  Aid.  350. 

2.  Ip  case  against  a  booking- office- keeper  for 
loss  by  negligence  in  forwarding  a  box  delivered 
for  that  purpose ;  held,  that  it  was  necessary  for 
the  plaintiff  to  give  some  evidence  of  the  non-^ 
performance  of  the  contract,  and  that  merely 
showing  that  the  box  did  not  arrive  at  its  destina- 
tion  was  not  enough.  Gilbart  v.  Dale,  1  Nev.  A 
P.  (K.  B.)  22. 


WARRANT  OF  ATTORNEY. 

1.  The  affidavits  in  support  of  an  application 
to  set  aside  a  warrant  of  attorney,  held  properly 
intituled  in  a  cause.  Thompson  v.  Vaux,  5  Dowi. 
(r.c.)691. 

2.  An  affidarit  swearing  to  belief  of  the  party 
being  alive,  from  information,  and  not  going  on  to 
swear  that  the  party  believed  it  to  be  true,  held 
insufficient.  Reeder  v.  Whip,  5  Dowl.  (r.  c.) 
576. 

3.  Where  the  defendant  was  seen  alive  in  New 
South  Wales  on  the  Ist  of  March,  the  applica- 
tion being  made  on  the  following  5th  of  Novemr 
faer,  judgment  allowed  to  be  entend.  JobMon 
27.  Fry,  5  Dowl.  (p.  c.)  215. 


2938 


[WARRANT  OP  ATTORNEY— WATERCOURSE] 


4.  But  proof  of  a  check  in  the  handwriting  of 
the  defendant,  dated  thirteen  days  before  the  ap- 
plication, held  sufficient.  Jacobs  v.  Griffiths,  5 
Dowl.  (p.  c.)  577. 

5.  So,  where  the  party  was  seen  alive  on  the 
previous  30th  of  September.  Stock  v.  Willes, 
lb.  221. 

6.  Where  the  party  in  custody  introduces  a 
person  as  the  attorney  attending  on  his  behalf, 
on  the  execution  of  a  warrant  of  atiorney,  he 
cannot  afterwards  move  to  set  it  aside,  on  the 
ground  that  he  was  not  a  certificated  one.  Cox 
V.  Cannon, 4  Biug.  N.  S.  (c.  p  )  453. 

7.  The  nomination  of  an  attorney  by  the  plain- 
tiff, and  adoption  by  a  defendant  in  custody  on 
mesne  process^  held  not  a  compliance  with  the 
rule  Hil.  2  Will.  4,  s.  72.  White  v.  Cameron,  6 
Dowl.  (i .  c.)  476. 

8.  Where  the  affidavit  of  execution  of  the 
warrant  by  a  marksman,  only  slated  it  to  have 
been  duly  executed,  «nd  not  that  it  had  been  read 
over,  ^c,  held  insufficient.  James  v.  Harris,  (S 
Dowl.  (P.O.)  184. 

9.  Where  the  party  attesting  the  execution  on 
behalf  of  the  defencfant  was  the  attorney  of  the 
plaintiff,  the  court  set  it  aside  ;  held,  also,  that 
the  declaration  prescribed  by  Reg.  2,  Hil.  2  Will. 
4,  8.  72,  need  not  be  in  writing,  and  that  an  at- 
testation in  the  terms  "  witness  H.  K.,  attorney 
for  the  defendant,  at  his  request,"  was  sufficient; 
held,  also,  that  a  general  authority  to  sign  judg- 
ment as  of  Hil.  term,  did  not  render  a  judgment 
siLmed  of  a  particular  day  in  that  term,  irregular. 
Todd  V.  GoraperU,  6  Dowl  (p.  c.)  296. 

10.  The  rule  of  Hil.  2  Will.  4,  s.  72,  applying 
only  to  prisoners  on  mesne  process,  a  party  apply- 
ing to  set  aside  judgment  signed  on  a  warrant  of 
attorney,  must  show  that  he  is  strictljr  within  the 
terms  of  the  rule,  and  it  is  not  sufficient  merely 
to  show  that  he  was  a  prisoner.  Lewis  v.  Gom- 
pertz,  6  Dowl.  (p.  c.)  7. 

11.  Showing  the  party  alive,  b^  a  letter  dated 
abroad  six  weeks  before,  held  sufficient.  Grant- 
ley  ».  Summers,  6  Dowl.  (p.  c.)  478. 

12.  Warrants  of  attorney  to  prosecute  or  de- 
fend, need  not  be  filed  at  any  stage  of  the  cause, 
Reg.  Gen.,  4  Bing.  N.  S  (c.  *.)  3&. 

13.  A  warrant  of  attorney  executed  to  two, 
held,  that  on  the  death  of  one  the  judgment 
might  be  entered  up  by  the  survivor  in  his  own 
name.    Hind  v.  Kingston,  6  Dowl.  (p.  c.)  523. 

14.  But  where  the  warrant  was  given  to  the 
testator  only,  the  court  refused  to  allow  judgment 
to  be  entered  by  the  executor,  although  m  the 
defeazance,  it  was  stated  that  it  might  be  done 
by  the  **•  executors  and  administrators."  Foster 
V.  Claggett,  6  Dowl.  (p.  c.)  524. 

15.  Where  the  defendant  executed  the  warrant 
of  attorney  in  the  presence  of  the  plaintiff's  son, 
a  clerk  in  the  office  of  his  attorney,  and  the  exe- 
cution attested  by  a  person  introduced  for  that 
purpose  by  the  plaintiff's  ton,  held  insufficient 
Rica  V.  Lmttead,  6  Sc.  (c.  p.)  589. 


16.  An  affidavit  of  the  party  haviag  been  aeea 
alive  27  days  since,  held  sufficient.  Fowell  «. 
Howard,  6  Sc.  (c.  p.)  626. 

And  see  Insolvent;  Prisoner. 


WARRANTY. 
See  Assumpsit, 


WASTES. 

Where  a  tenant  annexes  to  his  farm  part  of  the 
waste,  it  enures  to  the  benefit  of  the  landlflrd. 
Doe  c.  Murreil,  8  C.  &  P.  (n.  p.)  135. 

And  see  Timber. 


WATERCOURSE. 

1 .  Where  the  owner  of  a  mill-stream  had  kept 
an  ancient  opening  into  a  ditch,  closed  for  above 
20  years ;  held,  that  the  owner  of  the  land  ad- 
joinmg  the  ditch  could  not  justify  the  le-opening 
the  communication ;  and  that  where  the  milt 
owner,  afler  having  altered  bis  wheel  to  one  re- 
quiring a  greater  head  of  water,  bad  sabsequent- 
ly  discontmued  it  for  20  years,  and  resomed  the 
use  of  his  former  wheel,  he  could  not  resuine  his 
right  to  the  higher  head  of  water.  Drewett  r. 
Sheard,  7  C.  ^T.  (h.  p.)  465. 

2.  The  jury  having  found  issues  as  to  the 
right  to  water  at  all  times,  the  judge  will  dis- 
charge them  as  to  rights  claimed  on  particular 
occasions,    lb. 

3.  Where  two  defendants  were  preaeiit  at  the 
time  of  opening  the  communication,  claiming 
rights,  and  one  aflerwards  committed  an  act*  it 
was  for  the  jury  to  say  if  the  other  was  not  con- 
curring in  the  act  when  not  present.    lb. 

4.  Where  the  plaintiff  enjoyed  a  wateroonne 
above  20  yean  ago,  and  about  S2  years  siiiee 
some  alterktion  was  made  iu  it,  but  about  19  yean 
ajyro  it  was  restored  to  its  ancient  eoniae,  held 
that  the  right  was  not  destroyed  by  such  inter- 
ruption.   Hall  V.  Swifl,  4  Bing.  N.  S.  (c.  p.)  381. 

5.  In  trespass,  plea  justifying  a  right  to  enter 
to  remove  hatches  obstructing  a  watercourae  to 
the  defendant's  mill,  held  that  evidence  of  a  for- 
mer occupier  of  a  mill  having  asked  permisaioa 
to  use  the  water,  was  admissible,  as  of  the  ezer> 
cise  of  a  right  by  one  and  acquiesoenoe  by  the 
other.     Wakeman  v.  West,  8  C.  &  P.  (n .  p.)  105w 

6.  The  paramount  right  of  the  public  in  a 
public  navigable  river  extends  to  every  part  of  the 
space  between  the  banks,  and  a  grant  by  the 
crown  to  erect  a  weir  over  part  ot  it  not  then 
necessary  to  the  navigation,  must  be  taken  to  be 
subject  to  the  necessities  of  the  public  when  they 
may  arise ;  the  crown  never  had  at  common  law 
a  right  to  interfere  with  the  channels  of  poblie 
riyers,  nor  before  or  aiDce  the  puang  of  fiufiia 


[WATERCOURSE— WEST  INDIA  CONSIGNMENTS]  2099 


CharU  any  other  ri^bt  than  that  of  preaervinfif 
the  right  and  restraining  nuisances  in  derogation 
of  it;  but  held,  that  the  effect  of  25  Edw.  3,  st. 
4,  c.  4,  was  impliedly  to  legalize  all  weirs  which 
had  been  set  up  before  the  time  of  Edw.  1,  and 
that  evidence  showing  the  antiquity  of  the  one 
in  question  was  properly  received.  Williams  v. 
Wilcox,  3  Nev.  &  P.  (^.  b.)  606. 

7.  In  case  for  diversion  of  water  from  the  plain- 
tiff's  mills,  it  appeared  that  certain  mining  adven- 
turers had  obtained  a  lease  from  the  proprietors  of 
the  mine,  lying  near  and  benefited  by  a  drain  or 
sough  constructed  by  them,  (but  under  what 
right  did  not  appear,  but  to  be  presumed  to  have 
b^n  done  ratner  by  the  custom  of  mining  or 
licence  from  the  owner  of  the  soil),  and  that 
afterwards  the  father  of  the  plaintiff  had  obtained 
a  lease  from  the  lord  of  the  manor,  also  owner  of 
the  soil  through  which  the  sough  flowed,  and 
thereon  erected  cotton  mills ;  subsequently, 
another  company  of  adventurers  began  to  con- 
struct on  a  lower  level  another  sough,  which, 
under  an  agreement  with  the  proprietors  of  the 
first  sough,  and  of  other  mines  drained  by  it, 
they   proceeded  to  extend,  thereby  reducing  the 

anantity  of  water  which  would  have  passed  along 
iie  first  sough  to  the  plaintiff's  mills;  held,  that 
ms  the  origin  of  the  watercourse  was  in  reference 
to  the  convenience  of  the  mine  owners,  and  its 
continuance  only  whilst  that  convenience  requir- 
ed it,  and  from  the  nature  of  the  case  of  a  tem- 
porary character,  no  inference  could  be  made  of 
any  mtention  to  grant  the  use  of  the  water  in 
perpetuity,  and  that  no  such  right  was  therefore 
acquired  by  the  user,  either  by  the  presumption  of 
a  grant,  or  by  force  of  the  S  &  3  Will.  4,  c.  71. 
Arkwright  v.  Gell,  5  Mees.  &  W.  (ex.)  203. 

And  see  Cotts  ;  Injunction, 


WATERMAN'S  ACT. 

The  mayor  and  aldermen  being  enabled,  ^y  7 
&  8  Geo.  4,  e.  65,  s.  57  (Waterman's  Act),  to 
make  bye-laws,  dtc.  for  the  regulation  of  bc^ts, 
▼eswls,  and  other  craft,  to  be  rowed  or  worked 
within  the  limits  of  the  act,  held  that  steam-boats 
were  comprehended  within  it.  Tisdel  v.  Combe, 
S^ev.  4tP.  (<l.  B.)99. 


WAY. 

