« PreviousContinue »
Practice on reference to_(Continued.)
to him to be re-heard, on the gronnd that an absent witness has since
been discovered. Edgington v. Nixon, 509.
2. Upon a reference to the prothonotary to inquire into the circum-
stances attending the settlement of an action, the prothonotary re-
ported that the settlement was fraudulent as against the plaintiff,
stating some of the facts that led him to that conclusion. On motion
to confirm the report:-Held that it was not competent to the counsel
on the other side to impeach the facts found by the prothonotary,
though they were at liberty to dispute his deductions therefrom.
Corry v. Wharton, 664.
3. Semble that such a report should be in writing. Id.
To Arbitration-see ARBITRATION.
To the Prothonotary-see ProTHONOTARY.
Hilary, 3 Geo. 2. Fleet prison-Rule for regulation of, 500.
Easter, 51 Geo. 3. Practice-Notice of trial, 231.
Hilary, 2 Will. 4, r. II. Practice- Indorsement on process of debt and
costs, 197, 205.
Hilary, 4 Will. 2, r.33. Practice-Time for moving for irregularity,
r. 64. Costs-New trial, 540.
Easter, 2 Will. 4. Easter Holidays, 116.
Hilary, 4 Will. 4, r. 2. Demurrer-Points to be stated in margin, 708.
Hilary, 4 Will. 4, r. I, 3. Pleading-Part payment, 157.
Assumpsit, I. What may be given in evidence
under non assumpsit, 157, 178, 763, 769.
Trespass, V. Effect of not guilty, 160.
Sched. Forms of issues &c. on trials before the
Hilary, 6 Will. 4.
RENT-CHARGE-see Annuity, 1, 2.
A repleader cannot be awarded in a court of error. Per Bolland, B., in
Gwynne v. Burnell, 44.
REPLEVIN-see ANNUITY, 1-Sheriff, 1.
RIGHT OF WAY.
1. A right of way claimed by the plaintiff, by reason of his possession
of a close, from the said close unto and along a stream or watercourse into
a navigable river, for himself and his servants to pass and repass in boats
&c., is not supported by evidence of an user of the way by the occupier
of an inn and yard held as one entire subject, from which yard the plain-
tiff's close had recently been severed. Bower v. Hill, 535.
RIGHT OF WAY—(Continued.)
2. Quære, whether such a claim, even by the occupier of the entire pre-
mises, would be sustained by proof that goods were brought to the inn
along the watercourse in boats not belonging to the occupier, or navigated
by his servants properly so called? Id.
Obstruction of—see Case, 3.
RIGHT, WRIT OF-see Writ of Right.
Transfer, where Complete.
Of Goods. (Continued).
Stamp on-see STAMPS, 3,
Of Lands-see VENDOR AND PURCHASER.
Costs of Abstract-see Costs, 4.
Crown Lands—see Crown LANDS.
An irregularity in the proceedings upon the ca. sa. against a principal,
may be taken advantage of by the bail on motion, and need not be pleaded
to the sci. fa. Goldney v. Laporte, 670.
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 assignees (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 his bankruptcy:—Held, that the plea was bad, for that it
did not shew that the debts were mutual. Groom v. Mealey, 171.
Duties and Liabilities.
1. In an action on the case against the sheriff for taking insuffici-
ent pledges in replevin, the proper measure of damages is, the
penalty of the bond, viz. double the value of the goods distrained.
Hall v. Goodricke, 363.
And see EvidENCE, 2—Trover, 1.
Fees payable by the Party on Arrest.
2. The only fee allowed by law to be taken by the officer from a
party arrested, is 4d., the fee prescribed by the statute 23 Hen. 6, c.
9: if he take more, he is liable to be sued for the penalty imposed for
extortion by the 32 Geo. 2, c. 28. Innes v. Levi, 189.
Motions under the Interpleader Act-see Costs, 7—Practice, 14, 15.
Practice on Trials before-see Practice, 19.
SHIP AND SHIPPING.
Liability of Part-owners for Insurance.
1. One of several part-owners of a ship, without any express autho-
rity 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 inspection of and were actually inspected by the
other owners, and not objected to:—Held, that the jury were war-
ranted in finding that the managing owner had a joint authority to
effect an insurance for the whole; and that, consequently, all the
owners were liable to the broker, notwithstanding the credit was in
the first instance given to the managing owner alone-it appearing
that the broker was ignorant of the names of the other owners.
Robinson v. Gleadow, 250.
SHIP AND SHIPPING_(Continued.)
Construction of Charterparty.
