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ACCORD AND SATISFACTION. from malice, or with a view to the pecuniary Certain stock of the plaintiffs was transferred |

interest of the party recommending. Foster under a forged power of at orney: the Bank

and Another v. Robert Charles.

396 of England offered to replace the stock if the

3. Plaintiff left in a in London, plaintiffs would first prove the amount under

and lost her reticule, containing a 1001. bank a commission of bankruptcy, issued against

post bill, endorsed in blank; she issued handa firm in which the forger of the power had

bills proclaiming her loss. Defendant, a been a partner : after this offer, the plaintiffs

banker at Brighton, who had never heard of received a dividend, and engaged to tender

the loss, cashed the bill for a stranger eight a proof of their demand under the commis

days afterwards. The stranger, on being sion of bankruptcy :

asked his name, said he was on a journey, Held, that they could not sue the Bank in

and wrote on the bill a fictitious address in respect of the stock, till they had fulfilled

an illiterate hand. The defendant did not their engagement to tender the proof under

inquire at what inn he was staying: Held, the commission of bankruptcy. Stracy v.

that the defendant was liable for the amount The Governor and Company of the Bank of

to the plaintiff. Strange v. Wigney. 677 England.

Page 754


See Dower, 1.

. The plaintiff, who had a right to irrigate his
meadow by placing a dam of loose stones

See PRACTICE, 4. across a small stream, and occasionally a board or fender, fastened the board by means AFFIDAVIT TO HOLD TO BAIL. of two stakes, which had never been done

See PRACTICE, 7. by his predecessors : The defendant, who had rights on the same

AMENDMENT. stream, removed the stakes and the board also:

See PLEADING, 1. PRACTICE, 6. A verdict having been given for the plain. tiff in an action for such lemoval, the Court

ANNUITY refused to set it aside ; holding, that the defendant had no right to remove the board

Breaches need not be assigned under 8 and 9

W.3, c. 11, on non-payment of an annuity as well as the stakes, on the ground that the

secured by a warrant to confess judgment on stakes gave the board a character of permanency incompatible with her own rights.

a mutuatus. Shaw v. The Marquis of Wor. cester.

385 Greenslade v. Halliday.

379 2. Where a party recommends an agent, by

ARBITRATION. making statements which he knows to be false, he is responsible in damages for the Plaintiff, who had taken a verdict subject o misconduct of the agent, although it be not an award under an order of nisi prius, after shown that the recommendation was given the case had been heard, and just before the award was about to be made, revoked the cannot proceed to trial for his costs, unless arbitrator's authority, with circumstances he can clearly establish collusion between the savouring of mala fides, and gave fresh notice parties to deprive him of his costs. Nelson of trial. The order of nisi prius not hav. v. Wilson.

568 ing been made a rule of court, the Court refused to stay proceedings. Green v. Pole.



AWARD 1. Defendants engaged plaintiff to superintend 1. Where a plaintiff makes sev zral claims mines in America for three years, at a salary

against a defendant, and the defendant makes of 6001. per annum, to increase 501. every

others against the plaintiff, if an arbitrator, year, and commence from his leaving Eng

to whom the cause is referred, finds that the land, with a proviso, that plaintiff should not

plaintiff had no cause of action, his award is, be dismissed without a twelvemonth's notice

in that respect at least, sufficiently certain. or a twelvemonth's salary, and the reasonable Hayllar v. Ellis.

223 expenses of his return, and that if he stayed 2. By a judge's order, an award was to be made at the mines three years, a sum should be

by the first day of Trinity term, or such furallowed for the expense of the return of his

ther day as the arbitrator should appoint by family.

endorsement on the order. The arbitrator Plaintiff left England in August, 1825, and enlarged the time by endorsement, and before arrived at the mines in April, 1826.

the expiration of the enlarged time, one of Defendants dismissed plaintiff in Septem- | the parties, at his request, procured a judge's ber, 1827, without giving notice, or paying order for a further enlargement, which was a year's salary, or any expenses of return.

acted upon by all parties, and the arbitrator In an action for breach of the contract, a ver made his award beyond the time of the first dict having been given with damages to cover enlargement, but within the time so further a year's salary from the time of dismissal,

enlarged, but made no further endorsement with leave for the plaintiff to move to increase

on the original order : Held, that he had the damages by 3201., the expense of the

authority for making his award. Legget v. return of the plaintiff's family, and 4701., the


255 amount of salary from the end of a year after dismissal to the end of the third year after

BAIL. his arrival at the mines,

See BANKRUPT, 4, 7. Held, that the plaintiff was not entitled to increase the damages by the amount of those | 1. A member of a corporation may be bail in

sums. French v. Brookes and Another. 354 error in an action brought against the corpo. 2 The defendant kept a heifer which he had ration. Henly v. Mayor and Burgesses af bought of a drover on Sunday, and afterwards | Lyme Regis.

