between the two partners, this deed is binding, and the plaintiff will have to account for this money to his father. We continually see bills in equity to restrain one partner from receiving money due to the firm.

Verdict for the plaintiff.

Hutchinson, for the plaintiff

[Attorneys W. H. King, and Guy.]

Denman, and Comyn, for the defendant.

*110]

*FURTHER ADJOURNED SITTINGS IN LONDON AFTER
MICHAELMAS TERM, 1829.

A surgeon and apothecary may, besides his charges for medicine, recover such charges for attendances, as the Jury shall consider to be fair and reasonable.

ASSUMPSIT for medicine and medical attendance on the defendant and his family. Plea-General issue.

The plaintiff, a surgeon and apothecary, had attended the defendant and his family, and had also supplied medicine to them in the year 1827. The plaintiffs' bill amounted to 77. Os. 6d.; and in it there were charges for the medicine supplied, and also several charges of two shillings and sixpence each for attendances. The charges of the bill were all proved to be fair and reasonable.

Lord TENTERDEN, C. J. (in summing up.) In this case, besides his charges for the medicine, the plaintiff has also charged half a crown each for several attendances, which seems to me to be very moderate; you will consider whether it is too much, and if you think it not too much, you will, by your verdict, give to the plaintiff the sum he claims.

Verdict for the plaintiff-77. Os. 6d., which included the charges for attendances.

Thesiger, for the plaintiff.

Platt for the defendant.

[Attorneys-D. Willoughby, and In person.]

See the cases of Allison v. Haydon, 3 C. & P. 246, and Towne v. Lady Gresley, Id. 581.

*111]

*DE GRAVE and Another v. The Mayor and Corporation
of MONMOUTH. Jan. 11.

If the Mayor of a town order weights and measures; and, when supplied, they be examined at a full meeting of the corporation-This is such a recognition of the contract as will make the corporation liable to pay for them, although the order for them was not under the common seal of the corporation; and the fact, that the Mayor was afterwards ousted from his office by a judgment of the Court of King's Bench, makes no difference.

DEBT for the price of weights and measures. Plea-General issue. This action was brought to recover the value of a quantity of weights and measures of the imperial standard, supplied to the Corporation of Monmouth in the year 1826, on the order of Mr. Jenkins, who was then the Mayor of that borough; but one of the witnesses stated in his cross-examination, that Mr.

Jenkins was afterwards displaced from his office of Mayor by a judgment of ouster in the Court of King's Bench.

J. Williams, for the defendants, objected, that Mr. Jenkins was not Mayor. Lord TENTERDEN, C. J. He was Mayor de facto, which was sufficient to authorize him to order the weights and measures.

The delivery of the goods and the value were proved. It was also proved that the weights and measures were taken out of the boxes in which they were sent to Monmouth, and were examined in the jury-room at a full meeting of the corporation; and that some of the weights and measures in the town market were afterwards regulated by them.

J. Williams. I also submit that this action cannot be maintained, as a corporation cannot contract unless by some instrument under their common seal. Lord TENTERDEN, C. J. I think that the examination of these weights and measures by the corporation, at the meeting in the jury-room, was exercising an act of ownership over them; and that, by so doing, the corporation have recognised the contract.

Gurney, and Comyn, for the plaintiffs.

[*112

Verdict for the plaintiffs.

J. Williams, and Jefferys Williams, for the defendants.

[Attorneys-Sheppard, and J. Williams.]

As to what acts can be done by a corporation aggregate without an instrument under their common seal; see Comyn's Digest, tit. "Franchises," F. 12-14, and Vin. Abr. tit. "Corpora tion," K.; see also the cases of the City of London Gas Light and Coke Company v. Nicholls, 2 C. & P. 365; and the Southwark Bridge Company v. Sills, Id. 371.

If A. has goods consigned to him, and there be on board the same ship goods consigned to other consignees, and those goods are so placed on board, that A., after the ship arrives, cannot obtain his goods within the time limited by the bill of lading, A. is not liable for demurrage.

ASSUMPSIT for demurrage. Plea-General issuc.

The plaintiffs were the owners of the ship Mantura, which had sailed from Bremen to London with corn of various kinds, consigned to the defendant. The plaintiffs claimed fourteen days' demurrage. A bill of lading was put in, at the bottom of which was written-"The ship to be discharged in fourteen running days, or 57. a day demurrage."

The ship arrived on the 6th of January, 1829, but some of the defendant's corn remained on board till the 3d of February.

The captain stated, in his cross-examination, that his cargo was made up of consignments to five different consignees.

