721. 6s. ;" and they further ordered that "the arbitrators' charges and ex- penses attending the reference, amount- ing to 627. 14s. 10d., should be borne in equal proportions by A. and B.; and that the said sums of 721. 68.
and 627. 14s. 10d., making together 1357. Os. 10d., should be paid, within ten days from the execution of the award, to C.: "-The court refused to make a rule, under the 1 & 2 Vict. c. 110, s. 18, ordering A. to pay the 721. 68. to B.,-there being nothing on the face of the award to shew how the payment to C. was to enure as a pay- ment for the benefit of B.; although there was an affidavit stating that C. was agent for B.'s vessel, and acted as his agent in the matter of the arbitra- tion, and that the money was directed to be paid to him as such agent. Ib.
V. Order under the 1 & 2 Vict. c. 110, s. 18.
The court will not make an order under the 1 & 2 Vict. c. 110, for pay- ment of money directed to be paid by an award, except in a case where an attachment would have been granted. In re Laing and Todd, 276.
ARTIFICER.
See TRUCK-ACT.
ASSAULT.
What amounts to.
The plaintiff being in the defendant's workshop, and refusing to quit when desired, the defendant and his servants surrounded him, and, tucking up their sleeves and aprons, threatened to break his neck if he did not go out; where- upon the plaintiff, apprehensive of vio- lence, departed:-Held, an assault. Read v. Coker, 850.
ASSURANCE. See INSURANCE.
I. For Non-payment of Money,-See ATTORNEY, II.
II. For Non-performance of an Award,
See ARBITRAMENT, V.
1. Production of Deeds of Client.]— An attorney is not bound to produce, or to answer any questions concerning the nature or contents of, a deed or other document intrusted to him pro- fessionally by his client: and the judge has no right to look at the instrument, to see if the objection to produce it or disclose its contents be well founded or not. Volant v. Soyer, 231.
2. Secondary Evidence of Contents.] A paper which the attorney admits to have been delivered out of his office as a copy of the deed, but which he states he is unable of his own know- ledge to vouch to be a copy,-is not admissible as secondary evidence, upon the attorney's refusal to produce the original. Ib.
II. Non-Payment of Money pursuant to a Rule.
The mere non-payment of money by an attorney, pursuant to an order and rule of court, is no ground for striking him off the roll. Guilford v. Sims, 370. And see CONTRACT, II.
I. Rights and Liabilities of Assignees. Mortgagor and mortgagee of an un- divided moiety of certain premises, jointly with the owner of the other moiety, demised the whole for twenty- one years to one Green, the latter co- venanting with the three lessors jointly and severally to pay the rent reserved, but not saying to whom. Green en- tered upon the premises, and after- wards became bankrupt. His assignees having accepted the lease,-Held,-- deferring to the authority of Wakefield
v. Brown, 9 Q. B. 209,-that the de- fendants were liable in covenant at the suit of the three lessors, for rent accru- ing while they were possessed of the premises. Magnay v. Edwards, 479.
II. Fraudulent Preference.
1. A. obtained certain goods by pur- chase from the sheriff under a writ of fi. fa. at his own suit, founded on a warrant of attorney for 6001. given to him by one S. The writ was put into the sheriff's hands on the 25th of May, 1839, and a bill of sale given to the plaintiff by the sheriff on the 21st of June, for 600l. On the 29th of May, another writ against S. was put into the sheriff's hands, at the suit of one M., for 627. A. paid M.'s debt; and the assignment to him was under both writs.
A. took possession of the goods; and, on the 5th of October, 1849, B. seized and sold them as a distress for rent due to him from S.
founded on that act of bankruptcy, under which fiat assignees were ap- pointed.