195 made a promise to pay for: Held, that having

2. Where defendant, subsequently to arrest, kept the beast he was liable at all events, on

and before perfecting special bail, was comthe quantum meruit, notwithstanding the

mitted to criminal custody, in which he contract made on Sunday. Williams v.

remained, awaiting the decision of the twelve Paul.


Judges on a point of law arising out of his

defence on the criminal charge, the Court ATTESTATION.

refused to enlarge, till the opinion of the See WILL.

Judges should have been delivered, the time

for perfecting special bail, or to permit the ATTORNEY. sheriff's bail to render him. Joyce v. Pratt.

377 1. A suggestion that defendant defends by A. 3. Allowance of bail discharged on affidavit of B., “who has been appointed solicitor on

perjury by bail, uncontradicted. behalf of his majesty, and acts as such in this

Detainer against principals in custody re. behalf,” is a sufficient disclosure to the Court

fused. Barling v. Waters.

423 that A. B. has authority to act under 9. G. 4, | 4. The bail consented to the defendant's giving c. 25, and plaintiff cannot treat the plea as

a cognovit on such terms as he could obtain a nullity, although, otherwise than by such

from the plaintiff. A cognovit was then given suggestion, the record does not show that the

in February to pay in May; default having cause concerns matters of revenue West

been made in May, the defendant negotiated, v. Taunton.


but in vain, till June 13th. 2. An attorney, with the advice of counsel,

The Wail having been proceeded against in an action against J. B. for negligence in

without any notice of this negotiation, the the conduct of plaintiff's defence to another

proceedings were set aside. Charleton and action, produced the prothonotary's book to

another v. Morris and another.

427 prove an allegation, that in consequence

5. Where a defendant was allowed time to of the negligence of J. B. judgment by de.

answer plaintiff's affidavit impeaching the fault had been signed, and such further

sufficiency of defendant's bail, he was not proceedings had, that final judgment was

allowed to put in fresh bail instead of answer. afterwards signed and execution issued ;"

ing the affidavit, although his time for putting whereupon, plaintiff was nonsuited for not

in bail had not expired, nor had any attachment producing the record of that judgment or a

been issued against the sheriff. Cockburn proper copy: Held, that this was not such

v. Ling.

732 negligence as rendered the attorney liable to an action. Godefroy v. Dalton, Gent. 460

BANKERS. 3. Where the parties settle a cause without the

intervention of the plaintiff's attorney, hel See ACTION ON THE CASE, 3.



in right of the wife, passes to the assignees 1. A payment of a partnership debt made by |

of the husband if he become bankrupt. a partner who has committed an act of bank.

Mitchell and Wife and Others v. Lady B. ruptcy, to a creditor who has notice thereof,


689 is not protected by s. 82, of 6 G. 4, c. 16.

12. A ship-broker, is, as such, liable to be made Craven and Others, Assignees of W. and B.

a bankrupt. Pott v. Turner and Another, Alred, Bankrupts, v. Edmondson.

702 734 2. Where a lessee becomes bankrupt, a surety

13. A purchaser of property under a commisjoined in the lease with him is liable to the

sion of bankrupt which is afterwards superlessor for breaches of covenant occurring

seded by a creditor, is not protected by s. 87, between the date of the commission and

of 6 G. 4, c. 16, from a claim at the suit of the delivery up of the lease by the lessee

the assignees under a subsequent commission. under 6 G. 4, c. 16, s. 75. Tuck and Others,

Gould, Assignee of Serjeant, Bankrupt, v. Esecutors of Gibbons, v. Fyson. 321 Shoyer. 3.1. A bill of exchange is a chattel within the meaning of 6 G. 4, c. 16, s. 3, the fraudulent

BILL OF EXCEPTIONS. delivery or transfer of which will constitute

See PRACTICE, 14. an act of bankruptcy.

2. Closing the doors and shutters of a bank is a beginning to keep house,”

BILL OF EXCHANGE. although the banker be not domiciled at the

See PleaDING, 12. bank. Cumming and Others, Assignees of Cavanagh and Others, Bankrupts, v. Baily.

