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1. From County Court-See County COURT,

II. From Quarter Sessions, under 12 & 13

Vict. c. 45. s. 11., Costs ofSee LITE-

that such an order could not, from the nature
of the article, have been given :-Held, not
an “affidavit of surprise," or sufficient to
shew that the defendant could have been
prejudiced in his defence by the amend-
ment. Ib.

4. The court will not review the judge's
decision as to allowing or withholding an
amendment; nor will they grant a new trial,
on the ground that the counsel's discretion
as to assenting to an amendment offered by
the judge, is fettered by a strong expression
of opinion on his part. Lucas v. Beale,

Special Finding under s. 24. ]-5. A plea
of set-off to a count in debt for goods sold
and delivered, stated that the plaintiffs au-
thorised and impowered one A. to trade un-
der the firm of “ A. & Co.,” and, so trading,
to sell the goods in question to the defend-
ant as and for his own proper goods, and that
the defendant accordingly bought the goods
as the goods of A.; and that A. was indebted
to the defendant in a larger amount.

At the trial, it was proved that A. and
B. were authorised by the plaintiffs to carry
on the trade and sell the goods as and for
the goods of " A. & Co."

The judge refused to allow the plea to be
amended, under the 3 & 4 W. 4. c. 42. s. 23.,
by inserting therein the name of B., or by
alleging that the goods were sold by A. &
B.: but he directed the jury to find the facts
specially, under s. 24.

The jury found “that A. was authorised
to sell the goods as the goods ofA. & Co.,'
but not as the goods of A.; and that · A. &
Co.' represented A. & B.':-

Held, that the amendment proposed was
in a matter material to the merits, and there-
fore properly disallowed: and that judgment
can only be given under s. 24. of the statute,
in cases where the court think the variance
immaterial to the merits. Addington v.
Magan, 576.


I. Authority of Arbitrator.
1. The declaration stated that a certain
difference had arisen and was depending
between A. and B. touching certain railway
shares which A. at the request of B. had
purchased for B., and for which A. had paid
1221. ; that, for putting an end to the said
difference, A. and B. submitted themselves
to the award of C. to be made between them
of and concerning the said difference; that
B. promised to perform the award; that C.
made his award of and concerning the said
difference, and did thereby award that he
decided in favour of A., and that 501., which
had been deposited by A. with B., was in
part payment of the said twenty shares, and
A. by his award did then request B. to pay
the balance of the account forthwith; and that
B. refused to pay A. the balance of the said
account, amounting to 721., according to the
tenor and effect of the award :-

Held, that the arbitrator's authority to
make the award sufficiently appeared, al-
th the nature of the difference was not
specifically stated ; and that the “ request"
to pay amounted to a direc.ion. Smith v.
Hartley, 800.

2. But, semble, that the direction to pay
“ the balance of the account," would have
been objectionable, if pointed out as cause
of special demurrer. Ib.

II. Construction of Award.
Finality.]-1. A cause and all matters
in difference were referred to an arbitrator,
who awarded as follows:-" Having beard
and duly and maturely weighed and con-
sidered the several allegations, vouchers,
and proofs brought before me in pursuance
of the said reference, I do make and pub-
lish this my award in writing of and con-

Removal of See Case, 1.

cerning the several premises so referred as
aforesaid :" he then disposed of the several
issues, and directed that the defendants
should pay a certain sum to the plaintiff,
and that, upon payment of that sum, the
plaintiff should execute and deliver to the
defendant a general release:– Held, that
the award was sufficiently final, and dis-
posed of all the matters in difference re-
ferred. Creswick v. Harrison, 441.

2. The court, however, refused to make
an order on the defendant to pay the sum
awarded, pursuant to the 1 & 2 Vict. c. 110,
s. 18.,—the case not being one in which
they would have granted an attachment.

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III. Time for Taration of Costs on Award.

A cause and all matters in difference be-
tween the parties were referred by an order
of nisi prius, by which a verdict was taken
for the plaintiff, subject to an award, – the
costs of the cause to abide the event, and
the costs of the reference and award to be
in the discretion of the arbitrator. The
arbitrator by his award ordered that the
verdict entered for the plaintiff should
stand, and directed that the defendant
should pay to the plaintiff the costs of the
reference and award :-Held, that the plain-
tiff was not entitled to have an allocatur for
the costs, or to sign judgment, until the
expiration of the proper time for moving to
set aside the award. Jones v. Ives, 429.




I. Authority of
An auctioneer who is employed to sell
goods by public auction, has not such an
interest as will make the licence to enter
the premises for that purpose irrevocable.
Taplin v. Florence, 744.
II. Goods in Hands of, privileged from

Goods sent to an auctioneer for sale on
premises occupied by him, are privileged
from distress for rent; although the place
of sale is merely hired for the occasion,-
or the occupation has been acquired by the
auctioneer by an act of trespass. Brown v.
Arundell, 54.