1.  In  ease  for  obstructing  plaintiff's  right  of 
wayt  claimed  under  a  lease  of  the  premises  from 
the  defendant ;  held,  that  it  was  for  the  jury  to 
find  the  state  of  the  premises  at  the  time  of 
granting  the  lease,  and  for  the  court  then  to  put 
a  construction  on  the  terms  of  the  lease  in  re- 
spect of  the  way  granted,  and  declarations  of  the 
parties  before  and  after  are  inadmissible ;  where 
It  is  uncertain  which  of  two  ways  is  meant,  pa- 
rol evidence  is  admissible,  where  the  way 
granted  lies  over  the  land  of  third  persons,  and 
there  is  no  other,  the  lessee  is  entitled  to  pass 


across  the  grantor's  land  by  the  shortest  way  to 
the  public  highway,  as  a  way  of  necessity  ;  and 
where  it  is  a  pnvate  way,  the  grantor  is  bound  to 
make  it.    Osborn  v.  Wise,  7  C.  &  P.  (h.  p.)  761. 

2.  In  trespass,  plea,  a  public  right  of  way ; 
the  cause  having  been  referred  to  an  arbitrator, 
who  was  to  direct  what  was  to  be  done,  he  direct- 
ed a  verdict  to  be  entered  for  the  defendant,  and 
that  the  plaintiff  should  erect  a  stile  and  foot- 
bridge in  a  place  described ;  held  that,  it  appear- 
ing to  be  on  the  land  of  third  persons,  the  award 
was  void,  as  not  within  the  submission.  Turner 
r.  Swainson,  1  Mees.  &,  W.  (ex.)  572;  and  1 
Tyr.  &  Gr.  933. 

3.  Upon  a  plea  of  a  public  foot- way  over  plain- 
tiff's close,  held  supported  by  evidence  tending 
to  establish  a  carriage-way,  and  the  existence  of 
a^ate  across  not  inconsistent  with  the  reservation 
of  keeping  it  to  prevent  cattle  straying;  held 
also,  that  long  user,  during  the  occupation  of 
tenants,  might  be  a  ground  for  presuming  the 
knowledge  and  acquiescence  of  the  owner.  Da- 
vies  V.  Stephens,  7  C.  d^  P.  (k.  p.)  570. 

4.  In  support  of  a  plea  of  right  of  way,  under 
2  d^  3  Will.  4,  e.  71,  s.  2,  held  that  evidence  of 
a  user  more  than  forty  years  back  was  admissible. 
LawBon  v.  Langley,4  Ad.  &  Ell.  (k.  b.)  890. 

5.  In  trespass  qu.  d.frtg,  plea,  a  right  of  way, 
replication  that  the  defentknt  used  the  way  under 
the  plaintiff's  leave  and  licence ;  held,  that  the 
plaintiff  was  bound  to  show  a  licence  do-ezten 
sive  with  the  right  claimed  by  the  plea,  and  a^ 
mitted  by  the  replication,  and  that  it  was  not  sue 
tained  by  evidence  of  a  limited  one.    Colchestef 
r.  Roberts,  4  Mees.  &  W.  (ex.)  769* 

6.  Plea,  justifying  a  right  of  way  for  all  purposes, 
under  2  ifc  3  Will.  4,  c.  71 ;  replication  denying 
such  right;  held,  that  the  plaintiff  might  on  such 
issue  show  a  limited  right  for  certain  purposes 
only,  without  newly  assigning,  and  that  the  pur- 
pose for  which  at  the  said  time,  dkc.  the  way  was 
used,  was  not  within  such  limited  right,  and 
that  \n  all  such  cases  the  question  as  to  the  ex- 
tent of  the  right  is  for  the  jury.  Cowling  r, 
Higginson,  4  Mees.  db  W.  (ei.)  245. 

And  see  JEJrtdeacs  ;  Trtspass^ 


WEIGHTS, 

See  Corporatu79i, 

WEST  INDIA  CONSIGNMENTS, 

The  consignee,  although  entitled  to  be  paid  the 
balance  due  to  him  out  of  the  cor^pus  of  the  estate, 
yet  that  it  is  only  on  a  final  settlement,  and  not 
pending  the  eonsigneeship ;  the  court,  there- 
fore, refused  to  allow  the  balance  to  be  paid  out 
of  the  compensation  awarded  under  3  ds  4  Will. 
4,  c.  73,  whilst  he  continued  to  be  consignee. 
Farquharson  v.  Balfour,  8  Sim.  (<;r.)  210. 


Vol.  IV. 


84 


M40 


[WEST  INDIA  ESTATES— WILL] 


WEST  INDIA  ESTATES. 

1.  Upon  the  oonstraetion  of  34  Geo.  2,  e.  19 
(Jamaica  Act),  and  reference  to  the  antecedent 
right ;  held,  that  the  right  to  receive  commiasion 
as  attorney  or  agent  of  West  India  estates  onlv 
exists  where  the  agent  is  resident  in  the  island, 
and  has  qualified  htinself  to  sustain  the  character 
of  trustee;  a  party  having  no  interest  in  one  of 
the  subjects  of  suit,  being  made  a  co-plaintiff,  if 
the  bill  is  sustainable  only  as  to  that  subject,  it 
must  be  dismissed.  Denton  v.  Davy,  1  Moore 
(f.  c.)  15. 

2.  But  where  a  party  was  qualified  to  act  in 
such  trust,  and  reaoy,  when  called  on,  to  act  by 
his  co-trustee ;  held,  that  he  would  be  entitled  to 
the  commission,  under  the  Colonial  Act  Grant 
V.  Campbell,  lb.  43. 

3.  The  commission  can  only  arise  on  sales 
made  and  completed  in  the  island,  and  not  in  this 
country.    Henekell  v.  Daly,  lb.  51. 


WILL. 

[Aj    CONSTRUCTIOII   OF— COMPKTENCT   OF   TES' 
TATOR — IMPERFECT    PAPERS CODICIL. 

[BJ    ReTOCATIOH  —  CARCELLATIOK  —  REPDBLI' 
CATION. 

[C]  Probate — court  of. 


[A]    COWSTRUCTION   OF — COHPETBHCY  OF  TES- 
TATOR— ^IMPERFECT   PAPAR8 CODICIL. 

1.  Upon  a  gift  of  bank  stock,  in  trust  to  A.  B. 
for  life,  and  of  all  testator's  funded  property, 
upon  trust,  to  pay  the  dividends  to  £.  (a  natural 
child)  for  life,  and  from  and  after  his  decease  for 
the  issue  of  his  body,  whether  male  or  female, 
and  afler  the  death  of  A.  B.,  to  pay  the  dividends 
of  the  Bank  stock  to  £.  for  life,  and  afler  his 
death,  for  the  benefit  of  'the  child  or  children  of 
£.,  '*  in  such  manner  as  he  had  directed  as  to 
his  funded  property,"  and  should  E.  die  without 
issue  male  or  female,  then  for  such  charitable  or 
other  purposes  as  his  trust^s  should  think  fit, 
without  being  accountable  to  any  person ;  and 
he  gave  the  residue  of  his  personal  estate  and  ef- 
fects, wines,  plate,  &c.,  to  £. ;  held,  that  (he 
ultimate  trust  of  the  Bank  stock  and  funded 
property  was  not  void  as  too  remote,  but  was 
void  for  uncertainty,  and  that  the  residuary  clause 
was  fpeneral,  and  passed  the  Bank  stock  and 
funded  property  to  the  party  claiming  under  E., 
the  residuary  legate^.  Ellis  v.  Sefby,  7  Sim. 
(CB.)  352 ;  S.  C.  1  Myl.  i&  Cr.  266. 

2.  A  bequest  upon  trust  to  pay  the  interest  to 
testatrix's  two  nieces  for  their  lives,  and  after 
their  deaths,  to  divide  equally  amonest  their  lawful 
issue,  **  or  of  such  of  them  as  should  leave  issue, 
equally  per  stirpes,,  tind  not  per  capita,  and  in  de- 
fault of  such  issue,  then  over ;  one  of  the  nieces 
bad  sewn  children,  five  of  whom  Baryiyed  her : 


held,  that  the  latter  were  entitled  to  the  toother's 
moiety  of  the  residue.  Cross  e.  CroBB,  7  Sin. 
(CH.)  201. 

3.  Afler  a  el fl  to  A.  and  B.  for  their  lives,  and 
on  their  deaths  to  their  children  then  living,  who 
should  attain  21,  and  in  case  the  children  ofeither 
should  die  under  21,  then  to  tlie  survivor  of  A. 
and  B  ;  A.  died,  leaving  a  child,  who  attained 
21  ;  B.  died  without  having  had  a  child ;  aad 
held,  that  the  limitation  over  took  efieet,  and 
that  A.'s  representative  wns  entitled  to  B.*s  Bioie- 
ty.    Aiton  v.  Brooks,  7  Sim.  ^cb.)  204. 

And  see  Mackinnon  v,  Sewell,  5  Sim.  78;  and 
2  Myl.  dc  K.  202. 

4.  Upon  a  bequest  to  trustees  of  all  the  testa- 
tor's freehold  and  leasehold  lands  and  heredita- 
ments, money,  stock,  goods,  Ac,  and  all  other 
his  real  and  personal  estate  on  trust,  to  pay  the 
rents,  dividends,  (%c.,  to  his  daughter  for  life, 
and  ailer  her  death  to  stand  possessed  of  his  said 
freehold  and  leasehold  estates,  money  in  the  foods, 
and  all  other  his  said  real  and  personal  estate  for 
the  children  of  his  daughter ;  and  in  default  d* 
such  children,  to  pay  the  rents,  dividends,  &c, 
and  all  other  the  proceeds  of  his  said  stoek,  aad 
other  his  said  personal  estate  to  his  nephews  for 
their  lives,  and  afler  their  deaths  for  their  child- 
ren ;  and  in  default  of  such  children,  he  gave 
his  freehold,  Ac,  to  a  corporation  in  trast,  to  sell 
and  convert  into  money,  and  to  lend  the  same  as 
directed  in  the  will ;  held  to  be  a  general  residua- 
ry bequest,  and  that  the  leaseholds  and  stock 
ought  to  be  sold  and  invested  in  the  3  per  cenls^ 
ana  an  inquiry  was  directed  whether  turnpike 
securities  were  real  and  permanent.  Mills  v. 
Mills,  7  Sim.  (cH.)  501. 

5.  Where  testator  directed  the  two  trustees  of 
his  residuary  estate  to  invest  £4,000  in  trust  for 
his  granddaughter  for  life,  and  afterwards  for  her 
children,  and  m  fiiilureof  children,  to  fall  into  the 
residue  ;  he  aflerwards,  by  a  codicil,  reciting  that 
he  had  by  his  will  given  i>4,000  5  per  cents^ 
standing  in  his  name,  in  trust  for  his  grand- 
daughter, and  that  he  was  desirous  that  sock 
trust  should  be  executed  by  three  persons,  and 
appointed  another  to  be  a  co-trustee  and  goardian 
of  his  granddaughter,  jointly  with  those  named 
in  the  will,  and  directed  that  they  should  trana- 
fer  the  said  stock  to  her,  free  from  all  dedactioas; 
held  that,  as  the  codicil  could  not  be  constroed 
literally  as  to  the  stock,  but  only  with  reierenee 
to  the  will,  its  efiect  was  not  to  give  the  stock 
absolutely  to  the  granddaughter,  hot  only  that 
the  trusts  created  as  to  it  by  the  will  should  he 
performed  by  three  instead  of  two.  Bany  v. 
CrundaU,  7  Sim.  (ch.)  430. 

6.  Where  the  testator  placed  his  children  OBder 
the  protection  of  trustees,  with  certain  provisions, 
to  be  reduced  if  their  mother  should  fix  herself 
with  them  out  of  England,  and  the  sun,  if  he  did 
not  remain  in  England,  to  forfeit  his  legacy ;  the 
mother  took  her  children  during  infancy,  and 
remained  four  years  in  India,  and  tiie  son,  shortly 
afler  their  return,  obtained  a  commission,  and 
joined  bis  regiment  in  India ;  he  retorned,  hov- 
ever,  whilst  under  21,  on  acoonnt  of  iUnesa,  va- 
mained  three  yean,  and  thsii}  haying  attained  SI, 


[WILL] 


fiMl 


rejoined  hiereeimeiit;  held,  that  the  term^  was 
to  be  construed  as  permanentlj  residing,  and  that 
the  same  was  meant  bj  the  testator  in  using  the 
term  remam ;  and  that  the  annuities  were  neither 
liable  to  be  reduced,  nor  the  son's  legacj  forfeit- 
ed.   Schnell  v,  Tyrrell,  7  Sim.  (ch.)  t6. 