In an action by A. against B. for an irregular and excessive distress of the goods so obtained by him, the defence set up by B. was, that A. had procured the goods by way of fraudulent prefer- ence, and that S. caused them to be taken in execution with intent to de- feat or delay his creditors, being then indebted to some in a sum sufficient to constitute a good petitioning creditor's debt: and it was proved, that, on the 14th of June, 1851 (which was after the commencement of this action), the assignees under the fiat gave notice to A. that they meant to treat the warrant of attorney, judgment, and execution, as void, and should claim the goods against B., as being wrongfully taken under a distress; and that they also gave notice to B. that they had brought an action against A. to try the vali- dity of the warrant of attorney, and had recovered 2301., the value of the goods seized under A.'s writ; and re- quiring B. to pay to A. the value of the goods distrained, and claiming from B. the damages for the illegal distress, the subject of this action :-
Held, upon a bill of exceptions, that, as the adjudication of bankruptcy pro- ceeded on the bankrupt's own applica- tion, the assignees could not treat the alleged fraudulent preference, or taking in execution, as an act of bankruptcy; but that they were entitled to treat it as a fraudulent preference, or an execution procured by the bankrupt in contempla- tion of bankruptcy, under the old law, prior to the 6 G. 4, c. 16,—and conse- quently voidable, upon the established principle, that fraud only gives a right to avoid a contract or purchase, that
S., on the 5th of October, 1849, filed a declaration of insolvency, and thereby committed an act of bank- ruptcy; and, on the 8th,-the statute 7 & 8 Vict. c. 96, being then in force, -a fiat was awarded against him,
III. Order under 12 & 13 Vict. c. 106, 8. 125, for Sale of Goods in the Pos- session, Order, and Disposition of the Bankrupt.
1. An order by a commissioner in bankruptcy "that all goods and chattels which at the time the said A. B. became bankrupt, were, by the consent and permission of the true owner thereof, in the possession, order, or disposition of the said A. B., whereof the said A. B. was reputed owner, or whereof he had taken upon himself the sale, alteration, or disposition as owner," should be sold for the benefit of the creditors,-is not a compliance with the 125th section of the 12 & 13 Vict. c. 106; it must spe- cify the particular goods which are to be so sold. Quartermaine v. Bittleston, 133.
2. Such an order is properly made upon an ex parte application. Ib.
3. Quare, whether the order should recite the circumstances which gave the commissioner jurisdiction to act. Ib.
BARON AND FEME. See HUSBAND AND WIFE.
BILL OF EXCHANGE.
I. Notice of Dishonour. 1. Time for.]—A bill indorsed by A.
to B., and by B. to C., became due on Saturday, the 15th of November, and was presented, and dishonoured. C. gave notice of dishonour to B., on Monday, the 17th, and to A. on the following day,-B. having given no notice.
In an action by C. against A.,- Held, upon an issue on a plea travers- ing the notice of dishonour, that the notice was too late. Rowe v. Tipper, 249.
2. By an Agent.]-The bill was placed in the hands of D. for the pur- pose of receiving payment:-Held, that D. was sufficiently authorised to give a notice of dishonour on behalf of the holder. Ib.
II. Accommodation Bill. In assumpsit by indorsee against ac- ceptor, the defendant pleaded that he accepted the bill for the accommoda- tion of the drawer, who negotiated it for his own use, and paid it at matu- rity; and that the bill was delivered by the holder to the drawer, who, without the consent of the defendant, and without having it re-stamped, in- dorsed and delivered it to the plaintiff. It appeared, on production of the bill, that the defendant's name was written on the back, and that there was a memorandum on the face of it denoting the time of its maturity; and it was proved that the bill was delivered by the drawer to the plaintiff after that date: -Held, no evidence to shew that the bill had been negotiated by the drawer, and paid by him at maturity. Jewell v. Parr, 909.
III. Bill obtained by Fraud. In an action by the indorsee against the acceptor of a bill of exchange, in order to raise a presumption that the
plaintiff had received the bill fraudu- lently and without value, evidence was offered to shew that the defendant had been defrauded of it, that one H., the person from whom the plaintiff received it, had, in the year 1847, stood in the dock at the Old Bailey, that he retired thence, and was seen no more at large for eighteen months, and that the plaintiff had admitted that he "had known H. for a considerable time : Held, no evidence to go to the jury, that the plaintiff was aware of H.'s conviction or disreputable character. Berry v. Alderman, 674.
[Upon a second trial, the defendant obtained a verdict upon both issues, and retained it. Ed.]
BOTTOMRY. See SHIPPING, II.
In driving Carriages.]—1. A master is responsible for an injury resulting from the negligence of his servant whilst driving his cart or carriage, pro- vided the servant is at the time engaged in his master's business, even though the accident happens in a place to which his master's business did not call him: but, if the journey upon which the servant starts be solely for his own purposes, and undertaken without the knowledge or consent of his master, the latter is not responsible. Mitchell v. Crassweller, 237.