The drawer of a dishonoured bill is entitled to

363 notice of dishonour, although he knows the 4. Where an uncertificated bankrupt, in order bill will not be paid by the acceptor, provided

to try the validity of his commission, held he has reason to expect it will be paid by any his assignee to bail in an action for money other person, or has a remedy over against had and received, the Court discharged the such person. Lafitte v. Slatter. 623 assignee upon filing common bail. Chambers | A bill void under the stock-jobbing act is v. Bernasconi and Another.

498 available in the hands of a bona fide holder 5. An execution on a final judgment following

without notice, Day v. Stuart. 108 a judgment by nil dicit, held to be within the proviso of s. 108, 6 G. 4, c. 16, although

BOTTOMRY. there was no concert between the parties, lo and the judgment was obtained before the

The master of a brig bound himself and the act came into operation. Cuming and An brig for the repayment of money borrowed other, Assignees of Heale, u Bankrupt, v.

to repair her in a foreign port, with 12 per Welsford and Others.


cent. bottomry premium, eight days after his 6. Under 6 G. 4, c. 16, s. 5, an act of bank

arrival in London. ruptcy, by lying in prison twenty-one days,

The lender effected an insurance on the does not relate to the first day of imprison. risk, and in the policy described his interest ment. Moser and Another, Assignees, &c.

to be on bottomry : v. Newman and Boole.

556 Held, that this was not bottomry, and that 7. Where the defendant obtained his certificate the misdescription was fatal. Simonds & as a bankrupt after issue, and before judg. Loder v. Hodgson.

114 ment, the Court refused, after judgment, to enter an exoneretur on the bail-piece. Hum. BREACHES, ASSIGNMENT OF. phreys v. Knight.

569 8. A bankrupt who obtained his certificate

See ANNUITY. after issue, and before judgment, having, after indament. been rendered in discharge

CARRIER. of his bail, was held entitled to be liberated on a summary application, although he had | 1. Plaintiff put on board defendant's barge, not pleaded his certificate puis darrein con- lime, to be conveyed from the Medway to tinuarce. Same case.

572 London. 9. The proceedings under a commission of The master of the barge deviated unne

bankruptcy sued out in 1822, were not enrolled cessarily from the usual course, and during till after the repeal of the 5 G. 2, c. 30, in the deviation a tempest wetted the lime, and 1825: Held, that they were not admissible in the barge taking fire thereby, the whole was evidence, the 6 G. 4, c. 16, not applying to lost: the enrolment of proceedings under com

Held, that the defendant was liable, and missions anterior to the act. Kay, Assignee the cause of loss sufficiently proximate to of Sherwin, v. Goodwin.

entitle plaintiff to recover under a declaration 10. After a secret act of bankruptcy by P., alleging the defendant's undertaking to carry defendant accepted a bill of exchange for the lime without unnecessary deviation, and him for 981. at three months, which P. paid averring a loss by unnecessary deviation. to a creditor standing by: later, in the course Davis v. Garrett.

716 of the same day, P. agreed to sell defendant 2. Plaintiff received a parcel from G. to book four horses as security for 701. of the 981. for London at the office of defendants, comThe horses were subsequently delivered to mon carriers. Plaintiff, instead of obeying the defendant, who paid the 981. bill when it his instructions, put the parcel into his bag, became due : Held, that the transaction was intending to take it to London himself. The not protected by the eighty-second section defendants having lost the bag, Held, that of 6 G. 4, c. 16. Carter, Assignee of Peer, the plaintiff could not recover damages from a Bankrupt, v. Breton.

617 them in respect of the parcel. Miles v. Cat. 11. A right of entry vested in husband and wife' tle and Another.

743 VOL. XIX.-46




14. Defendant having been arrested for 11231., See BANKRUPT, 8.

when the plaintiff's had the means of knowing that only 7151. was due, was held entitled to

his costs under 43 G. 3, c. 46, although the CLERK OF PEACE.

accounts between plaintiffs and defendant The appointment to the office of clerk of the were somewhat complex. Forster and An. peace is in the custos rotulorum of each e custog rotulorum of each other v. IV eston.

527 county, and King's county, in Ireland, is not 5. In an action on the case for a malicious pro. an exception. Bayley, J., diss. Harding secution, per quod plaintiff was falsely im. v. Pollock and Another.

prisoned, one of several defendants obtaining

a verdict, is not entitled to his costs under 8 COGNOVIT.