7.  Where  the  will  devised  certain  estates  and 
the  residuary  personal  estate  to  K.,and  afterwards 
the  testator  by  a  codicil  revoked  the  bequest  to 
him,  and  devised  the  estates  to  T.,  subject  to  all 
the  conditions  stated  in  the  will,  and  the  meaning 
of  the  testator  was  clear  that  he  meant  substitu- 
tion as  well  as  revocation ;  held,  that  he  used  the 
word  estates  as  comprising  both  real  and  personal 
estate ;  a  codicil,  written  by  the  party  himself,  is 
not  to  be  construed  literally  and  technically, 
where  upon  the  whole  it  appears  that  he  meant 
to  use  terms  in  a  different  sense.  Read  r.  Back- 
house, 2  Rttss.  &  M.  (cH.)  546. 

6.  Where  the  testator  appointed  a  fund  to  his 
son,  to  be  paid  after  the  death  of  his  wife,  if  he 
should  then  have  attained  21,  and  if  he  should 
die  under  21,  and  after  the  death  of  the  wi(e, 
then  he  gave  the  fund  to  his  brother ;  and  in  ease 
the  wife  should  survive  the  son  and  brother,  then 
be  gave  it  to  the  brother's  daughters  then  living ; 
the  son  attained  21 ,  and  diea  in  the  lifetime  of 
the  wife,  as  did  also  the  broUier :  held,  that  the 
representatives  of  the  son,  and  not  the  daughters 
of  the  brother,  were  entitled.  Clntterbuck  o. 
Edwards,  2  Russ.  &  M.  (cu.)  577,  affirming  the 
judgment  below. 

9.  Where  the  testator  by  his  will  gave  £3,000 
to  B.  for  life,  with  remainder  over,  and  £6,000 
to  S.  for  life,  with  remainder  over,  and,  after 
small  annuities  to  two  servants,  the  residue  ef 
his  personal  estate  to  H.,  and  by  a  codicil  he  left 
B.  an  equal  share  with  S.  and  ti.,  with  limita- 
tions over  to  his  wife  and  children,  and  S.  to 
have  an  equal  share  with  H. ;  held,  that  the  ef- 
fect was  to  entitle  S.  to  one-third  share  of  the 
personal  estate,  subject  to  the  limitations  created 
88  to  the  legacy  given  by  the  will.  Cookson  v, 
Hancock,  1  K.  (ch.)  817. 

10.  Where  in  former  wills  a  legacy  had  been 

g'ven,  and  instructions  marked  by  her  solicitor 
r  increasing  it,  but  in  preparing  the  new  will 
the  legacy  was  wholly  omitted,  the  intention 
being  clear,  the  court  holding  it  an  omission,  not 
an  ambiguity,  admitted  the  allegation,  and  beincr 
fully  proved,  pronounced  for  the  legacy.  Castell' 
V.  Tagg,  1  Curt  (prir.)  298. 

11.  Where  circumstances  had  arisen,  rendering 
it  natural,  and  the  intentions  been  clearly  ezpress- 
CKd  to  alter  former  dispositions,  a  paper  headed, 
**  Head  of  instructions  to  my  solicitor,  J.  L.,  to 
add  to  my  will  the  following  codicil,"  concluding, 
**  This  is  my  last  will  and  codicil ;"  subscribed 
and  wholly  in  the  testator's  handwriting,  and  in- 
dorsed, *^  Memorandum. to  J.  L.  Will. — 11  Oct. 
1834;*'  and  the  testator  died  in  the  following 
February :  held,  that  it  was  intended  to  be  an 
operative  instrument  until  a  new  and  more  formal 
instrument  was  prepared  from  it,  and  probate  there- 
of decreed.    Torre  v.  Castle,  1  Curt,  (prer.)  303. 

12.  In  the  case  of  an  informal  paper,  there 
must  be  strong  proof  that  the  deceased  did  in- 
tend  it  l»  opeiate  as  a  will.    lb. 


13.  Legatee  of  a  bond,  which  after  the  will 
and  ahorUy  previous  to  the  suicide  of  the  testator, 
had  been  cancelled  on  a  conveyance  of  the  estate 
held  as  a  collateral  security,  decreed  entitled  to 
have  the  bond  replaced ;  the  tratisaction  being 
one  of  doubtful  sanity  and  fraudulent  eiercise  oi 
influence.  On  the  question  of  sanity,  facts  ad- 
duced as  indications  of  sanity  are  to  be  consider- 
ed as  whether  inconsistent  with  or  satisfactorily 
explaining  indications  of  insanity  produced  by 
tlie  opposite  side  on  which  the  onus  lies.  Steed 
V.  Calley,  I  K.  (ch.)  620. 

14.  Where  the  attesting  witnesses  to  the  will 
of  a  party  imbecile,  gave  strong  evidence  of  in- 
capacity, and  stated  merely  that  the  signatures 
were  theirs,  but  tiuit  they  did  not  know  they 
were  attesting  a  will,  the  court  pronounced 
against  the  will.  Slarnes  v.  Marten,  1  Curt. 
(PRXR.)  294. 

15.  Where  the  will,  to  which  the  codicil  was 
described  and  said  to  be  part  of  his  will,  was  not 
forthcoming,  but  could  not  be  dependent  on  the 
will,  as  containing  dispositions  in  favor  of  per- 
sons unknown  to  the  testator  at  the  time  of  the 
will,  the  court  pronounced  for  the  codicil,  as  con- 
taining the  lost  will  of  the  deceased.  Tagart 
^  another  v.  Hooper  &,  another,  I  Curt,  (prxr.) 
289. 

16.  Where  the  attestation  clause  stated  the 
execution  of  the  witnesses  to  have  been  in  the 
presence  of  the  testator,  and  of  each  other,  and 
one  of  the  witnesses  called  proved  that  one  was 
not  present,  although  the  signature  was  his  hand- 
writmg;  held,  not  a  due  execution  within  the 
statute.    Doe  v.  Lewis,  7  C.  d^  F.  (ir.  p.)  574. 

17.  Where  the  testator  (jiot  an  illiterate  person) 
executed  a  codicil  by  putting  his  mark  instead  of 
signing,  held  sufficient  to  satisfV  the  Statute  of 
Frauds.  Taylor  v.  Dening,  3  Kev.  &>  P.  (q.  b.) 
229. 

18.  Bequest  of  a  fund  to  testator's  daughter 
absolutely  on  her  attaining  21,  and  the  interest  to 
be  expended  for  her  maintenance,  &c. ;  and  in 
the  event  of  her  dying  under  21,  then  the  fund 
to  go  to  his  brother's  ctiildren ;  and  the  testator 
afterwards  directed  that  if  his  daughter  were  to 
be  married,  that  she  should  enjoy  \St  interest  for 
her  life,  and  the  principal  afterwards  go  to  her 
children ;  held  that  the  latter  direction  applied 
only  to  the  case  of  lier  marrying  under  21,  and 
that  having  attained  21  before  marriage,  she  took 
the  fund  absolutely.  Williams  v.  Huskisson,  3 
Tounge  ds  C.  (xz.  zq.)  80. 

19.  Bequest  of  residue  to  a  female,  to  be  paid 
at  25 ;  and  providing  that  in  the  event  of  mar^ 
riage  before  that  time,  it  should  be  put  in  settle- 
ment, but  there  was  no  gift  over;  neld,  thaton 
attaining  21,  the  legatee  was  entitled  to  the  in- 
come. Grant  v.  Grant,  3  Tounge  A,  C.  (ax.  sq.) 
171. 

20.  Where  a  testator  gave  "  the  amount  of  the 
bond  from  J.  H."  held  Uiat  the  legatees  were  en- 
ticed to  the  arrear  of  interest  upon  the  bond  as 
well  as  to  the  principal.  Harcoort  v.  Morgan,  8 
Keene,  (ch.)  5274. 

31.  Bequaat  of  a  sum  in  trust  to  pay  the  iatar- 


3942 


[WILL] 


est  to  the  testator's  daughter  for  life,  and  after  her 
death,  in  case  of  her  having  no  children,  for  all 
and  every  the  child  of  B.  and  C.  who  should 
attain  21  ;  held  that  all  the  children  born  before 
the  eldest  attained  21,  although  after  the  testator's 
death,  were  entitled.  Clarke  r.  Clarke,  8  Sim. 
(cH.)  59. 

22.  Where  a  copyhold  messuage  and  tene- 
ments, with  the  furniture  and  enects  therein, 
were  devised  to  trustees  in  trust,  in  terms  as  to 
the  enjoyment  applicable  only  to  the  real  estate, 
and  omitting  any  notice  of  the  furniture,  held 
that  the  devisee  took  no  beneficial  interest  therein ; 
held,  also,  that  a  devise  to  such  persons  as  should 
be  the  testator's  partners  or  disponees  of  the  busi- 
ness was  valid,  and  passed  the  interest  to  parties 
to  whom  in  his  lifetime  he  had  disposed  of  the 
concern.  The  testatrix  also  indorsed  a  uote  for 
£ ,  and  enclosed  it  in  a  letter  to  S.  S.,  ex- 
pressing that  she  gave  it  to  S.  S.  for  her  sole  use 
and  benefit,  to  enable  her  to  present  any  portion 
to  either  branch  of  her  family,  as  she  mignt  con- 
sider most  prudent ;  and  in  the  event  of  her 
death  she  empowered  S.  S.  to  dispose  of  it  by 
will  or  deed,  to  those  or  either  branch  of  the 
family  she  might  consider  most  deserving ;  held 
to  constitute  a  trust,  but  the  objects  too  undefined 
for  the  court  to  execute  it,  and  that  the  fund 
therefore  formed  part  of  the  general  personal  es- 
tate*   Stttbbs  V.  Sargon,  2  Keene,  (ch.)  255. 

83.  Where  a  testatrix,  after  giving  several 
small  legacies,  included  all  her  remaining  real 
and  personal  estate  in  one  general  devise  in  trust, 
to  keep  and  retain  the  same  in  the  state  in  which 
it  should  be  at  the  time  of  her  death,  as  long  as 
he  should  think  fit,  or  to  sell  and  dispose  of  the 
whole  or  any  part  thereof,  to  invest  the  proceeds 
and  charge  the  stock,  &c.,  out  of  which  certain 
annuities  were  to  be  paid,  and  from  and  after  sat- 
isfiiction  thereof  to  stand  possessed  of  all  her  said 
personal  and  real  estate,  and  the  rents,  interest, 
dividends,  &e.,  in  trust  for  certain  parties,  in 
equal  shares,  as  tenants  in  common,  and  for  their 
respective  heirs,  &c.,  according  to  the  different 
natures  and  qualities  thereof;  held  that  the  pro- 
perty was  not  by  such  devise  to  be  considered  as 
converted  out  and  out,  but  that  the  trustee  had  a 
discretionary  authority  to  sell  or  not,  and  that, 
until  exercised,  the  property  remained  in  the 
state  it  was  at  the  death  of  the  testatrix ;  held, 
also,  that  the  trustee  having  submitted  to  act  as 
the  court  shonld  direct,  and  a  sale  having  been 
ordered,  but  the  master  reported  against  a  sale, 
and  none  had  taken  place,  the  case  was  left  as  it 
stood  under  the  will.  Policy  v.  Seymour,  2 
Younge  &  C.  (ex.  k^O  708. 

24.  On  a  (^ift  of  lands  absolutely,  although  ac- 
companied with  words  of  recommendation  that 
in  case  of  marriage  the  party  should  execute  a 
settlement  of  tlie  estate  for  herself  and  the  chil- 
dren of  the  marriage  -,  hi^d,  that  she  might  exe- 
cute an  absolute  conveyance.  Payne,  ex  parte, 
2  Younge  &>  C.  (ex.  e<i.)  636. 