2. The defendants' carman, having finished the business of the day, re- turned to their shop in Welbeck Street, with their horse and cart, and obtained the key of the stable, which was close at hand; but, instead of going
there at once, and putting up the horse, as it was his duty to do, he, without his masters' knowledge or consent, drove a fellow-workman to Euston Square; and, in his way back, ran over and injured the plaintiff and his wife :-Held, that, inasmuch as the carman was not at the time of the acci- dent engaged in the business of his masters, they were not responsible for the consequences of his unauthorised act. Ib.
3. The declaration alleged that "the defendants were possessed of a certain cart and horse, which was being driven by and under the care and direction of their servant,"-not saying, at the time of the grievance complained of; and that, "whilst the plaintiff was crossing a certain street, &c., the defendants, by their servant, so negligently and improperly drove and directed the said cart and horse along the said street, that the plaintiff was knocked down and injured: "-Held, that the first allegation was immaterial, and not tra- versable; and that, under "not guilty," the defendants might shew that the driver was not at the time of the acci- dent acting as their servant. Ib.
In Navigation.]-4. By the 26th sec- tion of the 14 & 15 Vict. c. 79, the commissioners of the Admiralty are authorised to make regulations re- quiring the exhibition of such lights by such classes of vessels, whether steam or sailing vessels, within such places and under such circumstances as they think fit; and provides, that all owners and masters or persons having charge of vessels shall be bound to take notice of such regulations, and shall exhibit such lights, and no others, at such times, within such places, in such manner, and under such circum-
stances as are injoined by such regula- tions; and that, in case of default, the master or other person having charge of any vessel, or the owner of such vessel, if it appear that he was in fault, shall for each and every occasion upon which such regulations are in- fringed forfeit and pay a sum not ex- ceeding 201.
And the 28th section of the statute provides, that, "in case any damage to person or property be sustained in con- sequence of the non-observance of any of the said rules, the same shall in all courts of justice be deemed, in the absence of proof to the contrary, to have been occasioned by the wilful de- fault of the master or other person having charge of such vessel, and such master or other person shall, unless it appear to the court before which the cause is tried that the circumstances of the case were such as to justify a de- parture from the rule, be subject in all proceedings, whether civil or criminal, to the legal consequences of such de- fault."
A count in case, after setting out the 26th section of the above statute, and averring that the commissioners had made a regulation that "all sailing vessels at anchor in roadsteads or fair- ways shall be bound to exhibit, between sunset and sunrise, a constant bright light at the mast-head," proceeded to allege that the plaintiffs were possessed of a certain steam-vessel called the A., then proceeding, between the hours of sunset and sunrise, down the river Thames, in a certain roadstead or fair- way thereof, called Gravesend Reach; that the defendant was then possessed of a certain sea-going and sailing vessel called the V., then being at anchor in the Thames, in the same roadstead or
fairway, between the said hours of sun- set and sunrise, and under the care and management of the servants of the de- fendant; that it was their duty to ex- hibit a bright light at the mast-head of the defendant's vessel; but that they, not regarding their duty in that behalf, neglected to exhibit such bright light, &c.; and that, while the said steam- vessel of the plaintiffs was so proceed- ing, &c., the same, by and through the carelessness and neglect of the defend- ant, in not exhibiting the bright light at the mast-head of the vessel of the defendant, ran foul of and struck the vessel of the defendant, and greatly broke and damaged the said steam- vessel of the plaintiffs :—
Held, on demurrer, that the declara- tion disclosed no breach by the defend- ant of any duty imposed upon him by the statute; and that, striking out the allegations as to the statute, the de- claration shewed no cause of action, it being consistent with the statements therein that the damage resulted from the plaintiff's own negligence. The General Steam Navigation Company v. Morrison, 581.
Sub-Contractor.]-5. If one employs another to do an act which may be done in a lawful manner, and the latter in doing it unnecessarily commits a public nuisance, whereby injury re- sults to a third person, the employer is not responsible. Peachey v. Row- land, 182.
6. A. employed B. to construct a drain in a public highway; B. em- ployed C. to fill in the earth over the brick-work, and to carry away the sur- plus: C., in performing his work, left the earth raised so much above the level of the road, that D., driving by in the dark, was thereby upset, and
« PreviousContinue » |