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three months, to wit, on &c., the plaintiff
gave notice to the defendant that he the
plaintiff required the defendant and his wife
to join the plaintiff's said establishment at
Peebles, for the purpose of appearing and
assisting in the performances and enter-
tainments to be produced at the said esta-
blishment at Peebles, and although a rea-
sonable time had elapsed, after the giving
of the notice, and before the commencement
of the suit, for the defendant and his wife to
join the said establishment at Peebles, for the
purpose aforesaid, - yet that the defendant
and his wife would not, when so required as
aforesaid, or at any time afterwards, join
the said establishment of the plaintiff at
Peebles, or appear or assist in the perform-
ances and entertainments to be produced
there, but refused and neglected so to do,
Held, on demurrer, that the promise to
appear in any place, under the direction of
the plaintiff, in the performances described,
in such parts and manner as the plaintiff
should require, and to attend all calls and
rehearsals, involved an engagement so to
join an establishment of the plaintiff for
equestrian performances, as to be ready to
accomplish the objects of the requisition;
and that a failure to comply with such a
requisition, and a refusal to assist in such
performances, were sufficiently alleged to
shew a breach of the defendant's contract.
Batty v. Melillo, 282.
2. Held also, that it sufficiently appeared
that the performances at which the defend-
ant and his wife were required to assist,
were performances of the description con-
tracted for; that the absence of an averment
that a reasonable time had elapsed after the
notice, and before the expiration of the three
months, was obviated by the statement in
the declaration that the writ issued on the
23rd of August, 1848, and by the averment
that such time had elapsed before the com-
mencement of the suit; and that the breach,
substantially shewing an entire refusal of
the defendant to perform his contract, dis-
closed a good cause of action. Ib.
II. Obtained by Fraud.
3. A contract for the sale of goods, obtain-
ed by fraud on the part of the purchaser, is
void only at the election of the vendor; and
it is too late to declare such election after
the goods have passed into the hands of a
bona fide purchaser. White v. Garden, 919.
4. A., a member of the orchestra of the
Italian Opera, on behalf of the orchestra,”
signed the following proposal :-" The gen-
tlemen of the orchestra are willing, and
hereby pledge themselves, to continue their
services, and attend their duties, provided
B. will guarantee the payment of the thirteen
nights due on the 5th ult.” B. accepted the
proposal by writing in these terms,—“ B.
will accept the proposition made by A. on
behalf of the gentlemen of the orchestra,
and he will appoint the treasury to be open
on the 9th inst. to pay the thirteen nights
due on the 5th ult., and he pledges himself
to open the treasury on the 10th and 25th of
August, to make further payments.”
A. in his own name brought an action for
a breach of this engagement, describing it
in his declaration as a contract made with
him and the other performers :-Held, that
it was a joint-contract. Lucas v. Beale,
Express Warranty.]-5. Upon a contract
for the sale of goods, with a particular
express warranty, the court will not extend
such warranty by implication. Dickson v.
6. The declaration stated a bargain for the
sale by the defendants to the plaintiff of a
certain cargo, to wit, the cargo of Indian
corn then shipped at Orfano, on board the
Ottoman, at a certain price, including freight
and insurance to Cork, Liverpool, or London,
and that it was agreed that the quality of
the said Indian corn was equal to the average
of the shipments of that article in the season
1847, and that the said Indian corn had
been shipped in good and merchantable con-
dition ; and alleged for breach, that the corn
was not, at the time of shipment, or at any
other time, in good and merchantable con-
dition, or in a fit and proper condition for
A deed purported to convey
“ all that
messuage or farm house, &c., and several
closes, &c. of land thereto belonging, called
Gotton Farm, in the occupation of J. S., and
containing, &c., and consisting of the several
particulars specified in the first division of
a schedule thereunder written, and more
particularly delineated in a map or plan
thereof drawn in the margin of the said
schedule." There were no general words.