The defence was, that the reason why any of the defendant's corn remained on board after the expiration of the fourteen running days, was, that the defendant could not take it away, because the goods consigned to one of the other consignees were so placed as to prevent him; and it was argued by Scarlett, A. G., for the defendant, that the defendant ought not to be [*113 charged with demurrage, as he was in no way culpable; and that, if demurrage was paid by all the five consignees, it would exceed the freight. He cited Leer v. Yates, 3 Taunt. 387, and Rogers v. Hunter, 2 C. & P. 601.

Lord TENTERDEN, C. J., (in summing up). I am of opinion, that, if a party cannot get his goods, he being prevented by a delay on the part of the owner of other goods on board the same vessel, he is not liable for demurrage. The question here is, whether the removal of the defendant's goods was obstructed by the misconduct of another, in not removing his goods; for, if so, the defendant is not liable for demurrage; but, if you should think, that the goods

consigned to the defendant were suffered by him to remain on board after the time stipulated for, you ought to find for the plaintiffs. (a)

F. Pollock and Alderson, for the plaintiffs.
Scarlett, A. G., and Richmond, for the defendant.

Verdict for the plaintiffs.

[Attorneys-Robinson, and Freshfield & Son.]

(a) See the case of Harman v. Clark, 4 Camp. 159; and as to the law respecting demurrage, see Abbott on Shipping, p. 182, et seq.

ISAAC v. IMPEY, Esq., and Others. Jan. 19.

Commissioners of bankrupt committed a witness for refusing to read the entries in an account: -Held, that they were liable to an action for false imprisonment for so doing, because this was not a question:-Held, also, that the circumstance of the witness speaking of it as a uestion at the time of his refusal made no difference.

FALSE imprisonment. The first count of the declaration was for an impri*114] sonment for twenty-four hours; and *the second count was for an imprisonment for fourteen days in Newgate. Pleas-First, Not guilty; Second, A justification by the defendants as commissioners of bankrupt, stating in effect that they committed the plaintiff for not answering. (a) Replication -De injuria.

(a) As a plea of justification by commissioners of bankrupt is not to be found in any of the printed collections, the form of it may be acceptable. The defendants, being commissioners of bankrupt, might, under section 44 of the Bankrupt Act, 6 Geo. 4, c. 16, have pleaded the general issue, and have given special matter in evidence, or they might have pleaded their justification without any other plea, as was done in the case of Cotton v. James, 3 C. & P., 505, and so have got the right to begin, with the chance of the reply.

Plea. This plea was to both counts of the declaration; it stated the trading of the bank rupt Owen; the petitioning creditor's debt; the act of bankruptcy, and the commission, nearly in the way as they are stated in the plea in the case of Cotton v. James, 3 C. & P. 506, and then proceeded as follows

"And that the said defendants, before they proceeded to act as commissioners under the said commission (except in administering the several oaths next hereinafter mentioned), and before the adjudication of bankruptcy, and the several summonses to, and examinations of, the said plaintiff hereinafter mentioned, and before the said time when, &c., in the said first count mentioned, to wit, on the 21st June, in the year aforesaid, at London, did administer to each other, and did severally, and in the presence of each other, take the oath prescribed and appointed, by the said statute concerning bankrupts, to be taken by every commissioner before he shall act in the execution of any of the powers and authorities given by the said last-mentioned statute (except as last aforesaid). And that the said defendants did then and there enter and keep a memorial thereof, signed by the said defendants respectively, among the proceedings under the said commission." It then stated, that Mr. Grant, another commissioner, took the oath, and proceeded as follows: "And that afterwards, and before the several times of the summonses to and examinations of the said plaintiff hereinafter mentioned, and before the said time when, &c., in the said first count mentioned, to wit, on the said 21st day of June, in the year aforesaid, at London aforesaid, they did find that the said Samuel Owen had become bankrupt within the true intent and meaning of the said statute concerning bankrupts, before the date and issuing forth of the said commission, and did then and there declare and adjudge him bankrupt accordingly. And that, after the said defendants had so adjudged the said Samuel Owen, bankrupt, as aforesaid, to wit, on the 22d day of June, in the year aforesaid, they did cause notice of such adjudication to be given in the London Gazette, and did thereby appoint three public meetings for the said bankrupt to surrender and conform, pursuant to the provisions of the said statute concerning bankrupts. That, after the said adjudication, the said plaintiff, being a person then and there believed by the major part of the commissioners named in the said commission, capable of giving information concerning the person, trade, dealings, or estate of the said bankrupt, was duly summoned to appear; and afterwards, before the said time when, &c., in the said first count mentioned, to wit, on the 10th day of January, 1828, at London aforesaid, did appear before the said Archibald Elijah Impey, William Villiers Surtees, and Robert Grant, as such commissioners as aforesaid; and the said plaintiff being then and there present before the said Archibald Elijah Impey, William Villiers Surtees, and Robert Grant, and being then and there duly sworn and examined by the said Archibald Elijah Impey, William Villiers Surtees, and Robert Grant, did, upon his oath, to the several questions propounded to him as follows (the same being then and there respectively lawful questions), give the several answers thereto respectively subjoined, that is to say→→→ Q.-What are you?