25.  Upon  a  bequest  of  dividends  of  stock  to 
testator's  brother  and  three  sisters,  and  after  their 
decease,  the  shares  to  their  children  respectively, 
if  any,  with  benefit  of  survivorship,  and  after  the 
death  of  the  survivor  of  the  children  of  his  brother 


or  sisters,  the  ftind  to  be  dittribnted  aceoidtBf  to 
the  Statute  of  Distributions ;  held,  that  it  be  ng 
clear  he  meant  onlv  to  give  an  interest  for  life, 
the  capital  was  undisposed  of,  and  passed  to  Ibe 
testator's  next  of  kin,  living  at  his  death.  Cooke 
V.  Bowler,  2  Keene,  (ch.)  o4. 

26.  Where  the  testatrix  bequeathed  to  ber  niece 
all  her  pictures  and  coins  (excepting  those  of  the 
two  last  reigns,)  in  and  about  her  dwelling-home, 
and  all  the  residue  of  ber  estate,  real  and  per- 
sonal, (except  as  afterwards  given,)  to  grand- 
children, and  directed  that  from  and  after  the  dav 
of  her  interment,  all  the  property  over  which 
she  had  any  disposing  power  in  and  about  ber 
dwelling-house  should  belong  to  her  niece  (ex- 
cept what  she  had  otherwise  given) ;  hoards  of 
money,  in  guineas,  sovereigns,  notes  of  tbe  Bank 
of  £nglana,  promissory  and  country  notes,  mad  a 
mortgage  security,  were  afterwards  found  in  tbe 
house :  held,  that  the  niece  was  entitled  to  tba 
money  and  bank  notes,  but  not  to  tbe  couotiy 
bank  promissory  notes,  or  mortgage.  Brooke  c. 
Turner,  7  Sim.  (ch.)  671. 

27.  Where  a  testator,  after  an  absolute  gift  of 
all  his  property  to  his  wife,  afterwarda,  by  an 
imperfect  testamentary  paper,  gave  tbe  whole  to 
others  in  trust,  to  pay  her  the  interest  for  life,  and 
after  her  death  to  purposes  after-mentioned,  and 
he  then  gave  certain  legacies  and  annuities,  di- 
recting, as  to  one  annuity,  that  after  tbe  death  of 
the  annuitant,  it  should  be  paid  to  his  reeidoary 
legatee,  but  he  did  not  name  any ;  by  a  subeequent 
testamentary  paper,  be  gave  legacies  and  annui- 
ties to  those  before  named,  and  also  to  others : 
the  Ecclesiastical  Court  having  admitted  all  tbe 
papers  to  probate,  held  that  they  were  to  be  taken 
together  as  the  will,  and  that  tbe  absolute  gift 
was  not  revoked,  except  so  fiu  as  neoesaazy  to 
provide  for  the  legacies  and  annuities,  and  that 
the  latter  were  not  cumulative.  Brine  v.  Fiaber, 
7  Sim.  (cH.)  549. 

28.  Where  the  testatrix,  whose  property  con- 
sisted chiefly  ol  stock  in  the  funds,  after  giving 
several  pecuniary  legacies,  gave  '*  all  which  might 
remain  of  her  money"  to  the  inhabitants  of  "  T. 
row"  after  payment  of  her  lawful  debts  and  lega- 
cies ;  held,  that  the  parties  found  by  the  master 
to  be  such  inhabitants  were  entitled  to  the  residoe 
of  the  testator's  general  personal  estate  after  such 
payment.     Rogers  v.  Thomas,  2  Keene,  (ch.)  8. 


29.  So,  where  after  the  like  levies,  tbe 
trix  bequeathed  ^<  whatever  remained  of  money*' 
to  the  nve  children  of  D. ;  held,  that  those  words 
referred  to  the  general  residuary  personal  estate. 
Dowson  V.  GasKoin,  2  Keene,  (cu.)  14. 

30.  The  case  of  Doe  d.  Tatham  v,  Wright, 
aflirroed  in  error  in  Dom.  Pr. ;  diss.  Gmrnewmnd 
BoUand,  B.  B.,  Park,  J. ;  4  Bing.  N.  S.  (c.  p.) 
489 ;  and  2  Nev.  <&  P.  («.  b.)  305. 

31 .  The  case  of  Cookson  v.  Hancock,  (1  Keene, 
817,)  affirmed,  2  Myl.  <&  Cr.  (ch.)  606. 

32.  Where  the  deceased  was  of  great  age,  deai^ 
and  almost  blind,  and  the  will  prepared  from  a 
paper  given  by  a  party,  the  solicitor,  and  ap> 
pointed  eiecutor  of  the  will,  as  the  presumed  in- 
structions, and  from  which  the  draft  was  prepar- 
ed, without  any  previous  instraetione  sbdira  to 


i 
1 


[WILL] 


2943 


haTe  been  ffiven  by  the  deeeaied,  held  insuffi- 
cient to  My  that  it  was  the  will  of  a  party  capa- 
ble of  originating  the  dispoaition  of  his  property. 
Sankey  v.  Lilley,  i  Curt,  (prrr  )  397. 

33.  Where  a  testator  domiciled  in  Holland, 
bequeathed  the  interest  of  certain  funds  to  mem- 
bers of  his  family  named,  and  in  like  manner, 
^'  the  male  children  of  the  above-named  men  ;'* 
held,  to  be  construed  as  to  entitle  descendants 
claiming  through  males  only.  Bernal  v.  Bernal, 
3  Myl.  &  Cr.  (ch.)  559 ;  and  1  Coop,  (ch.)  55. 

34.  So,  a  limitation  to  the  eldest  '^  male  lineal 
descendant,*'  held  not  to  include  males  claiming 
in  part  through  a  female.  Oddie  v.  Woodford,  3 
Myl.  &  Cr.(cH.)5ti4. 

35.  Where  afler  a  clear  gifl  to  children,  wheth- 
er they  died  in  the  lifetime  of  the  widow  or  not, 
the  testator  added,  ^  and  in  case  all  my  said 
children  shall  happen  to  die  in  the  lifetime  of  my 
said  wife,  or  under  21,  without  leaving  issue, 
then  over ;"  held,  that  the  word  or  was  to  be  read 
and^  and  that  the  children  having  attained  21, 
were  absolutely  entitled.  Myles  v.  Dyer,  8  Sim. 
(CM.)  330. 

36.  So,  where  it  was  to  be  taken  from  the  lan- 
guage of  the  will  altogether  that  the  testator 
adverted  as  much  to  the  children  of  a  daughter 
who  had  deceased  in  his  lifetime,  leaving  issue ; 
held  that  the  latter  were  entitled  to  a  share  of  the 
residue.     Giles  v.  Giles,  8  Sim.  (cu.)  360. 

37.  Where  the  incapacity  of  the  testator  as 
well  upon  the  face  of  the  will  as  upon  affidavits 
was  clear,  administration  granted  as  in  case  of 
intestacy,  but  the  will  ordered  to  be  deposited  in 
the  registry,  fiourget  in  the  goods  of^  I  Curt. 
(PREV.;  501. 

38.  But  where  the  will  was  regular  on  the  face 
of  it  and  not  sounding  to  folly,  the  court  refused, 
on  mere  ez  parte  affidavits  of  anterior  unsound- 
ness and  consent  of  parties  to  pronounce  against 
it     Watts,  in  the  goods  of,  lb.  59. 

39.  Where  the  capacity  of  the  testator  to  do  a 
simple  independent  act,  was  satisfactory,  but  the 
terms  of  a  codicil  ifi  eztremis,  so  vague  and  in- 
conclusive, and  irreconcileable  with  the  clearly 
expressed  intentions  in  the  will  that  the  court 
could  not  pronounce  for  the  former  without  de- 
feating the  latter,  the  validity  pronounced  against 
notwithstanding  a  contemporaneous  codicil,  clear 
and  unequivocal,  established  on  the  ground  of 
capacity.  Reynolds  v»  Thrupp,  1  Curt  (pxrv.) 
668. 

40.  Bequest  to  executors,  in  trust  to  divide 
between  his  son  D.  and  the  children  of  his  son 
R. ;  held  to  be  divisible  per  capita.  Williams  v. 
Yates,  1  Coop.  (ch.  c)  177. 

41.  Where  a  will  concluded  in  the  terms  "  1 
guess  there  will  be  found  sufficient  at  my  bank- 
er's to  defrajr  and  discharge  my  debts,  which  1 
do  hereby  desire  £.  M.  to  do,  and  keep  the  resi- 
due for  his  own  use  and  pleasure  ;  held  to  amount 
to  a  gifl  of  the  general  residuary  personal  estate 
to  E.  M.  Boys  v.  Morgan,  3  Myl.  &  Cr.  (ch.) 
661. 

*^^  Where  the  tettator  gave  11  canal  sharet, 


in  trust,  until  his  11  grandchildren,  then  living, 
if  sons,  should  attain  23,  or,  if  daughters,  at  the 
same  age,  or  on  marriage  with  consent,  to  be 
then  transferred,  and  the  dividends  in  the  mean- 
time applied  for  maintenance ;  be  then  directed 
his  trustees  to  invest  a  sufficient  sum  in  Parlia- 
mentary securities  to  raise  three  annuities  of  100L, 
the  first  to   be   a;  plied  to   maintenance  of  his 

grandchildren  (the  children  of  his  daughter  H. 
eceased)  until  the  youngest  should  attain  23,  and 
then  the  principal  to  be  paid  and  divided  equally 
amongst  them ;  the  other  annuities  he  directed 
to  be  paid  to  his  other  two  daughters,  C.  and  W., 
for  their  lives,  and  the  capitals  respectively  af\er 
their  decease  amongst  all  nis  grandchildren,  child- 
ren of  H.,  C,  and  W.,  equally  as  tenants  in  com- 
mon ;  and  he  gave  all  the  residue  in  like  manner 
amongst  such  grandchildren  ;  the  will  also  pro- 
vided that  the  shares  should  vest  in  grandchildren 
at  23,  and  in  the  event  of  any  dying  under  that 
age,  the  share  to  go  equally  amongst  the  survi- 
vors ;  at  the  death  of  the  testator  there  were 
five  children  of  H.,  of  whom  only  three  attained 
23,  and  one,  J.  H.,  died  afler  attaining  that  age, 
but  before  the  fund  became  divisible  and  payable ; 
held,  first,  upon  the  whole  intention  apparent  on 
the  will,  that  J.  H.*s  interest  vested  at  23,  and 
that  he  was  entitled  to  a  portion  of  the  share  of  a 
sister  dying  under  age,  and  whom  he  survived, 
but  not  of  the  share  of  a  brother  dying  under 
age,  but  whom  he  pre-deceased  ;  and  in  like 
manner  to  an  original  share  in  the  residue,  and  of 
a  portion  of  the  share  of  the  residue  of  the  grand- 
children who  died  before  him,  but  not  of  the 
share  of  those  who  died  nfler  him  ;  secondly, 
that  the  limitations  over  after  ihe  deaths  of  his 
two  daughters,  of  the  capital  of  their  annuities, 
was  void,Rs  too  remote, and  that  the  capital  fell  into 
the  residue;  and,  lastly,  that  the  words,  "survi- 
vor or  survivors,"  referred,  in  their  usual  sense^ 
to  survivors  in  each  class  of  grandchildren. 
Cromek  v.  Lamb,  3  Younge  Hl  Cr.  (ex.  Kq.)  565. 

43.  Where  the  interest  and  dividends  are  alone 
given  until  a  particular  period,  and  the  principal 
IS  not  sooner  to  be  taken  out  of  the  fund,  the  in- 
termediate gift  of  the  interest  or  dividends  will 
not  vest  the  principal,    lb. 

And  see  1  Rop.  Leg.  500. 