2. The plaintiff entered into a charterparty with the defendants,
by which it was agreed that the ship Jane should receive on board
a cargo and proceed therewith to Buenos Ayres and there deliver
the same, and reload a cargo and proceed therewith to a port between
Gibraltar and Antwerp; freight for the voyage out and home 13001.
in full, if delivered at Gibraltar, a port in Spain, London, or Liver-
pool, and 5l. per cent. additional if delivered at a port in France or
at Antwerp: the freight to be paid, 2001. in cash on the vessel being
dispatched from Portsmouth, cash for the necessary expenses of the
vessel in the river Plata to be advanced there, and the remainder in
cash on the final delivery of the homeward cargo. The vessel pro-
ceeded to Buenos Ayres, and there took on board a quantity of hides
under a bill of lading by which they were to be delivered at Gibral-
tar to E. & Co., they paying freight for the same at the rate of 41, 10s.
per ton. The 2001. were paid on the vessel leaving Portsmouth, and
661. 38. 11d. were advanced by the freighters to the master at Buenos
Ayres. The Jane sailed for Gibraltar, and put into Fayal in dis-
tress. The cargo was there landed, and the ship condemned as
unseaworthy, and sold. About one third of the hides, being da-
maged, were there also sold. The master sailed to England with
the proceeds of the hides so sold, leaving instructions with the Brit-
ish vice-consul to forward the remainder to Gibraltar by the earliest
opportunity. After the departure of the master, the vice-consul
entered into a charterparty, on behalf of the owners of the hides,
for their conveyance to Gibraltar by the Flora for a freight of 3601.,
with 5l. per cent. primage. The hides shipped on board the Flora
under this charterparty were duly delivered to E. & Co. at Gibraltar,
and they paid the freight and primage according to the bill of
lading:-Held—first, that the plaintiff was not entitled to recover
the full freight agreed to be paid by the charterparty; the voyage
thereby prescribed never having been performed--Secondly, that he
was not entitled to freight pro ratâ itineris for the outward voyage
from Portsmouth to Buenos Ayres, or for the voyage from Fayal to
Gibraltar-Thirdly, that he was entitled to freight pro ratâ for the
conveyance from Buenos Ayres to Fayal of that portion of the cargo
which came to the freighters' hands, and was accepted by them, his
claim resting upon an implied contract to remunerate him for service
performed, not according to the agreement, but a service from which
the freighters had received a benefit. Mitchell v, Darthez, 771.
1. In an action for slander, imputing to the plaintiff that he, whilst church-
warden, stole the parish bell-ropes :-Held, that, inasmuch as an indict-
ment for larceny could not be supported against a church warden for steal-
ing the bell-ropes of the parish of which he is churchwarden, he having
as such the possession of the goods of the church, the action was not main-
tainable. Jackson v. Adams, 599.
2. But, as the second count of the declaration did not import on the
face of it that the plaintiff stole the bell-ropes of the church whereof he
was warden, but generally that he stole bell-ropes—The court refused to
arrest the judgment. Id.
3. The second count contained an averment by way of innuendo, “ that
the plaintiff, whilst in his said office of churchwarden, had been guilty of
stealing ropes, and that the subjects of our lord the king then understood
that that was the meaning of the said words :"-Held, that the word
“stealing" could not by any reasonable intendment have any other mean-
ing than that of the commission of the offence of larceny; and therefore
that the innuendo was negatived by the plaintiff's own evidence that the
defendant had intended to impute to the plaintiff that he had defrauded the
parish on the sale of the bell-ropes. Id.
4. In an action of slander, words spoken by the defendant in relation
to the same transaction, on a former occasion, are receivable in evidence
to shew the animus. Id.
5. In an action of slander, a plea stating that the words were spoken in
the course of a confidential communication to a person who had made in-
quiries respecting the solvency of the plaintiff, and that at the time of
speaking the words the defendant believed them to be true is bad on de-
murrer: it should either expressly negative malice, or state the communi-
cation to have been made honestly and bona fide, which would probably
amount to an implied denial of malice. Smith v. Thomas, 546.
6. A plea negativing the special damage alleged in the declaration, in
slander for words actionable per se, is bad on demurrer. Id.
7. In an action of slander, the existence of express malice is only a
matter for inquiry where the words complained of are spoken upon a jus-
tifiable occasion. Hooper v. Truscott, 672.
8. The plaintiff had lived in the employ of the defendant and his part-
ner, linen drapers at Devonport, and had left them with a written charac-
ter in which he was described by the defendant as “steady, honest, and
industrious." Shortly afterwards some goods that had been stolen from
the defendant's shop were found in the possession of a female servant (a
person of notoriously bad character), which she stated to have been given
to her by the plaintiff. The defendant thereupon went to the house of the
plaintiff's uncle in the neighbourhood of Devonport, and there süw the
plaintiff's cousin, and in the course of conversation with her said of the
plaintiff—"He has stolen my goods: he has taken our goods, and given
them away: we always suspected him of dishonesty.” These words were
afterwards repeated in the presence of the uncle. A letter was despatched
by the defendant to the plaintiff in London, desiring him to go down to
Devonport to meet the charge: but in the meantime the plaintiff's brother
had been prevailed upon to settle the affair by giving the defendant 501.;