In an action brought to try the right to a
slip of land, which was not mentioned either
in the schedule or in the plan above referred
to, evidence was offered on the part of the
defendant to show that the locus in quo had
always been occupied with the closes men-
tioned and delineated in the schedule and
plan, and treated as part of Gotton Farm:
- Held, that this evidence was not admis-
sible, and that the deed was conclusive.
Barton v. Dawes, 261.
a demurrer. Upon the trial, all the issues
of fact were found for the plaintiff ; and,
upon the argument of the demurter, the
judgment was for the defendant:–Held, -
contrary to Partridge v. Gardner and Howell
v. Rodbard, 4 Erch. 303. 309., and affirming
Bird v. Higginson, 5 Ad. & E. 83., 6 N. & M.
799., and Clarke v. Allatt, antè, Vol. IV.
335.,—that the plaintiff was entitled to the
costs of the issues of fact, though the de-
fendant had the general costs of the cause. Ib.
II. Set-off between Parties.
A cause and all matters in difference
between A. and B. were referred to an arbi-
trator, who was to have power to direct the
verdict to be entered for A. or for B.,- the
costs of the suit to abide the event of the
award, and the costs of the reference and
award to be in the discretion of the arbi-
trator. The arbitrator, by his award, directed
a verdict to be entered for B., and awarded
that 3031, 15s. was due from B. to A. in
respect of the matters in difference, and
which sum he ordered to be paid by B. to
A. on a given day: - Held, that B. was
entitled to deduct from the sum so awarded
to be paid by him, the amount of his taxed
costs of the cause, - without regard to the
lien of A.'s attorney for his costs of the
cause and of the reference. Dann v. West,
III. Where Debt recoverable in a County-
Court-See County-COURT, V.
IV. Taxation of, on Award.
See ARBITRAMENT, III.
V. Suggestion to deprive Plaintif of.
See County-COURT, V.
I. Of Issues under the 4 Ann. c. 16. s. 5.
1. A plaintiff may be entitled, under the
statute 4 Ann. c. 16, s. 5., to the costs of
issues of fact found for him, even though,
upon the whole record, he appears to have
had no cause of action. Callander v. Howard,
2. To assumpsit upon certain bills of ex-
change, with a count for goods sold and de-
livered, money paid, and interest, and a
count upon an account stated, the defendant
pleaded sixteen pleas, to one of which
(going to the whole cause of action) there was
I. Constitution of Court.
Semble, that the courts created under the
statute 9 & 10 Vict. c. 95., though courts of
record, are not superior courts. Lery v.
II. Notice of Action for a Thing done in
IV. Warrant of Commitment.
Pursuance of the Act.
1. Currency of. ]-A warrant of commit-
1. The 138th section of the county-courts ment for contempt, under the 9 & 10 Vict. c.
act 9f 10 Vict. c. 95. enacts, that, in actions 95. s. 99., for non-appearance on a judgment
and prosecutions to be commenced against summons, is regular, though issued more
any person for any thing done in pursuance than six months after the date of the judge's
of the act, notice in writing of such action, order,—notwithstanding, that, by the 37th
and of the cause thereof, shall be given to rule of practice of county-courts, a warrant
the defendant one calendar month at least is to be current only for two months after
before the commencement of the action. its date. Ex parte O'Neill, 57.
In case against a judge of a county-court 2. Alternative. ]-Held, that a party or-
for making an order for committing the dered to pay a sum recovered against him
plaintiff to gaol for disobedience of an order in the county-court, who has made default,
for payment of certain instalments, after and, upon being examined upon a judg-
due service upon him of a writ of prohi- ment-summons, shews no sufficient excuse
bition, the jury were told, that, if the de- for such default, may be committed to prison
fendant acted under a bona fide belief that forth with ; but that, if the judge orders him
his duty as judge of the county-court ren- to pay the money at a future day, or, in de-
dered it incumbent on him to do so notwith- fault, to be committed, and the party again
standing the prohibition, the act must be makes default, he cannot be committed
considered as done in pursuance of the without being examined as to the cause of
county-court act, and he was entitled to such second default. Abley v. Dale, 62.