44.  Where  upon  a  Question  of  a  devise  of 
copvhold,  the  testator,  having  duly  executed  a 
will  to  pass  such,  on  one  occasion  being  irritated 
against  the  devisee,  threw  the  will  upon  the  fire, 
whence  it  was  rescued  by  the  devisee,  at  which, 
when  informed  of  it,  the  testator  expressed  his 
displeasure ;  the  envelope  was  partially  burned^ 
but  the  will  itself  not  at  all ;  and  the  devisee  re- 
tained possession  of  it  until  ailer  the  decease  of 
the  testator ;  held,  that  in  a  case  to  which  the 
Statute  of  Frauds  did  not  apply,  the  testator's 
power  of  revocation  was  not  limited  by  a  neces- 
sity for  an  express  declaration  to  revoke,  but 
that  any  equivalent  word  or  words,  and  expres- 
sions, would  be  sufficient  for  that  purpose  ;  and 
that  the  jury  was  warranted,  from  circauistances 
in  evidence,  in  finding  that  the  facts  amounted 
to  a  revocation,  and  the  mere  knowledge  of  the 
continuance  in  specie  of  the  will  intended  to  be 
destroyed,  unaccompanied  with  any  wish  to  re- 
store Its  effieaey,  but,  on  the  contiaiy,  disuse*- 


2IM4 


[WILL] 


me  at  tU  resoae  from  the  flames,  did  not  conati* 
tote  each  aeqaieacence  in  its  continuance  aa 
woald  amount  to  a  reyocation  of  the  previoos  re- 
vocation.   Doe  V.  Harris,  8  Ad.  &  £1J.  (q.  b.)  1. 

45.  Where  the  testator  gave  to  his  brother  J. 
an  annuity  of  300^,  and  to  each  of  his  nephews 
1502.  for  their  lives ;  if  either  of  the  nephews 
died,  the  other  to  have  the  300/.  per  annam  ;  and 
if  J.  died  without  issue  the  nephews  to  inherit 
from  him,  and  assigning  as  the  reason  why  he  had 
only  left  the  interest  of  the  fund,  that  if  they 
died  without  issue  the  fund  might  go  to  his  three 
cousins,  he  directed  his  legatees  to  be  paid  with- 
in 12  months,  and  then  added,  *^  it  is  lobe  under* 
stood  1  leave  it  to  them  and  their  heirs  ;*'  held, 
upon  the  whole  construction  of  the  will,  J.  was 
only  entitled  to  a  life  interest  in  the  annual  sum 
given,  and  not  to  any  interest  in  the  capital  sum 
invested  to  produce  the  annuity.  Ferard  r. 
Griffin,  2  Keene,  (ch.)  615. 

46.  IVhere  the  testator  having  three  establish- 
ments gave  one  at  A.  to  the  plaintiff,  and  "  all  his 
carria^  horses,  implements,  and  live  and  dead 
stock  in  and  about  the  house  and  premises  at  A.,** 
and  also  "his  household  goods  and  furniture, 
plate,  linen,  china,  liquors,  ore  wing  vessels,  and 
likewise  his  watches  and  personal  ornaments  ;*' 
held,  that  the  latter  words  were  to  be  construed  in 
the  general  sense  expressed,  and  not  merely  to  in- 
clude such  property  at  A. ;  held  also,  that  under 
a  general  bequest  of  all  and  every  my  books  in 
and  about  my  house  at  A.,  the  MSS.  of  the  tes- 
tator, a  physician,  and  the  journal  of  his  attend- 
ances on  a  royal  patient,  would  pass ;  but  ^<ere, 
whether  under  the  term  **  personal  ornaments," 
a  gold  pencil-case,  toothpick,  lipsalve-box,  and 
eyeglass,  would  pass :  semb.^  a  pocket-book  and 
case  of  instruments  would  not ;  and  quare  as  to 
a  bust    Willis  v.  Curtois,  1  Beav.  (on.)  189. 

47.  Where  a  testator  directed  his  trustees  to 
pay  the  interest,  Ac.  of  his  residuary  estate  to 
his  daughter  for  life,  and  afler  her  death,  to  pay 
the  interest,  &c.  unto  and  between  his  two  grancT* 
•children  during  their  respective  lives,  in  'equal 
shares,  and  after  their  decease,  to  pay  and  trans- 
-fer  the  principal  unto  and  between  ail  and  every 
the  child  and  children  of  his  said  grandchildren, 
in  equal  shares ;  and  the  events  were,  that  after 
the  daughter's  death,  one  of  the  grandchildren 
.died,  leaving  children ;  held,  that  the  whole  of  the 
dividends,  interest,  and  monies  being  payable  to 
the  surviving  grandchild  during  his  life,  and  the 
mass  of  property  divisible  among 'the  children 
■^ho  might  survive  the  parents,  per  capita,  it  was 
inconsistent  with  a  tenancy  in  common  of  the 
|>arents,  Ac.  Pearce  t^.  Edmeades,  3  Younge  & 
C.  (£x.  x«.)  246. 

And  see  Malcolm  v.  Martin,  3  Bro.  (c.  c.)  50. 

48.  Where  the  testator  directed  that  the  residue 
might  be  employed  in  any  manner  his  executors 
•should  think  proper ;  heul,  that  they  were  not 
liable  for  not  investing  in  three  per  cent,  consols, 
as  in  ordinary  cases.  Dickenson  v.  Player,  1 
Coop.  (cH.  c.)  178. 

49.  On  a  bequest  of 1,  amongst  the  children 

of  the  testator's  daughter  as  should  be  living  at 
iha  time  tbo  eldest  euld  ahoold  attain  the  age  of 


24,  and  the  issue  of  such  as  should  be  thea  deed, 
to  be  equally  divided  jEier  stipes,  and  not  per  ce»- 
tto,  but  without  interest  in  the  m«*antime ;  tee 
daughter  at  the  testator's  death,  had  thrre  chil- 
dren, of  the  respective  ages  of  13, 12,  and  9  :  held, 
that  the  intention  being  that  only  thrae  children 
of  his  daughter  should  take  who  should  be  alive 
when  the  eldest  child  for  the  time  being  should 
attain  24,  the  bt^uest  was  void  for  remoteneaa. 
Dodd  17.  Wake,  8  Sim.  (ch.)  615. 

50.  On  a  gift  of  residue  in  trust  for  the  wile 
for  life,  and  after  her  death  to  divide  amongst  all 
his  children  who  might  be  £Aen  living,  the  shares 
of  such  as  should  then  have  attained  21  to  be  paid 
within  three  months  after  the  wile's  decease,  and 
the  shares  of  the  others  on  attaining  21,  **or  to 
the  survivors  of  them,  in  case  of  the  death  of  any 
pf  them  in  his  wife's  lifetime,  and  without  leav- 
ing issue,  provided  that  if  any  should  die  in  the 
wife's  lifetime,  and  have  left  issue,  such  issue 
should  have  their  parent's  share ;"  one  of  the 
children,  living  at  the  date  of  the  will,  died  in  the 
testator's  lifetime,  leaving  issue ;  held,  that  sock 
issue  were  entitled  to  share  the  residue.  Smith 
r.  Smith,  8  Sim.  (ch  )  353;  overruling  ThornhiU 
V.  ThornhiU,  4  Madd.  377. 

51  Devise  in  trust  during  the  lives  of  G.  H. 
and  her  five  daughters,  for  raising  an  annuity  for 
£.  H  ,  and  after  her  death  upon  the  like  trusts  for 
her  said  daughters,  and  the  survivors,  and  while 
more  than  one  living,  in  equal  shares ;  E.  H. 
at  the  date  of  the  will  and  death  of  the  testator 
had  jiee  sons  and  only  one  daughter :  held,  that 
the  daughter  alone  was  entitled  to  the  annuity. 
Selsey,  Lord  v.  Lord  Lake,  1  Beav.  (ch.)  151. 

52.  Where,  by  tne  terms  of  the  will,  the  trus- 
tees were,  after  the  decease  of  the  testator's  chd- 
dren,  to  receive  and  take  the  rents,  &c.  and  to 
pay  and  divide  the  same  equally  and  unto  all  his 
surviving  grandchildren  who  should  then  he  liy- 
ing,  and  upon  the  youngest  atUining  31,  to 
divide  amongst  all  suck  ofnis  said  graudchildien, 
or  the  child  of  any  as  might  be  dead,  leaTing  law- 
ful  issue;  held  that  it  applied  only  to  those 
grandchildren  to  whom  he  had  given  the  ivnta, 
Tbc,  viz.  those  living  at  the  death  of  the  survivor 
of  the  children,  and  that  the  children  of  a  grand- 
child not  living  at  the  death  of  such  survivor  took 
no  interest  whatever.  Smith  e.  Farr,  3  Tonnge 
&.  C.  (XX.  E«.)  328. 

53.  Bequest  of  funds  in  trust  to  pay  the  interest 
for  the  support  of  testator's  sister  for  life,  the  un- 
applied surplus  to  accumulate  for  the  benefit  of 
the  persons  entitled  to  the  same  after  her  death ; 
he  then  gave  the  fund  equally  among  her  chil- 
dren, and  if  she  should  die  without  issue,  certain 
portions  to  individuals,  and  the  remainder  to  J. 
H. ;  and  held,  that  J.  H.  was  entitled  to  the  whole 
of  the  accumulations.  Woodhead  v,  Marriott,  1 
Coop.  (cH.  c.)  62. 

And  see  Baron  and  Feme;  Dtitts;  Marriagt 
Settlement;  Patter, 


[B]    ReVOCATIOK — CANCELLATION — REPUBLI- 
CATION. 

U  Where  e  teateilax  devieedtoe 


[WILL] 


9945 


bein,  eatateif  upon  the  tnist  and  confidence 
that  he  would  receive  the  rents,  and  paj  the 
same  to  S.  for  life,  and  afler  her  decease  convey 
the  estates  to  such  uses  as  S.  should  appoint;  8. 
died  in  the  lifetime  of  the  testatrix  :  held,  first, 
that  the  events  did  not  operate  as  an  implied  re- 
vocation of  the  will ;  secondly,  that  tiie  le^al 
estate  beinj;  vested  in  the  trustee,  the  devise  did 
not  lapse ;  and  lastly,  that  as  the  trust  could  not 
ceaie  until  the  conveyance  by  the  trustee,  the 
legal  estate  remained  m  him,  and  that  the  lessor 
of  the  plaintiff  claimioffas  heir-at-law,  could  not 
recover  in  ejectment.  Doe  d.  Shelley  v.  £dltn, 
1  Nev.  &  P.  (K.  B.)  588. 

8.  Where  the  testator  having  contracted  for 
the  purchase  of  an  estate,  by  a  codicil  recitinv 
the  contract,  devised  the  estate,  and  the  legal 
estate  was  subsequently  conveyed  to  him  and  his 
heirs,  with  the  usual  uses  to  bar  dower ;  held, 
that  the  estate  being  modified  in  a  manner  differ- 
ent from  that  in  which  it  stood  at  tlie  time  of 
making  the  will,  it  amounted  to  a  revocation. 
BuUin  V.  Fletcher,  2  Myl.  <&  Cr.  (ch)  432; 
affirming  the  judgment  below,  1  Keene,  369. 
But  now  lee  1  Vict,  c'  26>  a.  23. 

3.  Where  testator,  revoking  a  former  gii\»  di- 
rected such  a  sum  to  be  invested  as  would  pro- 
duce £40  per  annum,  to  be  paid  to  his  daughter, 
and  at  her  death  the  fund  to  be  transferred  to  his 
residuary  legatees,  and  he  gave  £100  absolutely 
to  his  daughter ;  by  a  subaequ»'nt  codicil  he  re- 
voked the  sum  of  £1,200  given  to  his  daughter 
for  lite,  and  in  lieu  thereof  gave  her  £500  abso- 
lute ;  held  to  be  a  revocation  of  the  annuity, 
which  was,  in  fiust,  the  only  bequest  to  the  daugh- 
ter for  life.    Pitcher  v.  Hole,  7  Sim.  (ch.)  208. 

4.  To  effect  a  cancellation,  **by  burning  the 
same,"  there  must  be  a  burning  of  bome  part  of 
the  instrument  itself;  held,  that  the  burning  a 
part  of  the  cover  was  insufficient  to  effect  a  re- 
vocation, although  the  destruction  was  prevented 
by  the  fraud  of  the  devisee.  Doe  v.  Harris,  1 
Nev.  A  P.  (K.  B.)  405. 