& 9W. 3, c. 11, if a verdict pass against the

others. Murray v. Nichols and Oiherr. 530 In an action on the case, defendant gave a cog. 6. Where there are several defendants who

novit for 2001., with a defeasance conditioned obtain a verdict generally, the costs of all for the performance of various matters by a must be taxed at the same time, although given time, and performed the matters (in they defend separately. Smith and Others, part at least) within two months after the Assignees of Cook, v. Campbell and Others time stipulated. Plaintiff having issued exe.

637 cution on the cognovit, the Court referred it to the prothonotary, to see how much, if any.

COVENANT. thing, ought to be paid to the plaintifi. Char: | 1. A covenant with a lessor of premises in a rington v. Laing.


parish, to indemnify the parish against any 2. One of two who had been partners, having,

paupers which the covenanter may cause to after the partnership was dissolved, given

be settled in it, is valid. Walsh, Bart., and in an action against the two a cognovit for Another. Executors of Sir H. Strachey, F. debt and costs as between attorney and


163 client, without the knowledge of his co- 2. A covenant not to sue upon a bond during defendant, the Court set the judgment aside. |

the life of the obligor, and that if any perRathbone v. J. and D. Drakeford. 375

son to whom the obligee should assign the

bond should recover the principal, the obligee CONDITION PRECEDENT. would pay the obligor, during his life, inter

est on the amount recovered: Held, no bar See ACCORD AND SATISFACTION.

to an action by an assignee of the bond in

the name of the obligee. Morley v. Freur. COSTS.

547 3. Where a lease of an undivided third part of See PRACTICE, 1. ATTORNEY, 3.

certain mines contained a recital of an agree. 1. Defendant was arrested for 3271.; he ten ment made by the lessee with the lessor, and

dered 2501., but did not pay it into Court. the owners of the other two thirds, for pulling An arbitrator, to whom the cause was re down an old smelting mill, and building anferred, awarded the plaintiff only 2501.: Held, other of larger dimensions, upon a waste near not a case to entitle defendant to costs for a the mines, and the lease contained a covenant malicious and vexatious arrest. Sherwood v. to keep such new mill in repair, and so leave Tayler.

280 it at the expiration of the term, but did not 2. One of several defendants in an action of contain a covenant to build it: Held, that debt, having pleaded bankruptcy, plaintiff such a covenant was to be implied, and that entered a nolle prosequi as to him: Held, the lessor of the one third might sue upon that such defendant was not entitled to his it in respect of his interest. costs under 8 Eliz. c. 2, although before plea The lease contained a demise of all mines the plaintiff was apprised of the bankruptcy. and minerals then opened or discovered, or Booth and Another y. Middlecoat and Others. which might during the term be opened or

445 discovered, in or under certain moors and 3. D. having given a cognovit for 3571., mort. waste lands; and also all smelting mills then

gaged certain premises as a security for the standing upon the said lands, with full liberty payment of that sum, and the costs of the to sink shafts there, and to build thereon any judgment, and all other costs and charges mills or other buildings requisite for working whatsoever attending the same.

the mines, habendum the said demised preThe mortgagee having levied execution, mises, with the appurtenances, for twenty her right to the goods seized was disputed in one years. The lessor afterwards granted an action at the suit of certain persons, who his reversion of and in the said demised preclaimed to be assignees of D. under a bank. mises, with the appurtenances, to G. B., ruptcy. The mortgagee failed upon a first who, by will, devised the same to the plaintrial, but succeeded in a second, D. proving tiffs : Held, that the covenant to build the not to be bankrupt :

new smelting mill tended to the support and Held, that the mortgagee could not claim maintenance of the thing demised, and that from D. the costs of this action, as costs or the assignee of the reversion might therefore charges attending the judgment confessed sue upon it. Easterby v. Sampson and As. by D.

645 2. D. having stated at the execution that 4. Tenant for life, remainder over, by indenture certain goods levied were not his property, demises to lessee, his executors, &c., for and the sheriff having, by inquisition, ascer. fifteen years, without any express covenant tained that they were, the mortgagee was for quiet enjoyment; lessee is evicted by holden entitled to claim of D. the costs of I remainder-man after death of tenant for life, the inquisition, if she had paid them to the and before expiration of the fifteen years: sheriff. Doe d. Holt and Others v. Roe. 447! Held, that lessee cannot maintain covenant






against executor of tenant for life. Adams of England or otherwise, and also a freehold v. Gibney and Others.

house in S., a freehold estate in R., a copy

hold estate in B., and a leasehold estate in A., DAMAGES.

with all right and title to the same : Held,

that the widow took a fee in the freehold, See ASSUMPSIT, 1.

and a customarv fee in the copyhold. Sharp

v. Sharp. DEED.