notice of action :- Held, no misdirection. 3. Plea, to an action by A. against B. for
Booth v. Clive, 827.
false imprisonment,—that a judgment was
2. Where, in such a case, the judge, in
recovered by B. against A. in the county-
the presence of the counsel, directs a verdict court, for a sum ordered to be paid by in-
for the defendant, but at the same time tells stalments; that A. was summoned, under
the jury to assess damages for the plaintiff
s. 98. of the 9 & 10 Vict. c. 95., to shew cause
contingently, and the counsel do not object, why he had not paid the instalments; that
-it is not competent to the plaintiff after- he appeared to the summons, and that the
wards to move for a new trial on the ground judge ordered him to pay the debt and costs
of misdirection : he can only move to enter on a given day, or, in default, that he should
a verdict for the damages so contingently be committed for twenty days; and that he
made default, and was thereupon arrest-
ed, and carried to gaol, &c. :-Held, bad.
III. Title to Toll, under 9 & 10 l'ict. c. 95.
4. Justification under. ]--A warrant of com-
In a plaint brought in a county-court mitment under the 9 & 10 Vict. c. 95. s. 113.,
against a railway company, to recover da- recited that A.“ did wilfully insult the judge
mages for expense and loss of time sus- of the county-court, during his sitting, and
tained by the plaintiff in consequence of therefore the said judge did order that A.
the improper omission of the company to should be taken into custody, and detained
convey goods on their line, a question was until the rising of the court :” it then pro-
raised as to the right of the company to ceeded, —“ these are, therefore, to require
charge toll for empty waggons :-Held, that you, the high-bailiff, &c., to take the said
the “ title to toll” did not thereby come in A., and to deliver him to the governor of
question, within the meaning of the proviso the house of correction,” &c., to be there
in the 9 & 10 Vict. c. 95. s. 58. Hunt v. The detained for seven days, &c. :—Held, that
Great Northern Railway Company, 900. the warrant was good upon the face of it,
and justified the officer and the gaoler in
taking A. Levy v. Moylan, 189.
V. Plaintiff's Right to Costs.
1. Under 10 & 11 Vict. c. lxxi. s. 115.]-
Where the demand in an action of contract
is reduced below 201. by a plea of tender
and payment into court, the defendant can-
not have a suggestion to deprive the plain-
tiff of costs, under the London small debts
act, 10 & 11 Vict. c. lxxi. s. 115. Crosse y.
2. Under 13 & 14 Vict. c. 61. s. 11.]-A
judgment on demurrer is not a judgment by
default within the meaning of the 13 & 14
Vict. c. 61. s. 11. Prew v. Squire, 912.
3. Where, therefore, a plaintiff recovered
less than 201. upon an assessment of da-
mages upon a writ of inquiry after a judg-
ment on demurrer :-Held, that he was not
entitled to costs.
4. Quære, whether the word "verdict,” in
s. 12, is limited to a verdict upon an issue
joined ? 16.
VI. Appeal from Decision of.
1. A. was clerk to B. under an agreement
for a salary of 1401. a year, determinable by
three months' notice, or payment of three
months' salary. B. dismissed A. without
notice, under circumstances which a county-
court judge decided not to be a legal justi-
fication for such dismissal, and afterwards
sued him for money had and received :-
Held,-upon an appeal under the 13 & 14
Vict. c. 61. s. 14.,—that A. was entitled to
set off in that action the amount of the three
months' salary; and that the decision of the
county-court judge upon the facts could not
be reviewed. The East Anglian Railways
Company v. Lythgoe, 726.