5.  A  codicil  substituting  a  new  trustee  in  the 
place  of  one  deceased,  for  the  purposes  of  the 
will,  held  not  to  operate  as  a  republication  of  the 
will,  and  to  pass  afler- acquired  estates ;  reversing 
the  decision  of  the  Master  of  the  Rolls.  Hughes 
V.  Turner,  3  Myl.  &  K.  (ch.)  666. 

6.  Repeal  of  32  Hen.  8,  c.  1 ;  34  d^  35  Hen.  8, 
e.  5 ;  10  Car.  1,  sess.  2,  c.  2,  (1.) ;  ss.  5,  6.  12. 19, 

20,  21  of  29  Car  2,  c.  3 ;  7  WiU.  3,  c.  12 ;  s.  14 
of  4  &  5  Anne,  o.  16;  6  Anne,  c.  10 ;  a.  9  of  14 
Geo.  2,  c.  20 ;  25  Geo.  2,  c  6,  (except  as  to  colo- 
nies), and  c.  11,  and  55  Greo.  3,  c.  192;  and  new 
provisions  relating  thereto ;  by  1  Vict.  c.  26. 

7.  Where  A.,  a  testator,  having  the  legal  estate 
in  leaseholds  in  him,  and  being  beneficially  en- 
titled to  one-third  in  right  of  his  late  wife,  and 
to  another  third  for  his  own  life,  under  the  will 
of  a  party  whose  executor  he  was,  with  remain- 
der to  his  children  as  he  should  appoint  absolute- 
lyt  by  hi"  ^ill  g^^^  one-third  to  a  daughter  for 
life,  with  remainder  to  her  children,  and  another 
third  in  like  manner  to  another  daughter,  and 
iNibaeqaently  joined  in  a  deed  of  partition  with 
luB  ev-tnanl  m  conBioBy  wheieby  the  iwaehoida 


were  assigned  in  tmst,  as  to  one-thnrd  in  trust  for 
A.,  as  admin'ist^tor  of  his  late  wife,  and  as  to 
another  third  in  trust  for  B.,  as  executor  of  B., 
and  as  to  the  remaining  third  in  trust  for  the 
other  tenant  in  common  ;  held,  not  a  revocation 
of  A.*s  will.  Woodhouse  v.  Okehill,  b  Sim.  (ch.) 
115. 

8.  Where  a  will,  traced  to  the  testator's  posses- 
sion, is  not  forthcoming  at  his  decease,  the  pre- 
sumption  is  that  he  has  destroyed  it,  and  must 
preWiil,  unless  there  be  evidence  to  repel  it  by 
raising  a  higher  probability  to  the  contrary,  and 
the  onus  lies  on  the  party  propounding  the  re- 
voked will.  Welch  17.  Phillips,  1  Moore,  (p.  c.) 
299,  (reversing  the  judgment  below.) 

9.  Where  thn  testator  gave  a  legacy  to  his  sis- 
ter, the  wife  of  E.  B.,  or  to  such  persons  as  E.  B. 
flhould  appoint,  to  the  intent  that  the  same  might 
be  for  the  separate  use  of  E.  B  ,  and  the  receipt 
of  the  said  E.  B«  to  be  a  sufficient,  and  the  name 
**  E^  B."  was  afterwards  drawn  through  with 
a  pen,  held  not  to  amount  to  a  revocation.  Mar- 
tins V.  Gardiner,  8  Sim.  (ca.)  73. 

10«  Where  the  aniynus  revocandi  was  clear, 
and  the  deceased  had  requested  a  friend  to  write 
to  the  executor  in  whose  custody  the  will  was,  to 
destroy  it,  and  it  was-  accordingly  forwarded  to 
him,  but  did  not  arrive  until  afler  death  ;  held  to 
amount  to  a  revocation  reduced  into  writing  in 
the  deceased's  lifetime,  and  satisfying  the  Statute 
of  Frauds.  Walcott  v.  Ochterlony,  1  Curt,  (prer.) 
580. 

1 1.  Revocation  of  a  will  by  marriage,  and  the 
birth  of  a  child,  (previous  to  the  1  Vict.,  c.  26,) 
held  to  take  place  in  consequence  of  a  principle  of 
law,  independently  of  any  question  of  intention  of 
the  testator  himself,  aiid  consequently  that  no 
evidence  is  admissible  to  rebot  the  presumption 
of  law ;  nor  can  the  circumstance  of  af\er'ac« 
quired  property  descending  upon  the  child  have 
any  effect.  Marston  v.  Roe,  2  Nev.  &  P.  (q.  b.) 
504 ;  affirming  the  judgment  below,  8  Ad.  &,  £11. 

12.  Where  the  testator  in  a  fit  of  displeasure 
threw  his  will,  contajned  in  an  envelope,  into  th» 
fire,  but  it  was  secretly  withdrawn,  and  no  part 
of  the  will  itself  burnt,  of  wiiich  he  was  aflerwarda 
aware,  and  expressed  great  annoyance,  and  an 
intention  to  make  a  new  will  instead  thereof; 
held,  in  ejectment,  by  the  heir  for  copyhold 
premises,  that  although,  to  satisfy  the  Statute  of 
Frauds,  there  must  have  been  a  burning  of  the 
instrument  to  some  extent  to  eflfect  a  revocatioB 
as  to  a  devise  of  freehold,  yet  in  the  case  of  prop* 
erty  not  within  the  statute,  it  being  a  case  of  re- 
vocation at  common  law,  it  was  a  question  of  in- 
tention, evidence  of  which  might  be  found  in  an 
imperfect  act,  or  mere  attempt,  and  that  it  was  the 
province  of  a  jury  to  say  whether  the  facta 
pmved  amounted  to  a  revocation.  Doe  v.  Harris, 
2  Nev.  A  P.  (q.  b.)  615. 

And  see  S.  C.  1  Nev.  St  P.  405. 


[C]   PrOBATB — COUBT   OF, 

1.  Probate  by  one  exeeator  enimi  to  all;  antf 


2940 


[WILL— WITNESS] 


where  the  validity  is  disputed  and  proceedings 
taken  ft»r  revoking  the  letters,  the  court  will  pro- 
tect the  property  by  injunction  and  a  receiver, 
pending  the  litigation  in  the  Ecclesiastical  Court. 
Watkins  v.  Brent,  7  Sim.  (ch.)  512 ;  and  1  Myl. 
&  Cr.  97. 

2.  Where  a  feme  coverte^  having  a  power  to 
appoint  by  will,  executed  it,  and  appointed  exe- 
cutors, and  she  was  possessed  at  the  time  of  her 
death,  of  monies  in  her  banker's  hands,  being 
savings  out  of  the  fund  ;  the  question  whether 
the  latter  passed  being  one  not  competent  for  the 
court  to  determine,  it  granted  probate  to  the  exe- 
cutors, limited  to  the  settled  property,  and  all 
accumulations  over  which  the  deceased  had  a 
disposing  power,  in  order  to  give  the  parties  an 
opportunity  of  making  their  claims  elsewhere. 
Xiedyard  and  another  v.  Garland,  1  Curt,  (pber.) 
2tJ6. 

3.  Where  a  draft  will  had  been  decreed  probate, 
and  that  of  a  former  will  recalled,  the  executors 
being  the  same  in  each  ;  held,  that  the  legatees 
under  the  former  were  bound  by  the  sentence, 
unless  it  clearly  appeared  that  there  was  fraud  or 
coUosion  between  the  executors  and  the  legatees 
under  the  latter  will,  or  that  the  former  were 
prejudiced  by  the  course  in  which  the  suit  had 
been  conducted.  Hayle  r.  Hasted  A.  Pierson,  1 
Curt.  (PRER.)236. 

4.  Where  probate  of  papers  had  been  decreed 
in  a  cause,  on  a  proxy  of  consent  by  all  the  par- 
ties interested;  held  conclusive,  unless  such 
proxy  were  shown  to  have  been  obtained  by  un- 
due means  or  imposition  on  ihein.  Watson  & 
another  r.  Brent,  1  Curt,  (pbkr.)  264. 

The  cases  of  Goblet  v.  Beechey,  3  Sim.  24, 
overruled  by  Lord  Chancellor,  2  Russ.  &  M. 
(CH.)  624  ;  Miles  v.  Langley,  1  Russ.  &  M.  (ch.) 
39;  affirmed  on  appeal.    lb.  626. 

5.  Where  British-born  subjects  for  many  years 
resident  in  a  Danish  colony,  whilst  there,  made 
a  joint  will,  of  joint  property,  as  they  might  bv 
the  foreign  law  ;  they  afterwards  became  domicil- 
ed in  this  country,  and  the  husband  by  will  be- 
queathed money  vested  in  a  colonial  mortgage  to 
the  wife,  who  havinff  survived  him,  by  her  will 
disposed  of  the  fund ;  the  separate  wills  were 
proved  in  the  Prerogative  Court,  and  afterwards 
the  joint  will  was  proved  in  the  colony,  and  the 
funds  disposed  of  by  a  "  Court  of  Dealme,"  con- 
stituted of  parties  interested ;  held,  that  the  sep- 
arate will  of  the  wife  prevailed  over  the  joint  will, 
which  was  invalid  by  the  law  of  this  country, 
and  that  the  court  was  at  liberty  to  declare  the 
proceedings  in  the  foreign  conrt  fraudulent  and 
▼oid.    Price  v,  Dewhurst,  8  Sim.  (ch.)  279. 

6.  Where  the  deceased  had  executed  a  will, 
under  a  power,  in  favor  of  her  husband,  who  died 
in  her  lifetime,  and  she  dying  without  any  next 
of  kin,  administration  was  prayed  bv  the  nominee 
of  the  crown ;  the  court  in  the  absence  of  the 
settlement,  or  any  copy  of  it,  rgected  the  appli- 
cation. Monday,  in  the  goods  of ^  I  Curt,  (prer) 
590. 

7.  Where  no  party  could  be  found  to  make  the 
usual  affidavit  as  to  the  deceased's  haadwritiiig, 


all  parties  consenting*  the  affidavit  dispensed 
with,  competent  persons  deposing  as  to  their 
belief  from  comparison.  Carey,  in  the  goods  of^ 
1  Curt,  (frer.)  592. 

8.  The  court  admitted  allegations  of  parol  de- 
claration of  a  testator,  to  rebut  the  presumption 
of  revocation  of  the  will  by  the  subsequent  mar- 
riage of  the  testator,  and  birth  of  a  child.  Fox 
r.  Marston,  1  Curt,  (prkr.)  496.  Bed  vid.  supr. 
[B.J  11. 

9.  The  judgment  in  Stubbs  v.  Sargon,  2  Keene, 
255,  affirmed  by  the  Lord  Chancellor.  3  MyL  & 
Cr.  (ch.)  507. 

And  see  Adndnistradon;   Baron  and 
Legacy. 


WITNESS. 

[A]  COMPXTEHCY. 

[B]  AtTENDAHCE   of — ^VXAMIITATIOH  op— COM- 

MISSION roR. 


[A]    CoMPETElfCV. 

1.  In  ejectment,  where  the  lessor^ of  plaintiff 
sought  to  make  out  his  title  as  heir  of  T.  B., 
held  that  a  son  of  an  elder  brother  of  T.  B.,  as 
having  no  immediate  interest  in  the  suit,  nor  abte 
to  avail  himselt  of  the  verdict,  was  a  competent 
witness.  Doe  v.  Clarke,  3  Biog.  N.  S.  (c.  p.) 
42!);  and  4  Sc.  203. 

2.  Tn  an  action  on  a  bond  by  a  surety  to  a 
building  society,  a  witness  was  called  wad  bad 
originally  Wen  a  shareholder,  and  signed  the 
deed,  but  afterwards  became  the  secretary,  with 
a  salary,  although  he  had  released  all  claims  on 
the  trustees,  having  an  interest  to  enlarge  the 
funds,  held  that  he  was  properly  rejected.  Rig- 
by  V.  Walthew,  5  Dowl.  (p.  c.)  527. 