I. Fraudulent Preference.
1. The effect of a bankruptcy upon a
fraudulent preference is not to put the
goods in the same situation as if they were
actually the goods of the bankrupt, so as to
vest them at once, by the bankruptcy, in
the assignees, independently of any elec-
tion on their part, other than their accept-
ance of the office of assignee: but, by a
transfer which is a fraudulent preference,
the property vests in the transferee, subject
to be divested by the assignees, at their
election, and the title of the transferee is
perfect, except so far as it is avoided by
the assignees. Newnham v. Stevenson, 713.

2. The commencement of an action of
trover, which may be abandoned at any
time, and which assumes that the goods
came into the possession of the defendant
lawfully, cannot, without more, be taken to
be an election on the part of the assignees
to avoid the transfer. Ib.

3. Where, therefore, goods had been
transferred by a trader before his bank-
ruptcy, by an instrument which the jury
found to be a fraudulent preference, and

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Deed of See BANKRUPT, III.

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For Non-Performance of an Award,


Lien for Costs - See Costs, II.

the transferee had, after the bankruptcy,
and after the appointment of assignees,
brought an action for an illegal and exces-
sive distress upon the goods which were the
subject of the conveyance :-Held, that, -
the assignees having no otherwise asserted
their right to the goods than by commencing
an action of trover to recover them,-it was
not competent to the defendant to set up
their title under “not possessed.” Ib.
II. Liability of Messenger, for seizing goods

of a Stranger.
Demand of Warrant.]-A messenger in
bankruptcy, who, intending to act bonâ fide,
under a warrant directing him to seize the
goods of A., seizes goods belonging to B.,
is not within the protection of the 12 & 13
Vict. c. 106. s. 107., and therefore is liable
in trespass at the suit of B., without a pre-
vious demand of the perusal and copy of
the warrant under which he professed to
be, and believed he was, acting. Munday
v. Stubbs, 432.

III. Deed of Arrangement.
The 224th section of the bankrupt law
consolidation act, 12 & 13 Vict. c. 106.,
makes a deed of arrangement, if executed
by or on behalf of six sevenths in number
and value of the creditors of the trader,
under certain circumstances, binding on
the whole body :-Held, that a plea setting
forth a deed of that description, and stating
that the creditors who executed it were
more than six sevenths, to wit, nine tenths
in number and value," was sufficient, on
special demurrer, and not open to the ob-
jection of argumentativeness or immateri-
ality. Stewart v. Collins, 634.


I. Acceptance.
1. Held, that one who individually ac-
cepts a bill addressed to a firm of which he
is a member, is individually liable thereon.
Owen v. Van Uster, 318.

2. A bill was addressed to “The Allty-
Crib Mining Company,” and accepted by
the defendant, as follows,-" Per proc. The
Allty-Crib Mining Company, W. T. Van U.,
London Manager.” It was proved that four
persons, one of whom was the defendant,
had agreed to work a mine, under the name
of The Allty-Crib Mining Company, and
had for some time worked it accordingly;
and that the bill in question had been ac-
cepted by the defendant without the autho-
rity of his co-partners:– Held, that the de-
fendant was liable upon the bill, as ac-
ceptor. Ib.

II. Payment suprà Protest.
1. Where a foreign bill is paid suprà pro-
test, for the honour of an indorser, the bill
must be protested for non-payment before
the payment for honour is made; but the
formal instrument of protest may be drawn
up, or extended, at any time afterwards, -
even after the commencement of an action
by the person so paying against the in-
dorser for whose honour the payment was
made. Geralopulo v. Wieler, 690.

2. Where, therefore, a bill had been duly
paid suprà protest, and a formal protest
transmitted abroad to the party for whose
honour the payment was made, - quare
whether secondary evidence of the protest
was admissible? Ib.

3. But, held, that a formal protest ex-
tended by the notary from his book, after the
commencement of the action, but bearing
date the day of actual protest, was primary
evidence of the payment suprà protest. Ib.

III. Parol Contract inconsistent with.
1. It is not competent to the acceptor of
a bill of exchange to set up a parol contract
inconsistent with the contract upon the face
of the bill. Besant y. Cross, 895.

2. In assumpsit by indorsee against ac-



Privilege of.
A barrister, party to a cause, cannot be
allowed to address the court, where he is
represented by counsel. Newton v. Chaplin,

ceptor of a bill of exchange, the defendant,
being under terms,-pleaded, to the further
maintenance of the action, that he was in-
debted to the drawer in a sum less than the
amount of the bill; that, before the accept-
ance, it was agreed between him and the
drawer, that he should pay him such lesser
sum by four instalments ; that he duly paid
three of such instalments before, and the
fourth after, the commencement of the
action; and that the bill was indorsed to
the plaintiff without value or consideration :
-Held, not an issuable plea. Ib.




Post diem.]-1. A plea of part payment,
post diem, to debt on bond, is a good plea,
under the 4 Anne, c. 16. s. 12., after verdict.
Husband v. Davis, 645.

To one of two Trustees. ] -2. Payment of a
bond debt to one of two trustees, is a good
discharge as to both.

And see EstoppeL, II.

moval of the anchor, or that it was their
duty to refix it and to indicate it. Hancock
v. The York, Newcastle, and Berwick Railway
Company, 348.