DISCHARGE. 1. By an agreement between defendants and

See INSOLVENT, 2. their creditors, all defendants' stock in trade was placed in the hands of trustees for the benefit of the creditors, and defendants were

DISTRESS. to execute to the trustees a conveyance of all

See LANDLORD AND Tenant, 1, 7. their estate, in which deed were to be insert. ed all other usual clauses. The trustees carried on defendants' business, and paid the

DOWER. creditors 108. in the pound; they then ten. | Adultery is a bar to dower, although commitdered for execution by defendants a convey.

ted after the husband and wife have separated ance of all their estate containing a clause

by mutual consent. Hethrington v. Graham. of release, which the defendants objected to as insufficient, and refused to execute the conveyance: the instrument not having been

EJECTMENT. executed by all the creditors, a meeting at which the defendants were called on to exe

See PRACTICE, 13, 23. cute was adjourned, that the signature of

|| 1. In favour of a defendant in ejectment, who every creditor might be obtained: Held, that plaintiffs, who, as creditors,

showed no title to the premises sought to

be recovered, the Court would not presume were parties to the above agreement, could

a surrender of a mortgage term to the owner not sue for their original debt, at least, till

of the inheritance, from the circumstance, the conveyance, such as it was, had been

that, in 1802, the Court of Chancery had executed by all the creditors, and refused by

decreed a sale of the mortgaged property for the defendants. Tatlock and Others v. Smith

the payment of the money borrowed, and and Others.

that some sales had taken place under the 2. Defendant drew bills as surety for the ac

decree: But the defendant had not purchased cepior C. H., and it was provided by a deed,

the land in question under the decree, and 10 which plaintiff, the holder of the bills, as

there was no evidence of any further prowell as the defendant, was a party, that he

ceedings in Chancery. Doe dem. Hammond should not sue defendant on the bills till C.

and Others v. Cooke and Another. 174 H.'s effects should have been sold, and the

2. Notice to a weekly tenant to quit at the end proceeds applied in discharge of the bills.

of his tenancy next after a week from the C. H.'s effects were seized and sold under

date of the notice, sufficient. Doe d. Camp. a commission of bankruptcy, the trustee to

bell v. Scott,

362 whom they had been conveyed by the deed in question having, with the knowledge and

EVIDENCE. assent of the defendant, omitted to take possession of them in time:

See PLEADING, 7. LIBEL, 2. Held, that the plaintiff was not barred from

1. One who admits he is liable in respect of a suing the defendant on the bills. Lancaster

claim on which an action is brought, is neverand Another v. Harrison.


theless incompetent to be a witness in the

action ; for though contribution in respect DEMISE.

of the claim advanced be ultimately against

his interest, he has a stronger immediate See LANDLORD AND TENANT, 2.

interest to defeat the action or lessen the

damages. Hall v. Rer. DEVISE.

2. In an action on the case for a malicious pro

secution, the plaintiff is to give prima facie 1. Devise of testator's freehold messuages, stock evidence of want of probable cause, which

in the funds, money and debts, and all shares the defendant may rebut, if he can, by show. or property which he might be possessed ing the existence of probable cause. of or entitled to, to trustees and their exe Defendant presented two bills for perjury cutors, in trust for testator's wife and chil. against the plaintiff, but did not appear himdren, &c.

self before the grand jury, and the bills were Codicil devising testator's copyhold to his

ignored. wife till the expiration of certain leases, and He presented a third, and on his own tes. after that to be sold, and the money to be timony the bill was found. This prosecution placed in the funds for the benefit of testa he kept suspended for three years, till plaintor's children, as directed in the will:

tiff taking the record down to trial, and the Held, that the trustees took no interest in defendant declining to appear as a witness, the copyhold, and that the wife's interest ter although in court, and called on, plaintiff was minated on the expiration of the leases. acquitted : Chapman v. Prickett.

602 Held, sufficient prima facie evidence of 2. Testator, after bequeathing pecuniary lega. want of probable cause. Willans v. Taylor. cies to his children, devised to his widow the

183 whole of his remaining property in the Bank 13. An ancient statement concerning the pay.


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