3.  Where  a  party  to  a  joint  and  several  note, 
on  which  the  plaintiff  sued  the  other  party,  hav<< 
ing  received  one  moiety  from  the  formePf  lrat«  at 
the  time,  there  was  also  due  one  year's  inteiesl 
on  the  whole  sum ;  held  that,  being  liable  to  eofk» 
tribute  pro  tonto,  he  had  a  direct  interest,  mod 
was  an  mcompetent  witness  to  prove  the  illegali- 
ty of  the  note.  Slegg  v.  Phillips,  6  Nev.  db  M. 
(K.  B.)  360 ;  and  4  Ad.  &  £11.  852. 

4.  Since  the  3  de  4  Will.  4,  c.  42,  in  case  for 
injury  by  negligent  driving  by  the  defendant's 
servant,  the  latter  is  a  competent  witness  lor  de- 
fendant, without  a  release,  his  name  being  in- 
dorsed on  the  record.  Yeomaos  o.  Legh^S  Aees. 
&  W.  (EX.)  419.  S.  P.  Pickles  v.  HoUings,  1 
M.  &  Rob.  (N.  p.)  46d. 

5.  So,  a  party  under  whom  the  defendant  jus- 
tifies in  trespass.    Crevey  v.  Bowman,  lb.  496. 

6.  Where  A.,  one  of  two  partners,  on  entering 
the  partnership,  borrowed  a  sum  of  C,  and  gave 
her  his  note,  which,  after  the  dissolution,  was  in- 
dorsed to  B.,  the  continuing^  partner,  and  by  hia 
set  off  sgiinst  a  demand  ansing  out  cf  the  psit- 


[WITNESS] 


3947 


ilfnhi|>;  beld,  that  B.'s  liability  to  C.  being  inde- 
pendent of  the  leanlt  of  the  action  between  the 
partners,  C.  was  a  competent  witness  for  B.  to 
prove  the  loan  and  transfer  of  the  note  to  him. 
Hatcher  v.  Seaton,  2  Mees.  6l  W.  (zx.)  47. 

7.  In  trover  for  goods  which  had  been  fraado- 
lently  obtained  from  the  plaintiff  by  a  party,  held 
that  ne  might  be  called  as  s  witness  for  the  plain- 
tiff.   Triebner  v,  Soddy,  7  C.  &  P.  (n.  p.)  718. 

8.  In  trover  by  bankrupt  against  his  assignee, 
to  try  the  validity  of  tne  fiat ;  held,  that  the  offi- 
cial assignee  was  a  competent  witness  for  the  de- 
fendant, in  support  of  the  bankruptcy.  Giles  v. 
Smith,  1  M.  &  Rob.  (k.  p.)  443. 

.  9.  On  an  issue  directed  by  a  court  of  equity  as 
to  the  validity  of  a  modms;  held,  that  a  party 
having  a  direct  interest  in  establishing  it  was  in- 
competent, and  that  the  objection  was  not-  re- 
moved by  the  staL  2  &  3  Will.  4,  c.  42,  s.  26,  27, 
vhich  did  not  apply  to  the  case  of  decrees  in 
quity.  Stewart  v.  Barnes,  1  M.  &  Rob.  (n*  '•) 
472. 

10.  In  case  for  infringing  a  patent,  held,  that 
the  purchaser  of  a  license  to  use  it,  was  a  compe- 
tent witness  for  the  plaintiff.  De  Rosne  v.  Fair- 
lie,  1  M.  ^  Rob.  (h.  p.)  457. 

11.  A  rate-payer,  although  interested  in  the 
borough  fund,  under  5  &.  &  Will.  4,  c.  76  (Mu- 
nicip.  Corp ),  held  not  an  incompetent  witness  in 
a  suit  by  the  assignee  of  a  corporation  lease. 
Doe  o.  Maple,  3  Bing.  N.  S.  (c.  p.)  832. 

12.  In  case,  for  libel  on  the  plaintiff  as  hund- 
red constable,  purporting  to  be  a  memorial  from 
the  vestry  of  r.,  the  vestry-clerk  being  called  to 
produce  the  vestry  books ;  held,  that  he  could  not 
refiise  on  the  ground  that  he  might  therebv  crimi- 
nate himself.  Bradshaw  v.  Murphy,  7  C.  &  P. 
(H.  p.)  612. 

13.  Where  a  lej^atee  of  a  specific  chattel  sold 
it,  and  the  plaintiff,  claiming  to  be  the  owner, 
brought  agsumvgit  for  the  price,  as  money  had 
■ad  received  >  neld,  that  the  executor  and  residu- 
ary legatee  was  a  competent  witness  to  prove 
the  propertv  in  the  testator  at  the  time  of  his 
decease,  ilowman  v.  Willis,  3  Bing.  N.  S.  (o.  p.) 
G69;  and  4  Sc.  387. 

14.  Where,  by  a  rule  of  a  dramatic  society, 
an  damages  recovered  by  any  member  for  in- 
fnngements  of  their  rights  were,  after  jpayment 
of  costs  of  suit,  to  go  to  the  common  funds  of 
the  society,  held,  that  no  member  was  a  compe- 
tent witness  for  another,  although  the  action  was 
on  the  party's  own  behalf,  and  the  society  in  no 
way  liable  to  the  attorney  for  costs.  Planche  v. 
Braham,  8  C.  &  P.  (ir.  P.)  68. 

15.  So,  in  trespass  for  entering  house  and 
damaging  goods ;  plea,  alleging  the  property  in 
another  by  whose  commands  1m  committed  the 
trespasses,  held  that  such  party  was  not  a  com- 
petent witness,  and  being  liable  to  indemnify  the 
defendant,  it  constituted  an  interest  which  could 
not  he  removed  by  indorsing  the  postea.  Green 
V.  Warburton,  2  M.  &  Rob.  (n.  p.)  106. 

16.  Where  B.,  a  partner  and  aetmg  diieetor, 
Vol.  IV.  85 


procured  shares  in  a  joint  stock  company  for  a 
party  not  a  partner,  and  received  the  purchase* 
money,  but  the  party  afterwards  refused  to  accept 
the  transfer  of  the  shares  and  to  pay  the  calls, 
alleging  that  he  had  been  induced  to  purchase 
the  shares  by  false  representations,  and  fraudulent 
concealment  as  to  the  solvency  of  the  company  ; 
held,  that  on  an  issue  to  try  the  truth  or  false- 
hood of  those  allegations,  partners  of  the  com- 
pany were  not  incompetent  witnesses  for  B. 
Syme  p.  Brown,  3  CI.  &  Ft.  (p.)  412. 

17.  The  estate  of  a  deceased  party  being  liable 
to  the  reasonable  expenses  of  the  funeral,  and 
not  beyond,  held,  that  a  residuary  legatee  was  an 
incompetent  witness  to  fix  the  whole  charge  of 
the  undertaker's  bill  on  the  defendant,  who 
ordered  it.  Green  r.  Salmon,  3  Nev.  A  P.  (q.  b.) 
388. 

18.  In  trespass,  the  issue  being  whether  the 
plaintiff  or  a  party  under  whom  the  defendant 
claimed  was  entitled,  held  that  such  partv  was  a 
competent  witness  for  the  defendant,  as  the  ver* 
diet  would  not  change  the  possession  ;  aliter  in 
ejectment.  Rees  v.  Walters,  3  Mees.  &,  W.  (az.) 
527. 

19.  In  ejectment  for  a  parish  house,  held,  that 
since  the  o4  Geo.  3,  c.  170,  s.  9,  a  parishioner 
having  valuable  property  was  a  competent  wit^ 
ness.    Doe  v.  Murrell,  8  C.  &.  P.  (h.  p.)  134. 

20.  Where  a  witness  on  the  voire  dire  says  he 
is  released,  if  the  release  be  in  court,  the  insuffi- 
ciency of  the  stamp  may  be  objected  to  as  in- 
valid, but  if  it  be  not  in  court,  he  may  be  exam- 
ined without  producing  it.  Quarterman  v.  Cox, 
8  C.  &  P.  (w.  p  )  97. 

21.  Where  upon  the  retirement  of  one  part- 
ner, A.,  the  continuing  one,  B.,  admitted  another, 
C.,  and  upon  the  latter  partnership  being  dissolv- 
ed, B.  became  bankrupt ;  held,  that  B.  was  not  a 
competent  witness  to  prove  an  agreement  by  B. 
^nd  C,  to  indemnify  A.  against  the  partnership 
debts  of  A.  and  B.,  as  tending  to  exonerate  him- 
self. Warren  V.  Taylor,  8  Sim.  (ch.)  599;  and 
1  Coop.  (cH.  c.)  174.  And  such  agreement 
founded  on  a  purchase  of  an  interest  in  the  con- 
cern was  not  a  mere  guarantee  within  the  Statute 
of  Frauds. 

22.  In  case  against  a  broker  employed  by  the 
plaintiff  to  sell  seed,  for  delivering  it  without 
payment ;  held,  that  the  lighterman  and  ledger- 
man  employed  by  the  defendant  in  transhipping 
the  seed,  being  himself  liable  to  the  plaintiff,  a 
he  did  so  without  authority,  was  an  incompetent 
witness  to  prove  acts  of  the  plaintiff  sanctioning 
the  delivery.  Boorman  v,  Browne,  1  Perr.  & 
Dav.  (q.  B.)  364. 

And  see  Morish  v.  Foote,  8  Taunt.  454. 

23.  In  assumpnt^  for  clothes  snpplied  to  the 
defendant's  servant ;  held,  that  the  servant  was  a 
competent  witness  for  the  plaintiff,  on  endorsing 
his  name  on  the  record.  Robinson  v.  Ferreday,  8 
O.  A  P.  (H.  p.)  752. 

24.  Where  the  officer  sold  the  goods  taken  in 
execution,  after  notice  of  the  buikruptcy,  and 
paid  over  the  prooeeda;  held,  that  in  an  action 


S948 


[WITNESS] 


■gaiiist  the  iheriff  for  money  bad,  &c.,the  officer 
being  sabstaDtially  the  defendant  in  the  action, 
was  not  a  competent  witness.  Broom  r.  Brad- 
ley, 8  C.  &  P.  (H.  p.)  500. 

25.  In  case  for  obstruction  of  an  easement,  a 
former  joint  owner  in  fee  with  the  plaintiff,  who 
had  conveyed  all  her  interest  in  the  moiety  to 
the  plaintiff,'  with  a  covenant  for  title ;  held,  not 
a  competent  witness  for  the  plaintiff,  nor  render- 
ed so  byindorsement  under  3  &  4  Will.  4,  c  42, 
■s.  26,  27.  Steers  o.  Carwardine,^  C.  Sl  P.  (m.  p.) 
670. 

26.  In  an  action  on  a  charter-party,  a  joint- 
owner  with  the  plaintiff,  although  not  a  regis- 
tered one,  held  not  a  competent  witness  for  the 
plaintiff  without  cross-releases.  Jackson  v.  Gal- 
loway, 8  C.  &  P.  (N.  p.)  480. 

27.  Where  an  overseer  was  called  to  prove  the 
notice  of  appeal ;  held,  that  he  was  properly  re- 
jected, none  of  the  statutes  rendermg  him  (a 
party  to  the  appeal)  competent,  and  there  being 
no  distinction  as  to  mere  preliminary  matters. 
Reg.  t'.  Bath  Recorder,  dec,  1  Perr.  d&  Dav. 
(q.  B.)  460. 

28.  Rated  inhabitants  held  admissible  to  prove 
that  the  premises  sought  to  be  recovered  in  eject- 
ment by  parish  officers,  is  parish  property.  Doe 
V.  Adderley,  3  Nev.  A  P.  (q.  b.)  629 ;  S.  P.  Doe 
V,  Bowles,  lb.  632 ;  overruling  Oxenden  v.  Pal- 
mer, 2  B.  ^  Ad.  236. 

And  see  Meredith  v,  Gilpin,  6  Pri.  146. 