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VOL. XIX.-55

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[*115

*It was opened, on the part of the plaintiff, that a person named Owen had become bankrupt, and that the defendants were the commissioners of bankrupt who acted under the commission against Owen; and that [*116 the defendants, *supposing that there had been some usurious transac- [*117

"A.-I am a merchant.

Q. Do you know the bankrupt Owen, and if you do, how long have you known him?” &c. (It here set out the whole of the first examination, verbatim, in question and answer.) The plea then proceeded as follows

"And the said several questions and answers last mentioned, being then and there reduced into writing, were then and there signed by the said plaintiff, to wit, at London, &c. And that the said plaintiff, having been again duly summoned to appear, afterwards, to wit, on the 18th day of January, 1828, did appear before the said Archibald Elijah Impey, William Villiers Surtees, and Robert Grant, as such commissioners as aforesaid, and was then and there again duly sworn and examined by the said Archibald Elijah Impey, William Villiers Surtees, and Robert Grant, and, upon his oath, to the several questions then and there propounded to him as follows (the same being then and there respectively lawful questions), then and there, upon his oath, gave the several answers there to respectively subjoined (that is to say)”—The plea then set forth several other examinations verbatim, commencing each with a statement of the summons, and concluding with an allegation of the plaintiff signing the examination, till it came to the examination at which the plaintiff was committed, and that concluded as follows):Q.-Refer to Ledger G., and the account in it headed Russian stock.

"A.-I have now referred to it.

แ

Q.-You are now requested to read all the entries contained in that account.

"And the said defendants say, that the said last-mentioned question was then and there objected to by counsel for the said plaintiff; but the said defendants then and there overruled such objection.

"A.-Acting under the advice of my counsel, I demur to answer the question, inasmuch that the matters in that account are not relating to the bankrupt Owen. It is, therefore, I submit, with the advice of my counsel, that I am not bound to read the entry; and I request the commissioners to allow me to consult my counsel on the propriety of the question put, so that I may give a proper and legal answer to it; but in case the commissioners refuse. I request that the counsel may be allowed to enter for me such proper protest as he may see necessary. When I say that I demur to answer the question, I mean to say, that I refuse to comply with the request to read the entries contained in the account alluded to.

"And the said defendants say that the said plaintiff having so refused to answer the said last-mentioned question, they the said defendants, afterwards, to wit, at the said time when, &c., in the said first count of the said declaration mentioned, at London, &c., directed one Henry Page, their messenger in that behalf, to take the said plaintiff into his custody, there to remain for safe custody for a reasonable time in that behalf, until a proper warrant in writing should be prepared and signed and sealed by the said defendants, for committing the sad plaintiff to his Majesty's prison of Newgate, there to remain without bail, until he, the said plaintiff, should submit himself to them, the said defendants, and full answer make to their satisfaction to the said question so put to him by them as last aforesaid. Whereupon the said Henry Page, by such command of the said defendants, afterwards, to wit, at the said time when, &c., in the first count mentioned, gently laid his hands upon the said plaintiff for the purpose of taking him into custody, and did then and there take him into custody, and kept and detained him in custody for the said space of time in the said first count of the said declaration mentioned (the same being then and there a reasonable and necessary space of time in that behalf); and in so doing, they, the said defendants, committed the said several supposed trespasses in the said first count of the said declaration mentioned, as it was lawful for them to do for the cause aforesaid. And the said defendants say, that, at the expiration of the said reasonable space of time in that behalf, to wit, on the day and year in the said second count of the said declaration mentioned, at London, &c., the said warrant in writing was prepared, and was signed and sealed by the said defendants respectively; which said warrant in writing bore date a certain day and year therein in that behalf mentioned, to wit, the day and year last aforesaid, and was directed to the said Henry Page, their messenger, or to his assistant, and to John Wontner, keeper of his Majesty's prison of Newgate, or to his deputy there; by which said warrant, after reciting the said commission of bankrupt, the said adjudication, and that the said plaintiff was a person believed, as herein before mentioned, capable of giving information concerning the trade, person, dealing, or estate of the said bankrupt, and also reciting the several summonses to, and examinations of, the said plaintiff hereinbefore mentioned; and after specifying in the said warrant the several questions, answers, and acmurrers hereinbefore mentioned, according to the said statute concerning bankrupts, and that the said plaintiff having refused to answer the last question hereinbefore mentioned, they, the said defendants, did, by their said warrant, will, authorize and require the said Henry Page or his assistant, immediately upon the receipt thereof, to take into his custody the body of the said plaintiff and him safely to convey to his Majesty's prison of Newgate, and him there to deliver to the keeper of the said prison: who was thereby required and authorized, by virtue of the commission and statute aforesaid, to receive the said plaintiff into his custody, and him safely to keep and detain without bail or mainprize, until such time as he should submit himself to them, the said defendants, the said commissioners, or the major part of the commissioners, by the said commission named and authorized, and full answer make to the said defendants, or to their satisfaction, to the question so put to him by the said defendants as last aforesaid; which said warrant afterwards, and on the expiration of the reasonable time aforesaid, and before the said time when, &c., in the said second count of the said declaration mentioned, to wit, on the day