2. Semble, per Maule, J., that the conve-
nient construction of 14th section would be,,
that an appeal lies not in any case where the
county-court judge performs the functions
of a jury. Ib.
of the 2nd of March, 1811, whereby two
pieces of land were conveyed to the de-
fendants, subject to the performance by
them of certain agreements : in this deed,
the piece of land in question was described
as “a slip of land then being intended to
be formed into a new course for the river
Beult.” The declaration then made profert
of the deed of covenant upon which the
action was brought, and stated that the de-
fendants thereby covenanted with the plain-
tiffs, that they, the defendants, should and
would, within a reasonable time, “at their
own costs and expense, make and cut the
said intended new course for the said river
Beult, and also, within such like reasonable
time as aforesaid, divert the stream of the
said river into the said intended new course
for the same.” It then went on to state a
covenant to make a bridge over the intended
new cut, for the plaintiff's use, within a
given time, and a covenant to make good
the banks of the new cut, and, after the
same should have been so made good, and
the railway completed, to re-convey to A.,
one of the plaintiffs, the slip of land which
should form the new course of the river,
and also to fill up and level the then existing
course, so far as the same should have been
diverted The declaration then charged
breaches of covenant, in not making a new
cut, in not diverting the stream of the
Beult, in not constructing a bridge over the
new cut, in not perfecting its banks, in not
re-conveying to A. the slip of land " with
the water of the said river duly diverted
into the said new course," and in not filling
up the existing course of the Beult, “ so far
as the stream thereof should and ought to
have been diverted as aforesaid."
The defendants, after craving oyer of the
deed of covenant, and setting it out in hæc
verba, demurred generally to the declaration.
The deed, as set out on oyer, did not in
express terms contain any covenant to make
and cut the new course, or to divert the
stream of the river ; but it did contain ex-
press covenants to the effect of all the other
covenants stated in the declaration :-Held,
I. Construction of.
A declaration in covenant recited a deed
Where the plaintiff has delivered all the
demurrer-books, he cannot call upon the
defendant to pay for those delivered to the
junior puisne judges, as a condition of his
being heard, unless he has himself strictly
complied with the rule of Hilary Term,
4 W. 4., by delivering the books for the
defendant on the day following that on which
the defendant should have delivered them.
Hooper v. Woolmer, 370.
that there was no implied covenant on the
part of the defendants to make the cut, and
divert the stream of the Beult; and, conse-
quently, that there could be no breach of
the express covenants, to build the bridge,
&c., unless the cut was made, and the stream
diverted. Rashleigh v. The South Eastern
Railway Company, 612.
II, In Restraint of Trade.
A butcher on assigning, for the residue
of a term, certain premises upon which he
had carried on his business, together with
the fixtures and the goodwill of the trade,
covenanted with the purchaser that he would
not at any time thereafter, either by himself,
or as agent or journeyman for another, set
up, exercise, or carry on, or be employed
in, the trade or business of a butcher, within
five miles from the premises thereby as-
signed : -
Held, not an unreasonable restraint, either
in respect of time or in respect of distance ;
and that the covenant did not cease to be a
binding covenant, on the expiration of the
term, or on the covenantee's ceasing by him-
self or his assigns, to carry on the business
assigned. Elves v. Crofts, 241.
Testator, in contemplation that his death
was approaching, devised lands to his wife
for life, with remainder in fee to his nephew,
-with a condition, that, if his wife should
give birth to a posthumous child, such child
should take, to the exclusion of the nephew.
A child being afterwards born, in the testa-
tor's lifetime :--Held, that such child did
not take by implication under the will.
Doe d. Blakiston v. Haslewood, 544.
See LetterS-PATENT, II.
See AUCTIONEER, II.
See County Court, II. 2., V. 3.
See EVIDENCE, III. 2.
See LANDLORD AND TENANT, I.
Under the Statute of Merton.
1. Damages.]-To a count in dower under
the statute of Merton, the tenant pleaded
tout temps prist: the demandant replied a
demand and refusal to render dower, before
the suing out of the writ, to which the
tenant rejoined by a traverse of the demand.
The issue having been found for the de-
mandant,-Held, that she was entitled to
damages, to be computed from the decease
of her husband. Watson, D., Watson, T. 3.
2. Demand. ]-Semble, that a demand of
dower need not be made by the widow per-
sonally, or in the presence of witnesses. 16.
DEED OF ARRANGEMENT.
See BANKRUPT, III.
See County-COURT, V. 2. 3.
See ECCLESIASTICAL Law.