29.  Where  a  witness  on  the  voire  dire  stated 
that,  as  the  plaintiff's  agent,  he  had  employed 
the  former  attorney  in  the  case,  since  deceased, 
that  he  had  not  been  released,  and  no  demand 
been  made  on  him ;  held,  that  it  not  beinff  shown 
that  the  witness  had  clearly  made  himself  liable 
to  the  deceased  attorney,  nor  under  what  circum- 
stances the  papers  in  the  case  had  been  transfer- 
red by  his  representatives  to  the  present  attorney, 
nor  that  the  witness  was  in  any  way  liable  to 
him,  and  it  being  equally  probable  that  the  lien 
of  the  former  one  had  been  satisfied,  the  facts 
were  not  sufficient  to  warrant  the  reject  idh  of 
the  witness.  Shipton  o.  Thornton,  1  Perr.  A 
Dav.  (q.  B.)  216. 

And  see  Bankrupt;  BiU;  Corporation;  Cove- 
nant; EceUsiasticaL  Court;  Habeas  Corpus;  In- 
$olv€nt;  Marriage;  Ship;  Trespass;  Vestry. 


[B]  Attendancb  or — xxamihatiom  or— com- 

Mission  roK. 

1.  In  an  action  against  a  witness  for  not  at- 
tending pursuant  to  his  suhpeata;  on  the  issue, 
whether  a  reasonable  sum  for  his  expenses  had 
been  paid  or  tendered,  it  appearing  that  he  had 
received  a  guinea  on  being  served  with  a  svbpa- 
na  on  the  other  side,  and  facing  asked  if  he  would 
be  satisfied  with  ]«.,  he  consented  to  take  it ; 
held  to  be  an  admission  that  \s,  was  a  reasonable 
sum.  Betteley  v.  M'Leod,  3  Biog.  N.  S.  (c.  p.) 
405;  4  8c.  131 ;  and  5  Dowl.  (p.  c.)  481. 

2.  The  affidavit  for  an  attachment  against  a 


witness  for  not  obeying  the  tiukpeaia  miMt  slate 
that  the  party  was  a  material  witness.  Tinley  «l 
Porter,  5  Dowl.  (p.  c.)  744. 

3.  The  affidavit  to  ground  an  attachment  for 
not  obeying  a  suhpana  must  state  the  showing 
the  writ  at  the  time  of  the  service,  and  the  part/ 
may  avail  himself  of  the  defect  appearing  on  the 
affidavit  for  the  motion  used  asainst  him.  Gar- 
den V.  Cresswell,  2  Mees.  &  W.  (ex.)  319;  aad 
5  Dowl.  (p.  c.)  461. 

4.  It  is  not  necessary  to  state  the  names  of  the 
intended  examiners  on  applying  for  a  rule  for  a 
commission,  as  it  may  be  done  when  the  rale  is 
discussed.    Fearon  v.  White,  5  DowL  (p.  c)  713. 


5.  The  commission  for  examination  of 
es  in  India  under  13  Greo.  3,  c.  63,  s.  44,  ooeht  to 
recite  the  pleadings  at  length.  Murray  v.  Liaw- 
ford,  7  Sim.  (oh.)  139. 

6.  A  commission  to  examine  witnesses  directed 
to  the  members  of  the  Court  of  Commerce  at 
Hamburgh  without  the  usual  clause  reqairing  the 
commissioneri  to  be  sworn,  allowed.  (IdUisdaUj 
J.  dub.)  Clay  V.  Stephenson,  3Ad.  d^fUL  (a. 
B.)  807. 

7.  To  entitle  the  examinations  of  witnessea, 
taken  under  a  judge's  order,  to  be  read  by  either 
party,  it  must  be  shown  that  they  are  abroad,  and 
the  statement  in  their  own  depositions  is  not  aoffi- 
cient.     Proctor  v.  Lainson,'^7  C.  &  P.  (a.  p.)  630. 

8.  The  statement  of  a  subscribing  witneas,  not 
produced,  of  his  place  of  residence,  is  inadmisai- 
ble,  nor  mere  hearsay  evidence  of  hia  haying 

gone  abroad.    Doe  v.  Powell,  7  C  &  P.  (k.  p.) 
17. 

9.  Where  the  father  of  the  witness  proved  his 
having  enlisted  in  a  regiment,  which,  upon  in- 
quiry at  the  War-office,  he  was  told  had  sailed 
for  India ;  held  sufficient  to  let  in  proof  of  his 
handwriting.  Wyatt  v.  Bateman,  7  C.  &  P.  (a. 
p.)  586. 

10.  Where  the  witness  refreshes  his  memory 
by  referring  to  a  book,  it  most  be  produced. 
Howard  v.  Canfield,  5  DowL  (p.  c.)  417. 

11.  Evidence  of  statements  made  by  a  witne« 
on  other  occasions  relevant  to  the  matter  in  iesue, 
and  inconsistent  with  his  testimony  on  the  trial, 
are  always  admissible,  whether  parol  or  written , 
in  the  former  case  he  must  be  asked  whether  he 
ever  said,  dz-c,  to  a  party  named,  or  other  circom- 
stance  sufficient  to  fix  the  occasion ;  in  the  latter 
the  writing  must  be  put  in  his  hand,  and  he  may 
be  asked  if  it  is  his  handwriting ;  if  he  admits 
the  conversation  or  writing,  no  other  evidence  of 
it  need  be  given.  Crowley  r.  Page,  7  C.  &  P. 
(n.  p.)  789. 

12.  Where  three  out  of  four  defendants  saftred 
judgment  by  default,  held  that  one  of  them  might 
he  subpoenaed  to  produce  a  deed.  Colley«v. 
Smith,  4  Bing.  N.  S.  (c.  p.)  285;  and  6  Dowl. 
(p.c.)399. 

13.  Where  a  paper  is  put  into  a  witness's 
hand,  and  he  is  cross-examined  upon  it,  wbteh 
entirely  fails,  the  opposite  counsel  is  not  entitled 
to  look  at  it.  R.  v.  Duncombe,  8  C.  dk  P.  (a.  p.) 
369. 


[WITNESS— WRIT  OF  RIGHT] 


2949 


14.  Where  a  witnetB,  called  to  a  particular 
point,  on  croes-ezamination  gives  a  diflerent 
acconnt,  the  party  calling  him  is  entitled,  on  re- 
examination, to  examine  him  as  to  facts  tending 
to  show  that  he  had  been  induced  to  betray  that 

?arty.    Dunn  v.  Aslett,  2  M.  &.  Rob.  (m.   p.) 
22. 

15.  Where  the  plaintiff  in  an  action  for  a  mali- 
cious arrest,  had  been  examined  on  an  indictment 
for  perjury  against  a  witness  in  the  original  action, 
and  on  the  cross-examination  of  a  witness  in  the 
second  action,  a  part  of  his  statement  on  the 
trial  of  the  indictment  had  been  got  out ;  held, 
that  upon  the  re-examination  oi  the  witness,  only 
so  much  of  the  remainder  of  the  plaintiff's  state- 
ment could  be  inquired  into  as  tended  to  qualify 
or  explain  the  statement' elicited  on  the  cross- 
examination.     Prince  v.  Same,  3  Nev.  &■  P.  (q. 

B.)  139;  questioning  the  doctrine  laid  down  in  1 
Stark.  £▼.  180. 

16.  Where  the  attorney,  not  expecting  the 
caose  to  come  on,  allowed  a  witness  to  depart 
until  the  next  day,  and  in  the  meantime  the  cause 
was  called  on  and  disposed  of,  held  that  the  wit- 
ness could  not  be  deemed  guilty  of  contempt  to 
found  an  attachment.  Furrah  v.  Keat,  6  Dowl. 
(p.  c.)  470. 

17.  Where  after  a  witness  for  the  plaintiff  had 
been  examined,  it  was  proposed  to  prove  that  he 
was  the  real  plaintiff  on  the  record ;  held,  that 
such  evidence  was  properly  rejected,  as  the  ob- 

Sction  ought  to  have  been  taken  on  the  voir  dire. 
ewdeney  v.  Palmer,  7  Dowl.  (p.  c.)  177;  and  4 
Mees.  &  W.  (xx.)  664. 

18.  The  situation  in  which  a  witness  stands 
with  respect  to  either  party,  gives  no  ri^ht  to 
cross-examine,  unlew  the  witness  shows  himself 
an  unwilling  one,  nor  can  evidence  be  given  for 
the  sole  purpose  of  discrediting  him,  though 
othen  may  be  called  to  prove  Ste  facts  denied, 
and  so  incidentally  to  discredit  the  witness.  R. 
V.  Ball,  6  C.  &  P.  (ir.  r.)  745. 

19.  A  rule  to  examine  on  interrogatories  a  wit- 
ness alleged  to  be  confined  to  her  ted  by  infirmi- 
ty, refused,  without  the  affidavit  of  a  surgeon 
■tatitte  the  nature  of  the  complaint,  and  telief 
that  toe  witness  would  never  be  able  to  attend 
the  trial.    Davis  v.  Lowndes,  7  Dowl.  (p.  c.)  101. 

20.  In  case  against  a  witness  for  not  attending 
with  documents,  &.C.,  punuant  to  his  aubpana,  at 
the  assizes,  alleged  to  have  been  holden  on  the 


31st  March  ;  held,  that  the  action  was  maintaina- 
ble, although  the  writ  was  not  served  until  the  2d ' 
April,  the  cause  not  being  tried  until  the  6th; 
held  also,  upon  general  demurrer,  that  the  aver- 
ment that  the  defendant  could  and  might  have 
appeared  and  given  material  evidence,  &c  on 
tlie  trial,  was  equivolent  to  an  averment  that  the 
trial  took  place  at  the  time  and  place*  mentioned 
in  the  subparui,  although  the  want  of  on  express 
averment  might  have  been  bad  on  special  demur- 
rer ;  held  also,  that  the  allegation  that  such 
documents  were  material  evidence  for  the  plain- 
tiff, and  that  by  reason  of  the  defendant's  non- 
attendance  the  plaintiff  was  nonsuited,  amounted 
to  a  sufficient  averment  that  the  plaintiff  had  a 
good  cause  of  action.  Davis  v.  Lovell,  7  Dowl. 
(p.  c.)  176 ;  and  4  Mees.'  <&  W.  (ei.)  67a 

And  see  MuUett  v.  Hunt,  I  Cr.  &  Mees.  752. 

21.  Costs  of  the  attendance  of  a  member  of 
the  firm,  (being  the  attornies  of  the  plaintiff,)  as 
a  witness,  allowed.  Butler  v.  Hobson,  5  Bing. 
N.  S.  (c.  p.)  128 ;  and  7  Dowl.  (p.  c.)  157. 

And  see  AUamey;  Costs  ;  Practice^  (c.  l.) 


WRIT  OF  RIGHT. 

1.  The  demandant  is  bound  to  allege  in  his 
count,  as  well  as  prove,  a  seisin  in  his  ancestor 
within  60  years.  Dumsday  dem.  Hughes  ten.,  3 
Bing.  N.  8.  (c.  p.)  434 ;  and  4  Sc  209. 

2.  Where  the  tenant  succeeded  on  demurrer  to 
the  count,  held  that  no  issue  having  been  joined 
on  the  misCf  final  judgment  could  not  be  signed, 
and  therefore  reversed  on  error.  Rishton  v.  f^es- 
bitt,  6  Ad.  &,  £11.  (K.  B.)  103. 

3.  The  Court  refused  to  change  the  venue  in  a 
writ  of  right,  upon  affidavit  merely  that  the  ten- 
ant possessed  great  estates  and  innuence  in  the 
county.  Davies  dem.,  LJoyd  ten.,  4  Bing.  N.  S. 
(c.  P.)  711;  and6Sc.  43o. 

4.  Where  the  parentage  is  to  be  made  out  on 
the  paternal  side  of  the  ancestors  of  the  demand- 
ant, the  course  is  to  go  first  to  the  more  remote, 
and  exhaust  that  before  going  to  the  less :  held 
also,  that  where  claiming  as  heir,  he  may  make 
out  his  claim  at  any  time,  unless  barred  by  any 
statutory  limitation.  Davies  v.  Lowndes,  5  Bing. 
N.  S.  (c.  P.)  161  ;  S.  C.  1  Bing.  N.  S.  597,  a.  d. 
1835 ;  and  6  Sc.  738. 


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3  bios  Ob:  771  33S