*118] tions between the plaintiff, a person named Leon, and Owen, *had sent for and examined the plaintiff several times; and that they had ultimately committed him for not answering the following

Q. You are now requested to read all the entries contained in that account. A. Acting under the advice of my counsel, I demur to answer the question, inasmuch that the matters in that account are not relating to the bankrupt Owen; it is, therefore, I submit, with the advice of my counsel, that I am not bound to read the entry; and I request the commissioners to allow me to consult my counsel on the propriety of the question put, so that I may give a proper and legal answer to it; but in case the commissioners refuse, I request that the counsel may be allowed to enter for me such proper protest as he may see When I say, that I demur to answer the question, I mean to say, that I refuse to comply with the request to read the entries contained in the account alluded to."

necessary.

It further appeared, that, as it was necessary to set out the whole of the plaintiff's examination (which had lasted several days) in the warrant, the defendants had ordered the messenger to take the plaintiff into custody and detain him till a proper warrant could be made out. This was done, and this was the imprisonment complained of in the first count of the declaration. The warrant was not made out till the next day; and under the warrant the defendant was committed to Newgate, and there detained for fourteen days, when the plaintiff was brought up by *habeas corpus, and discharged by the Court of Exchequer.(a)

*119]

It was proved that the plaintiff was put to an expense of 867. 2s. 4d. in obtaining his discharge; and, it was also proved that he was first detained in custody of the messenger, (b) and afterwards in Newgate; and that notice of action was duly served on the defendants. (c)

The warrant was read.

F. Pollock, for the defendants. Perhaps this case resolves itself into a question of law. On the face of this warrant, it is clear that the defendants acted as a Court. In the Court of Exehequer, the case went off on the ground, that no question was put by the commissioners, and that what they committed the plaintiff for refusing to answer, was not a question. Now, it is clear, that there was, in effect, a question put by them. It is not necessary that any particular form of words should be used. It is sufficient, if the information is conveyed to the mind of the party.

*120]

Lord TENTERDEN, C J. I am clearly of opinion, that, if no question is put, the commissioners cannot commit as for not answering a lawful question. This is not a question, either in form or substance. The commissioners are not properly a Court, where they act otherwise than the act of parliament warrants; and the act expressly protects *the commissioners by one of its sections, and year last aforesaid, at London, &c., was delivered to the said Henry Page to be executed in due form of law. And the said Henry Page afterwards, and immediately upon the said warrant being so delivered to him as aforesaid, to wit, at the said time when, &c., in the said second count of the said declaration mentioned, again gently laid his hands upon the said plaintiff, for the purpose of conveying, and did then and there convey, him in custody under the said warrant to his Majesty's prison of Newgate, and then and there delivered him to the said John Wontner, who was then and there keeper of his Majesty's prison; and he, the said John Wontner, did then and there receive the said plaintiff into his custody, and kept and detained him in custody in the said prison, by virtue of the said warrant, for the said space of time in the second count of the said declaration mentioned. And in so doing they, the said defendants, committed the said several supposed trespasses in the said second count of the said declaration mentioned, as it was lawful for them to do, for the cause last aforesaid. And this they, the said defendants, are ready to verify; wherefore they pray judgment if the said plaintiff ought to have or maintain his aforesaid action thereof against them, &c. JOHN PATTESON.

(Signed)

(a) For the arguments in that Court, and the judgments of the learned Barons, see 3 Younge & Jervis, 38.

(b) If the warrant had been good in point of law, it would then have become an important question, whether commissioners of bankrupt have a right to commit a witness to the custody of the messenger, while the warrant of commitment is making out; however, as in this case the warrant was held bad, the whole imprisonment was illegal, and this question did not arise. (c) This is required by sect. 41 and 42 of the Bankrupt Act, 6 Geo. 4, c. 16.