2. By an act for making a railway, the
company were authorised to purchase the
church of St. M., in Liverpool, and certain
ground and buildings attached thereto, not
forming part of the site of the church, but
that nothing in the act contained should
enable the company to take down or inter-
fere with the said church or ground, with-
out the consent in writing of the diocesan
first obtained, upon the previous payment
by the company to him and the Archbishop
of York, for the time being, of such sum as
should be agreed upon between the said
archbishop and bishop and the company,--
in ascertaining which sum, regard was to
be had to the cost of a site for a new church,
and of erecting and completing the same,
and also to the value of such part of the pre-
mises as did not form the site of the church ;
and that, upon payment of the sum so to be
agreed upon, the then present church, and
the ground attached thereto not forming
the site of the church, and the freehold and
inheritance thereof, should vest in the com-
pany; and that the sum so paid to the
archbishop and bishop should be employed
by them, among other purposes, in making
payment to the person entitled thereto of
the value of the said ground and buildings
not forming part of the site of the church.

The archbishop and bishop, having agreed
with the company, offered the plaintiff, the
incumbent of the church of St. M., and the
person entitled to the ground and buildings
not forming part of the site of the church,
3001. as the value of his interest therein,
upon the assumption, that, being conse-
crated ground, it was in his hands inap-
plicable to any secular purpose, and was
therefore only worth that sum. The plain-
tiff thereupon brought an action upon the
case against them.

The declaration, after setting forth the pro-
vision of the act above referred to, stated,
that the plaintiff was entitled to the value




For Breach of Duty.
1. The declaration stated that the defend-
ants were possessed of a mooring anchor,
which was kept by them fixed in a known
part of a navigable river, covered by ordi-
nary tides, - that the anchor had become
removed into, and remained in, another part
of the river covered by ordinary tides, not
indicated, whereof the defendants had no-
tice, and although they had the means and
power of refixing and securing the anchor,
and indicating it, they neglected so to do,
whereby the plaintiffs’ vessel, whilst sailing
in a part of the river ordinarily used by
ships, ran foul of and struck against the
anchor, and was thereby damaged, &c. :-
Held bad, on demurrer, for not shewing
that the defendants were privy to the re-

dust, mixed with 13 per cent. of pitch and
lime,- is not liable to the duties imposed
upon “coals” imported into the port of
London, by the statute 1 & 2 W. 4. c. lxxvi.
ss. 23. 60. (continued by the 1 & 2 Vict. C.
ci. and 8 & 9 Vict. c. ci.), -notwithstanding
that there is no purpose to which ordinary
pit-coal can be applied, to which coal-dust,
without the admixture of pitch and lime,
could not also be applied. The Mayor, &c.
of London v. Parkinson, 228.


See EstoPPEL, II.

To examine Witnesses abroad - See Evi.


of the land and premises not forming the
site of the church; that it was afterwards
agreed between the company and the de-
fendants, that the sum of 7,7321. 178. should
be paid by the company to the defendants,
as the sum upon the payment whereof the
company were to be authorised to take pos-
session of the said church and premises,
and take down the church, with the consent
of the diocesan ; that the said sum was paid
to the defendants, and thereupon the pre-
mises became and were vested in the com-
pany, and the bishop gave his consent
accordingly; that the said sum was suffi-
cient to purchase a site, and complete the
new intended church, and also to pay the
value of so much of the said ground and
buildings as did not form the site of the
church; and that the value of the said
ground and buildings was 2,0001., which
sum the defendants were requested to pay
the plaintiff, —but which they refused to
pay, and had not paid, although a reason-
able time for so doing had elapsed.

At the trial, the judge told the jury that
the plaintiff was not concluded as to the
value of the ground and buildings so vested
in him, and not forming part of the site of
the church, by the determination of the
archbishop and bishop under the act; and
he left the question of value to them, telling
them that they were not bound to estimate
the value as of land irrevocably appropriated
to spiritual uses:-

Held, that the jury were properly di-
rected; and that the declaration sufficiently
disclosed the duty of the defendants under
the statute, and that the breach was well
alleged. Hilcoat v. The Archbishop of Can-
terbury, 327.



See County-COURT, II. 2.


I. Construction of
1. The declaration stated, that, on the
7th of July, 1848, it was agreed between
the plaintiff and the defendant, that the
defendant and his wife should, from that
day, for the term of three months, appear
and perform as equestrians, on the stage and in
the ring, in all performances and entertain-
ments which might be produced at Astley's
Amphitheatre, or elsewhere, under the direc-
tion of the plaintiff, in such parts and in
such manner as the plaintiff should require,
and should attend all rehearsals and calls,
when so required, for a certain weekly sa-
lary. It then, after averring mutual pro-
mises, alleged for breach, that, although
the plaintiff had an establishment at Peebles,
in Scotland, under his direction, for eques-
trian performances and entertainments, and
although, under and in pursuance of the
agreement, and during the subsistence of
it, and before the expiration of the term of

Conveyed by Railway -- See RailWAY


For Special Jury - See SPECIAL JURY.

Patent fuel,—an article composed of coal-

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